author: MORAN, P. J.

text:
    Vance L. Fraley, Administrator Pro-Tem of the Estate of Joe E. Boyd, Deceased, Plaintiff-Appellee, v. Josephine Boyd, Defendant-Appellant.
    Gen. No. 66-94.
    Fifth District.
    May 2, 1967.

      Gates W. Clancy, of Geneva (Wendell W. Clancy, of counsel), for appellant.
    Daniel G. Reese and Hershey & Bliss, of Taylorville (Richard G. Hershey, of counsel), for appellee.
   MORAN, P. J.

This is an appeal from a judgment of the Circuit Court of Christian County, Blinois, entered for the plaintiff-administrator in an action to recover contribution on a note paid by the estate.

On December 12, 1958, Joe E. Boyd and Josephine Boyd, his wife, signed as co-makers a $60,000 renewal note, payable in one year. Thirteen days later, Joe E. Boyd died. Joe C. Boyd, the son, and Josephine Boyd, the widow, were appointed coexecutors of his estate. After a dispute arose over the settlement of the estate, Mrs. Boyd, her attorney, and the attorney for the estate met and agreed upon an arrangement wherein certain promises were exchanged. On September 6, 1960, the note in question was paid in full with a check signed by Josephine Boyd and Joe C. Boyd as coexecutors of the estate.

On July 26, 1962, Joe C. Boyd and others filed a complaint against Josephine Boyd alleging that, in the arrangement for the settlement of her husband’s estate, she had contracted orally to pay $15,000 to the estate. The complaint prayed for $15,000 and costs. In that suit the plaintiff contended that an oral contract to settle the estate, consisting of multiple parts, was made between the coexecutor and the widow; that the covenants and promises were independent of each other; that one of the things the widow had contracted to do was to pay the estate $15,000; and that since the contract was divisible, suit would lie for the default in performance of that part.

Defendants contended (1) that the arrangement resulted only in preliminary negotiations and no contract was made; and (2) that if there were a contract, the plaintiffs could not recover because the contract was indivisible and plaintiffs, themselves, did not perform their independent promises.

A jury found for the plaintiffs but the trial court granted the defendant’s post-trial motion and entered judgment for the defendant, Mrs. Boyd. On appeal, the Appellate Court for the Fifth District, 51 Ill App2d 220, 201 NE2d 244, found that “the record discloses . . . that the fruits of the conference was (sic) a contractual formula for the closing of the Joe E. Boyd estate,” and that both parties were in default. The court affirmed the action of the trial court, saying, “we necessarily conclude that the enforcement of this contract is for another forum and another day and that the piecemeal enforcement of the contract is inappropriate. . . .”

On June 10, 1965, the administrator pro tern of the estate of Joe E. Boyd filed this present suit, seeking contribution from Josephine Boyd as co-obligor of the note paid by the estate. In her Second Affirmative Defense, Mrs. Boyd prayed that the complaint be dismissed, alleging:

1. This matter has been finally adjudicated by the case of (Boyd v. Boyd) in the Circuit Court for the Fourth Judicial Circuit, Christian County, Illinois, appealed to the Appellate Court of Illinois for the Third District, No. 10490.

2. The litigation referred to in paragraph one, involved the same parties, and arose from the same event or series of events upon which the instant complaint is drawn.

A jury found for the plaintiff and the trial court entered judgment accordingly.

The issue on this appeal is whether the prior judgment bars plaintiff’s action in the present suit.

A judgment cannot be pleaded in bar of a subsequent action unless it is a final judgment on the merits, adjudicating the rights in litigation in a conclusive and definite manner. People v. Board of Education Pawnee Tp. High School, 350 Ill 597 at 601, 183 NE 633. A judgment is on the merits when it amounts to a decision as to the respective rights and disabilities of the parties based on the ultimate facts or state of facts disclosed by the pleadings or evidence, or both, and on which the right of recovery depends, irrespective of formal, technical or dilatory objections or contentions. Lytton v. Cole, 54 Ill App2d 161, 203 NE2d 590; 50 CJS, Judgments, § 627. Where a judgment is rendered in favor of the defendant because the plaintiff seeks a form of remedy which is not available to him, the judgment is not on the merits and the plaintiff is not precluded from subsequently maintaining an action in which he seeks an available remedy. Restatement of the Law of Contracts, par 383; Corbin on Contracts, vol 5A, c 6, par 1225; Freeman on Judgments, vol 2, par 734; Restatement of the law, Former Adjudication, par 65, subpar 2. Since the plaintiff sought a remedy which was not available to him in the prior case, the prior adjudication was not a judgment on the merits and does not bar the present action.

Since the cause of action in the present case and the cause of action in the prior case are different and since the defendant has not proved that the precise question raised and determined in the present case was decided in the prior case, she is also precluded from relying upon an “estoppel by verdict.” The prior suit was based upon the theory that there was an express contract. The present suit is based upon the theory of contribution which, strictly speaking, does not arise out of a contract but rests upon the principle that where all are liable for the payment of the debt, all are bound equally to contribute. Sledge v. Dobbs, 254 Ill 130 at 133 and 134, 98 NE 243.

When the second action between the same parties is upon a different cause of action, claim or demand, it is well settled that the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined and not as to other matters which might have been litigated and determined. In such cases the inquiry must always be as to the point or question actually litigated and determined in the original action, the burden of proof is on him who invokes the estoppel, and extrinsic and parol evidence is admissible to prove that the precise question in the second case was raised and determined in the first. (Chicago v. Cameron, 120 Ill 447, 11 NE 899; Wright v. Griffey, 147 Ill 496, 35 NE 732; Hanna v. Read, 102 Ill 596; Sawyer v. Nelson, 160 Ill 629, 43 NE 728; Young v. People, 171 Ill 299, 49 NE 503; Stone v. Salisbury, 209 Ill 56, 70 NE 605.) This principle is sometimes called estoppel by verdict, and the estoppel is equally available to either party, the plaintiff in support of his action or the defendant of his defense, when the circumstances warrant it. Harding Co. v. Harding, supra, at 427.

The burden is upon the party who relies upon res judicata or collateral estoppel to establish its applicability. Chicago Historical Society v. Paschen, 9 Ill 2d 378 at 382, 137 NE2d 832. Defendant has not sustained this burden, for nowhere has she proved that any precise question in the present case was raised and determined in the prior case. She argues in her brief that plaintiff is bound by a construction of the contract in question in the prior adjudication, but nowhere in the lower court did she prove that the construction of the contract in the prior case and any question in the present case were one and the same. In addition, nowhere did she indicate that she, herself, relied upon or was bound by the contract which she now seeks to benefit from.

Under these circumstances, we believe that the defendant has failed to meet her burden of showing that the former adjudication necessarily involved the determination of the same issues which appear on the present case. Accordingly, the judgment of the trial court must be affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: GOLDENHERSH, J.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Francis Sparling, Defendant-Appellant.
    Gen. No. 65-90.
    Fifth District.
    April 26, 1967.

      Thomas F. Taylor, of Effingham, for appellant.
    Harold G. Leffler, State’s Attorney of Jasper County, of Newton, for appellee.
   GOLDENHERSH, J.

Defendant was tried by jury in the Circuit Court of Jasper County and convicted of the crimes of Rape (c 38, § 11-1, Ill Rev Stats 1963) and Aggravated Battery (c 38, § 12-4, Ill Rev Stats 1963). The court entered judgment on the verdicts, denied defendant’s post-trial motion and sentenced him to not less than 7 nor more than 20 years on the rape charge, and not less than 7 nor more than 10 years on the charge of aggravated battery.

The complaining witness testified that she had known the defendant for approximately one month, and they had gone out together every weekend during that period. By prearrangement, on December 19, 1964, defendant picked her up at her home, they went to defendant’s home where she watched television while he changed his clothes, they then went to a tavern where they remained for about 20 minutes, they drove out into the country in a car which defendant had borrowed from a friend, they parked on a country road at about 9:00 p. m., defendant told her to take off her clothes, they were parked about 2 hours, during which time the alleged rape occurred. The testimony concerning any resistance on her part consisted of “I just tried to stop him and he wouldn’t.” “I told him I was going to tell my mom, and he said ‘You had better not.’ ”

The owner of the borrowed car testified that he, his wife, and another couple drove around looking for his car, and found it parked on the country road. He got into the car and drove it back to his apartment, he left defendant and the complaining witness in the car while he went upstairs, he returned to the car, drove to a filling station where he bought gasoline, and the complaining witness drank a bottle of soda. At no time did the complaining witness complain of defendant’s conduct or state that she had been raped or harmed. He drove the complaining witness to her home. She and defendant got out of the car and the complaining witness “fell behind the car or slipped or fell or something.” Defendant walked to her door with her, returned to the car and the witness drove the defendant to his home.

A witness called by The People testified that he lived on the road where defendant and the complaining witness parked, that because he was concerned about possible theft he drove past the parked car, that during the time it was parked, 6 or 8 other cars passed it. He saw a second car drive up about 11:20 p. m. and both cars left at about 11:45 p. m.

A physician, called by The People, testified that he was called to the complaining witness’ home and found her on the floor, in a state of shock. Her clothes were covered with blood which seemed to come from the vaginal tract. Upon examination he found “complete distortion of her female anatomy,” and advised immediate hospitalization. The complaining witness was taken to the hospital by ambulance, plasma and oxygen were administered, another doctor was called in consultation, and the two physicians performed surgery to repair what they described as an extensive tear and laceration about the vagina and the labia of the vagina, and a laceration which extended through the symphysis and muscles of the pelvic floor and into the peritoneum cavity. One of the physicians testified that she had probably lost one and one-half pints of blood prior to the surgery.

Defendant contends that the evidence is insufficient to prove the charge of rape beyond a reasonable doubt.

In People v. Faulisi, 25 Ill2d 457, 185 NE2d 211, the Supreme Court, at page 461, said: “Reviewing courts are especially charged with the duty of carefully examining the evidence in rape cases, (People v. Qualls, 21 Ill2d 252, 171 NE2d 612; People v. Kazmierczyk, 357 Ill 592, 192 NE 657) and it is the duty of the reviewing court not only to consider the evidence carefully but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant’s guilt and to create an abiding conviction that he is guilty of the crime charged. People v. Qualls, 21 Ill2d 252,171 NE2d 612; People v. Abbate, 349 Ill 147, 181 NE 615.

When the charge is forcible rape, the fact that the act of intercourse was performed forcibly and against the will of the complaining witness is a necessary element of the crime which must be proved beyond a reasonable doubt. The degree of force exerted by the defendant and the amount of resistance on the part of the complaining witness are matters that depend upon the facts of the particular case. Thus we have held that resistance is not necessary under circumstances where resistance would be futile and would endanger the life of the female as where the assailant is armed with a deadly weapon, and that proof of physical force is unnecessary if the prosecuting witness was paralyzed by fear or overcome by superior strength of her attacker. (People v. Ardelean, 368 Ill 274, 13 NE2d 976.) It is, however, fundamental that in order to prove the charge of forcible rape there must be evidence to show that the act was committed by force and against the will of the female, and if she has use of her faculties and physical powers, the evidence must show such resistance as will demonstrate that the act was against her will.”

A review of this record, in the light of the rules enunciated in Faulisi, leads us to conclude that there is insufficient proof that the intercourse was against the will of the prosecuting witness. Her testimony shows lit-tie resistance, and there is no evidence of the use of force, threats, a weapon, or that the complaining witness was in fear of the defendant, or overcome by superior strength. Under these circumstances the judgment of guilty on the charge of rape must be reversed.

The charge of aggravated battery presents a perplexing problem. Clearly the complaining witness suffered great bodily harm, requiring surgical repair and a 3-week period of hospitalization. The record, however, is barren of evidence as to the cause of the injury which she suffered. She testified to no acts of physical violence committed by the defendant, and the physicians expressed no opinion as to the cause of the condition which they found. It seems unlikely that the fall which occurred when the complaining witness left the car could cause the injuries described, and their cause, in the state of this record, is left to speculation and conjecture. Absent proof of the commission of some criminal act which caused the injuries, the judgment must be reversed. The People v. Benson, 19 Ill2d 50, 166 NE2d 80; The People v. Martin, 26 Ill2d 547,188 NE2d 4.

For the reasons herein set forth, the judgments of the Circuit Court of Jasper County are reversed.

Judgments reversed.

EBERSPACHER and MORAN, JJ., concur.

       In an offer of proof during cross-examination of the complaining witness, out of the presence of the jury, she testified that on three prior occasions she and the defendant had engaged in sexual intercourse. The court denied the offer of proof. We do not pass on the correctness of this ruling for the reason that the judgment is reversed without remandment, and the determination of this question is not essential to our decision.


author: PRESIDING JUSTICE LYONS BRYANT, J.,

text:
    Raymond A. Rozny, Jr., et al., Plaintiffs-Appellees, v. John Marnul, d/b/a Jens K. Doe Survey Service, Defendant-Appellant.
    Gen. No. 50,432.
    First District, Second Division.
    May 2, 1967.
    BRYANT, J., dissenting.
    Tom L. Yates and Hauseman & Hoolehan, of Chicago (Leif J. Locke and Carl E. Abrahamson, of counsel), for appellant.
    Westbrook, Jacobson and Brandvik, of Chicago (Lowell H. Jacobson and James A. Brandvik, of counsel), for appellees.
   On Rehearing

PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a judgment in favor of plaintiffs, after a jury verdict, in the amount of $18,350. Defendant is a surveyor, who furnished a builder with a survey and plat. The plat was found to be inaccurate. Plaintiffs later acquired the property covered by the plat.

Plaintiffs’ original complaint based their action on theories of both negligence and contract. Before the case went to the jury, the negligence count was stricken. The case proceeded to trial based on a “guarantee” contained in the plat.

On August 27, 1953, defendant made a lot or construction survey for S & S Builders, for the vacant property located at 605 Oakton Street, Park Ridge, Illinois. On August 21, 1955, defendant issued a written location plat of survey for the same property, this time locating the building lines on the survey. Defendant did not know the person for whom he did the survey but believed it was for a builder, one Harold Nash. Defendant admitted the survey was inaccurate. As a result of the error, plaintiffs’ driveway was constructed so as to encroach on the next lot by about two feet.

The City of Park Ridge issued a building permit to Nash on June 27, 1955. The Park Ridge Federal Savings and Loan Association gave him a loan commitment of $14,000, when Nash presented the Association with the Torrens title on the property and the inaccurate survey of August 21, 1955. This is the only survey the Association had in connection with the property. The Association indicated they would not make the mortgage if the survey did not correctly locate the building on the property. Defendant testified that he discovered the August 21, 1955, survey was inaccurate and reissued a corrected survey on August 25, 1955, which was sent to the person who originally ordered it. The Savings and Loan Association never received the so-called corrected survey and was never informed of its existence. There is no testimony showing that Nash ordered the property to be resurveyed or that he received a copy of the corrected survey.

Plaintiffs first saw the property in January, 1956, when the builder, Nash, showed it to them. Plaintiffs agreed to purchase the property and went to the Park Ridge Federal Savings and Loan Association. Mr. Brinker of the Association advised them there was an existing construction loan of $14,000 on the Oakton Street property, which was made by Nash and that plaintiffs could finance the purchase by assuming the Nash mortgage. All the documents concerning the property were reviewed by plaintiffs with Mr. Brinker, at the closing, including the incorrect survey, which was in the files of the Association. The closing took place in February, 1956.

There was a driveway on the premises extending to the back of the house. In September, 1956, plaintiffs extended the driveway and built a garage, based on a stake in the back and a mark on the sidewalk. Plaintiffs testified that the first time their attention was called to any possible discrepancies in the location of the driveway, garage and lot, was about two years before the trial.

The survey of August 21, 1955, was signed by defendant and had his Illinois surveyor’s seal affixed thereto, (he was a licensed registered surveyor) and the survey plat contained a written representation that “the plat above is a correct representation of said survey and location,” a further statement that “this plat of survey carries our absolute guarantee for accuracy” and was signed by defendant in his capacity as a surveyor.

At the trial, Olaf Nilsen, a house moving and shoring contractor, testified that the estimated cost of moving the house and garage and rehabilitating both so they would be properly located on the lot, would be $13,030. He further testified that the cost of labor had increased 15% per year since 1956.

The jury returned a verdict against defendant in the sum of $14,000, which was later reduced by a voluntary remittitur to $13,350. A judgment in that amount was entered. This appeal is from that judgment.

Defendant’s appeal is based on the theory that

(1) plaintiffs’ cause of action is barred by the five-year statute of limitations as the alleged contract was oral;

(2) the guarantee did not extend to plaintiffs in that

(a) there was no privity between plaintiffs and defendant,

(b) a surveyor is liable only to his direct employer,

(c) the contract involved was not a third-party beneficiary contract, and

. (d) there was no reliance on the alleged contract or guarantee,

(3) the verdict was contrary to the manifest weight of the evidence;

(4) the damages awarded were excessive and not supported by the evidence; and

(5) the trial court erred in rulings on evidence and in instructing the jury.

The gist of plaintiffs’ argument, in reply to the arguments raised in defendant’s second contention, is that an expanded concept of the doctrine of strict liability has abolished the barrier of privity and related defenses. Plaintiffs wish this court to apply the decision reached in Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182 (1965), so that parties not in privity with a surveyor may maintain a cause of action on a written representation contained in a survey. It is our opinion that the decision reached in Suvada, supra, was not meant to apply to such a situation.

Plaintiffs reason, however, that in both the Suvada case and the case at bar there was a representation by defendant and damage to the plaintiffs’ property and that there is no reason to treat property damage or commercial losses resulting from the negligence of any expert any differently than bodily injury in the products liability field. We disagree. Plaintiffs’ complaint is not based in tort on the negligence of the surveyor, but rather in contract on his alleged guarantee. The lack of privity is an effective defense to their cause of action.

Plaintiffs call our attention to the case of Craig v. Everett M. Brooks Co. (Mass), 222 NE2d 752 (1967). We do not feel that that decision is applicable to the case at bar because the action was one in tort and not in contract.

Plaintiffs also call our attention to the case of Laukkanen v. Jewel Tea Co., Inc., 78 Ill App2d 153, 222 NE2d 584 (1966). That case dealt with the liability of a licensed professional engineer for improper building design which resulted in the collapse of a building and injury to the plaintiff. The court rejected a lack of privity defense and stated:

We do not believe that privity of contract is a prerequisite to liability. This action is ex delicto, not ex contractu. The central issues revolve around a charge that defendants failed to exercise that degree of care in the performance of professional duties imposed upon them as members of a licensed profession which exists in large part to prevent harm to the public from structurally unsafe buildings. The building in question was certified as structurally adequate. It was to be occupied and used by the public for business purposes, and the defendants knew it. If contract law should play any part in our determination, it would be our conclusion that plaintiff was a third-party beneficiary of the contract of structural adequacy between the owner and the defendants. However, we do not base our decision upon the law of contract. We conceive that the defendants owe a duty to respond in damages to those members of the general public who can be reasonably anticipated to be present in the structure they designed when negligence in design is a causal factor in injuries sustained through collapse of the building. (Emphasis supplied.)

The Laukkanen decision is not applicable because the liability is based on tort and not on contract. Plaintiffs, however, want us to follow the language which we have emphasized above and reject the defense of privity in a contract action. We disagree. The language which was emphasized in the above opinion was only dicta.

Furthermore, we do not feel that plaintiffs were a third-party beneficiary to the contract in that there was no direct benefit to plaintiffs. The principle is well settled that if a contract is entered into for the direct benefit of a third person, such third person may sue if the contract is breached. If, however, the benefit is only incidental, the third party has no right of recovery. In the instant case, no direct benefit accrued to plaintiffs under the contract or “guarantee.”

For the above reasons, the judgment is reversed.

Judgment reversed.

BURKE, J., concurs.

BRYANT, J.,

dissents.

Inasmuch as we agree with the arguments raised in defendant’s second contention, we do not consider the issue of whether the cause of action was barred by the five-year statute of limitations.


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Pollacheck, et al., Defendants-Appellants.
    Gen. Nos. 50,214, 50,215, 50,217, 50,218 and 50,222.
    First District, Third Division.
    May 4, 1967.
    Joseph I. Bulger, of Chicago, for appellants; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joel M. Flaum and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Defendant in Error, v. Willard Hill, Plaintiff in Error.
    Gen. No. 51,001.
    First District, Third Division.
    May 4, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty and Frederick F. Cohn, Assistant Public Defenders, of counsel), for plaintiff in error.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton E. Friedman, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant was indicted for the unlawful sale of a narcotic drug. He was tried without a jury, found guilty and sentenced to the penitentiary for a term of ten to twenty years. He contends that the State failed to prove him guilty beyond a reasonable doubt.

The conviction was based on the testimony of an inspector of the Division of Narcotic Control of the State of Illinois, and an admitted narcotics addict who occasionally worked for and received irregular compensation from the inspector.

The inspector met the informer by appointment, searched him and gave him $25 in bills the serial numbers of which had been prerecorded. They drove in the inspector’s car to the vicinity of Adams and Halsted streets, Chicago. The informer entered a tavern and the inspector followed a few minutes afterwards. They sat at adjacent tables. The informer was joined by a man he knew and later by the defendant. He told the defendant he wanted to buy a package of heroin. After some negotiation about the quality, amount and price, the terms were agreed upon and the defendant left the tavern. The informer and his acquaintance stayed at the table until they saw the defendant returning and then went outside to meet him. The three crossed the street and entered the doorway of a hotel. Just inside the door, according to the informer, the defendant gave him a tinfoil packet and he gave the defendant $16. The informer came out but the defendant and the other man stayed in the hotel. Two blocks from the hotel the informer gave the packet to the inspector.

While sitting in the tavern the inspector overheard part of the conversation between the informer and defendant. He heard the informer say: “Well let me try it. Let me see what kind of stuff it is.” He could not hear what the defendant responded as the defendant had his back to him. He saw the defendant leave and return and saw the three men enter the hotel. He testified that they were inside not more than a minute or two. The informer then came out and walked away. The inspector followed him, received the packet, extracted a small portion and made a field test. The test indicated the presence of an opiate. The defendant was not arrested until five or six weeks later. The inspector explained the delay by saying that he had looked for but could not find the defendant between the day of the sale and the day of the arrest.

The defendant did not testify at the trial and did not introduce any evidence in his own behalf.

The defendant points out that proof of what transpired in the entrance to the hotel depends upon the testimony of an admitted narcotics addict. He argues that it is more reasonable to believe that the informer bought the heroin from his acquaintance rather than from the defendant, whom he met for the first time that day. He points out that the acquaintance lived in the hotel where the alleged purchase was made, and that the inspector testified that the informer told him he had given $5 of the inspector’s money to his acquaintance. The defendant suggests that the informer could have selected the defendant as his victim in order to maintain his relationship with his friend.

The crux of the case is the credibility of the informer. If he is to be believed the evidence proved the defendant’s guilt. The fact that a witness is both an informer and a narcotics addict has a definite bearing upon his credibility; his testimony, like that of an accomplice, must be carefully scrutinized. These factors, while they affect the witness’ credibility, do not necessarily render him unworthy of belief. The quality and quantity of the evidence supporting his testimony must also be considered. The test is whether, under all the surrounding circumstances, the testimony of the informer is believable. People v. Martin, 63 Ill App2d 492, 211 NE2d 753 (1965); People v. Drumwright, 48 Ill App2d 392, 199 NE2d 282 (1964); People v. Norman, 28 Ill2d 77, 190 NE2d 819 (1963).

The defendant relies upon People v. Bazemore, 25 Ill2d 74, 182 NE2d 649 (1962) and People v. Watkins, 68 Ill App2d 389, 216 NE2d 494 (1966). In Bazemore the police officers remained in an automobile while the informer walked a block away to the vicinity of a pool hall. He returned with two packets which contained a derivative of opium. He said he purchased them from the defendant. The defendant was not arrested until two months later when the informer pointed him out to the same officers. The court held that the uncorroborated testimony of the informer was not so clear, satisfactory or convincing as to remove all reasonable doubt of the defendant’s guilt. The court said:

“This is not a case where the informer’s accusation receives corroboration from close police surveillance of the transaction, from an immediate arrest, or from the finding of marked money on the accused, but one which developed in such a way that the informer was at liberty to name almost any person he wished to select as the guilty one.”

In People v. Watkins, 68 Ill App2d 389, 216 NE2d 494 (1966), the court also found the testimony of the informer to be uncorroborated and reversed the conviction of the defendant. The professional informer, who had been addicted to narcotics, entered a restaurant unaccompanied by police officers where he met two men, Willis and Ferguson, who introduced him to Watkins. According to the informer, Watkins agreed to sell him heroin, took his money and gave it to Ferguson to have it changed. Ferguson left the restaurant and upon his return gave money to Watkins. Ferguson and Watkins then left. When they came back Watkins had the package but Ferguson took it and walked down the street with the informer. The police, upon receiving a signal from the informer, placed him and Ferguson under arrest. Willis and Watkins were arrested soon thereafter. The police had seen the informer with Ferguson and Willis but had not seen Watkins prior to the time he was pointed out by the informer. No marked money was found on the defendant. Willis, who was a witness in the case, stated twice that the informer handed the money to Ferguson but then said that it was given to Watkins. He also said that Watkins did not return to the restaurant with Ferguson. The court found his testimony unsatisfactory and held that there was no corroboration of that portion of the informer’s testimony which implicated the defendant in the sale of narcotics.

There are similarities between the Bazemore and Watkins cases and the present one but there are differences too and the cited cases are not dispositive of the present one. In Bazemore the informer’s testimony was entirely uncorroborated. In Watkins it was corroborated only by an addict whose testimony was so wavering and self-contradictory that the Appellate Court did not find it credible. In the case at bar, unlike Watkins, a law enforcement official went into the tavern with the informer. In this case, unlike Watkins, the official saw the defendant and the informer together. In this case, unlike Watkins, the official heard the informer talking to the defendant about buying narcotics. That the official did not see the exchange of money and heroin between the informer and the defendant is not fatal to the State’s case. Convictions have been affirmed in many cases where the exchange was not witnessed if attendant circumstances lent credence to the informer’s testimony. People v. Johnson, 75 Ill App2d 42, 221 NE2d 59 (1966); People v. Mallett, 70 Ill App2d 114, 217 NE2d 514 (1966); People v. Carter, 69 Ill App2d 448, 217 NE2d 413 (1966); People v. Jackson, 58 Ill App2d 302, 208 NE 2d 385; People v. Drumwright, 48 Ill App2d 392, 199 NE2d 282 (1964).

Here the circumstances support the informer’s story. The informer was under surveillance throughout the transaction with the exception of two minutes. In that two-minute period he received a packet of heroin. He obtained it either from the defendant or his acquaintance. That he did not get it from the latter is reasonably to be inferred from the evidence — apart from the informer’s testimony. The informer and his acquaintance were in the restaurant for 20 minutes before the defendant joined them. They stayed together after the defendant departed. They had ample opportunity to do business if they so desired. If they did not want to complete the sale in the restaurant they could have crossed the street to the hotel without waiting for the defendant’s return. The conversation overheard between the informer and the defendant, the defendant’s departure after this conversation, his return, his being joined by the others and his accompanying them across the street substantiate the informer’s testimony that he was the one who sold the heroin.

The trial court saw the informer, heard his testimony and found it credible. An Appellate Court will not set aside a judgment based upon the credibility of witnesses and the weight to be given their testimony unless from a review of the record it finds the proof so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. T¡he total proof in this case was not of that character.

The judgment will be affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE SULLIVAN DEMPSEY, J.,

text:
    People of the State of Illinois, Appellee, v. William Eyre, Appellant.
    Gen. No. 51,342.
    First District, Third Division.
    May 4, 1967.

      DEMPSEY, J., dissenting.
    Charles Locker, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Ronald Sandler, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant appeals from a judgment of guilty of the charge of battery and a fine of $50.

The defendant contends that the evidence failed to prove the defendant guilty beyond a reasonable doubt; that the court erred in failing to allow questions concerning former wrongful acts or conduct on the part of the complainant and directed toward the defendant, and that the court erred in failing to take into consideration or allow questions concerning the violation of curfew by complainant at the time of the occurrence.

For a proper understanding of the case it will be necessary to set forth the testimony of each witness. Four witnesses were called by the State, including the complainant, and four witnesses, including the defendant, were called and testified on behalf of the defense.

The complainant, Vincent Kunieki, who was sixteen years of age, testified that at 10:45 p. m. on August 22,1965, he was walking on the opposite side of the street from the defendant’s home on North Wayne Avenue in Chicago. He heard someone call his name and he looked up to the second-floor window across the street and saw that it was a boy named Pat. The complainant was with Daniel McKay and George Bevins. The boys on the street started talking to their friend Pat and the defendant came to the window on the first floor at 6333 North Wayne Avenue. The defendant told the complainant to keep moving. The complainant testified that he then said, “This is public property,” and that defendant then called him a “dirty, rotten hillbilly.” Complainant stated that he and his friends started to cross the street and the defendant grabbed him around the back of the neck and pushed him over between the houses, and started choking him. The defendant then slapped the complainant with his open hand on the left side of the face. The complainant testified that the defendant hit the complainant five or six times and that the next thing he knew he was on the ground. He testified that he knew the defendant prior to the time in question; that the defendant had been his landlord at 6333 North Wayne Avenue. He stated that he saw a doctor right after the occurrence and that he had an internal injury. His testimony further indicated that he had been kicked on the left side of his hip. He said he did nothing to provoke the defendant.

Complainant testified on cross-examination that he knew the defendant prior to this occasion; that the defendant had served his family with a notice of eviction prior to this happening and that his family was also served with a notice to pay $300.

The complainant was asked if he had shot beebees at the defendant’s window prior to that time, to which he answered that he had not. However, he said that he had been arrested for shooting beebees through the window. An objection was made and the court struck the testimony.

Complainant was also asked if he knew what time the curfew was in the city of Chicago, to which he answered that he did know.

Complainant’s testimony further indicated that at 10:45 p. m. on the date in question he was going to pick up a girl friend. He stated that when he was talking to Pat (Patrick Maloney, who was a defense witness) he did not see Mrs. Eyre, nor did he say anything to her. He stated that Pat left the window and Mr. Eyre told them to get off the street and keep moving.

Daniel McKay, one of the teenagers who was with the complainant, testified that he attended high school, and that on the date in question he had seen the defendant; that the time was approximately 11:00 p. m. This witness testified that Pat Maloney called to them from the second-floor window across the street; that he then left the window for a minute and Mr. Eyre knocked on his window and told the complainant and his friends to get off his property. The complainant told Mr. Eyre that this was public property, and they then started to walk toward the curb. When the witness was in the middle of the street Mr. Eyre came out. He called the complainant a hillbilly a couple of times and some words passed between them. According to this witness, Mr. Eyre grabbed the complainant, he thought, around the neck. Vincent was trying to get away. Mr. Eyre was pulling him and Vincent was yelling “help.” When Vincent got away he slipped on the sidewalk and Mr. Eyre ran over to him and kicked him in the side. He testified that Vincent was bleeding from the mouth and nose, and the police were called. He testified that Mr. Eyre told the boys to get off the sidewalk and that he was swearing at them. He also testified that “Once Vincent swore at Mr. Eyre,” and “When we got back home, he said something to him.” He also testified that Vincent did not say anything to Mr. Eyre when this occurrence took place. The witness was asked if he heard the complainant swear at Mrs. Eyre and he testified that he did not see Mrs. Eyre.

Leona Ignoffio testified that she was sixteen years old and was a junior in high school. She was babysitting at approximately 10:45 p. m. across the street from 6331 North Wayne Avenue; that the complainant and his two friends came over to see what happened to her because she was two hours late. The complainant was crossing the street to go back home and she saw Mr. Eyre come from the building and they were yelling at each other. Mr. Eyre called Vincent a “dirty, rotten hillbilly.” She saw Mr. Eyre kicking the complainant. She recalled it was in the hip but she did not recall which hip. She did not hear the complainant swear at Mr. Eyre. She also testified that it was possible that part of her view was obscured by a tree. She was at the side window when the fight took place and could see it because she had her glasses on; she saw part of the fight. She knew the boys had come to pick her up because her mother had called her about forty-five minutes before the complainant came over.

A police officer testified that he arrested the defendant ; that the complainant had bruises on his elbows and his lip was swollen. The defendant admitted striking the boy. He testified to the following:

“Q. Were there any marks or bruises on him?
“A. No, I didn’t notice.
“Q. Did you notice if his glasses were broken ?
“A. He claimed they were. He didn’t have them on. He didn’t have any marks about his face.
“Q. He didn’t have any marks about the face ?
“A. He didn’t bring it to my attention.
“Q. You didn’t see any ?
“A. No.”

Carol Eyre, the wife of the defendant, testified that at about 11:00 p. m. on August 22, 1965, she went to the sun parlor window at 6331 North Wayne to close the blinds. Danny, one of the boys with the complainant, had a match in his hand. They were walking. The complainant turned around and faced her. She went next door to 6333 in the same building where her husband was working and told him what happened. She then walked to the sun parlor of the apartment and saw them coming back, and she called to her husband to tell him that they were coming back. The complainant at that time was standing on the parkway. The defendant said to Danny, one of the boys with the complainant, “Don’t light that.” The complainant moved on the sidewalk and saw Mrs. Eyre in the window, as well as her husband. The complainant swore at them. The words he used were “You bastard.” Her husband then went out the door of the apartment and she saw the complainant kicking and hitting her husband. She went to the phone to call the police. She saw bruises on the side of her husband’s face. She did not see her husband strike the complainant or anyonq else. Her husband is thirty-seven years old, about 6'2" tall and weighs about 190 pounds. She stayed inside while her husband went outside. At that time they were in the parkway. Vincent hit her husband with a closed fist. The first blow or two did connect with her husband. At that time she went to call the police.

The defendant testified that he is an engineer by occupation. On the evening in question he was working in the bathroom on the first floor of the apartment next door to his in the same building. He is the owner of the building. His wife came in and mentioned that some boys were in front of the building and they were going to light firecrackers, but she mentioned that they had moved. A few minutes later she called to him from the sun parlor of the apartment he was working in. He looked out the window and saw the complainant standing outside. He also saw Danny McKay. He had something that looked like a firecracker in one hand and in the other hand he had something that looked like a match. It looked as if he were going to light the firecracker. The defendant called out, “Do not light any firecracker.” He told the complainant and his friends to move on. Danny McKay immediately moved on. As the defendant was turning to go back to his work the complainant said to defendant’s wife, “Fuck you bitch.” The defendant then went out the door and told the complainant to keep moving. He reminded him it was past curfew. The defendant then testified, “He aimed at me. I tried to grab the other arm but couldn’t. He was hitting me with his free arm. I pushed him with my foot to get him off balance. George Bevins grabbed him and held him in a full Nelson. He wanted to attack me again. At this point I told George Bevins, ‘Let him go.’ ” (George Bevins was one of the complainant’s friends.) Defendant said that he did not at any time, other than in self-defense, strike the complainant, nor did he tell the arresting officer that he struck the complainant; that if he did, it was in self-defense. The complainant hit the defendant approximately five or six times while the defendant was trying to hold him off. The complainant struck the defendant across the face on both sides of the face. The defendant was trying to hold the complainant off and the complainant continued hitting the defendant. The defendant turned to push him off balance with his foot.

Patrick Maloney, a witness called by the defense, testified that he lived in one of the apartments in the building; that he was in the apartment at the time of the occurrence. He called Vincent from his window. He testified that he exchanged a few words with the boys and the defendant told the boys to keep moving. “They said something and Mr. Eyre put his hand on his shoulder.” The complainant then started swinging at the defendant and the defendant started to hold the complainant back. The defendant restrained the complainant. The complainant moved back and slapped Mr. Eyre. The complainant called for George, his boyfriend, across the street. When George came over he restrained the complainant from hitting Mr. Eyre. Maloney further testified that he did not at any time see the defendant hit or try to strike the complainant. Patrick Maloney was the friend of the complainant who called to the complainant from his front window when the complainant and his two other friends came walking down the street. He persisted in his testimony that the complainant was the aggressor and did strike the defendant.

Cathy Maloney, a witness called by the defense, testified that she lived at 6333 North Wayne. She knew the defendant and the complainant. She was twelve years of age. She testified that on the evening in question she heard voices in the gangway and went to the window to see what was happening. Mr. Eyre was outside and told the complainant to keep moving. The cornplainant said, “Okay, Bud.” The complainant said, “My father can beat you up.” The defendant said, “All right, we’ll go and see your father.” They then started walking and the complainant hit the defendant. She did not at any time see the defendant hit the complainant. She further testified the defendant did not put his hand on complainant, also that he did put his hand on complainant, and that the complainant struck the defendant — he hit the defendant on the chin.

The defendant’s first point is that the evidence failed to prove the defendant guilty beyond a reasonable doubt. Four witnesses, including the defendant, testified on behalf of the defense. The uncontradicted facts are that on the evening of August 22, 1965, the complainant, Vincent Kunicki, with two companions, appeared in front of the defendant’s home at about 10:45 or 11:00 p. m. The complainant and the defendant were apparently not on good terms due to some previous hostility between the defendant and complainant’s family. The complainant and his companions engaged in a conversation with a friend of theirs, Patrick Maloney, who lived on the second floor. The complainant was in front of the defendant’s house and the defendant requested him and his companions to move.

The testimony of the police officer was merely to the effect that he noticed the complainant had bruises on his elbows and his lip was swollen. The police officer, when asked if there were any marks or bruises on the defendant, stated there were none and that he did not see any, and when asked if the defendant’s glasses were broken, he stated that he did not have them on. The defendant did not bring to his attention any marks about his face. The police officer also testified that the defendant admitted striking the boy. This, of course, was denied by the defendant at the time he testified, and he stated that at no time did he hit the boy, excepting possibly in self-defense. The testimony, therefore, of the police officer and the defendant cannot be said to be conflicting in that respect, because the police officer at no time stated that the defendant struck the first blow.

The testimony of the defendant, his wife, Patrick Maloney, who was a friend of the complainant and his companions, as well as the testimony of Cathy Maloney, a twelve-year-old girl, were entirely contradictory to the testimony of the complainant, his girl friend, Leona Ignoffio, and Danny McKay, one of his companions on the night of the occurrence. If this were the only testimony in the record it could readily be said that the rule of law to be followed is that it is the function of the trial court to determine the credibility of the witnesses and the weight to be afforded their testimony, and where the evidence is merely conflicting, the reviewing court will not substitute its judgment for that of the trier of fact. People v. Clark, 30 Ill2d 216, 195 NE2d 631. However, there are additional circumstances in this record which we believe the trial court overlooked. The defendant testified that George Bevins restrained the complainant after the complainant had assaulted him, and his testimony was supported by Patrick Maloney, who was a friend of the complainant. Patrick Maloney testified that Vincent, the complainant, called for George Bevins and George came over and restrained the complainant from hitting Mr. Eyre. This evidence would tend to indicate to us that the aggressor was the complainant, for, if he were not the aggressor, why would one of the complainant’s companions on that evening instead of going to the aid of the complainant, place a full Nelson on the complainant to prevent him from striking the defendant.

George Bevins, the complainant’s companion on that evening, who restrained the complainant, was not called as a witness by the State, nor was his absence explained in any way. At least his absence should have been explained in order to overcome any inference, which could be drawn, that the complainant was the aggressor.

Another important element arose during the testimony of Mrs. Eyre. She called the police. The question arises as to why she would have called the police had her husband attacked and assaulted, or battered, the complainant in this case.

It must also be remembered that Patrick Maloney, a friend of the complainant, testified on behalf of the defendant to the effect that the complainant struck the defendant first.

While the testimony showed the size of the defendant, there is nothing in the record which discloses the size of the three teenagers involved on that evening.

Section 3-1 of the Criminal Code (Ill Rev Stats 1965, c 38, par 3-1), reads as follows:

“Every person is presumed innocent until proved guilty. No person shall be convicted of any offense unless his guilt thereof is proved beyond a reasonable doubt.”

In People v. Semenick, 360 Ill 250, 195 NE 671, at page 254, the court said:

“While the weight of the evidence is for the court or jury to determine, yet where the verdict of judgment is palpably contrary to the weight of the evidence, or the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant’s guilt, it is the duty of this court to reverse the judgment. People v. Holton, 326 Ill 481; People v. Rice, 323 id. 580; People v. Nemes, 347 id. 268.”

The evidence in this case, together with the reasonable inferences to be drawn, is so improbable and unsatisfactory as to justify a reasonable doubt of defendant’s guilt.

Because of the conclusions we have reached, it will be unnecessary to discuss the other points raised by the defendant.

Judgment reversed.

SCHWARTZ, J., concurs.

DEMPSEY, J.,

dissenting:

My colleagues find the evidence improbable and unsatisfactory and because of this they have a reasonable doubt of the defendant’s guilt. I do not.

The 16-year-old complaining witness, Vincent Kunicki, and his two friends were on the west side of Wayne Avenue talking to a girl who was baby-sitting. The girl’s mother was concerned about her. She had telephoned her daugher 45 minutes earlier to find out why she had not come home. Her daughter was delayed because the baby’s mother had not returned. It was approaching 11 p. m., the baby’s mother was then two hours late and the boys went to check on the girl. While they were talking to her, Patrick Maloney, who lived on the second floor of the defendant Eyre’s building on the east side of Wayne and who was a friend and former neighbor of Vincent, called to them from his bedroom window.

Vincent and one of the boys crossed the street to talk to Maloney. They did not approach the defendant’s building menacingly. There is no evidence to support the Eyres’ suspicion that they possessed firecrackers and intended to use them or anything else upon the Eyres’ property. They were quiet and orderly. Maloney, a witness called by the defendant, testified that while they were talking Eyre came out of the building and told Vincent, who was doing nothing, to keep moving. Vincent replied, “Okay, Bud,” and Eyre put his hand on Vincent’s shoulder and said, “Come on. Let’s go.” Vincent then started swinging at Eyre.

The defendant was charged with the offense of battery. A person commits battery if he intentionally or knowingly without legal justification makes physical contact of a provoking nature with another person. Ill Rev Stats 1965, c 38, § 12-3(a). The defendant committed this offense. He made physical contact of a provoking nature with the complainant when he seized the boy by the shoulder and told him to get going.

That Eyre did this was established by the testimony of four of the seven eyewitnesses — two of them his own. A fifth eyewitness said he started the altercation. Eyre himself impliedly admitted seizing the boy by one arm and holding on to it before a blow was struck. He testified :

“So I went out the door. I told him to keep moving. I reminded him that it was past curfew. He aimed at me. I tried to grab the other arm but couldn’t. He was hitting me with his free arm.”

Vincent, a third-year high school student, was on a public sidewalk. He had a lawful right to be where he was. He was doing what he had a perfect right to: talking to a friend and old neighbor. When Eyre grabbed his shoulder and told him to move on, he had a right to stand his ground and to repel force with force. Section 7-1 of the Criminal Code states:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself . . . against such other’s imminent use of unlawful force.”

Ill Rev Stats 1965, c 38, § 7-1. People v. Bush, 414 Ill 441, 111 NE 326 (1953); People v. Motuzas, 352 Ill 340, 185 NE 614 (1933).

The force used by Vincent in defending himself against Eyre’s unlawful use of force seems to have been ineffectual. Eyre said he was hit on both sides of the face, and his wife said there were bruises on his face. But the only impartial witness, the police officer who had been summoned to the scene, saw neither marks nor bruises on him. On the other hand, the force used upon the boy by the 37-year-old defendant who weighed 190 pounds and who was six feet, two inches tall, is shown by the boy’s condition when the quarrel ended. He was bruised, bleeding from the mouth and nose and was suffering from an internal injury which required a doctor’s care.

The trial court was fully justified in finding that a battery was committed by Eyre who, under the prodding of his wife, stormed out of his building, accosted the boy, grabbed his arm and told him to get off the public sidewalk. Although what took place afterwards had no bearing on the initial offense the court also would have been fully justified in believing that after the fisticuffs started, Eyre was the continuing aggressor, that he dealt the damaging blows, pushed the boy to the ground and kicked him in the side while he was down.

At the very least, it was the trial court’s province to determine whom to believe. The testimony of those who witnessed the occurrence differed in some respects — depending upon their vantage points and viewpoints. This conflicting testimony alone would make the case one for the trier of fact. I find no reason for placing this court’s evaluation of the testimony above that of the trial court who had every advantage in observing the witnesses and in determining their credibility.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Stuckey, Defendant-Appellant.
    Gen. No. 51,478.
    First District, Third Division.
    May 4, 1967.
    Montgomery, Holt & Bolden, of Chicago (Leo E. Holt, of counsel), for appellant.

      William G. Clark, Attorney General, of Springfield (Daniel P. Ward, State’s Attorney of Cook County, Fred G. Leach, Assistant Attorney General, and Elmer C. Kissane and Carmen Speranza, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The defendant was indicted for the murder of his wife. Defense counsel and the State stipulated to the pertinent facts, and thereupon defendant was tried by the court, convicted of voluntary manslaughter and sentenced to serve from five to fifteen years in the penitentiary. Prior to the finding of guilty and the entry of judgment, defendant filed a motion for discharge under the Four Term Act, Ill Rev Stats 1965, c 38, 748 (now Ill Rev Stats 1965, c 38, § 103-5). The motion was denied, judgment was entered and defendant now appeals. The only issue involved is the application of the Four Term Act.

On February 19,1962, the defendant surrendered to the Chicago police for the killing of his wife, Bernice Thomas Stuckey, and made a written statement reciting the circumstances surrounding her death. Defendant was indicted and was tried on July 19,1962, five months after his arrest and detention. The statute provides in substance that any person committed for a criminal offense and neither admitted to bail nor tried within four months from the date of incarceration shall be discharged upon petition unless the delay is occasioned by the prisoner or unless an extension of not more than sixty days has been granted to the State to procure additional evidence. People v. Bagato, 27 Ill2d 165, 188 NE2d 716. Where a defendant himself has sought and obtained a continuance or by his own actions caused the delay, the right to be tried within the four-month period is computed from the date to which the case was continued. People v. Hamby, 27 Ill2d 493, 190 NE2d 289; People v. Niemoth, 409 Ill 111, 98 NE2d 733; People v. Hayes, 23 Ill2d 527, 179 NE2d 660.

Defendant admits that he moved for two continuances, the first of which extended from May 9, 1962, until June 1, 1962, and the second of which extended from June 1, 1962, until June 22, 1962, a total of 43 days. He argues, however, that these continuances should not be considered to have tolled the statute because they were granted before a valid indictment had been returned against him. The grand jury indicted the defendant on March 8, 1962, but the indictment incorrectly stated the name of the victim as Louise Thomas Stuckey. When the State’s Attorney discovered the misnomer he presented the matter to the grand jury a second time and obtained a correct indictment on June 25, 1962. The State then nolle prossed the original indictment and proceeded to trial on the corrected indictment.

Defendant argues that he was in custody more than four months before he was properly indicted and that any delay in the return of the proper indictment was solely attributable to the prosecution. He further contends that the continuances which were granted at his request related to the indictment which was nolle pressed, not to the indictment on which he was ultimately tried and, accordingly, the continuances cannot be considered to have tolled the statute.

The Four Term Act was designed to implement the constitutional guarantee of a speedy trial. The act refers to the date of commitment and the date of trial, but it does not refer to the date of indictment. The sufficiency of the indictment is immaterial to the enforcement of the act unless there is some showing that the State has nolle pressed an indictment and reindicted solely for the purpose of circumventing the statute. See People v. Hamby, supra.

In the instant case the second indictment was only to correct a misnomer with respect to the name of the victim. The defendant undoubtedly knew that he was being held for the killing of his wife and the continuances which he obtained following the first indictment tolled the running of the time limit even though he was ultimately tried on the allegations of a separate and corrected indictment.

Defendant was tried within the period fixed by law. The petition for discharge was properly denied, and the judgment is affirmed.

Judgment affirmed.

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

       At the time of defendant’s trial, the Four Term Act read as follows:
      “Any person committed for a criminal or supposed criminal offense, and not admitted to bail, and not tried by the court having jurisdiction of the offense, within four months of the date of commitment, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner, or unless the court is satisfied that due exertion has been made to procure the evidence on the part of the People, and that there is reasonable ground to believe that such evidence may be procured at a later day in which case the court may continue the cause for not more than sixty (60) days. If any such person shall have been admitted to bail for an alleged offense, other than a capital offense, he shall be entitled, on demand, to be tried within four months after such demand: Provided, that if the court shall be satisfied that due exertion has been made to procure the evidence on behalf of the People and that there is reasonable ground to believe such evidence may be procured at a later day the court may continue the cause for not more than sixty (60) days.”


author: MR. JUSTICE MORAN

text:
    George F. Dreher, Plaintiff-Appellant, v. The Aetna Casualty & Surety Company, Defendant-Appellee.
    Gen. No. 66-80.
    Second District.
    May 4, 1967.
    Mackenzie, Vescelus, Leetz & Perry, of Wheaton (John T. Perry and A. M. Peccarelli, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann and Hoban, of Wheaton, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

Plaintiff was injured in an automobile accident on February 9, 1964. The driver of the other vehicle, Ronald Pettit, was insured with a policy of automobile liability insurance issued by Lake States Casualty Company. Lake States retained an attorney to defend Pettit in a lawsuit filed by plaintiff to recover for his personal injuries and then, on October 19, 1965, the attorney withdrew on the grounds that Lake States was being liquidated by the State of Illinois.

At the time of the accident plaintiff was insured for automobile liability by the defendant, Aetna Casualty & Surety Company. Plaintiff’s policy contained a family protection coverage commonly referred to as “uninsured motorist coverage.” The term “uninsured automobile” was therein defined as including:

“an automobile with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile. . . .” (Emphasis supplied.)

Plaintiff notified Aetna of the insolvency of Lake States and demanded uninsured motorist benefits. Aetna denied liability in writing and plaintiff filed a declaratory judgment proceeding which was dismissed by the Circuit Court on defendant’s motion.

The issue squarely presented to this court is whether in Illinois under the present statute and with a definition of an uninsured automobile as is contained in the Aetna policy, the uninsured motorist coverage is applicable where the liability insurance carrier on the automobile in question becomes insolvent subsequent to the day of the accident.

It is urged by the plaintiff-appellant that public policy in this state requires that the uninsured motorist clause be liberally interpreted particularly in light of the numerous insurance company failures in this state.

It is further suggested that an ambiguity exists in the definition of “uninsured automobile” as used in the policy issued by defendant and that this court should resort to an equitable construction of that provision to extend coverage.

The applicable statute, section 755a, chapter 73, Ill Rev Stats, 1963, approved June 4, 1963, provides that no automobile liability policy shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless the policy contains coverage for uninsured and hit and run motor vehicles; provided, however, that the named insured may elect in writing not to carry such coverage.

The statute does not define uninsured motor vehicles and the policy definition referred to above was a standard policy definition used by the insurance industry at the time of the adoption of the statute by the legislature in 1963.

There is now pending before the General Assembly legislation which would extend the uninsured motorist protection to the insolvent insurance company situation but this case must be decided on the basis of the law at the time of the occurrence in question.

It is true that an insurance policy should be liberally construed in favor of the policyholder. However, we find nothing either in the statute or the case law to sustain the contention that the public policy of this State, at the time, required that an insurance company extend coverage beyond the terms of its contract of insurance to include an automobile which was insured at the time of the accident but which subsequently becomes uninsured by reason of the insolvency of the carrier.

Further, we find no ambiguity in the definition of the policy. The definition includes automobiles which are uninsured at the time of the accident and it also includes hit and run vehicles. It does not include uninsured automobiles where coverage is subsequently denied because of lack of cooperation of the insured or where coverage is denied because of the subsequent insolvency of the insurer.

In commenting on the rule of liberal construction in McCann for Use of Osterman v. Continental Cas. Co., 6 Ill App2d 527, 128 NE2d 624 (1955), the court said at page 533:

“This canon of construction, however, does not authorize a distortion of language or the exercise of inventive powers for the creation of an ambiguity where none exists.”

In Crosse v. Supreme Lodge Knights & Ladies of Honor, 254 Ill 80, 84, 98 NE 261 (1912), it was stated that the parties to an insurance contract have the right to incorporate in it such provisions, not in violation of the law, as they might elect, and the courts must construe and enforce the contract as made. The court has no right to make a new contract for the parties.

The Illinois Supreme Court in Carroll v. Preferred Risk Ins. Co., 34 Ill2d 310, 215 NE2d 801 (1966), determined that under the facts of that case there was no policy of insurance in effect at the time of the accident. The Hlinois Supreme Court thus is giving effect to the phrase “at the time of the accident” found in the uninsured automobile definition.

We do not question but that a different result might be reached if the automobile policy contained language defining an uninsured automobile to include one where the insurance company becomes insolvent subsequent to the date of the accident or to include one where coverage has been denied.

Likewise, if such a definition were required by statute but not included in the policy a different result might obtain. It is for the legislature, however, and not for this court to modify the statute to include such contingencies.

Our decision is fortified by decisions of numerous courts in other states. Among these are:

Federal Ins. Co. v. Speight, 220 F Supp 90 (1963), decided by the United States District Court for the Eastern District of South Carolina in 1963 on the basis of the South Carolina Statute as it existed prior to a 1963 amendment; Hardin v. American Mut. Fire Ins. Co., 261 NC 67, 134 SE2d 142, decided by the Supreme Court of North Carolina in 1964; Rice v. Aetna Casualty and Surety Co., 267 NC 421, 148 SE2d 223, decided by the Supreme Court of North Carolina in 1966; Stone v. Liberty Mut. Ins. Co., 397 SW2d 411, decided by the Court of Appeals of Tennessee, Eastern Section, in 1965, and certiorari denied by the Supreme Court of Tennessee; and Swaringin v. Allstate Ins. Co., 399 SW2d 131, decided by the St. Louis Court of Appeals of Missouri in 1966.

To be distinguished from the present situation are the cases where either by policy or statute the definition of uninsured motorist includes the situation where the insurance company has denied coverage. The applicable statute in the State of Virginia so provides and the Supreme Court of Appeals in Virginia in State Farm Mut. Automobile Ins. Co. v. Brower, 204 Va 887, 134 SE 2d 277, held in 1964 that where the insurance company became insolvent and went into receivership there was, in effect, a denial of coverage to activate the uninsured motorist coverage written under the statute. The same result was reached in South Carolina by the Supreme Court of that state in the North River Ins. Co. v. Gibson, 244 SC 393, 137 SE2d 264 (1964), after the South Carolina statute was amended in 1963 to include within the statutory definition of uninsured motorist the situation where there is insurance at the time of the accident but the insurance company denies coverage.

A similar decision was reached in Katz v. American Motorists Ins. Co. (Cal App), 53 Cal Rptr 669 (1966), involving a similar provision in the California Motor Vehicle Code.

It is interesting to note, however, that in Pennsylvania the Superior Court of Pennsylvania in the combined cases of Pattani v. Keystone Ins. Co. and Levy v. Keystone Ins. Co., 209 Pa Super 15, 223 A2d 899 (1966), held that the insolvency decree or the appointment of the receiver did not constitute affirmative action denying coverage where the statute contained a provision similar to the Virginia statute.

As stated before there is presently pending before the General Assembly a proposed statute touching upon the question before us. Any modification of the existing statutory law on this subject should be made by the legislature.

For the reasons stated above the decision of the Circuit Court of DuPage County is affirmed.

Judgment affirmed.

DAVIS, P. J. and ABRAHAMSON, J., concur.


author: CORYN, J.

text:
    Albert C. Fuller, et al., and Board of Education, Community High School District No. 312, Peoria County, Illinois, Plaintiffs-Appellants, v. Board of Education of the City of Peoria, School Dist. 150, and County Board of School Trustees of Peoria County, Illinois, Defendants-Appellees.
    Gen. No. 66-76.
    Third District.
    May 17, 1967.
    Rehearing denied July 17, 1967.

      Kellstedt and Young, of Peoria, for appellants.
    George R. Kennedy, State’s Attorney, and W. McD. Frederick, both of Peoria, for appellees.
   CORYN, J.

Prior to November, 1964, Richwoods Community High School District 312 was comprised of territories within the Village of Peoria Heights and adjoining unincorporated territories, where it maintained its only educational facilities. By a referendum held in November, 1964, some part of the foregoing unincorporated area, including that surrounding the school buildings of District 312, where the greater majority of its high school students resided, was annexed to the City of Peoria where Special Charter School District 150 is situated. By statute, any annexation or disconnection of territory to or from a city where such a special charter school exists constitutes, after the expiration of sixty days, an annexation to its special charter school district, unless statutory proceedings to prevent such ipso facto annexation to or disconnection from the special district are commenced and thereafter concluded favorably to petitioners. Ill Rev Stats, c 122, § 7-2.1 (1965). In an effort to prevent such automatic annexation, the Board of Education of School District 312, and certain of its interested residents, some of whom are apparently petitioners here, commenced a proceeding under said § 7-2.1, but while the same was pending, an agreement was reached between Districts 312 and 150 with respect to the issue of school annexation, and the uses and disposition to be made of the facilities of District 312. This agreement called for an order to be entered in the proceeding under § 7-2.1 annexing the disputed school territory of District 312 to District 150, and for the annexation of the buildings of District 312 to District 150 as of May 1, 1966, with Districts 150 and 312 to use the District 312 buildings jointly for a certain period. District 150 agreed to pay District 312 its proportion of the operation costs of the disputed school, and it was agreed that the aforementioned school facilities would be deeded to District 150 as of May 1, 1966. This agreement was set to writing under date of May 26, 1965, whereupon pursuant to its terms, District 312 was required to deliver certified copies of its Resolutions, authorizing the foregoing action, including annexation of the site of the school buildings, and authorizing the deed, together with the deed, to First National Bank of Peoria for delivery as of May 1, 1966. Some of the signatories to that agreement on behalf of District 312 are plaintiffs here.

After the foregoing agreement was consummated, an order was entered in the pending proceeding under § 7-2.1, fixing the boundaries of Special Charter School District 150, pursuant to the terms of the agreement of May 26, 1965. Thereafter, on April 26, 1966, the petitioners, who are appellants here, filed a complaint for declaratory judgment and for an injunction against District 150 and the County Board of School Trustees of Peoria County. It is asserted in this complaint that the aforedescribed written agreement of May 26, 1965, between the two school districts is void insofar only as it requires or authorizes the transfer of the school facilities of District 312 to District 150 because it is an ultra vires commitment by the former Board of Education of District 312 and violative of the restrictions imposed on their power by the Constitution of Illinois, which requires an efficient system of free schools, free and equal elections, justice and due process. The prayer of the complaint is that the agreement be declared void, and that an injunction issue restraining defendants from taking any action “looking toward the transfer of title to the property herein described” and “from otherwise interfering with or impeding the use of said premises by the plaintiff.” An answer with affirmative defenses was filed to this complaint by District 150. An answer by the County Board of School Trustees states that it is legal titleholder of the disputed school site and requests direction. Plaintiffs filed a reply to the affirmative defenses, setting out new matters to which a verified reply was filed by District 150. This latter pleading set out that pursuant to the Resolution of District 312, the City of Peoria, by municipal ordinance, had annexed the disputed school building site to the city, thereby incorporating the same to District 150 under the provisions of Ill Rev Stats, c 122, § 7-2.1. Thereafter, a motion for summary judgment was filed by defendant District 150, and was allowed by the trial court on June 28, 1966, which order also directed the County Board of School Trustees to convey the disputed site for the use of District 150. Two days later, the County Board of School Trustees made, delivered and recorded their quitclaim deed of the premises to District 150, and plaintiffs, on the same day, filed notice of appeal.

The parties appear to agree that no disputable issue of fact is involved, for it is the prayer of defendants that the order be affirmed, and of plaintiffs that it be reversed, and that they have judgment here. Our inquiry is, accordingly, limited to the issue of whether the trial court correctly adjudged that the agreement of May 26, 1965, between the two school boards, is valid so as to effect or require a transfer of the buildings of District 312 to District 150. We think that issue must be decided affirmatively.

In People v. Deatherage, 401 Ill 25, 81 NE2d 581, the Supreme Court stated that property under the use and control of a school district is the property of the state, that it is not owned by the district in the sense of its being vested with rights of dominion, but is entrusted only to its use, care and control, subject to the legislative will. In People ex rel. Dixon v. Community School Dist. No. 3, 2 Ill2d 454, 118 NE2d 241, the Supreme Court further clarified this principle and held that the legislature may provide for taking the school facilities of one district, without notice and without compensation, and vest their use and control in another district, and that such provision violates no constitutional requirement. In that case, the legality of annexation of territory from Consolidated School District No. 4 to the Norris City School District was challenged on the grounds, inter alia, that the only school house of District No. 4 was located on the territory attempted to be annexed, and that the statute under which said annexation was purportedly effected was unconstitutional for failure to provide any compensation to District No. 4 for the taking of its buildings. At 2 Ill2d 454, 465, the court stated:

“Any school district established under enabling legislation is entirely subject to the will of the legislature thereafter. With or without the consent of the inhabitants of a school district, over their protests, even without notice or hearing, the State may take the school facilities in the district, without giving compensation therefor, and vest them in other districts or agencies. The State may hold or manage the facilities directly or indirectly. The area of the district may be contracted or expanded, it may be divided, united in whole or in part with another district, and the district may be abolished. All this at the will of the legislature. The ‘property of the school district’ is a phrase which is misleading. The district owns no property, all school facilities . . „ being in fact and law the property of the State and subject to the legislative will. A school district has no such property right of which it might be deprived in violation of . . . the State Constitution.”

The argument made here, that an agreement to deprive a school district of its only building is ultra vires as being a relinquishment of its governmental responsibilities, and violative of the constitutional requirement of an efficient system of free schools, is answered in People ex rel. Dixon v. Community School Dist. No. 3, 2 Ill2d 454, 118 NE2d 241, supra, at 466, where the Supreme Court states:

“These allegations provide no affirmative defense to a disannexation [or annexation] proceeding under . . . [the statute] . . . for the reason that such alleged facts do not constitute a deprivation of school privileges as to the remaining area [of the District from which the territory was annexed]. The School Code makes ample provision for the fitting of the remaining territory into the school system of the State, either by annexation to another district, by organizing an appropriate new district, or by sending the children of the territory to a school in an existing district, at public expense.”

The validity of the annexation by the referendum of November, 1964, of unincorporated portions of District 312 to the City of Peoria, and its special Charter School District 150 must be assumed for the purposes of this appeal since the record demonstrates that this issue has been adjudicated affirmatively, and that that adjudication has not been set aside or reversed. It is not an issue raised by the pleadings in this proceeding, although considerable attention has been given the matter by the parties in their briefs. Considering that annexation by referendum to have been valid, it is apparent that the school building site of District 312 was, on May 26, 1965, situated in unincorporated territory adjacent to the City of Peoria, and that the Board of Education of District 312 was accordingly then empowered by statute to resolve for the annexation of this building site to Peoria under the provisions of Ill Rev Stats, c 24, §7-1-14 (1965). The fact that the Board of District 312 also provided for a delay in the delivery of its resolution to the City of Peoria, so that it could not be acted upon by the city council until the expiration of the covenants providing for the joint use of the facilities by the two districts until May 1, 1966 (pursuant to Ill Rev Stats, c 122, § 16-2), does not indicate that the resolution was beyond the statutory power of the Board. Moreover, the legislature has provided, in Ill Rev Stats, c 24, § 7-1-14, that where a Board passes a resolution for the annexation of its territory to an adjacent municipality, and the corporate authorities thereafter enact an ordinance providing for its annexation, the property shall be then considered annexed. At Ill Rev Stats, c 122, § 7-2.1 (1965), the legislature has also provided that where any property is annexed to a municipality in which a special charter school exists, as in the case of District 150, then said annexed territory shall be considered annexed to the special charter school district within the annexing municipality. Thus, the legislature has provided a means for the transfer of facilities situated such as those of District 312 were situated, to an adjacent city, and for the transfer of its use and control to any special charter district situated within said city. We, accordingly, are of the opinion that the agreement of May 26, 1965, between Districts 312 and 150, which .attempts to effect a transfer of the use of the buildings through the statutory means provided by the legislature is valid. Considering the fact that of the 2,250 pupils who formerly attended school in these buildings, only 500 reside in that portion of District 312 which remains unannexed, and that 1,750 reside in its former areas which are annexed to the City of Peoria, and to District 150, there was reasonable basis for the conclusion of the former Board that the best interests of the most students were served by transferring the facilities for their use. Such determination, in our judgment, is not fairly characterized as a subterfuge, nor does it involve a relinquishment of the governmental functions of District 312 which remains charged with the responsibility of fitting the territory remaining within its borders into the State school system under the provisions of the School Code.

The judgment of the Circuit Court is affirmed.

Affirmed.

STOUDER and ALLOY, JJ., concur.


text:
    People of the State of Illinois ex rel. William E. Phillips, et al., Plaintiffs-Appellants, v. Board of Education, Special Charter School District No. 150, Peoria County, Illinois, Defendant-Appellee.
    Gen. No. 66-102.
    Third District.
    May 17, 1967.
    Rehearing denied July 17, 1967.

      Kellstedt & Young, of Peoria, for appellants.
    W. McD. Frederick and J. Martin Lawless, both of Peoria, for appellee.
   CORYN, J.

Defendant is the governing body of a special charter school district (hereinafter called District #150) within the City of Peoria. By statute, any annexation or disconnection of territory to or from said city where a special charter school district exists, constitutes, after the expiration of sixty days, an annexation or disconnection to its special charter school district unless statutory proceedings to prevent such ipso facto annexation or disconnection to the special charter school district are commenced and thereafter concluded favorably to the petitioners. Ill Rev Stats, c 122, § 7-2.1 (1965). As the result of a referendum in November, 1964, a large territory was annexed to the City of Peoria, and within sixty days thereafter, in an effort to prevent the automatic annexation of all the territory included within this referendum to District #150, various petitions were filed as provided by Ill Rev Stats, c 122, § 7-2.1 (1965). All of these petitions were thereafter concluded by orders of the County Board of School Trustees of Peoria County, and of the defendant, entered after hearing before an officer appointed by the Superintendent of Public Instruction, and/or pursuant to stipulation between the affected school districts, and the boundaries of District #150 were accordingly fixed.

Thereafter, relators, who are appellants here, filed with the Circuit Court a petition for leave to commence a proceeding in quo warranto against District #150 and its governing body, requiring them to show by what authority they purport to exercise dominion and control over certain of the aforesaid territory purportedly annexed to District #150 by the referendum. An amended petition was thereafter filed, the gist of which appears to assert that the whole of § 7.2-1 is unconstitutional because it allows for the fragmentation of existing school districts in violation of the constitutional requirement of an efficient system of free schools, and denies to relators the equal protection of the law, due process and their right to trial by jury, and is a usurpation of power by the legislature, so that all the aforementioned proceedings held thereunder are a nullity. On April 20, 1966, after a hearing, the Circuit Court dismissed the petition. This appeal is taken from that order.

Relators attempted to invoke the jurisdiction of the Supreme Court for direct review of a substantial constitutional issue, but that court, after considering the point, and in view of its determination in Board of Education v. School District No. 61, 32 Ill2d 343, 205 NE 2d 459, held that no debatable constitutional issue is presented, and transferred the appeal here. In the case cited by the Supreme Court, and in its earlier decision of Schrieber v. County Board of School Trustees, 31 Ill 2d 121, 198 NE2d 848, it held that school districts established under enabling legislation are subject entirely to the will of the legislature, and may, even without notice, be contracted or expanded in area, or divided or united, in whole or in part with another district, or may be abolished, and that § 7-2.1, by which the legislature has provided an orderly procedure regarding boundaries of school districts, is not violative of the constitution. These decisions fully control and resolve the constitutional issues asserted by relators.

In its order dismissing the petition, the Circuit Court found that relators, by quo warranto, are attempting to challenge collaterally the administrative determinations of the County Board of School Trustees, and of defendant, which were made and entered by those agencies pursuant to petitions filed within sixty days of the referendum under § 7-2.1; that such determinations are subject to review only under the provisions of the Administrative Review Act, as provided in § 7-2.1; that the best interests of the school systems, the teachers and the pupils and the taxpayers of Peoria County, and the public weal would not be served by permitting the filing of the complaint; and that relators’ motives in requesting the writ do not justify its issuance. Relators argue that quo warranto is a cumulative remedy, and that the provisions of § 7-2.1, and of the Administrative Review Act are not exclusive, and that the trial court erred in holding to the contrary.

Section 7-2.1A of the School Code provides not only that residents, property owners, and school boards affected by annexation to a special chartered district may petition the County Board of School Trustees for disconnection, but also that “all interested persons may appear and give evidence.” Clearly then, all of the relators herein qualified by the terms of said statute to attack the annexation of which they complain, and in fact several of the relators were parties to one or more of the petitions that were filed under § 7-2.1. It is further provided in said section of the School Code that “[T]he decisions of both boards shall be deemed to be ‘administrative decisions’ as defined in Section 1 of the ‘Administrative Review Act,’ and any resident who appears at the hearing conducted on the petition or any school board or school trustees of any district affected by the petition, within ten days after a copy of the decision sought to be reviewed is served by registered mail upon such resident, board or trustee, may apply for review of such decision in accordance with the ‘Administrative Review Act’ ”. . . . Section 2 of the Administrative Review Act (Ill Rev Stats, c 110, § 265) provides as follows:

“This Act shall apply to and govern every action to review judicially a final decision of any administrative agency where the act creating or conferring power on such agency, by express reference, adopts the provisions of this Act. In all such cases, any other statutory, equitable, or common-law mode of review of decisions of administrative agencies heretofore available shall not be employed after the effective date hereof. Unless review is sought of an administrative decision within the time and the manner herein provided, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such administrative decision. . . .”

The purpose of the foregoing provisions of the Administrative Review Act, as evidenced by its express language, is “to provide a single uniform method by which the decisions of most of the administrative agencies of state government could be judicially reviewed,” Moline Tool Co. v. Department of Revenue, 410 Ill 35, 101 NE 2d 71, and other methods of judicial review, whether equitable or common-law modes of review, in use prior to the enactment of the Administrative Review Act, are no longer available. Ill Rev Stats, c 110, § 265. School districts or individuals dissatisfied with the determinations of § 7-2.1A petitions by the school governing bodies will be limited to the Administrative Review Act for judicial review of such determinations. Accordingly, we are of the opinion that the Circuit Court correctly decided that its power to review a determination which was within the jurisdiction of these school boards to make arises from the provisions of the Administrative Review Act, and that other means of judicial review are barred.

The judgment of the Circuit Court dismissing the petition is correct, and is affirmed.

Affirmed.

STOUDER and ALLOY, JJ., concur.


author: STOUDER, P. J.

text:
    Lauren McLaughlin, Plaintiff-Appellee, v. Nellie E. McLaughlin, et al., Defendants-Appellants.
    Gen. No. 66-106.
    Third District.
    May 17, 1967.

      McNeilly & Olivero, of Peru, for appellants.
    Christ T. Troupis, of Mendota, for appellee.
   STOUDER, P. J.

Plaintiff Appellee, Lauren McLaughlin, commenced this action for damages arising from his alleged wrongful exclusion as tenant from the premises owned by Defendants Appellants, Nellie McLaughlin, Laura Harl and Elwood Mudge. The Defendants filed their answer and also a counterclaim against Plaintiff for damages, the Plaintiff filing an answer to such counterclaim. On March 30, 1966, Judge Wendell Thompson, Magistrate of the Circuit Court of LaSalle County, set the case for hearing before him on May 3, 1966, notifying counsel thereof by letter. On May 3rd the case was called for hearing, the Plaintiff being present together with his attorney and witnesses. Neither the Defendants nor their attorney were present. The Magistrate then proceeded with the hearing and considered the testimony offered in support of Plaintiff’s claim which resulted in a judgment in favor of Plaintiff on his complaint and against the Defendants on their counterclaim.

On May 9, 1966, Defendants moved to vacate such judgments attaching the affidavit of attorney for the Defendants in support thereof. The attorney’s affidavit alleged that he received the notice that the case was set for hearing on May 3, 1966, that he was engaged in the trial of a personal injury action in LaSalle County Circuit Court during the week ending April 29, 1966, that he was personally trying a condemnation suit in Bureau County on May 3, 1966, and that on the morning of the scheduled hearing, the Magistrate had been informed by affiant’s brother and associate in the practice of law, that the affiant was so engaged in another trial on May 3rd. The Magistrate, in denying Defendants’ motion to vacate the judgments, made numerous findings of fact. The court found that Defendants had been properly notified of the hearing on May 3rd and neither they nor their attorney appeared before the court on said date. The findings also included the fact that after inquiry the Magistrate was advised by the brother of Defendants’ attorney that the latter was engaged in trial in Bureau County. No motion for continuance was made by the attorney for Defendants nor was the Magistrate or the attorney for Plaintiff advised of any inability of Defendants or their attorney to appear on the date specified except as indicated by affiant’s brother.

To say as does the Plaintiff that the judgment of the trial court should not be reversed unless there is shown a clear abuse of discretion or to say as do the Defendants that the action of the trial court should be reversed when injustice is shown, does not, in our opinion, announce contradictory principles. The action of the trial court should be viewed in its relationship to the prompt and orderly disposition of controversies on their merits. Whether such purpose is best accomplished by setting aside the judgment or refusing to set aside the judgment depends on the conduct of the parties, the relative hardship, prejudice or injustice which may result and the alternatives which are available to assure and promote compliance with legal procedure. This motion is filed under chapter 110, section 50(6), Ill Rev Stats, which provides that pursuant to motion filed within 30 days from the entry of a judgment, the court may set aside such judgment on any terms that shall be reasonable. With respect to the vacation of judgments by default, on motions filed within 30 days from the date of the judgment, recent cases announce the rule that courts shall be liberal in setting aside such judgments where it appears that justice will be promoted thereby. McDowell v. Jarnagin, 56 Ill App2d 395, 206 NE2d 497; Dann v. Gumbiner, 29 Ill App2d 374, 173 NE2d 525; Ryan v. Monson, 47 Ill App2d 220, 197 NE2d 265 and Widucus v. Southwestern Elec. Co-op., Inc., 26 Ill App2d 102, 167 NE2d 799.

The affidavit of the attorney for Defendants reveals he was engaged in another trial at the time this action was scheduled for hearing. His failure to appear, request a continuance or otherwise act to avoid the result which ensued, was the result of neglect or inadvertence caused by the pressure of an active trial practice. Such affidavit also indicates, at least by implication, that the neglect of defense counsel was not the result of the conduct of the Plaintiff or his attorney. From the absence of any counteraffidavits it must be concluded that the failure of the Defendants to appear was not an intentional or willful disregard of the directions of the court and it cannot be concluded that delaying tactics were involved.

When the trial court entered the original judgment, it acted quite properly. Notice of the hearing had been given. The Plaintiff, his attorney and witnesses were present, ready to proceed. Even though the Magistrate learned that defense counsel was on trial elsewhere, such fact did not furnish any adequate basis for not proceeding with the hearing. The conduct of the attorney for the Defendants evoked the displeasure of the trial magistrate and the Magistrate understandably considered such conduct inconsistent with orderly judicial procedure.

However, section 50(6), in providing that judgments may be vacated on reasonable terms, enables the trial court to assure compliance with legal procedure, to permit controversies to be determined on their merits, and to avoid any prejudice or hardship to the parties. The record does not reveal that a delay in the determination of the controversy on its merits would result in prejudice to Plaintiff. If the judgments had been vacated by the trial court, the only hardship resulting to Plaintiff would have been the inconvenience and expense of his attendance and that of his attorney and witnesses. Such hardship could have been avoided if the Magistrate had provided for such inconvenience and expense as being appropriate and reasonable terms for the vacation of the judgments. Ryan v. Monson, 47 Ill App2d 220, 197 NE2d 265. By permitting the judgments to be vacated upon such terms, the Magistrate could and should have resolved the conflicting issues without prejudice to the parties and without impairment of the stability of legal procedure. While we do not condone the attorney, we believe the Magistrate erred in failing to vacate the judgment when such terms were available.

Accordingly the judgment of the Circuit Court of La Salle County is reversed, and in accord with the views herein expressed, the cause is remanded with directions that the court determine such reasonable terms as may be appropriate conditions for the vacation of the judgments. In view of the nature, necessity and basis of this appeal costs of this appeal are assessed against Defendants.

Judgment reversed and remanded with directions.

ALLOY and CORYN, JJ., concur.