author: PRESIDING JUSTICE SEIDENFELD

text:
      In re ESTATE OF DAWN MARIE EDWARDS, a/k/a Dawn Marie Evink, a Minor, Deceased.—(JERRY EVINK et al., Petitioners-Appellants, v. DAWN MARIE EDWARDS, by Mary Lou Edwards Gregory, her Mother and Next Friend, et al., Defendants-Appellees.)
    Second District
    No. 81-702
    Opinion filed May 20,1982.

      Bernard P. Reese, Jr., of Reese, Reese and Bagley, of Rockford, for appellants.
    Brassfield, Cowan & Howard, of Rockford (Eugene E. Brassfield and Frederic T. Brandt, of counsel), for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Whether foster parents are entitled to bring an action for wrongful death of a child on theories of an agreement to adopt or “equitable adoption” is the question before us.

Dawn Marie Edwards, then 13, was struck by a car and killed on November 25,1980. Jerry Evink filed a petition seeking to open a probate estate and to be appointed her administrator in order to file a wrongful death action, alleging that he and his wife, Bonnie Evink, stood in the place of the natural parents of the decedent. The Evinks filed an additional petition seeking to establish an “equitable adoption,” in which they alleged that the deceased was born on October 8, 1967; they obtained permanent custody of the child on October 11, 1967; the child resided with them until her death; they had agreed to adopt the child and the natural mother Mary Lou Edwards Gregory had consented to said adoption; and for all of the natural life of the child they treated the child as their natural child. A consent of the natural mother dated subsequent to the death of the child was attached. It was further alleged that the natural father, James Poe, deserted the child, was unknown to the child and furnished no support.

The State’s Attorney, Mary Lou Edwards Gregory, and James Poe were made parties. The natural mother filed her appearance but has not otherwise participated in the proceedings. James Poe filed a motion to dismiss principally on the bases that the Adoption Act does not permit adoption of a deceased person, that the posthumous consent is an invalid attempt to assign a cause of action, and that the allegation referencing the mother’s original consent said to be three days after the birth of the child was therefore within 72 hours of the birth and invalid under the Adoption Act. Ill. Rev. Stat. 1979, ch. 40, pars. 1511(B), 1512(H).

The trial court appointed Jerry Evink administrator but dismissed the petition to adopt. The Evinks appeal.

Because the common law did not provide for the adoption of children, adoption rights and duties are determined by statute. (McNamara v. McNamara (1922), 303 Ill. 191,196.) The petition does not allege that the provisions of the Adoption Act were complied with during the lifetime of Dawn. The petitioners allege that they have a “statutory and equitable right to be declared the adoptive parents of said child.” However, as there were no statutory adoption proceedings during Dawn’s lifetime, a statutory adoption cannot occur now, since the relevant parts of the Adoption Act contemplate adoption of a living person.

The definition of a “child” subject to adoption means a “person.” (Ill. Rev. Stat. 1979, ch. 40, par. 1501(A).) The provisions of the Adoption Act furnish the clear implication that only a living person may be the subject of adoption proceedings. (Ill. Rev. Stat. 1979, ch. 40, par. 1501 et seq.) The “person” sought to be adopted must be made a party. (Ill. Rev. Stat. 1979, ch. 40, par. 1510.) The only reference to a deceased child is section 14a, which provides that after the court has acquired jurisdiction over “the person of any child,” and the child dies before the entry of the final order, the court may permit the matter to proceed to final order “to enable the child to have the intended name by adoption.” Ill. Rev. Stat. 1979, ch. 40, par. 1518.

Clearly there has been no statutory adoption. The petitioners’ principal argument, however, is based on the theory referred to in the petition as “equitable adoption.” In Illinois the cases in the area of failure to follow the statute for adoption have proceeded on a contract theory; holding that an oral contract to adopt may be shown, but that evidence supporting the contract must be “clear and conclusive of the existence and terms of the contract, leaving no room for reasonable doubt.” (Monahan v. Monahan (1958), 14 Ill. 2d 449, 452.) And the evidence must not be “readily harmonizable with any other theory” than the intent to adopt. 14 Ill. 2d 449, 453.

Illinois has not expressly recognized the theory of “equitable adoption.” (See In re Estate of Staehli (1980), 86 Ill. App. 3d 1,5.) In a number of jurisdictions, however, estoppel or quasi-contract considerations have been applied to establish an adoption where there has been clear proof of a contract, express or implied, between the child’s natural parents or legal custodians and the foster parents, reliance upon the parent-child relationship, and performance of obligations under the de facto relationship. (See Adler v. Moran (Tex. Civ. App. 1977), 549 S.W.2d 760,763, revd on other grounds (1978), 570 S.W.2d 883; Mize v. Sims (Mo. App. 1974), 516 S.W.2d 561, 564; Annot., 97 A.L.R.3d 347, 353 (1980).) In a great majority of the cases the child is claiming various rights said to arise from the relationship of an adopted child and the adopting parent has been held estopped from denying that he assumed the obligation. See Mize v. Sims (Mo. App. 1974), 516 S.W.2d 561, 567; Adler v. Moran (Tex. Civ. App. 1977), 549 S.W.2d 760, 762; In re Marriage of Valle (1975), 53 Cal. App. 3d 837, 842-43, 126 Cal.Rptr. 38, 41-42; Moore v. Douglas (Tex. Civ. App. 1979), 589 S.W.2d 862, 865; Annot., 97 A.L.R.3d 347, 375-382 (1980).

It is also noteworthy that the only Illinois cases which have enforced adoption contracts have done so where the child seeks to inherit from a foster parent. Dixon National Bank v. Neal (1955), 5 Ill. 2d 328, 331, and cases there cited; Monahan v. Monahan (1958), 14 Ill. 2d 449.

We apply the accepted principles in ruling upon a motion to dismiss, that well-pleaded facts and reasonable inferences in Evinks’ petition are taken as true, with the allegations viewed in the light most favorable to them. (E.g., Album Graphics, Inc. v. Beatrice Foods Co. (1980), 87 Ill. App. 3d 338, 344.) The Evinks alleged that Dawn was in their custody from three days after her birth until she died, they and Dawn’s natural mother agreed that the Evinks would adopt Dawn, Poe deserted Dawn, Dawn used the surname “Evink” for all purposes, and the Evinks assumed full responsibility for Dawn, supported her financially, and cared for her as a natural child, although there were no statutory adoption proceedings. While these allegations may be sufficient to allege a contract to adopt, the allegations taken as true with the reasonable inferences, do not establish a cause of action in the Evinks to sue for the wrongful death of Dawn.

Damages arising from wrongful death in Illinois are recoverable exclusively for the benefit of the decedent’s surviving spouse and “next of kin.” (Ill. Rev. Stat. 1979, ch. 70, par. 2.) Next of kin includes adoptive parents, since an adoptive child stands in the same relation to the adoptive parent as a natural child. Hopkins v. Gifford (1923), 309 Ill. 363, 371; McDavid v. Fiscar (1951), 342 Ill. App. 673, 680.

Because there was no cause of action for wrongful death at common law, the wrongful death statute is the source of determining who shall sue and under what conditions; and the statute is to be strictly construed. (Wilson v. Tromly (1949), 404 Ill. 307, 310.) Recovery is limited solely to those beneficiaries clearly described in the statute. (Steed v. Imperial Airlines (1974), 12 Cal.3d 115, 119, 524 P.2d 801, 803,115 Cal. Rptr. 329, 331.) Statutes providing recovery for wrongful death, strictly construed, have been held to exclude persons standing only in a quasi-parental relationship. See Smith v. Jones (1945), 72 Ga. App. 638, 639, 34 S.E.2d 623, 624.

Proof of the elements of an oral contract to adopt merely permits the enforcement of contract rights; it does not create a parent-child relationship or afford all of the legal consequences of a statutory adoption. When the contract has not been performed, in fact becomes impossible to perform because of the death of the child, the foster parent does not come within the term “next of kin” in the wrongful death statute. See Whitchurch v. Perry (1979), 137 Vt. 464, 408 A.2d 627, 632; Boudreaux v. Texas & N. O. R. Co. (Tex . Civ. App. 1935), 78 S.W.2d 641, 642-44; Smith v. Jones (Ga. App. 1945), 34 S.E.2d 623,624; Citizens’ St. R. Co. v. Cooper (1899), 22 Ind. App. 459, 53 N.E. 1092; Perez v. Central Power & Light Co. (Tex. Civ. App. 1930), 27 S.W.2d 641, 642; Olson v. United States (8th Cir. 1949), 175 F.2d 510, 512 (applying Utah law).

We are sympathetic to the concern of the petitioners that James Poe, who clearly abandoned the child, should here be the objector. There are implications from his conduct that are not savory. However, he was made a defendant with his consequent right to plead; and, in any event, we would be required to resolve the legal issues in the same way.

The judgment of the trial court which dismissed plaintiffs’ petition for failure to state a cause of action is therefore affirmed.

Affirmed.

HOPE and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE WHITE

license: Public Domain

text:
    COLONIAL BANK & TRUST CO., Plaintiff-Appellant, v. BARBARA KOZLOWSKI et al., Defendants-Appellees.—(CHESTER L. RINGENBERG et al., Third-Party Plaintiffs, v. COLONIAL BANK & TRUST CO. et al., Third-Party Defendants.)
    First District (3rd Division)
    No. 80-2421
    Opinion filed May 5,1982.

      Stephen Sonderby, of Chicago, for appellant.
    Dalton P. Grief, of Chicago, for appellees.
   PRESIDING JUSTICE WHITE

delivered the opinion of the court:

This is an appeal from a judgment entered after a bench trial for defendants, Margaret and Chester Ringenberg (Ringenbergs), who, as guarantors of a promissory note, were sued by plaintiff, Colonial Bank and Trust Company (Colonial).

These are the facts developed at trial. In response to a newspaper advertisement, the Ringenbergs, along with their niece, Barbara Kozlowski, called on Ron D. Manley, an agent of Big Top Popcorn, Inc. (Big Top), concerning an investment in that company. After meeting with Manley and his lawyer, the Ringenbergs decided to invest in a popcorn kiosk at Old Chicago, an amusement park and shopping center in a suburb of Chicago. The total cost of the investment was $20,000: $6,000 to be contributed by the Ringenbergs; $3,000 by Kozlowski, and the remaining $11,000 to be obtained by a bank loan. Manley suggested that defendants visit Colonial Bank and meet with his friend, Mr. Christman, for the purpose of securing a loan. They met at the bank tin May 30,1975. At this meeting the note which is the subject matter of this suit was executed by Ms. Kozlowski and signed on the reverse side by the Ringenbergs as guarantors.

The proceeds of the bank loan in the form of a check in the sum of $11,000 were turned over to Ms. Kozlowski. The check was taken to Mr. Manley’s office by Ms. Kozlowski and given to him. In return for their investment and the loan proceeds, the Ringenbergs were each given by Mr. Manley certificates for 33 1/3 percent of the stock of a corporation called “Cotton Candy and Slush Kiosk No. 134.” The business opened and operated profitably until approximately September of 1975. The money received from the business was turned over to Mr. Manley and a salary was paid to Barbara Kozlowski and to Margaret Ringenberg. In January of 1976, Mr. Manley “ran off with the money.” Approximately 15 payments were made on the note up until February 1977, when the payments stopped. The language of the guaranty of the note expressly waives presentment, protests, demand, notice of dishonor or default and notice of acceptance of the guaranty.

On August 31, 1977, Colonial filed a complaint for a confession of judgment against the Ringenbergs, and a judgment was entered in the sum of $11,419.01. The Ringenbergs presented a motion to the circuit court of Cook County to open the judgment and in support thereof attached an affidavit and a verified answer to Colonial’s complaint. The affidavit in support of the motion to open judgment raises the issue of misrepresentation by an agent of the plaintiff, Colonial, and further alleges that the misrepresentations were relied upon and caused the Ringenbergs to act to their detriment. The court ordered the judgment opened and granted the Ringenbergs leave to appear and defend on the judgment and leave to file a third-party complaint. The third-party complaint set forth allegations that the representations of Christman as an agent of Colonial Bank and Trust Company caused the Ringenbergs to be defrauded of $9,000 of their personal funds.

After a hearing the trial court held that the guaranty was “improperly obtained” and vacated Colonial’s judgment against the Ringenbergs but found that the allegations in their third-party complaint had not been proved and denied the Ringenbergs recovery thereunder. Colonial appeals from that portion of the trial court’s order denying it recovery under the guaranty.

I

Colonial first contends that the trial court erred in opening the judgment by confession because the Ringenbergs’ motion and affidavit failed to disclose a prima facie defense. Under Supreme Court Rule 276 (Ill. Rev. Stat. 1977, ch. 110A, par. 276), a judgment by confession may be opened if the moving party has established by his motion, affidavit, and verified answer, a prima facie defense on the merits to the plaintiff’s demand. (Lyons Brothers Lumber & Fuel Co. v. Shepherd (1980), 81 Ill. App. 3d 213, 216, 400 N.E.2d 975.) In determining whether allegations of a meritorious defense have been presented, the court must accept as true those facts asserted by defendants in their affidavits. (Malone v. Marks (1977), 55 Ill. App. 3d 846, 849, 371 N.E.2d 204.) Fraud in the inducement is a valid defense to an action on a note. Shanahan v. Schindler (1978), 63 Ill. App. 3d 82, 379 N.E.2d 1307; see Melvin State Bank v. Crowe (1968), 97 Ill. App. 2d 82, 239 N.E.2d 483.

The Ringenbergs rely on the affirmative defense of fraud. To establish fraud it must be alleged and proved that:

° ° the statement made was of a material fact and not opinion; it must be untrue; the party making the statement must know or believe it to be untrue; the person to whom the statement is made must believe and rely on it, and have a right to do so; it must have been made for the purpose of inducing the other party to act; and the reliance by the person to whom the statement is made must lead to his injury.” Forrester v. State Bank (1977), 52 Ill. App. 3d 34, 39, 363 N.E.2d 904, quoting Davis v. Nehf (1973), 14 Ill. App. 3d 318, 325, 302 N.E.2d 382.

Applying these principles to the case at bar, we find that the Ringenbergs’ affidavit does state a prima facie defense of fraud. In their affidavit the Ringenbergs set forth the following allegations: (1) that Christman was an officer of Colonial; (2) that Christman represented to defendants that Colonial was an investor in “Cotton Candy and Slush Kiosk No. 134, Inc.”; (3) that Colonial had such confidence in said corporation that it would be willing to loan $11,000 to defendants without security; (4) that in reliance on these representations, defendants signed as guarantors of a note drafted by Colonial; and (5) that subsequent to defendants’ assuming control of “Cotton Candy and Slush Kiosk No. 134, Inc.,” Big Top assumed control of the assets of said corporation and Mr. Manley removed all of the funds of said corporation.

Colonial contends that the Ringenbergs’ affidavit is insufficient because it does not expressly charge fraud. However, even though conduct is not expressly labeled “fraudulent,” fraud is well pleaded if the facts alleged constitute or necessarily imply fraud. (Lincolnland Properties, Inc. v. Butterworth Apartments, Inc. (1978), 65 Ill. App. 3d 907, 911, 382 N.E.2d 1250.) Here, the Ringenbergs’ affidavit alleges conduct which, if proved at trial, constitutes fraud. The allegations regarding Christman’s position at the bank, the bank’s involvement and confidence in Big Top, and the Ringenbergs’ detrimental reliance thereupon are sufficient to establish a prima facie cause of fraud. See Forrester v. State Bank (1977), 52 Ill. App. 3d 34, 40.

Colonial additionally argues that the trial court erred when it vacated the judgment and denied Colonial recovery under the note. We do not agree. The evidence at trial established that Christman was an officer at Colonial. Furthermore, when the Ringenbergs met with Christman, he told them that Colonial was investing in Big Top and that such an investment was a “sure thing.” However, contrary to these representations, Colonial had not made any investment in Big Top nor in any other business sponsored by Manley. We are of the opinion that Christman’s representations regarding Colonial’s involvement and confidence in Big Top were misrepresentations of material fact calculated to disarm the Ringenbergs and induce them into signing as guarantors of the note. Furthermore, because of Christman’s position as a loan officer at Colonial, the Ringenbergs were justified in relying upon his representations when making their decision to sign the guaranty. Therefore, the Ringenbergs adequately proved that Colonial fraudulently obtained their signature on the guaranty. Accordingly, we find that the trial court properly exercised its discretion in vacating Colonial’s judgment for recovery under the guaranty and we will not disturb that decision on review. Schultz v. Gignac (1981), 94 Ill. App. 3d 399, 402, 418 N.E.2d 991.

II

Colonial next contends that the trial court’s order granting the Ringenbergs leave to appear and defend on the confessed judgment was error because their answer to plaintiff’s complaint for confession of judgment failed to raise any affirmative matter in defense. However, as long as defendant has substantially complied with Supreme Court Rule 276 by disclosing a prima facie case, even the absence of a verified answer would not be fatal to defendant’s cause. (Turner v. Smiley (1972), 8 Ill. App. 3d 388, 390, 291 N.E.2d 27.) Here, although the Ringenbergs were relying on the affirmative defense of fraud, they did not allege it in their answer. Their affidavit, however, did establish a prima facie defense of fraud. Accordingly, the Ringenbergs have substantially complied with Supreme Court Rule 276, and the trial court’s order opening and vacating Colonial’s confessed judgment was not erroneous.

III

In addition to appearing and defending on the confessed judgment, the Ringenbergs filed a third-party complaint in which they alleged that the same misrepresentations that caused them to sign the guaranty also induced them to invest $9,000 of their personal funds in “Cotton Candy and Slush Kiosk No. 134.” After hearing all the evidence the trial court found that the Ringenbergs failed to prove their third-party complaint. Colonial contends that the trial court’s order in favor of the Ringenbergs under the guaranty but against them on their third-party complaint was so inconsistent as to require reversal. Colonial argues that when the trial court found that the Ringenbergs failed to prove the allegations of fraud in the third-party complaint, it should have also found that they failed to prove fraud as a defense under the guaranty. We do not agree.

As discussed above, the Ringenbergs proved that the misrepresentations of Christman induced them to sign as guarantors of the note. However, the Ringenbergs’ allegations that these same misrepresentations induced them to invest $9,000 of their personal funds in “Cotton Candy and Slush Kiosk No. 134” are not supported by any facts in the record. Indeed, the record reveals that they decided to invest their personal funds before they ever met with Christman. As a result, the Ringenbergs failed to prove their reliance upon Christman’s misrepresentations when investing $9,000 of their personal funds. It is well settled that fraud must be proved by clear and convincing evidence as to each of its elements. (Zeilenga v. Stelle Industries, Inc. (1977), 52 Ill. App. 3d 753, 757, 367 N.E.2d 1347; Western Land Corp. v. Lichtenstein (1977), 47 Ill. App. 3d 233, 239, 361 N.E.2d 730.) Here, because the Ringenbergs failed to prove reliance in regard to the allegations in the third-party complaint, the court properly denied them recovery thereunder. This decision is neither incorrect nor inconsistent with the court’s judgment in favor of the Ringenbergs under the guaranty where they did prove reliance. Accordingly, we uphold the trial court’s decision.

For the aforementioned reasons we affirm the decision of the circuit court of Cook County.

Affirmed.

McNAMARA and RIZZI, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD M. OSWALD et al., Defendants-Appellees.
    Second District
    Nos. 81-557, 81-560 cons.
    Opinion filed May 20, 1982.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and Phyllis J. Perko and Nancie J. Hudell, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Frank Wesolowski, Jr., Public Defender, of Wheaton (Robert H. Heise, Assistant Public Defender, of counsel), for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

In consolidated cases, the State seeks to appeal from orders granting supervision to Donald M. Oswald upon his plea of guilty to battery (No. 81-557), to Timothy E. Barry upon his plea of guilty to criminal trespass to land (No. 81-560), and terminating supervision instanter in each case. Defendant Barry was also fined $25. The State contends that an order granting supervision and terminating it instanter is in effect a dismissal, permitting appeal under Supreme Court Rule 604(a)(1) (73 Ill. 2d R. 604(a)(1)); and on the merits argues that the dispositions are unauthorized by law.

Defendants first argue that the State cannot appeal because the termination of court supervision is an acquittal from which an appeal is barred by the Illinois Constitution; that an appeal would subject the defendants to double jeopardy; that the imposition of supervision is a sentence from which the State may not appeal under Supreme Court Rule 604(a)(1); and, that the State has waived its right to appeal.

Initially we reject defendants’ argument that the orders were acquittals. Under the Illinois Constitution there can be no appeal from a judgment of acquittal after a trial on the merits. (Ill. Const. 1970, art. VI, sec. 6.) However, an acquittal occurs only when “ ‘the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.’ ” People v. Wallerstedt (1979), 77 Ill. App. 3d 677, 680.

The orders dismissing the charges against the defendants were not “judgments of acquittal.” The trial judge in fact found both defendants guilty as charged and as admitted by the guilty pleas. None of the factual elements of the offenses charged were resolved in the defendants’ favor. They were discharged on grounds unrelated to their guilt and despite the evidence of their guilt. Such a dismissal of the charges is not a judgment of acquittal. People v. Jones (1979), 75 Ill. App. 3d 945, 947-48; see also United States ex rel. Rock v. Pinkey (N.D. Ill. 1977), 430 F. Supp. 176, 181-82, affd without op. (7th Cir. 1978), 582 F.2d 1282.

Our opinion in People v. Tarkowski (1981), 100 Ill. App. 3d 153, on which defendants rely, does not indicate a different result. In Tarkowski, the defendant sought to appeal an order of court supervision and an order terminating the supervision after he had paid fines arising from his arrest for toll evasion, resisting a peace officer, and failing to surrender his driver’s license. We held that the defendant could not appeal as the order terminating supervision was without adjudication of guilt, and thus a ruling in defendant’s favor (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—3.1(f)); therefore, the appeal was moot as to the defendant. (100 Ill. App. 3d 153, 161.) The defendants’ reliance upon the dictum in Tarkowski that the discharge of the defendant from supervision is “akin to a judgment of acquittal * ” (100 Ill. App. 3d 153,161) is misplaced. The similarity lies in the fact that an appeal by a defendant who is acquitted would also be moot. Tarkowski does not hold that an order dismissing charges against a defendant is a judgment of acquittal for purposes of appeal, and for the reasons given above, we will not so hold here. The appeals here are not moot as to the State and are not barred by article VI, section 6 of our constitution.

We also conclude that the State’s appeal does not violate the double jeopardy clauses of the United States and Illinois Constitutions. (U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 10.) The United States Supreme Court has held that an appeal by the government from a dismissal of an indictment (there, on grounds of prejudicial delay) following a jury verdict of guilty is not barred on double jeopardy grounds. (United States v. Wilson (1975), 420 U.S. 332,43 L. Ed. 2d 232,95 S. Ct. 1013.) In Wilson, the Supreme Court noted that “the constitutional protection against Government appeals attaches only where there is a danger of subjecting the defendant to a second trial for the same offense 6 0 *” (420 U.S. 332,336, 43 L. Ed. 2d 232,237,95 S. Ct. 1013,1018), and that correcting the ruling of law discharging the defendant after the entry of a guilty verdict is permissible, because

“[although review of any ruling of law discharging a defendant obviously enhances the likelihood of conviction and subjects him to continuing expense and anxiety, a defendant has no legitimate claim to benefit from an error of law when that error could be corrected without subjecting him to a second trial before a second trier of fact.” (420 U.S. 332, 345, 43 L. Ed. 2d 232, 242-43, 95 S. Ct. 1013, 1023.)

The court noted that in a case of a post-verdict ruling of law by a trial judge a correction of error at that stage “would not grant the prosecutor a new trial or subject the defendant to the harassment traditionally associated with multiple prosecutions.” 420 U.S. 332, 352,43 L. Ed. 2d 232, 247, 95 S. Ct. 1013,1026.

It is therefore settled that the prosecutor’s appeal of a post-verdict dismissal of an indictment after a guilty verdict is not barred by double jeopardy, as the restoration of the guilty verdict, not a new trial, would necessarily result if the prosecution prevails. (United States v. Martin Linen Supply Co. (1977), 430 U.S. 564, 570,51 L. Ed. 2d 642, 650, 97 S. Ct. 1349, 1354; see also United States v. DiFrancesco (1980), 449 U.S. 117,130-31,66 L. Ed. 2d 328,341-42,101S. Ct. 426,434.) The Wilson rule applies whether the finding of guilty is made by a jury or by a judge. United States v. Morrison (1976), 429 U.S. 1, 3, 50 L. Ed. 2d 1, 4, 97 S. Ct. 24, 26.

In this case, holding for the State on the merits would not force a retrial but would simply result in reinstatement of the guilty verdicts and further proceedings thereon.

Defendants’ argument that allowing a remand for further proceedings would violate the double jeopardy clause’s prohibition against multiple punishments is also not persuasive. Even if we assume that the dispositions at issue were somehow convictions and sentences, so that defendants have “been once convicted and punished” (United States v. Wilson, 420 U.S. 332, 343,43 L. Ed. 2d 232,241, 95 S. Ct. 1013,1021), double jeopardy does not bar an appeal for “resentencing” to correct an illegal sentence. Stuckey v. Stynchcombe (5th Cir. 1980), 614 F.2d 75, 76; see also Bozza v. United States (1947), 330 U.S. 160,167, 91 L. Ed. 818, 822, 67 S. Ct. 645, 649.

Defendants next argue that the State lacks statutory authority to appeal the orders. The State maintains that it is authorized to appeal by Supreme Court Rule 604(a)(1) (73 Ill. 2d R. 604(a)(1)), which allows an appeal by the State “from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure * ” The State argues that the orders at issue were in substance dismissals and therefore fall within the rule. We agree.

Under Rule 604(a)(1), the State may appeal any judgment the substantive effect of which is the dismissal of the indictment, information, or complaint. (People v. Lawson (1977), 67 Ill. 2d 449, 455-56; People v. Love (1968), 39 Ill. 2d 436, 439-40.) The orders here plainly had the effect of dismissing the charges, purportedly under the authority of the Unified Code of Corrections’ supervision provisions (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—3.1(e)), and the trial judge explicitly stated that the cases were dismissed.

Defendants nonetheless argue that the State may not appeal because it lacks authority to appeal the imposition of a sentence. (See People v. Kent (1976), 40 Ill. App. 3d 256.) Insofar as the imposition of a sentence is not an order dismissing the charges, this is correct; the orders at issue here were, however, in substance dismissals, and this is sufficient to make them appealable. The cases cited by defendants involve appeals after judgments of conviction, which could not be said to amount in substance to dismissals of the charges. In any case, we find no support.for defendants’ implied assertion that the dispositions at issue were sentences. A sentence presupposes a convicted defendant (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 1—19), and no judgments of conviction were entered against the defendants; rather, the charges were dismissed, and the supervision statute on which the trial judge relied provides that such dismissal is without adjudication of guilt (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—3.1(f)). Whether or not they might be labeled “sentences,” the orders at issue were in substance dismissals and thus appealable.

We therefore conclude that the State’s appeal is authorized by Supreme Court Rule 604(a) (1) and not prohibited by anything in either the United States or the Illinois Constitutions.

The defendants next argue that the State has waived its right to contest the propriety of the dispositions by failing to argue the matter in the trial court. The State concedes a lack of objection and asks this court to review the trial court’s orders under the plain error rule. 73 Ill. 2d R. 615(a).

The waiver rule applies to the State as well as to the defendant. (People v. McAdrian (1972), 52 Ill. 2d 250, 254.) The State has also successfully invoked the plain error rule when an error has been committed which affects the substantial right of the People. (People v. Smith (1976), 42 Ill. App. 3d 731, 733; People v. Joyner, (1978), 57 Ill. App. 3d 948,952-53.) It is of course true that review under the plain error doctrine is not a matter of right, but is at the discretion of the appellate court. (People v. Smith (1976), 42 Ill. App. 3d 731,733.) However, the nature of the issues here favors invocation of plain error. The basic issue is truly one of law concerning the construction of the supervision statute. The alleged error did not arise until the entry of judgment dismissing the charges, and the trial judge evidently had determined that the statute authorized the orders in question; the failure to obtain the trial court’s views on the proper interpretation of the statute makes little or no difference for purposes of deciding this appeal.

We therefore reach the question whether the order of supervision, together with the order terminating supervision instanter, is an action authorized by law. The defendants contend that the trial court order of supervision could be terminated instanter under section 5 — 6—3.1(b) of the Unified Code of Corrections, which provides:

“(b) The period of supervision shall be reasonable under all of the circumstances of the case, but may not be longer than 2 years.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—3.1(b).)

Defendants reason that because the legislature has fixed a two-year maximum period in which a defendant can be placed on supervision, while leaving the minimum period of time open, the trial court is free to use its discretion to “sentence” a defendant to supervision terminated instanter.

Although the legislature has not seen fit to set a minimum period of supervision, the phrase “the period of supervision shall be reasonable,” must be given its ordinary meaning. (People v. Blair (1972), 52 Ill. 2d 371, 373.) The fact that the trial court is given broad discretion in determining the period of supervision suggests that the discretion is to be exercised in some determinate period of time. The obvious purpose of having a period of supervision is to permit a meaningful opportunity to observe the conduct of the offender over some reasonable period of time. By terminating the supervision instanter the trial court has frustrated the legislative intent and has denied the State and the court opportunity to insure to the public that the defendants’ conduct did not warrant criminal records. The termination of supervision instanter has the mark of subterfuge, a way to avoid the statute without exercising discretion. We conclude that such a disposition is not authorized by statute.

We therefore reverse the judgments and remand the cases to the trial court with instructions to vacate the orders terminating supervision instanter and to enter orders in the proper exercise of discretion under section 5 — 6—3.1(b) of the Unified Code of Corrections.

Reversed and remanded with directions.

HOPE and VAN DEUSEN, JJ., concur.


author: JUSTICE REINHARD

text:
    ALBERT S. TEITELBAUM, Plaintiff-Appellee, v. RELIABLE WELDING CO., Defendant-Appellant.
    Second District
    No. 81-638
    Opinion filed May 10,1982.
    Rehearing denied June 14,1982.

      Kusper & Raucci, Chartered, of Chicago (Michael P. McClelland, of counsel), for appellant.
    William Linkul, of Glen Ellyn, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

The defendant, Reliable Welding Co., appeals from an ex parte judgment against it for $6,867.50 in favor of the plaintiff, Albert S. Teitelbaum, and dismissal of defendant’s counterclaim, and the trial court’s order denying its motion to vacate that judgment. The defendant raises three issues on appeal: (1) that the trial court erred in refusing to grant defendant a continuance of the trial date and in entering judgment against it; (2) that the court below erred in denying defendant’s motion to vacate the judgment; and (3) that the trial court improperly denied its motion to transfer venue in this cause from Du Page County to Cook County.

On August 14, 1979, the plaintiff filed a complaint against defendant in which he alleged that he had performed certain drafting services for the defendant in connection with the construction of two buildings on Wacker Drive in Chicago; that the defendant owed him $13,107 for the services performed but had only made payments in the amount of $6,239.50; and that the defendant was still indebted to him in the sum of $6,867.50.

Defendant, which was served with summons on August 21, 1979, entered its appearance on September 6,1979. Approximately three weeks later, on September 28, 1979, defendant filed a motion to transfer the cause from Du Page County to Cook County, where it maintained venue was proper. Subsequently, the hearing on the motion to transfer venue was continued on three occasions apparently by agreement of the parties, until March 14, 1980. On March 14 the plaintiff was granted leave to substitute attorneys, and the venue question was further continued until April 8,1980. Then, on April 8 the hearing concerning the venue issue was continued for a fifth time. On that occasion, counsel for the plaintiff represented to the court that defense counsel wished to continue the hearing on the transfer of venue matter and that he had no objection to a short continuance. Accordingly, the court continued the matter to May 2, 1980. On May 2, the defendant apparently entered a tardy appearance after the court had passed the venue matter and after counsel for the plaintiff had departed the courthouse. The motion to transfer venue was again continued, this time until May 23, 1980. On that date the court conducted a full hearing on the motion to transfer venue, denied the motion, and gave the defendant 35 days to answer or otherwise plead. The record on appeal, however, does not include a transcript or bystander’s report of the May 23,1980, hearing.

On July 10, 1980, the plaintiff moved for and obtained an order of default against defendant for its failure to file an answer or otherwise plead within the 35-day limit which the court had earlier set, and the cause was continued to July 30, 1980, for a prove-up on the issue of the plaintiff’s damages. In the interim, on July 16,1980, new counsel filed a motion in which it sought: (1) to vacate the default judgment; (2) leave to file a substitution of attorneys; (3) leave to file its answer instanter; and (4) leave to file a counterclaim within 28 days. The court granted the motion in all respects on July 16.

In its answer, defendant denied that plaintiff had successfully performed the architectural services it had requested in that plaintiff failed to complete the project. In its counterclaim, defendant alleged that plaintiff negligently and wrongfully failed to provide architectural drawings in accordance with the specified structural design requirements; that as a result of this failure, defendant fabricated materials in dimensions not appropriate for the construction project; and as a consequence of the “misfabrication,” defendant had to expend over $28,311.38 to correct the defects which plaintiff caused.

Plaintiff sent notice to defendant on January 22, 1981, that he would appear in court on January 28,1981, and move for a definite trial date. On January 28, the court set the matter for trial at 1:30 p.m. on May 8,1981. It is not disputed that defendant’s attorney was thereafter notified of this trial date. It also should be noted that prior to this date interrogatories and requests for admissions of facts were filed and answered, documents requested, and a bill of particulars filed and answered.

On May 6, 1981, counsel for the defendant, Michael P. McClelland, of Kusper & Raucci, Chartered, telephoned counsel for the plaintiff, William F. Linkul, to inform Linkul that he was unable to be in court in Du Page County on May 8, 1981, because he had been ordered by the Cook County Circuit Court to act as an arbitrator in another matter. McClelland told Linkul that the attorney in the law firm who had been handling defendant’s case had left the law firm, and on May 6, the firm realized that the matter was coming to trial and he was reassigned to the case. McClelland asked Linkul to inform the court of these circumstances and request a continuance. Linkul replied that he would so inform the court, but he would also answer ready for trial on behalf of the plaintiff. On May 6, McClelland also contacted by telephone the secretary of the judge who was handling the case to inform her of the same circumstances. He requested that she relate this to the judge and inform the judge that he, McClelland, would not appear for trial on May 8,1981.

On May 8,1981, counsel for plaintiff appeared for the scheduled trial date, whereas neither defendant nor his counsel appeared. At that time Linkul advised the court of the telephone call from McClelland. Linkul also informed the court that he had told McClelland he would convey the substance of McClelland’s remarks to the court but that he would answer ready for trial on behalf of the plaintiff and that he believed McClelland was risking the entry of a default judgment by not appearing on May 8 because the Du Page County court does not take as casual an approach to continuing cases as McClelland may be used to in Cook County. When plaintiff answered ready for trial, the court entered an order of default against defendant. After a prove-up of plaintiff’s case and testimony concerning his damages, the court entered judgment in his favor and against defendant in the sum of $6,867.50 and dismissed with prejudice defendant’s counterclaim.

Subsequently, on May 29,1981, defendant filed an unverified motion to vacate the default judgment. An identical, verified motion was filed on June 9,1981. This verified motion signed by Attorney McClelland, stated in pertinent part that the attorney previously responsible for handling this case was no longer employed by the law firm; that due to inadvertence, the case was not assigned to him until May 6, 1981, two days prior to the trial; that he was assigned to act as an independent arbitrator in the case of Thompson v. Coronet Insurance Co. and that he was scheduled to conduct the arbitration hearing in that case at the law firm’s office on May 8, the same day of the trial in the present case; that on May 6 he informed counsel for the plaintiff of the prior legal conflict and his inability to proceed to the trial; that he called the trial judge’s office on May 7 and related to the judge’s secretary the “misassignment” of the case in the law firm’s office, the fact that he was previously engaged on May 8, that counsel for plaintiff had been informed and had no objection to a continuance, and in response to her informing him that someone would have to appear before the judge on May 8 and request the continuance, informed her that the plaintiff’s attorney had agreed to do so; and that the cause cannot be tried until plaintiff’s deposition has been conducted. Plaintiff filed an objection to the motion which was accompanied by an affidavit of his attorney and a memorandum of law. The affidavit by Attorney Linkul inter alia stated that from January 28, 1981, to the trial date no depositions were requested by defendant; that he informed Attorney McClelland that Rule 231(f) was strictly adhered to in Du Page County and the chances were good that the matter would proceed to trial on May 8; that contrary to McClelland’s affidavit, he did not state he had no objection to a continuance, but would respond, if asked by the court, “ready for trial”; and that he told McClelland that if no one appeared for defendant, the court would default defendant and might proceed to prove up damages. Defendant then filed a response to plaintiff’s objection. On July 15,1981, the court entered a written memorandum of decision in which it denied defendant’s motion to vacate the default judgment. In its memorandum of decison denying the defendant’s motion to vacate the default judgment, the trial court stated that it found no authority for presenting motions for continuance by means of the telephone or through opposing counsel and that, consequently, the defendant had not presented the court with an appropriate motion for a continuance. A week later, on July 22,1981, the court entered an order in accordance with its written memorandum of decision. Thereafter, the court denied another motion filed by defendant which sought to set aside the order of July 22 and for rehearing on defendant’s original motion to vacate the judgment.

The defendant’s first contention on appeal is that, contrary to the trial court’s conclusion, its communication with the plaintiff’s attorney, Linkul, and Linkul’s subsequent explanation to the court on the day of trial that defense counsel was presently engaged in an arbitration hearing, as well as the defendant’s May 7 telephone call to and conversation with the judge’s secretary, constituted a motion for a continuance, the denial of which was an abuse of discretion.

Section 59 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 59) provides in part:

“§59. Extension of time and continuances. On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.
The circumstances, terms and conditions under which continuances may be granted, the time and manner in which application therefor shall be made, and the effect thereof, shall be according to rules.”

Supreme Court Rule 231(f) (73 Ill. 2d R. 231(f)) provides:

“(f) Time for Motion. No motion for the continuance of a cause made after the cause has been reached for trial shall be heard, unless a sufficient excuse is shown for the delay.”

There is no duty imposed upon a trial court to continue a case when no request for a continuance has been made. (Thilman & Co. v. Esposito (1980), 87 Ill. App. 3d 289, 293, 408 N.E.2d 1014; Francone v. Weigel Broadcasting Co. (1979), 79 Ill. App. 3d 991,994,398 N.E.2d 1114.) While a request for a continuance sought because of the absence of material evidence under Supreme Court Rule 231(a) (73 Ill. 2d R. 231(a)) requires that an affidavit accompany the motion (Mann v. People (1981), 98 Ill. App. 3d 448, 424 N.E.2d 883), there is no similar mandatory affidavit requirement for a continuance upon other grounds pursuant to Rule 231(f), although sufficient cause normally will be presented by affidavit or testimony. (See, e.g., Marshall v. Henning (1980), 91 Ill. App. 3d 180, 182, 414 N.E.2d 529; Needy v. Sparks (1977), 51 Ill. App. 3d 350, 358-59, 366 N.E.2d 327; Nixon v. Harris (1975), 31 Ill. App. 3d 204, 333 N.E.2d 667.) The moving party must give especially grave reasons for continuance once a case has reached the trial stage because of the potential inconvenience to the witnesses, the parties and to the court. (Needy v. Sparks (1977), 51 Ill. App. 3d 350, 358, 366 N.E.2d 327.) The critical issue before us here is whether the defendant made a proper request for continuance to the court.

Defendant relies principally upon Johnson v. Safeway Insurance Co. (1975), 29 Ill. App. 3d 520, 331 N.E.2d 155, and Tamimie v. City of Galesburg (1977), 50 Ill. App. 3d 843, 365 N.E.2d 1177, to support its contention that a proper request for continuance was made in the case at bar. Plaintiff cites Nixon v. Harris (1975), 31 Ill. App. 3d 204, 333 N.E.2d 667, as authority that defendant failed to properly bring to the court’s attention a motion for continuance. While we believe that the decisions in Johnson v. Safeway Insurance Co. and Nixon v. Harris are apposite and appear to be in conflict, we do not find that the court in Tamimie directly addressed or ruled on the precise issue presented here, i.e., whether a motion for continuance is properly made under the circumstances here when communicated through opposing counsel or by telephone to the court’s secretary. Rather, the court in Tamimie only held that the motion for continuance made during a telephone conversation with the trial judge failed to set forth adequate grounds for a continuance and the denial of the continuance motion was not an abuse of discretion.

In both Johnson v. Safeway Insurance Co. (1975), 29 Ill. App. 3d 520, 331 N.E.2d 155, and Nixon v. Harris (1975), 31 Ill. App. 3d 204, 333 N.E.2d 667, the appellate court reached opposite conclusions of whether a court should consider a motion for continuance made through opposing counsel. In Johnson v. Safeway Insurance Co. the court held:

“While it is unclear as to which attorney was to present the request for a continuance to the court, it is certain that on September 25, 1972, plaintiff’s attorney appeared and explained that defense counsel was presently engaged in trial before another court. Being so advised, we feel that it was incumbent upon the trial court to construe this explanation as a request from defendant for a continuance and to grant such continuance in accordance with Circuit Court Rule 6.1(a).” (29 Ill. App. 3d 520, 522, 331 N.E.2d 155.)

In Nixon v. Harris the court found:

“We initially note that defendant failed to properly bring to the court’s attention his engagement in another matter. No notice or motion for continuing the case was filed, nor was an affidavit submitted setting forth facts which would justify a continuance. Defendant’s ‘motion’ was related by plaintiff’s attorney who informed the court that one of defendant’s attorneys had requested a continuance because he was purportedly engaged in another court. We think it is clear that under the Civil Practice Act, the Supreme Court Rules and the Rules of the Circuit Court, a litigant who seeks a continuance on the grounds here asserted, must not only properly move the court but must submit by affidavit or otherwise, competent support for the factual allegations contained in the motion. (See Ill. Rev. Stat. 1969, ch. 110, par. 59; Ill. Rev. Stat. 1969, ch. 110A, par. 231; Rules of the Circuit Court of Cook County, par. 6.1(a); see also Dornan v. Buckley, 119 Ill. App. 523; Parker v. Newman, 10 Ill. App. 3d 1019, 295 N.E.2d 503.) Not having properly or seasonably shown her entitlement thereto, defendant’s reliance on Circuit Court Rule 6.1(a) is misplaced.” (31 Ill. App. 3d 204, 207-08, 333 N.E.2d 667.)

We follow the decision in Nixon v. Harris and believe that both section 59 of the Civil Practice Act and Rule 231(f) are applicable herein and require the litigant who seeks a continuance to move the court for a continuance supported by competent evidence for the motion. Indeed, to sanction the approach suggested by defendant and to allow opposing counsel to move for continuance on behalf of the absent counsel, would place the attorneys themselves in potentially conflicting positions as to precisely what they agreed to. In fact, this has occurred in the case at bar as demonstrated by the subsequent conflicts in the attorneys’ affidavits. Moreover, the court alone determines whether a continuance will be granted and can properly deny such a motion even if agreed upon by both the litigants. (See Mohawk Medical Center, Inc. v. Quern (1980), 84 Ill. App. 3d 1026,1029,406 N.E.2d 839.) For these and other good reasons, we conclude that defendant’s request here for a continuance through the plaintiff’s attorney was not properly made.

Nor do we believe that the telephone call to the judge’s secretary the day before trial under the circumstances here can be considered a proper motion for continuance. As stated above, we do not feel that either the statute or the pertinent rule contemplates such a practice. The approval of telephone requests for continuance would create an improper and unworkable burden upon the court and opposing counsel. Under the facts before us, defendant’s counsel admittedly learned of the trial date on May 6, two days before the case was set for trial. Sufficient time was present for counsel to appear before the court with a proper motion for continuance. Moreover, the record reveals that there are other attorneys in defendant’s counsel’s law firm who either could have handled the case or appeared on May 8 with the appropriate motion for continuance. Thus, under these circumstances, the trial court correctly concluded that there was no motion for continuance before him. While we can envision an emergency situation which might occur where it is impossible to make the motion in the manner contemplated by statute and rule, such is not the case before us. Accordingly, we conclude that the court did not err in its ruling that no motion for continuance was before it and subsequently proceeding to a hearing and judgment.

Next, we consider defendant’s second contention that the trial court should have granted its motion to vacate the order of default and judgment order. First, we observe that the trial court entered an order of default against defendant and proceeded to a hearing in which it found the evidence in favor of the plaintiff and entered judgment in the amount of $6,867.50 for plaintiff and dismissed defendant’s counterclaim for want of prosecution. It is clear that a default judgment can only be entered for want of an appearance or failure to plead. (Ryan v. Bening (1978), 66 Ill. App. 3d 127,131, 383 N.E.2d 681; Bland v. Lowery (1976), 43 Ill. App. 3d 413,419, 356 N.E.2d 1318.) Thus the procedure here where an answer was on file but the defendant did not participate in the hearing is an ex parte trial. (See Dils v. City of Chicago (1978), 62 Ill. App. 3d 474, 479-80, 378 N.E.2d 1130.) Nevertheless, in the instant case the trial court heard evidence on both liability and damages at the May 8 proceeding and its inaccurate terminology as an order of default does not affect the otherwise valid judgment for plaintiff.

While defendant’s post-trial motion was labeled a “motion to vacate order of default and judgment order,” we deem that it was timely filed within 30 days of judgment as a motion pursuant to section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 50(5)) to “set aside any final order or judgment upon any terms and conditions that shall be reasonable.” Under this section, it is no longer necessary that such relief be sought on the precise grounds that there is a meritorious defense and a reasonable excuse for not having timely asserted such a defense. The overriding consideration now is whether or not substantial justice is being done between the litigants and whether it is reasonable under the circumstances, to compel the other party to go to trial on the merits. (People ex rel. Reid v. Adkins (1971), 48 Ill. 2d 402,406, 270 N.E.2d 841; Francone v. Weigel Broadcasting Co. (1979), 79 Ill. App. 3d 991, 996, 398 N.E.2d 1114.) The reviewing court need not determine, as a matter of law, that the trial court abused its discretion, but only resolve the question of whether justice has been served. (Patrick v. Burgess-Norton Manufacturing Co. (1976), 63 Ill. 2d 524, 349 N.E.2d 52.) Although the courts are liberal in setting aside judgments under 50(5), relief is not automatic. (Plantaric v. Michaels (1981), 98 Ill. App. 3d 154,157,424 N.E.2d 64.) The existence of a meritorious defense and due diligence while no longer a requirement, are factors to be considered in determining whether justice is being done. Francone v. Weigel Broadcasting Co.; Ruggiero v. Attore (1977), 51 Ill. App. 3d 139, 143, 366 N.E.2d 470; Hoffman v. Hoffman (1976), 37 Ill. App. 3d 415, 417, 346 N.E.2d 114.

Turning to the case at bar, we believe it would be completely unreasonable and not in the interest of substantial justice under the record here to go back and try the case on its merits. As we have previously indicated, defendant’s counsel’s failure to properly move for a continuance before trial or appear at trial shows a lack of due diligence. Nor does his counsel’s affidavit indicate why no one from his firm could not have appeared prior to trial or at trial to either move for a continuance or conduct the trial. Generally, a client has a responsibility to select counsel who will diligently represent him. (See, e.g., Marshall v. Henning (1980), 91 Ill. App. 3d 180, 184,414 N.E.2d 529; Mitchell v. Seidler (1979), 68 Ill. App. 3d 478,483-84, 386 N.E.2d 284; Roberts v. McDaniel (1959), 22 Ill. App. 2d 485, 490,161 N.E.2d 47.) Here, not only did counsel fail to appear at trial but also previous counsel failed to plead to the complaint and defendant was defaulted, although this was later vacated. In addition, we do not believe defendant’s attorney was diligent in prior court hearings in view of his failure to attend the trial setting and his conduct in causing several continuances of the hearing on the motion to transfer venue. If we allow the judgment herein to be vacated again under these circumstances, Rule 231(f) would have little meaning. (See Marshall v. Henning.) Plaintiffs as well as defendants are also entitled to have justice served. (Baltz v. McCormick (1978), 66 Ill. App. 3d 76, 78, 383 N.E.2d 643.) We have considered the cases cited by defendant where reviewing courts have found that substantial justice requires a vacation of the judgment. However, we conclude that those cases present different factual circumstances and are not compelling here. We see no just reason to vacate the judgment below and, under the facts in this record, approve the denial of the motion to vacate.

We also note that defendant has relied on Circuit Court Rule 8.01(a), a local administrative rule of Du Page County, in support of its right to a continuance. That rule provides that “[a] party shall be entitled to a continuance on the ground that his attorney is actually engaged in another trial or hearing, but only for the duration of the particular trial or hearing in which the attorney then is engaged.” While several cases have held a similar local court rule as allowing a party a first continuance as a matter of right (Hollywood Management Co. v. Andres (1976), 41 Ill. App. 3d 823, 354 N.E.2d 601; Johnson v. Safeway Insurance Co. (1975), 29 Ill. App. 3d 520, 331 N.E.2d 155), those cases did not consider whether the rule was consistent with supreme court rules and statutes of this State which make the granting or denial of the motion for continuance within the sound discretion of the court. (See Ill.Rev. Stat. 1979, ch. 110, par. 59; 73 Ill. 2d R. 231; Needy v. Sparks (1977), 51 Ill. App. 3d 350, 358, 366 N.E.2d 327.) Supreme Court Rule 21(a) (73 Ill. 2d R. 21(a)) permits a circuit court to adopt rules governing civil and criminal cases which are consistent with rules and statutes of the State. (See People v. Schroeder (1981), 102 Ill. App. 3d 133, 137, 429 N.E.2d 573.) Thus, while this local administrative rule cannot give a party a continuance as a matter of right, the fact that counsel is actually engaged in another trial is obviously to be accorded considerable weight. Nonetheless, here this excuse is outweighed by counsel’s failure to properly bring this to the court’s attention prior to trial and his failure to appear at trial or have another member of the firm appear at trial.

Defendant finally contends that the trial court improperly denied its motion to transfer venue. The record reveals that defendant filed a motion to transfer venue alleging it was a Delaware Corporation with its principal place of business in Cook County, that the transaction solely occurred in Cook County, and that great financial loss to it will result due to the time that would be required of defendant to appear in Du Page County. The record also contains the order of the trial court denying the motion after “a full hearing thereon.” The defendant has not favored us with a verbatim transcript of the evidence at the proceedings on the motion or any substitute thereof. See 73 Ill. 2d R. 323.

The report of proceedings shall include all the evidence pertinent to the issues on appeal. (73 Ill. 2d R. 323(a); Ladenheim v. McCormick (1978), 66 Ill. App. 3d 188, 192, 383 N.E.2d 751.) It is the duty of the appellant to present a complete record on appeal so the reviewing court will be fully informed regarding the issues in the case. (Brokerage Resources, Inc. v. Jordan (1980), 80 Ill. App. 3d 605, 609, 400 N.E.2d 77; Ladenheim v. McCormick (1978), 66 Ill. App. 3d 188, 383 N.E.2d 751.) Any doubts arising from the incompleteness of a record will be resolved against the appellant. (Tomlen Group, Ltd. v. Goldfarb (1981), 101 Ill. App. 3d 154, 157, 427 N.E.2d 1047; McCoy v. Board of Fire & Police Commissioners (1979), 79 Ill. App. 3d 742, 743, 398 N.E.2d 1020.) Assertions of the evidence in an appellant’s brief, as are contained here, cannot serve as a substitute for a report of proceedings in compliance with Supreme Court Rule 323 (73 Ill. 2d R. 323; see Belcher v. Spillman (1975), 28 Ill. App. 3d 973, 329 N.E.2d 550). In the absence of a report of proceedings it will be assumed that that trial court heard adequate evidence to support its order. (E. M. Melahn Construction Co. v. Village of Carpentersville (1981), 100 Ill. App. 3d 544, 550, 427 N.E.2d 181; Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1981), 98 Ill. App. 3d 518, 424 N.E.2d 758.) Our review is limited to the record presented on review (In re Marriage of Melton (1981), 93 Ill. App. 3d 338, 342, 417 N.E.2d 220), and the order denying the motion to transfer venue indicates a full hearing was conducted on the motion. Given the failure of the appellant to provide us with a record of the evidence at the hearing upon which the trial court based its decision, we are unable to review the correctness of the order denying the motion to transfer venue and affirm the ruling below.

For the foregoing reasons the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

NASH and LINDBERG, JJ., concur.


author: JUSTICE TRAPP

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOE DINGER, Defendant-Appellee.
    Fourth District
    No. 17475
    Opinion filed May 19,1982.
    Chris E. Freese, State’s Attorney, of Sullivan (Robert J. Biderman and Debra A. Buchman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Erickson & Davis, Ltd., of Decatur (Frederick P. Erickson and Jonathan R. Erickson, of counsel), for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

This cause is an interlocutory appeal from an order of the circuit court of Moultrie County granting defendant Joe Dinger’s motion to quash two search warrants and to suppress evidence seized during separate searches of defendant’s home. We affirm the order of suppression.

On December 22, 1980, a complaint for a search warrant was sworn out by complainant Dave Crouch requesting the issuance of a warrant to search the premises of defendant. The probable cause statement attached to the complaint and incorporated therein stated:

“Complainant John Doe (Assumed Name) states that during the period from October 11,1980 through December 22, 1980,1 have had numerous occasions to be in the house of Joe A. Dinger, Rural Route #3, Sullivan, Illinois, a one and a half story white frame house with a green roof located approximately one-fourth mile south of County Highway 12.00 North and approximately one-half mile West of County Highway 9.00 East with grid coordinates 850 East and 11.75 North. On the occasions when I was in Joe A. Dinger’s house I personally observed a Milwaukee Sawall Sabre Saw — Serial Number 004 834 1753, engraved ‘Z-2’, located just inside the back door on the bottom shelf of the cabinet standing next to the east exterior wall of the residence.
Complainant Dave Crouch states that John Doe (Assumed Name) informed him on October 19,1980 that a Milwaukee Sawall Sabre Saw, Serial Number 004 834 1753, engraved ‘Z-2’ was located in Joe A. Dinger’s house. That on October 28, 1980 Complainant Dave Crouch was informed by Zack Construction Co., Clinton Power Plant, Clinton, Illinois, DeWitt County, that a Milwaukee Sawall Sabre Saw, Serial Number 004 834 1753, engraved ‘Z-2’ was stolen on March 28, 1979 from their construction site at Clinton Power Plant, Clinton, Illinois, DeWitt County.”

The item described in the search warrant was seized at defendant’s residence, and on the same day, a second complaint for a search warrant was sworn to by complainant Dave Crouch seeking authority to seize three other items of personal property alleged to have been stolen from the Clinton Power Plant construction site and discovered in “plain view” during the execution of the first warrant. Both warrants were returned on December 23, 1980, and several power tools were recovered from defendant’s residence.

As a result of the confiscation of the items at defendant’s residence, he was charged in a five-count information with violation of section 16 — 1(d)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(d)(1)).

On July 14, 1981, defendant filed separate motions to quash each search warrant and to suppress the evidence seized. On August 14,1981, a hearing was held on defendant’s motion, and subsequently an order was entered quashing both search warrants and suppressing the evidence seized. The reasoning and basis of the trial court’s order of suppression was essentially that the complaint for a search warrant had not established the reliability of the informant as required by Aguilar v. Texas (1964), 378 U.S. 108,12 L. Ed. 2d 723, 84 S. Ct. 1509. The defendant’s second motion to quash the search warrant and suppress the evidence seized was granted on the basis that the officers were illegally on the premises when they discovered the other stolen power tools.

The first issue we consider and upon which we believe the decision of the present cause depends, is whether the complaint for a search warrant was properly sworn to as mandated by section 108 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 108 — 3) as well as section 6 of article I of the 1970 Illinois Constitution and the fourth amendment to the United States Constitution.

The fourth amendment to the United States Constitution provides that “* * * no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched * ” (U.S. Const., amend. IV.) Likewise, section 6 of article I of the 1970 Illinois Constitution provides “[n]o warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.” (Ill. Const. 1970, art. I, sec. 6.) These requirements are reiterated in section 108 — 3 of the Code of Criminal Procedure of 1963 which provides, in part, that “upon the written complaint of any person under oath or affirmation which states facts sufficient to show probable cause and which particularly describes the place or person, or both, to be searched and the things to be seized, any judge may issue a search warrant * * (Ill. Rev. Stat. 1979, ch. 38, par. 108 — 3.) Application of these requirements to the complaint for search warrant considered by the trial court makes clear that the statements of the purported affiant John Doe were improperly considered in the assessment of whether probable cause for the issuance of a search warrant existed.

The complaint for search warrant lists the complainant as both Dave Crouch and the informant John Doe. In the probable cause statement, incorporated in the complaint for a search warrant, the first sentence recites: “Complainant John Doe (Assumed Name) states that during the period from October 11, 1980 through December 22, 1980, I have had numerous occasions to be in the house of Joe A. Dinger, * * Despite this statement by John Doe, he did not swear under oath or affirmation to the truth of the matters contained in the probable cause statement.

While it is clear that a complaint for a search warrant may be based upon multiple affidavits to support the issuance of the warrant, before the warrant shall issue, the testimony upon which a judge acts in issuing a warrant must be reduced to writing and verified in a formal complaint. (See People v. West (1977), 48 Ill. App. 3d 132, 362 N.E.2d 791; People v. Hartfield (1968), 94 Ill. App. 2d 421,237 N.E.2d 193.) The probable cause statement, while thus purporting to be made by the complainant John Doe, was not sworn to by him, and David Crouch, the sworn complainant, did not indicate in the affidavit that the information contained in the first paragraph was given to him by Doe. The unsworn statements purport to be those of John Doe only.

Illinois courts have uniformly rejected the claim of a violation of constitutional rights of an accused by the use of complaints for search warrants sworn to by fictitious affiants. (People v. Stansberry (1971), 47 Ill. 2d 541, 268 N.E.2d 431, cert, denied (1971), 404 U.S. 873,30 L. Ed. 2d 116, 92 S. Ct. 121; People v. O’Neal (1976), 40 Ill. App. 3d 448,352 N.E.2d 282.) Fictitious affiants may be charged with perjury for the swearing out of false affidavits. (People v. Bak (1970), 45 Ill. 2d 140, 258 N.E.2d 341; O’Neal.) Thus, it becomes clear that if the complaint for search warrant alleges facts to support a finding of probable cause, the alias complainant should verify the complaint so that if the allegations prove false he may be charged with perjury.

The necessity of a sworn statement, or one made under oath is not a minor defect which does not prejudice the rights of the accused. (See Ill. Rev. Stat. 1979, ch. 38, par. 107 — 10.) At the suppression hearing, much of the testimony of defendant’s witnesses contradicted Doe’s statements that he had had numerous occasions to be in the defendant’s house lawfully, but even had the defendant been able to meet the standards set out in Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, there would be no basis upon which to charge the alias complainant with perjury. We note also that there is no evidence in the record that the issuing judge inquired of Doe, under oath, as to the truth of the matters contained in Doe’s probable cause statement. We thus conclude that Doe’s purported statement should have played no part in the court’s probable cause determination. Left with only Crouch’s sworn statement to support the finding of probable cause, the complaint for search warrant does not meet the necessary showing required by Aguilar.

In Aguilar, the United States Supreme Court laid down the standard to be applied when an affidavit for search warrant is based upon hearsay from an identified, or an unidentified, informant. In Aguilar, the affidavit in support of the complaint for search warrant recited:

“Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of law.” (378 U.S. 108,109,12 L. Ed. 2d 723, 725, 84 S. Ct. 1509,1511.)

In quashing the search warrant, the court found that the information reflected merely the informant’s suspicion and belief, and further indicated what would be necessary for a search warrant based upon hearsay information:

“[T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed [citation], was ‘credible’ or his information ‘reliable.’ ” 378 U.S. 108,114,12 L. Ed. 2d 723, 729, 84 S. Ct. 1509,1514.

While we might conclude that the reliability of the informant was established by the corroboration of the material parts of the tip (see People v. Jefferson (1974), 25 Ill. App. 3d 445, 323 N.E.2d 495; People v. Hammers (1976), 35 Ill. App. 3d 498, 341 N.E.2d 471), the requirement of a showing of the basis of the informant’s knowledge has not been met.

Our supreme court recently considered this issue in People v. Gates (1981), 85 Ill. 2d 376, 423 N.E.2d 887, wherein the court stated:

“The first prong, or the ‘basis of knowledge’ part of the test announced in Aguilar, is concerned with the facts and circumstances showing that the informant knew that the person named has been or will be involved in criminal conduct. The most common means of satisfying this requirement is by the informant’s declaration that he is revealing personal knowledge gathered through some physical sensory faculty such as that of sight, smell or sound. [Citation.] Statements containing mere conclusions of criminal activity without a statement regarding independent facts and personal observations do not provide a sufficient basis for a neutral magistrate to decide to issue a search warrant.” 85 Ill. 2d 376, 383-84, 423 N.E.2d 887, 890.

Application of this standard to the second paragraph of the probable cause statement incorporated in the complaint for search warrant makes it clear that Aguilar’s first prong has not been satisfied. The mere statement that “John Doe informed him [Agent Crouch] on October 19, 1980 that a Milwaukee Sawall Sabre Saw, Serial Number 004 8341753, engraved ‘Z-2’ was located at Joe A. Dinger’s house” is insufficient to show how the informant acquired the information, and is just as conclusory as the affidavit in Aguilar. (Accord, People v. Greer (1981), 87 Ill. 2d 89, 429 N.E.2d 505.) Nor do we believe the information was of the type to be self-verifying. Spinelli v. United States (1969), 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584.

We affirm the order of the trial court which suppressed the evidence recovered as the product of the first search, as well as the evidence seized during the second search which was the fruit of the first unlawful search on the premises.

Affirmed.

GREEN, P. J., and WEBBER, J., concur.


text:
    In re APPLICATION OF WILLIAM G. BEELER.—(WILLIAM G. BEELER, Petitioner-Appellee, v. JAMES BOYLAN, McLean County Treasurer, Respondent-Appellant.
    Fourth District
    No. 17485
    Opinion filed May 19, 1982.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and Keith P. Vanden Dooren, both of State’s Attorneys Appellate Service Commission, of counsel), for appellant.
    Fleming, Messman & O’Connor, of Bloomington (C. Daniel Messman and Wayne P. Coffelt, of counsel), for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

Respondent appeals from the order of the circuit court granting the refund of a portion of real estate taxes assessed upon the value of two grain dryers and paid under protest, as provided in section 194 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 675).

At issue is the taxability under section 18 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 499) of two Behlem Model 850 grain dryers owned and used by petitioner in his farming operation in McLean County. At the hearing on petitioner’s objection to the tax, he testified that he had been farming since 1968 and had purchased the grain dryers in 1979. Prior to the purchase he had leased this type of dryer.

The dryers are approximately 12 feet in height, 19 feet long, weigh 12,000 pounds each, and are used for drying grain produced in petitioner’s farming operations. Petitioner testified that the dryers were sold with wheels, an axle, and a tongue, and could be moved with a pickup truck. Originally, the dryers had been placed upon wooden railroad ties on petitioner’s farm but were later mounted on a “floating” concrete slab to enable spilled grain to be cleaned easily and prevent movement during high winds. A “floating slab” is described as concrete spread upon the ground without footing or excavation of the ground.

Petitioner testified that similar grain dryers had previously been moved from farm to farm as the demand arose, but that as presently used the dryers would remain in place, except when repairs were necessary or in the event the dryers would be sold. To move the dryers, they must be elevated sufficiently to attach the wheels, and axle, and the electrical and gas supplies must be disconnected. The electricity can be detached by uncoupling three wires, and once disconnected, the dryer can be moved with a pickup truck. According to Arthur Nafziger, a witness for respondent, the dryers had an estimated life of five to eight years.

The trial court granted the relief requested in the petition concluding that “[t]he essential character of the dryers is such that they are large useful pieces of portable equipment that do not have the permanency associated with real property or improvements thereto.” It is respondent’s contention that this finding is against the manifest weight of the evidence.

Taxation of petitioner’s grain dryers is predicated on section 18 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 499), which imposes a tax on “[a]ll real property in this State,” unless exempted. Under section 1(13) of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 482(13)), real property is defined as:

“(13) Real Property — Real Estate — Land—Tract—Lot—Not only the land itself, whether laid out in town or city lots, or otherwise, with all things contained therein, but also all buildings, structures and improvements, and other permanent fixtures, of whatsoever kind, thereon, and all rights and privileges belonging or in anywise pertaining thereto, except where the same may be otherwise denominated by this Act. Included therein is any vehicle or similar portable structure used or so constructed as to permit its being used as a dwelling place for one or more persons, if such structure is resting in whole on a permanent foundation.”

The respondent, relying on Ayrshire Coal Co. v. Property Tax Appeal Board (1974), 19 Ill. App. 3d 41, 310 N.E.2d 667; Cherry Bowl, Inc. v. Illinois Property Tax Appeal Board (1981), 100 Ill. App. 3d 326, 426 N.E.2d 618, and Arnold v. Crowder (1876), 81 Ill. 56, contends that the grain dryers are realty and subject to taxation under section 18 of the Revenue Act.

In Ayrshire, certain items of coal extraction equipment including coal conveyors, crushing units, and other large property used in coal processing, were classified as real property and taxed as such. The equipment was necessary to the coal extraction process conducted on the land and had been bolted onto concrete piers covering a large surface area, though it could have been moved without damage to the realty. The appellate court reversed the trial court’s order which had found the property to be personalty and concluded that the property was part of the real estate for tax purposes, despite the fact that the property had been assessed as personalty for the last five years. The court stated:

“Many authorities take the position that any and all machinery essential to the proper functioning of a plant, mill, or similar manufacturing is a fixture, or is at least so presumed to be, irrespective of the manner in which it is annexed to the realty and even though it is not attached thereto at all. This view is sometimes referred to as the ‘integrated industrial plant’ doctrine and represents the modern trend of decisions. [Citations.]
Where property is adapted to the use to which the realty is devoted the use thereof in such manner furnishes such strong evidence of intent to make it a part of the freehold as not to be overcome by bookkeeping practices. [Citation.]” 19 Ill. App. 3d 41, 45-46, 310 N.E.2d 667, 671.

A more recent case considering the definition of real property for purposes of taxation under section 18 of the Revenue Act of 1939 is Cherry Bowl. At issue in Cherry Bowl was the taxability of automatic pinsetters installed in plaintiff’s bowling alley. In that case, the court concluded that the pinsetters were properly taxed as realty and mentioned several facts to buttress this finding: (1) the pinsetters were adapted to the use to which the building was designed; (2) the pinsetters had a useful life of 20 to 50 years; and (3) plaintiff had intended to use them while he operated the establishment.

Though these cases did not explicitly state what the proper test would be to determine whether property is real estate under section 1(13), two different approaches were mentioned and formed the basis of the courts’ reasoning: the intention test and the integrated industrial plant doctrine.

Under the intention test, three criteria are applied to evaluate whether property is personalty or realty, or more properly, whether an item has become a fixture. First, the property must be annexed to the realty or to something appurtenant thereto; second, the property must be applied to the use or purpose to which that part of the realty, with which it is connected, is appropriated; and finally, the party making the annexation must intend to make a permanent accession to the freehold. See Sword v. Low (1887), 122 Ill. 487, 496,13 N.E. 826, 828; 1 G. Thompson, Modern Law of Real Property sec. 56, at 187 (1980); 5 American Law of Property sec. 19.3, at 16 (1952).

Application of this test to the facts at bar clearly produces the result reached by the trial court. While there is no dispute that the property rested upon a concrete slab, and was applied to the use to which the property was put, the evidence at the hearing indicated that the annexation was not designed as a permanent and valuable improvement to the realty.

Petitioner testified that he had traded previous grain dryers in for newer and more appropriate equipment and even respondent’s witness estimated that the property had an estimated lifetime of only five to eight years. As the trial court reasoned: “Petitioner may well intend to utilize portable grain dryers for the remainder of his working life — but those grain dryers may be larger or smaller than these, or more or fewer in number, or newer and better. Or, he may choose to stop using portable grain dryers altogether and sell the ones he owns.” The use of the dryers was not an essential step to the function of farming, but was one of several means to handle harvested grain. These facts are in direct contrast to Cherry Bowl where the court noted that the property was intended to be used by the taxpayer the entire time he owned the business, and the property had a lifetime of 20 to 50 years.

In Kelly v. Austin (1867), 46 Ill. 156, an action was brought by a mortgagee, following foreclosure of a real estate mortgage, to restrain the removal of a carpenter shop which had been erected from rough materials on the mortgaged premises by the defendant-mortgagor. In that case, the shop was laid upon a brick foundation and used by the defendant in his carpentry business. Though the mortgagee contended that the building became a permanent fixture or improvement passing with the land upon foreclosure, the court concluded that the building was temporary in character and not permanently affixed so as to pass to the mortgagee. The court, in language applicable to the facts at bar, said:

“Had the building been of a permanent character, or had it been placed there with the intention of permanently remaining, then it could not be severed without the consent of the mortgagee. Or had it been placed on the lot by the mortgagor, with his own means, it might have presented a different question. But from the character of the structure, and the purpose for which it was employed, it would seem that it was not designed for any other than a temporary use, and to be removed from the lot when the object of its erection was terminated.” (46 Ill. 156,158-59.)

Likewise, at bar, the fact that plaintiff had contemplated trading the equipment every five to seven years, the estimated life of the grain dryers, indicates that the property was not of a permanent nature, and thus was not taxable as realty.

The present factual situation is thus much different from that presented in Arnold, relied upon by respondent. In Arnold, an excavation of two feet was made, a brick foundation was laid in the excavation, and agricultural scales for weighing stock and grain were attached to the brick foundation. The scales were erected not only for the mortgagor’s use, but were designed as a source of profit by the use of others. Following a real estate mortgage foreclosure, the mortgagor brought an action in trover to recover the scales from the mortgagee who had purchased the land at the sale. The court concluded that the scales were realty and passed at the sale to the purchaser, stating:

“He fixed it to the soil, so far as the evidence shows, for a permanent purpose, as he might never have been deprived of the ownership of the premises.” (81 Ill. 56, 59.)

This set of circumstances showing in Arnold an intent to make a permanent and valuable improvement is inapposite to the factual circumstances at bar.

The second approach, useful in determining whether an item of property is realty or personalty, has been described as the “integrated industrial doctrine.” Under this test, all machinery of a factory or plant necessary for its operation as a complete going concern, is considered to be part of the freehold. 35 Am. Jur. 2d Fixtures sec. 11 — 13, at 707-09 (1967); Ayrshire; Guardian Life Insurance Co. v. Swanson (1936), 286 Ill. App. 278, 3 N.E.2d 324.

In Guardian Life Insurance Co., the question arose between a chattel mortgagee and a real estate mortgagee as to the characterization of 20 electrical refrigerators installed in a furnished apartment building and attached only by means of an electrical outlet. The trial court had found that the items were personal property, but on appeal the court reversed, finding that the items were an integral and indispensable part of the furnished building which was adapted for rental purposes. The court minimized the degree of actual annexation of the refrigerators and emphasized the properties’ indispensable character to the purposes for which the building was erected and used. The court, quoting from State ex rel. Gisholt Machine Co. v. Norsman (1918), 168 Wis. 442, 169 N.W. 429, noted:

“ ‘The annexation referred to may be either (a) actual or (b) constructive. A chattel is said to be constructively annexed when it is a necessary indispensable integral part of the plant with which it is connected.
It is considered that what makes a fixture attached by a belt or wire or pipe a part of the realty is the use to which it is put rather than the mere physical attachment. If it is a necessary integral part of the plant, as between mortgagor and mortgagee it is considered realty. * * *.’ ” (286 Ill. App. 278, 287-88, 3 N.E.2d 324, 328.)

Applying this analysis to the facts in Guardian Life Insurance Co., the court then went on to conclude that the electrical refrigerators were recognized as essential equipment in a modern furnished apartment building, and concluded that such refrigerators were a part of the realty and passed to the mortgagee.

The integrated industrial doctrine, though seemingly different from the above intention test, is just an extension of the second and third elements of the intention test requiring use in connection with the use to which the land is put, and an intent to permanently improve the real estate. Under the industrial doctrine, however, physical annexation is subordinated to the interrelationship between the disputed piece of property and the use of the real estate. The higher the degree of a relationship between the contested property and the uses of the realty, the more assuredly it can be said that the property is a part of the realty. Just as in Guardian Life Insurance Co. where the refrigerators were indispensable to the business of renting furnished apartments, so the property is treated for all intents and purposes as a part of the apartment building passing to the mortgagee. Accord, Ayrshire.

Application of this doctrine to the case at bar favors the result reached by the trial court, since it is clear from the testimony of both petitioner and respondent’s witness that the grain dryers were not indispensable to petitioner’s farming operations, but merely one of several means to handle harvested grain. Though the dryers did provide a choice to petitioner to process his grain operations, it is apparent that the dryers were in nowise necessary to the farming operation.

Accordingly, the decision of the trial court granting petitioner a refund of taxes paid under protest, and finding that the grain dryers were not realty but personalty, is affirmed.

Affirmed.

GREEN, P. J., and WEBBER, J., concur.