author: MR. JUSTICE SULLIVAN

text:
    People of the State of Illinois, Defendant in Error, v. Robert E. Gassaway, Jr., Plaintiff in Error.
    Gen. No. 50,462.
    First District, Third Division.
    December 9, 1965.

      Wilbur C. Delp, Jr., of Chicago, for plaintiff in error.
    William G. Clark, Attorney General of Springfield (Fred G. Leach and George Kenney, Assistant Attorneys General, of counsel), and Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel) , for defendant in error.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

The Criminal Court of Cook County, at a bench trial, found the defendant, Robert E. Gassaway, guilty of unlawful possession and sale of narcotics. He was sentenced to a term of imprisonment for not less than fifteen years nor more than life.

On May 18, 1959, the defendant, then 22 years of age and a narcotics addict, was in the office of the United States Commissioner in Chicago, Illinois. At that time he was approached by one Manolo, a special employee of the Federal Bureau of Narcotics who had assisted the Bureau, previously in narcotic cases. Manolo told the defendant that he was “sick,” in need of narcotics, and asked the defendant if he could provide him with narcotics. The defendant replied that he was also in bad condition, and that he could not provide Manolo with narcotics because he got what he wanted for himself from other people. Manolo again asked the defendant if he could help him and the defendant replied that maybe he could get some stuff. The defendant then gave his phone number to Manolo and told the special employee to contact him.

The next day the defendant received a telephone call and was asked by the caller if he could obtain narcotics. There was a conflict in the testimony as to who placed this call. The defendant testified that Manolo called him, stated he was quite sick, and asked the defendant to help him. However, Joseph M. Arpaio, a Federal Narcotics Agent, testified that it was he who placed the call, and that he told the defendant that he was a friend of Manolo’s and was interested in doing business. This was confirmed by another agent, William J. Olivanti, who testified that he was present when Arpaio, not Manolo, called the defendant.

During the course of this phone conversation the defendant told the caller to proceed to 144th Street and Western Avenue, and upon arrival to call again for further directions. Manolo and Arpaio proceeded as the defendant directed, and when they arrived at the location Arpaio called the defendant by telephone and was instructed to drive to 144th and Harrison Streets. Upon arrival there, the defendant approached and entered the auto, and the three men proceeded to a poolroom in Robbins, Illinois. The defendant testified that Arpaio told him that he was a big time dealer, that Manolo worked for him selling drugs, and that he would start the defendant into business.

The defendant tried to find a man named Tony, who was supposedly selling the narcotics. Arpaio testified that defendant said that he had a partner named Tony in Robbins, and that the defendant could handle the business. The defendant was unable to locate Tony, and the three men drove to a new location and parked the auto. The defendant took $25 from Arpaio and disappeared from view. A few moments later he came back and stated that he had the stuff. The defendant had five bags of heroin, weighing a total of one-thirtieth of an ounce.

Another conflict occurred in the testimony with respect to whether or not Arpaio promised the defendant any payment in return for his services. The defendant claimed that Arpaio promised him one of the bags of heroin, but gave him only part of a bag after Manolo had used a portion of it, while Arpaio said that he did not promise to give the defendant any of the heroin, nor did he give him any, but that the defendant retained one bag and told Arpaio that he was keeping it for his services.

On June 2, 1959, Arpaio again attempted to purchase narcotics through the defendant but was unsuccessful.

Olivanti and Arpaio arrested the defendant on June 16, 1959. At that time the defendant stated that “I’m not a big peddler, I’m' just trying to make a little money.” The trial and subsequent conviction followed the arrest.

The defendant bases his appeal on three separate grounds. He contends: (1) that upon arrest he was not taken before a judge or magistrate without unnecessary delay, and his subsequent confession was obtained during an illegal detention and therefore its receipt into evidence was a violation of his federal and Illinois constitutional rights; (2) that the evidence shows that the action of the federal agents and their informer induced the defendant to possess and sell narcotics and constituted entrapment as a matter of law; (8) that the sentence imposed by the trial court, fifteen years to life in the penitentiary, was unduly severe, unwarranted, and otherwise erroneous.

We find that the trial court did not err in finding the defendant guilty as charged, and in imposing a sentence-of from fifteen years to life.

Defendant’s first contention on appeal was disposed of by the Supreme Court of Illinois upon transfer of the case to this court. The transfer order stated:

“It is claimed that we have jurisdiction on the ground that a constitutional question is presented by the admission in evidence of an oral confession. The defendant does not claim that the confession was obtained by threats, promises or violence, but argues that it was inadmissible because it was obtained while he was in custody and before he was taken before a Magistrate. The argument is based upon the federal rule which we have declined to follow (People v. Bush, 29 Ill2d 367). The constitutional issue is no longer fairly debatable. The motion of the defendant in error is allowed and the cause is transferred to the Appellate Court for the First District.”

Based upon the Bush case, supra, and the above order, we find that the trial court correctly admitted into evidence a confession by the defendant that he was not a big peddler but merely wanted to make a little money. The trial court interpreted • this confession to show that the defendant was not duped into entering an illegal transaction, but rather was engaged in a commercial enterprise.

Further, the State points out that no objections were made at the trial to the admission of the statements by the defendant into evidence. It is well settled that if objections are not made at the trial to the admission of evidence, they will not be considered on appeal. (People v. French, 33 Ill2d 146, 149, 210 NE2d 540; People v. Williams, 28 Ill2d 114, 190 NE2d 809; People v. Trefonas, 9 Ill2d 92, 98, 136 NE2d 817.)

Defendant must also fail in his second contention that the actions of the informer and the federal agent constituted entrapment as a matter of law. Entrapment has often been considered by Illinois courts as a valid defense and has been defined as the “conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer.” (Sorrells v. United States, 287 US 435; People v. McSmith, 23 Ill2d 87, 178 NE2d 641.) However, a distinction must be drawn between inducing an innocent man to do an unlawful act, and by the use of decoys and deceit to catch one in the execution of a criminal act of his own conception and design. This defense is not available to one who has the intent and design to commit a criminal offense, and who does commit the essential acts constituting it, merely because an officer of the law, for the purpose of securing evidence, affords such a person the opportunity to commit the criminal act, or purposely aids and encourages him in its perpetration. (Sorrells v. United States, supra; People v. Wells, 25 Ill2d 146, 182 NE2d 689; People v. Outten, 13 Ill2d 21, 147 NE2d 284; People v. Lewis, 26 Ill2d 542, 187 NE2d 700.)

The defendant relies upon Sherman v. United States, 356 US 369, in which case the accused obtained narcotics for a government informer who appeared in need of them. The Supreme Court reversed a conviction, based upon the defense of entrapment. That case is easily distinguishable from the case at bar, however, because the facts there revealed a series of requests by the informer to the defendant for narcotics. From August until November of 1951 Sherman was approached by the informer on numerous occasions, and the informer repeatedly told the defendant he was suffering and needed drugs.

Unlike the Sherman case, supra, in the instant case Manolo asked the defendant only twice to obtain narcotics for him, all within the span of a few seconds of conversation. The defendant did not appear reluctant to aid Manolo, but immediately offered his phone number and told Manolo to call him. The record in this case shows no persistent requests supported by tales of suffering or appeals to sympathy, as was present in the Sherman case, supra.

The first phone call to the defendant was made by either Manolo or Arpaio. The defendant testified that Manolo made the call and told him again that he was sick and needed narcotics. However, Arpaio testified that it was he who placed the first call to the defendant. This was confirmed by agent Olivanti who stated that he was present when the call was placed. The ready offering by the defendant of his phone number to Manolo on their very first meeting also dispels the notion that he was induced to make the sale because of the repeated entreaties and suffering of Manolo. Relevant to this point is the admission by the defendant that he was a small peddler and wanted to make some money, which weighs against defendant’s claim that it was sympathy for Manolo in his suffering which caused him to make the purchase.

Further, the evidence shows that once the defendant met Arpaio it was with him that the defendant dealt. Arpaio gave defendant the money. Manolo did not do the talking, nor were the narcotics turned over to him. The defendant gave the narcotics to Arpaio. Arpaio made no claim that he was sick. The defendant’s own testimony was that Arpaio represented himself as a big narcotics peddler from the north side. This is a greatly different factual situation than existed in the Sherman case, supra.

Another case which the defendant relies upon to show that he was entrapped is People v. Strong, 21 Ill2d 320, 172 NE2d 765, where the court found the defense of entrapment available in a narcotics case. This case is also distinguishable from the instant case since the defendant there had been supplied with narcotics by an agent of the government. The court held this was a significant fact in determining entrapment.

The defendant places great emphasis upon the fact that he was induced to make the purchase of narcotics by a promise of Arpaio that he would give the defendant a portion of the drugs. The court in People v. Wells, supra, implied that the defense of' entrapment would be available if a promise by the purchaser to share the narcotics with the defendant were a compelling inducement to the commission of the illegal act. In the instant case, we do not have any evidence of an inducement to commit a crime by the promise of narcotics. The only evidence of a promise by Arpaio to give the defendant narcotics is the testimony of the defendant himself. This is countered by the testimony of Arpaio who said that he never promised the defendant any narcotics, but rather the defendant kept some for himself. The trial court chose to believe Arpaio in that phase of the transaction, and this will not be disturbed on appeal. The court had a full opportunity to determine the credibility of witnesses and chose to believe one over the other. (People v. Clark, 25 Ill2d 331, 332, 185 NE2d 191; People v. Hoskins, 25 Ill2d 333, 336, 185 NE2d 214; People v. Hatch, 49 Ill App2d 177, 187, 199 NE2d 81.)

We must again point out that the defendant, upon arrest, told the agents that he was a small peddler and that he only wanted to make a little money. This statement is quite inconsistent with his contention that he was promised a portion of the narcotics by Arpaio in return for making the purchase.

The defendant contends that the lack of a prior record or any testimony tending to show that he had previously committed the offense charged is a significant factor in establishing the defense of entrapment. The case of People v. Wells, supra, sufficiently disposes of this contention of the defendant, when the court states at page 149: “The prior innocence of defendant may be relevant in determining if the police did more, and in fact induced him to embark on the illegal venture at their behest. However, we do not think there is a burden upon the People to prove a past record sufficient to create a reasonable suspicion that defendant is guilty of a crime.” The court added that it knew of no case that required a prior knowledge of the criminal predilection in order to permit police to afford an opportunity to commit a crime.

Defendant’s last contention on appeal is that the sentence of the trial court was unduly severe, unwarranted, and otherwise erroneous. The sentence imposed, fifteen years to life in the Illinois State Penitentiary, is within the limits prescribed by statute. (Ill Rev Stats 1959, c 38, §§ 192.28-38.) The defendant cites many cases to show that the sentence is severe when compared with sentences imposed on defendants in similar cases reviewed by this court in recent years. However, the sentence imposed upon the defendant was a matter of discretion with the trial court, and in the absence of unusual circumstances, this court will not interfere.

The case of People v. Valentine, 60 Ill App2d 339, 355, 208 NE2d 595, is quite relevant to this contention of the defendant. There the court said: “We believe that the power to reduce sentences should be used with caution and that a sentence imposed by the trial judge, who sees the defendant and is in a far better position to appraise him and to evaluate the likelihood of his rehabilitation than a reviewing court, should not be reduced unless there are substantial reasons for doing so. The penalty decided upon by the trial court, if within the statutory limits, should not be changed merely because of judicial clemency or just because the reviewing court would have imposed a different one if it had been in the trial court’s position.”

The judgment of the Criminal Court of Cook County is affirmed.

Affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE SCHWARTZ

license: Public Domain

text:
    The Northern Trust Company, as Trustee, Plaintiff-Appellee, v. Constance Biddle, et al., Defendants-Appellees. Adelheit von Hardenberg and Irmgard von Alten, Defendants-Appellants.
    Gen. No. 49,921.
    First District, Third Division.
    December 9, 1965.

      Thomas P. Sullivan and Hugh M. King, of Chicago (Raymond, Mayer, Jenner & Block and Roland Towle, of counsel), for appellant.
    Schiff, Hardin, Waite, Dorschel & Britton, of Chicago (Lester G. Britton, of counsel), for plaintiff-appellee. John W. Douglas, Assistant Attorney General of the United States, Edward V. Hanrahan, United States Attorney, of Chicago, and Sherman L. Cohn and Robert Y. Zener, Attorneys for the Department of Justice, of Washington, for defendant-appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal by Adelheit von Hardenberg and Irmgard von Alten, who were resident German nationals, from a decree directing that the trustee under the will of Louisa G. Bigelow distribute to the Office of Alien Property of the Attorney General of the United States, as successor to the Alien Property Custodian, their share of a trust created by the said will. The authority of the Attorney General to take this property rests on the provisions of the Trading with the Enemy Act. It is admitted that the case comes within the purview of the Act, but it is contended that a subsequent amendment divested the Attorney General of the right to take the property. This amendment, known as the Divestiture Act, was incorporated in Public Law 87-846, effective October 22, 1962, which added Section 40 to the Trading with the Enemy Act, 50 USCA App § 41. The principal issue is whether the language of the Divestiture Act which defined the property affected by it as those “rights and interests which have not become payable or deliverable to or have not vested in possession in the Attorney General prior to December 31, 1961,” covers the property here in question.

The facts involved herein have been set forth at length in prior litigation concerning the Bigelow will. Orme v. Northern Trust Co., 410 Ill 354, 102 NE2d 335; cert den 343 US 921 (1952); Orme v. Northern Trust Co., 29 Ill App2d 75, 172 NE2d 413; 25 Ill2d 151, 183 NE2d 505; cert den 371 US 935 (1962). It will not be necessary to repeat them at any length. Louisa G. Bigelow died in 1873, creating in her will a trust of which The Northern Trust Company is now trustee. The will provided that the income from the trust was to be paid to her three grandchildren and to their heirs upon the death of each grandchild, but that no distribution was to be made of the corpus .until the death of all three grandchildren, at which time one-third of the corpus was to go to the children or heirs of each grandchild. One grandchild died in 1919; Louise De Haven, another grandchild and the mother of appellants, died in 1941; and the last grandchild died in 1951. Appellants are the only children of Louise De Haven.

In 1943 an action to construe the will of Louisa G. Bigelow (hereinafter called the Orme case) was commenced in the Circuit Court of this county and in that action the appellants were made parties defendant. Orme v. Northern Trust Co., 410 Ill 354, 102 NE2d 335. On March 29, 1949, and on April 27, 1949, the Attorney General of the United States, acting under the authority of the Trading with the Enemy Act, 50 USCA App § 1 et seq., issued orders vesting in him the interests which appellants had in the trust created by the Bigelow will. The Attorney General was substituted for appellants as defendant in the litigation concerning the construction of the will, and the order permitting the substitution, on the basis of appellants’ interest in the trust having vested in the Attorney General, was sustained by the Supreme Court of this state. Orme v. Northern Trust Co., supra. In other words, the Supreme Court of Illinois held that the interest of the Attorney General was such as to warrant his substitution as defendant in the Orme litigation. Appellants were not removed from that case, however, but continued as defendants therein. The Supreme Court of the United States denied defendants’ petition for a writ of certiorari, 343 US 921. A final decree in the will construction suit was entered in 1959 and the decree was affirmed by this court (29 Ill App2d 75, 172 NE2d 413) and by the Supreme Court of Illinois (25 Ill2d 151, 183 NE2d 505).

The present action was commenced by the trustee in 1950 for instructions with respect to the administration of the estate and for a determination of the identity of the parties entitled to share in the distribution of the principal of the trust. The Attorney General answered, claiming the Louise De Haven share by reason of the vesting orders. The instant litigation made little progress through the years, since all parties awaited the outcome of the Orme litigation. After the mandate of the Supreme Court of Illinois was filed in that suit, appellants moved herein for summary judgment, claiming that the Attorney General had no present interest in the Louise De Haven share because that interst had been divested by the enactment of the divestiture amendment. Trading with the Enemy Act, § 40, 50 USCA App § 41. The motion for summary judgment was denied, a final decree was entered and this appeal ensued.

The divestiture amendment became effective on October 22, 1962, and the pertinent part thereof is as follows:

“Section 40(a) ... all rights and interests of individuals in estates, [and] trusts . . . vested under this Act after December 17, 1941, which have not become payable or deliverable to or have not vested in possession in the Attorney General prior to December 31, 1961, are divested: Provided, That the provisions of this section shall not affect the right of the Attorney General to retain all such property rights and interests and to collect all income which is payable to or vested in possession in him prior to December 31, 1961.” 50 USCA App §41 (a).

Appellants contend that the Louise De Haven share was neither “payable or deliverable” to the Attorney General nor vested in his possession on the cutoff date, because on that date the Orme litigation was still pending and undetermined by the Supreme Court of Illinois and hence there was no binding judicial declaration of the rights of the parties prior to that date. To pass upon this contention, it is necessary to determine the types of interests Congress intended to be divested, and for this purpose a review of the legislative history of the enact-' ment is required.

Following the initial passage of the Trading with the Enemy Act, numerous bills were introduced in Congress providing that the property seized under that Act should be used to indemnify citizens of the United States who had suffered war damage. The War Claims Act of 1948 (50 USCA App § 2001 et seq.) satisfied a limited number of these claims and provided that the proceeds of vested enemy assets be deposited in a War Claims Fund. A section of that Act prohibited the return of vested German and Japanese property to its former owners. In subsequent treaties with Germany and Japan, the United States agreed to forego any claims for war damage against the current production of those countries, and our former enemies agreed that their former assets could be used to pay war damage claims. In 1958 legislation was introduced to provide for a partial return of vested property as an act of grace, but it failed of enactment. No such legislation was passed until 1962, when Public Law 87-846 amended the War Claims Act and added Section 40(a) to the Trading with the Enemy Act.

The 1962 amendments authorized the Foreign Claims Settlement Commission to determine the validity and amount of claims and authorized the Attorney General to pay into the Treasury for deposit to the War Claims Fund the sums derived from property vested in him under the Trading with the Enemy Act. On June 30, 1962, there was available for transfer to the War Claims Fund, after final liquidation of the Office of Alien Property, an estimated balance of one hundred million dollars. The amendment did not provide generally for a return of vested property to enemy nationals and left unchanged the provision which prohibits such a return. 50 USCA App § 39.

In the first session of the 87th Congress the House of Representatives passed various bills amending the Trading with the Enemy Act which contained no divesting provisions. In the Senate, however, bills were introduced to accomplish divestment of interests in estates and trusts established • by American citizens. Senate Bill 291 proposed an amendment which would have divested the Attorney General of any unliquidated interest in any trust the corpus of which was composed of assets “provided by any individual who at the time of the creation of such trust was a citizen or national of the United States, which has been vested under this Act after December 17, 1941, and has not been reduced to possession by any officer of the United States. . . .” (Emphasis added.)

In response to a request by the Senate, the Deputy Attorney General protested the use in the proposed Act of the phrase “reduced to possession,” and urged the adoption of language now incorporated in Section 40 of the Trading with the Enemy Act; that is to say, the phrase “reduced to possession” was changed to “payable or deliverable to or have not vested in possession.” See generally, Domke, “The War Claims Act of 1962.” Am J Int L 354 (1963).

“Reduction to possession” is defined in Black’s Law Dictionary as “conversion of a right existing as a claim into actual custody and in enjoyment,” and the Attorney General correctly pointed out that the use of the original language would cause the return of interests due but not yet collected. The phrase “vested in possession” is well understood as meaning “a right of present enjoyment.” Smith v. West, 103 Ill 332; People v. Estate of Strom, 363 Ill 241, 2 NE2d 94; Golladay v. Knock, 285 Ill 412, 85 NE 649; Fearne on Remainders, p 1. Contrasted with these terms is the phrase “vested in interest,” which means a present fixed right of future enjoyment. Thus any given interest may first be vested in interest (as a vested remainder prior to termination of the preceding estate), then vested in possession (as a vested remainder upon termination of the preceding estate), and finally reduced to possession (as when distribution is made by the trustee). It is clear that the legislative intent was to divest the Attorney General where he was merely vested in interest, but not where he was vested in possession.

The most recent case on the subject is Estate of Hogemann, 403 P2d 405, 45 Cal Rptr 149, Supreme Court of California, July 2, 1965, reversing a decision by the appellate court (41 Cal Rptr 246). In that case the trial court held that under California law, a legacy was not payable or distributable prior to the probate court’s decree of distribution, and was not vested in possession and hence that the Divestiture Act applied. The appellate court affirmed. The reasoning was that the legatee had no action against the executor or administrator for recovery until a decree of distribution was made effective. The decision was rendered during the pendency of the case in this court and was brought to our attention by the Attorney General in his brief. Hé argued that the availability of a suit against the trustee distinguishes the instant case from the Hogemann case. Appellants, on the other hand, argued that the Hogemann case was “strikingly similar to the case at bar, and deserves the careful consideration of this Court,” urging, however, that they had a much clearer case for divestiture than the Hogemann case. After the briefs had been filed in the instant case, the California Supreme Court reversed the appellate court and held that the Divestiture Act did not apply. The court referred to the legislative history which we have before discussed and said (403 P2d at 407-408, 45 Cal Rptr at 151-152):

“The language proposed by the Department of Justice to effect this change was adopted verbatim by Congress in the final form of Public Law 87-846. Yet under respondents’ view this deliberate alteration of wording would serve only the trivial purpose, in the present context, of guarding against the possibility that the cutoff date might occur for some estates during the brief period between entry of the decree of distribution and the writing of a check by the administrator in accordance with that decree. Nothing in the language or history of the statute compels such a narrow limitation of its scope.”

In a memorandum furnished to this court subsequent to the decision of the Supreme Court in the Hogemann case, appellants point out a number of distinctions between the two cases. The main question involved, however, was the meaning of the phrases “payable and deliverable,” and “vested in possession,” and in that respect the California court’s decision is persuasive here.

There are a number of decisions of the United States Supreme Court, United States v. Jones, 236 US 106 (1915); McCoach v. Pratt, 236 US 562 (1915); Simpson v. United States, 252 US 547 (1920); Kahn v. United States, 257 US 244 (1921); Woerishoffer v. United States, 269 US 102 (1925), which have construed the words “absolutely vested in possession or enjoyment” as contained in an Act which repealed an inheritance tax levied during the Spanish-American War. These cases relate to the time, manner and conditions under which a probate estate may be distributed, rather than to rights accruing to remaindermen of a trust. Here, the only period of time required to pass before the remainder interest under the Bigelow will became vested in possession was the lifetime of the last life tenant.

Appellants argue vigorously that the Orme litigation prevented the Attorney General from being vested in possession of the Louise De Haven share on December 31, 1961 (on which date the Orme appeal was pending in the Illinois Supreme Court) because that share was being claimed in toto by one party to the suit, was also being claimed partially by another, and the scope of the vesting order was still in dispute. They claim that vesting did not occur until there was a binding declaration of rights by the Illinois Supreme Court. They point out that various orders entered in the Orme suit stayed distribution of the share pending a final order in this proceeding. Appellants concede that had there been no litigation, the Louise De Haven share would have vested in the possession of the Attorney General upon the death of the last Bigelow grandchild in 1951.

The argument of appellants is based on what we consider to be a false premise; namely, that it was the decree in the Orme case which created the rights of the various parties. On the contrary, the rights and status of the parties were created by the Bigelow will and were fixed as of the time the last grandchild died. The Orme case so declared. Under common usage, an interest ceases being a remainder or a future interest and becomes a present interest upon termination of the precedent estate. The right of possession and of present enjoyment accrue at that time. The construction of the instrument creating the right may require the aid of a court, and litigation may postpone the actual custody or enjoyment of the right and may be necessary to determine the identity of the holder of the right, but the right of present enjoyment is fixed when the precedent estate determines. There is nothing in the language or legislative history of Section 40 (a) which would make it appear that Congress intended otherwise than to give the phrase “vested in possession” its ordinary meaning in the law. Appellants’ argument would require us to find that Congress intended “vested in possession” to mean “a right of present enjoyment, to the realization of which there are no legal obstacles.” The logical conclusion to this approach would mean that any action, no matter how frivolous or ill-conceived, which had the effect of delaying distribution beyond the cutoff date would be sufficient to divest the Attorney General. It is not conceivable that Congress would so intend.

It is our conclusion that Section 40(a) of the Trading with the Enemy Act preserves in the Attorney General those interests with respect to which the right to possession had accrued, even though actual reduction to possession had been delayed by litigation involving the title to such interest, and that the interest of appellants in the Louise De Haven share was vested in possession in the Attorney General on December 31, 1961, within the meaning of that Act.

Appellants also charge error in the chancellor’s order approving payment to the trustee out of the trust funds of a distribution or termination fee of $10,672. As we have found that the title to the interest in question is in the Attorney General and as he has not objected to this fee, it is not necessary for us to consider this phase of the case.

The decree is affirmed.

Decree affirmed.

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


author: STOUDER, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Herbert E. Pearson, Defendant-Appellant.
    Gen. No. 64-61.
    Third District.
    December 20, 1965.
    Peter Denger, of Eock Island, for appellant.

      William G. Clark, Attorney General, of Springfield (Richard Stengel, State’s Attorney, of Rock Island, and Peter C. Fieweger, Assistant State’s Attorney, of counsel) , for appellee.
   STOUDER, J.

This is an appeal from an order of the Circuit Court of Rock Island County adjudging appellant to be a sexually dangerous person. The facts, which are undisputed, show that an information was filed charging appellant with contributing to the sexual delinquency of a child. No hearing was had on this information but subsequent to its filing a petition was filed by the State’s Attorney alleging appellant to be a sexually dangerous person as defined in Ill Rev Stats 1961, c 38, § 820.01. Pursuant to this petition the trial court ordered the appointment of two psychiatrists to examine appellant and to file written reports with the court. These examinations were made and the reports were so filed.

At the hearing on this petition, the only witnesses were appellant, his employer and the mother of the child involved. Neither of the two psychiatrists testified nor were their reports offered in evidence. The child likewise was not called to testify.

Appellant testified that on August 13, 1963, he had kissed a 9-year-old girl on the cheek and that in July 1956, he had been involved in a similar incident. He .stated that he was not sexually aroused, did not know why he kissed the two girls and that he would be able to refrain from doing it again. Appellant’s employer testified only that he would be willing to continue to employ appellant and described his duties. The child’s mother testified that the child refused to return to Vacation Bible School on August 13, 1963, because a boy had kissed her there; that the child was disturbed by the incident; and that appellant had denied his participation when confronted the next day by the child and her parents.

The court order reads ‘‘Hearing was had on the results of the examination of the Defendant as a sexually dangerous person. After examining the written reports of the psychiatrists heretofore appointed by this court, . . . together with the testimony submitted at the hearing, the Court finds that the said Herbert E. Pearson is a sexually dangerous person as defined in Section 820.01, Chapter 38, . . .”

Appellant contends that this order was against the manifest weight of the evidence in that the psychiatric reports were improperly considered and without these reports the state produced no evidence in support of its petition. s

Section 820.01, c 38, Ill Rev Stats provides “All persons suffering from a mental disorder, which mental disorder has existed for a period of not less than one year, immediately prior to the filing of the petition hereinafter provided for, coupled with criminal propensities to the commission of sex offenses, and who have demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children, are hereby declared sexually dangerous persons.” In addition the reports of the psychiatrists must state whether the person is sexually dangerous and be filed with the court, a copy to be furnished to the respondent. Ill Rev Stats 1961, c 38, § 823.

Our Supreme Court has held that use of defendant’s confession in a proceeding of this type, must be preceded by proof that such confession was voluntary, People v. Capoldi, 10 Ill2d 261, 139 NE2d 776; and that depositions taken in defendant’s absence even though defendant’s attorney was present, cannot be used. People v. Nastasio, 19 Ill2d 524, 168 NE2d 728. The basis for both of these decisions was that the results of proceedings of this type are closely akin to criminal prosecutions despite the statutory pronouncement that such proceedings shall be civil in nature. This compels us to find that the legislature clearly intended a rigid adherence to the rules of evidence and that every necessary element of the state’s petition be proved by competent evidence.

In the instant case the record discloses that the reports of the psychiatrists were no more in evidence than was the petition. They were merely a part of the file necessary to a hearing on the matter and as such could not properly have been considered by the court as evidence of anything contained therein. We believe a fair trial requires that medical evidence must be introduced by direct testimony in order that it may be properly tested by cross-examination. Without such testimony the state produced no evidence to Show the existence of any mental disorder or its duration. The only other evidence for the state consisted of the testimony of the mother and the admissions of appellant, neither of which contained any evidence from which the court could infer the existence of such mental disorder. To sustain the judgment of the court below, the record must show proof of the essential elements. People v. Hampsten, 32 Ill2d 596, 208 NE2d 577.

It is therefore our opinion that the judgment of the court below was against the manifest weight of the evidence. In so finding we do not consider it necessary to discuss the contents of the psychiatric reports, the adequacy of such contents to prove the elements required by statute or whether any of these elements were-proved by any other evidence.

Inasmuch as we find that the judgment of the Circuit Court of Rock Island County was erroneous said judgment is hereby reversed.

Judgment reversed.

ALLOY, P. J. and CORYN, J., concur.


author: SMITH, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bernard Blunt, Defendant-Appellant.
    Gen. No. 10,645.
    Fourth District.
    December 21, 1965.
    Dwight H. Doss, of Monticello, for appellant.
    Ray Moss, Special State’s Attorney, of Clinton, for appellee.
   SMITH, J.

The sole issue in this ease is whether the 23-year-old prosecuting witness was so mentally deficient that she could not give effective consent to an act of intercourse. The jury found the defendant guilty of rape. He appeals from a denial of his motion for new trial and the resultant sentence to the penitentiary for a term of 3 to 5 years.

Ill Rev Stats 1963, c 38, ¶ 11-1, so far as here pertinent, reads:

“Intercourse by force and against her will includes, but is not limited to, any intercourse which occurs in the following situations:
(1) •••
(2) Where the female is so mentally deranged or deficient that she cannot give effective consent to intercourse.”

Bernard Blunt was 25—Joy Bates was 23—neither was married. They met for the first time that day, entered a motel in Clinton about 6 p. m. as friends, stayed the night, had intercourse twice and parted on a friendly basis the next morning. Their testimony as to the situational events might well have been carbon copies. It is not in dispute. The record is utterly devoid of any evidence of force, resistance, outcry, outrages or complaint on the part of Joy. The psychologists for both sides affirmatively state that Joy was not mentally deranged. On its face, this record shows two adults engaging in the time-honored pleasures of the flesh, without a solitary discordant note and with apparent mutual consent and satisfaction. Indeed the People do not claim otherwise. Their position is that Joy was so mentally deficient that she could not give effective consent and thus the pleasant sensuality of the night is converted by the statute into rape.

Witness Jones had for four years been Supervisor of Services for the Mentally Handicapped and taught in the Champaign school system for 5 years prior thereto. He had known Joy for 9 years, gave her an IQ of 78, said she was not mentally deranged, was without psychosis, was mentally deficient and declined an opinion as to whether Joy was so mentally deficient that she could not distinguish between right and wrong.

Witness Wollersheim was a psychologist teaching at the University of Illinois and working on her doctorate. She gave Joy an IQ of 77, considered her a borderline case and would not say that she was so mentally deficient that she could not distinguish between right and wrong. She felt that Joy could have a sense of guilt in some areas.

Witness Gromoll was a Doctor of Psychology, had 4 years experience with the Veterans Administration, had 3 years with the Macon County Mental Health Clinic and was head of the Department of Psychology at Millikin University. He gave her a verbal IQ of 68, a performance IQ of 78, and a full scale IQ of 71. He found she was not mentally deranged or psychotic, that she knew the act of intercourse was wrong when she did it, but did it anyhow, that there was no question about her feeling badly and feeling guilty, that she said she wished it hadn’t happened and didn’t think it would happen again. In his opinion, she was mentally deficient, but capable of giving effective consent to an act of intercourse. He further stated that others might disagree on this matter and it was purely a matter of opinion.

Joy’s mother testified that she had always been slow to learn, had been in special education classes, graduated from high school at the age of 18 with her senior class in four years and was issued a certificate of completion. As abstracted she testified that Joy “traveled alone by bus to visit her friend, Joan, in Decatur. She can cook and prepare a full meal, cleans the house, does domestic work, does quite a bit of her own personal shopping, and goes out once a week with 5 or 6 girl friends, attends movies, baby-sits, and I could always depend upon her, and I have explained the facts of life to her, she knows what sexual intercourse is, but I don’t think she had ever had sexual intercourse before. Joy has been visiting in Decatur at least 4 or 5 times.” She further stated “that she had nothing to drink, wasn’t mistreated and was not unconscious nor drugged. I did give her sex education and she does know what sexual intercourse is, and she knew what it meant on July 11, 1964. I had told her there was a possibility of contracting a venereal disease, of becoming pregnant by reason of sexual intercourse, and she knew what being pregnant meant. Since July 11th Joy has a feeling of being ashamed and unclean, and had the feeling of committing adultery because she goes to Church and understands the Ten Commandments.”

The record shows that Joy visited with her friend, Joan, in Decatur for several days before the occurrence; that Joan was then pregnant and was unmarried and was delivered of a woods colt shortly before the trial; that they returned from a date with a couple of boys about 5 a. m. in the morning and these boys offered to take Joy back to her home in Champaign; that instead they went to Carter’s Lake near Clinton and Joy had intercourse there with one Ronnie Provin; that they went to a place on Salt Creek called Possum Hollow where the defendant joined them; that after one act of intercourse at the motel, defendant went to get some beer and while gone Joy had a second act of intercourse with Ronnie; that Ronnie then left and Joy and defendant had a second act of intercourse and, as Joy testified, she turned over, went to sleep, and awakened about 6 o’clock, defendant awakened, said “Good Morning, Doll”, took a shower, said he had to go to work and gave her a dollar for breakfast. Joy did not become pregnant as a result of the day’s events.

Joy testified on behalf of the People. It is suggested that it is impossible to reflect in the printed record her appearance, demeanor and intelligence and the difficulty both counsel had in eliciting her answers. This is, of course, true. The record does show a failure to answer some questions, that at one point the witness cried and her cross-examination resulted largely in monosyllabic answers. Joy had a high palate with a resultant speech difficulty but could be readily understood. As against this circumstance, we necessarily weigh the testimony of her mother, the psychologists and the others who observed and conversed with her under more relaxed circumstances. Joy herself testified largely by way of yes or no answers to direct and specific questions to the following.

“I had intercourse with Bernard Blunt twice on the evening of July 11, 1964, and he was not cruel to me at any time and was always kind and he did not hurt me in any way. I have had conversations with my mother with respect to what an act of intercourse is and I know and understand that you might contact a venereal disease if you have intercourse and that it is possible to become pregnant. I enjoyed intercourse with Bernard Blunt and he did not make any profane arguments or nasty remarks to me at any time.
“. . . I understand that is an act of intercourse, and I think it was wrong to have committed an act of intercourse with Bernard Blunt and I am ashamed of it and sorry for it and feel guilty by reason of it, and I do not want Bernard Blunt prosecuted for having committed an act of intercourse with me or have him brought into Court. What he was doing with me was agreeable to me. I am not now pregnant. I understand what pregnancy is, and I know what menstrual periods are and I have menstrual periods and have had menstrual periods since July 11, 1964. If I were with the defendant or the other boys I had mentioned again I would not commit an act of intercourse with them.”

The deputy sheriff who interviewed her during the morning after she left the motel stated:

. . Joy did say she didn’t want to face the boys again, that she was going to break her leg or run away from home so she wouldn’t have to face the boys. I think she might have had a guilty feeling or possibly just her own personal feeling that she didn’t want to face the boys.”

In our judgment our inability to see and hear Joy on the witness stand does not absolve us from our obligation to carefully scrutinize the evidence. People v. Faulisi, 25 Ill2d 457, 185 NE2d 211; People v. Qualls, 21 Ill2d 252, 171 NE2d 612. This is even more impelling as we deal with a new statute which gives new legislative impact to the words “by force and against her will.” The use of the word “so” in the statute assumes proportions beyond its size. Mere mental derangement or mental deficiency is not enough. Its thrust must be of sufficient magnitude to throttle effective consent. To what does the term “mentally deficient” relate? Does it imply the lack of mental capacity and training to understand calculus, the provisions of the Internal Kevenue Code or the doctrine of dependent relative revocation in wills ? We think not. Is the mental deficiency equated with the inability to pursue ordinary educational standards? If so, our inquiry is at an end, for Joy’s schooling throughout was in special educational classes and she graduated from high school in special education. Does it mean the inability to distinguish between right and wrong in moral areas? One.psychologist refused to express an opinion; another “would not say that she is so mentally deficient that she could not distinguish between right and wrong”; and the third felt that she could so distinguish. Joy’s own testimony suggests that she could so distinguish. Does it mean the inability to understand and comprehend the act of sexual intercourse, its moral aspects and the evil consequences which may flow from it? Again this record establishes such comprehension. The girl friend with whom she visited certainly had some information on the subject and was Exhibit No. 1 as to its consequences. We would be naive to assume that they did not discuss it.

In other jurisdictions where punishment is imposed upon those having sexual intercourse with females who through unsoundness of mind are incapable of effective consent, the capacity to consent “presupposes an intelligence capable of understanding the act, its nature and possible consequences.” 44 Am Jur Rape, § 10, Ann Cas 1912B 1050. We think this record attributes to Joy that intelligence. The bizarre events of this record cannot be equated with Joy’s lack of knowledge of the nature of the act nor of its moral reprehensibility nor of the possible fruits of its enjoyment. Morally distasteful as it is, it is not within the proscription of criminal sanctions under our Criminal Code relating to forcible rape. Accordingly, the judgment of the Circuit Court of DeWitt County must be and it is reversed.

Reversed.

TRAPP, P. J. and CRAVEN, J., concur.


author: ALLOY, P. J.

text:
    The City of Crest Hill, a Municipal Corporation, Plaintiff-Appellant, v. Raynor Hills Water Company, an Illinois Corporation, Paramount Water Company, an Illinois Corporation, the City of Joliet, a Municipal Corporation, and Unknown Owners, DefendantsAppellees.
    Gen. No. 65-9.
    Third District.
    December 22, 1965.
    Cirricione & Penn, of Joliet (John F. Cirricione and William R. Penn, of counsel), for appellant.
    Robson, Masters, Ryan & Belom, Ronald H. Gallowich, and Harry D. Leinenweber, all of Joliet (Frank H. Masters, Jr., of Joliet, and Sidney Z. Karasik, of Chicago, of counsel), for Raynor Hills Water Company and Paramount Water Company, appellees. Paul F. Brumund, Corporation Counsel, of Joliet, for City of Joliet, appellee.
   ALLOY, P. J.

A complaint for declaratory judgment was filed by plaintiff, City of Crest Hill, a municipal corporation, praying for a finding that the title to public improvements, including sanitary sewer and water mains situated in the public streets, alleys and public ways is vested in the plaintiff-municipality. In such complaint, plaintiff contends that the defendants, Raynor Hills Water Company, a corporation, and Paramount Water Company, as well as the City of Joliet, a municipal corporation, have ho right, title or interest in said equipment or installations.

The evidence discloses that prior to the incorporation of plaintiff as a municipal corporation on January 22, 1960, there were a number of areas which were platted into subdivisions and which later came within the municipal limits of plaintiff municipal corporation. Subdividers had installed sewer and water mains in certain subdivisions, and the City of Joliet had installed sewer and water mains in certain other parts of the area.

On May 27, 1953, Raynor Hills Estates, Inc., a sub-divider, conveyed all its right, title and interest in the sewer and water mains to Raynor Hills Water Company, one of the defendants. Another subdivider likewise conveyed all water mains, sewer mains and appurtenances to Raynor Hills Water Company. Raynor Hills Water Company was incorporated prior thereto and is operating, as a public utility under the supervision of the Illinois Commerce Commission. In 1957, Raynor Hills Water Company was authorized to conduct a sanitary sewer utility business in the area. In 1944, one subdivider had granted to a not-for-profit association the right to enter into the subdivision for the purpose of maintaining water mains and sewer mains. This nonprofit association thereafter conveyed whatever rights it had received under such arrangement to Paramount Water Company, which had been organized prior thereto and was operating as a public utility. The subdivisions involved were all platted prior to the incorporation of the plaintiff-municipality in 1960 and were located in unincorporated areas in Will County. The City of Crest Hill has never serviced, maintained or made any repairs to the sewer and water mains involved.

The subdivision plats had been made and recorded by the proprietors a few years prior to the incorporation of the plaintiff-municipality. It is asserted by plaintiff that the dedication for public purposes constituted statutory dedications rather than common-law dedications, and, being statutory dedications, vested legal title to the grounds set apart for public purposes in the municipality. At the time of dedication it is apparent that the title to the streets, alleys and public ways remained in abeyance and only became vested in plaintiff after its organization.

Plaintiff, however, contends that because it acquired legal title to the land in which the streets and alleys were constructed, it also acquired title to the sewer and water mains and other equipment used in such systems operated by the various defendants. It is contended by plaintiff that, in determining whether or not the sewer and water mains and equipment are personal property or part of the realty, the court should look to the physical situation of annexation to the realty and the application and use of the part of the realty to which it is attached as well as the intention of the party making the improvements. The issue essentially is whether or not the sub-divider of the land dedicating the streets and alleys who thereafter installed the water system under such streets and public ways surrenders its rights to the pipes, mains, conduits and other items of property in the water system by reason of such dedication. The question basically before us is whether the municipality, by virtue of its organization in 1960, not only acquired legal title to the streets and alleys, but also legal title to the sewer and water equipment and installations.

In Smith v. Chicago, 107 Ill App 270, the court specifically determined that water pipes, mains and sewers are personalty and not part of the realty in which they are installed. In that case, the owners of the tract of land had subdivided it and had constructed a private system of water works through the streets. After annexation of the subdivision to a city, the city took over exclusive control of the water system and connected it to its own water works system. The court held that the city had no right to convert the system to its use since the water works system was held as personalty and was not dedicated as a system to the public. The court specifically held (at page 278) that there can be no question that if the city owned the water system of the plaintiffs, it would own it as personalty. The Supreme Court affirmed the conclusion of the Appellate Court in the case just cited in Chicago v. Smith, 204 Ill 356, 68 NE 395. In Shelbyville Water Co. v. People ex rel. Craddick, 140 Ill 545, 30 NE 678, the Illinois Supreme Court likewise concluded that pipes, mains and hydrants of a water company were personal property and did not become part of the realty, and were taxable as personalty. Dedication of land for a street has been held in other jurisdictions not to be a dedication of a sewer or water pipes therein (11 McQuillin Mun Corp §33.70, at p 766; Guilford-Chester Water Co. v. Town of Guilford, 107 Conn 519, 141 A 880, 883; Shaw v. Welch, 136 Kan 736, 18 P2d 182, 190).

The record in the cause before us shows that pipes and mains of the water company were in fact assessed as personal property, and there is no specific evidence of any intention on part of the subdividers to convey the installations to the municipality or public authority or to divest themselves of the personal property in the streets. A significant indication of the intention of the sub-dividers is illustrated by the granting and recording of the easement to Raynor Hills Water Company, prior to acceptance of the dedication by the City of Crest Hill. This was obviously a binding reservation of rights. No intention to the contrary was manifested in any dedication under consideration and none could be presumed from the record in this cause.

The trial court concluded that to award the title to the property involved to the plaintiff-municipality on the precedent of the case of Smith v. Chicago, 107 Ill App 270, at p 280, would be contrary to the Constitutional provision that private property shall not be taken or damaged for public use without just compensation. We must agree that legal title to the pipes, mains and other equipment which were installed by the subdividers in the streets and alleys now within the corporate limits of the plaintiff-municipality was vested in the respective subdividers who installed them and is now vested in their successors to whom conveyance of such installations has been made.

We must, therefore, conclude that the order of the Circuit Court of Will County finding that the title to the sewer and water mains and related installations is not in the plaintiff but in the defendants was proper and should be affirmed.

Affirmed.

STOUDER and CORYN, JJ., concur.


author: CORYN, J.

text:
    In the Matter of the Estate of August Querciagrossa, Deceased. Mary Querciagrossa, Respondent-Appellant, v. Arthur B. Querciagrossa, Executor, Petitioner-Appellee.
    Gen. No. 65-42.
    Third District.
    December 22, 1965.
    Pool and Langer, and Peter F. Ferracuti, all of Ottawa, for appellant.
    Perona and Perona, of Spring Valley, for appellee.
   CORYN, J.

August Querciagrossa died on November 26, 1964. Shortly thereafter, Arthur B. Querciagrossa, his son, filed a Petition for Probate of Will In the Matter of the Estate of August Querciagrossa in the Circuit Court of Putnam County, Probate Division, which petition alleged, inter alia, that the decedent was a resident of Putnam County at the time of his death. Mary Querciagrossa, widow of decedent, then filed a special and limited appearance in said court requesting that said Petition to Probate the Will of August Querciagrossa be quashed for the reason that the decedent was not a resident of Putnam County at the time of his death, but rather a resident of LaSalle County, and that therefore the venue was improper. The trial court treated this motion as a motion to transfer the probate of said estate from Putnam County to LaSalle County. After a hearing, at which considerable evidence was adduced, the Circuit Court of Putnam County, Probate Division, denied said motion of Mary Querciagrossa, ruling in effect, that the decedent was a resident of Putnam County at the time of his death, and that Putnam County was the proper venue for the probate and administration of his estate. From this ruling Mary Querciagrossa appeals, her principal argument being that said order was contrary to the manifest weight of the evidence. The appellee, Arthur B. Querciagrossa, has moved the court to dismiss this appeal on the ground that said order is not a final order, judgment or decree, and therefore not appealable:

Article VI, § 7, Constitution of Illinois 1870, provides as follows:

“In all cases, other than those appealable directly to the Supreme Court, appeals from final judgments of a Circuit Court lie as a matter of right to the Appellate Court in the district in which the Circuit Court is located. . . . The Supreme Court may provide by rule for appeals to the Appellate Court from other than final judgment of the Circuit Court. . .

Supreme Court Eule 31 provides as follows:

“An appeal may be taken to the Appellate Court from an interlocutory order or decree granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction, or appointing or refusing to appoint a receiver, or giving or refusing to give other or further powers or property to a receiver already appointed, or placing or refusing to place a mortgagee in possession of mortgaged premises. . . .”

Illinois courts of review have consistently held that there shall be no appeal from an order, judgment or decree that does not finally determine the rights of the parties to the suit, unless the Supreme Court has otherwise provided by its rules for an appeal from an interlocutory order. In the Village of Niles v. Szczesny, 13 Ill2d 45, at p 47, 147 NE2d 371, it is stated:

“. . . Appellate Courts, subject to statutory exceptions, are without jurisdiction to review judgments, orders, or decrees which are not final. The right of appeal is purely statutory (now constitutional) and may be exercised only within the limits prescribed by legislative grant. It is not contended that statutory exceptions which allow appeals from interlocutory orders are applicable here.
“To be final and appealable, a judgment or order must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court has only to proceed with the execution of the judgment. While the order need not dispose of all the issues presented by the pleadings, it must be final in the sense that it disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof. While this court has never decided whether an order transferring a cause from one court to another is appealable, other jurisdictions, where finality is required, have uniformly held that such an order is not final and appealable.
“The order of transfer in the instant case did not dispose of the rights of the parties either upon the entire controversy or upon some definite and separate part of the litigation. It wa,s not a final order and the Appellate Court was without jurisdiction to entertain the appeal. . . .” (Citations contained within this quotation have been omitted.)

4 Am Jur2d 604, Appeal and Error, § 89, states:

“In the absence of statutory authority otherwise, the view has usually been taken that an order granting or refusing a change of venue is not directly appealable, being interlocutory merely and not a final decision. . . .”

The Supreme Court of this state has indicated that the section under consideration providing for a place of administration (Ill Rev Stats 1963, c 3, § 54) is a venue provision and is not one of jurisdiction (In re Estate of Willavize, 21 Ill2d 40, at p 43, 171 NE2d 21). The contention here is that the venue was improper.

In McCowan v. Ellis, 323 Ill App 291, 55 NE2d 554, the sole issue on appeal was whether the order denying appellant’s motion for change of venue was appealable. In that case the court ruled that said order denying the change of venue was interlocutory; that it was not one of those interlocutory orders specifically made appeal-able. by statute or Supreme Court rule; and therefore the appeal must be dismissed.

In the instant case, the order denying the appellant’s motion to transfer the probate and administration of the estate of August Querciagrossa is not a final order, but is interlocutory in character, and since Supreme Court Rule 31 does not authorize an appeal therefrom, this appeal will be dismissed.

Appeal dismissed.

ALLOY, P. J. and STOUDER, J., concur.


text:
    William J. Wagner, Plaintiff-Appellant, v. Michael David, David Building Corporation, an Illinois Corporation, and Home Building and Loan Association, an Illinois Corporation, Defendants-Appellees. William J. Wagner, Plaintiff-Appellant, v. Michael David and David Building Corporation, an Illinois Corporation, Defendants-Appellees.
    Gen. No. 65-12.
    Second District.
    December 3, 1965.
    Rehearing denied February 1, 1966.
    Sears, Streit, Dreyer & Foote, and Richard C. Hamper, both of Aurora (William J. Foote and Richard C. Hamper, of counsel), for appellant; William H. Wake, of Aurora, for Michael David and David Bldg. Corp., an Illinois Corp., defendants-appellees.
   Opinion by PRESIDING JUSTICE ABRAHAMSON.

Not to be published in full.


author: PRESIDING JUSTICE BURKE.

text:
    Society of the Divine Word, Plaintiff-Judgment-Creditor, v. Maurice H. Kamm, Defendant-Judgment-Debtor, Robert G. Wolfe, Trustee of Continental Investment Trust (Third Party), Respondent-Appellee, and Bankers Finance Company (Adverse Claimant), Petitioner-Appellant.
    Gen. No. 50,428.
    First District, Second Division.
    November 9, 1965.
    Jesse Marcus, of Chicago, for appellant; Robbins and Gassel, of Chicago (Harry G. Fins, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE BURKE.

Not to be published in full.


author: JUSTICE BRYANT.

text:
    Earl R. Foswold, et al., Plaintiffs-Appellants, v. Domestic Utility Services Co., et al., Defendants-Appellees.
    Gen. No. 50,886.
    First District, Second Division.
    December 14, 1965.

      Harry R. Booth, of Chicago, for appellants; L. Louis Karton and Daniel H. Pappas, of Chicago, for appellees.
   Opinion by

JUSTICE BRYANT.

Not to be published in full.


text:
    Marquette National Bank, a National Banking Association, as Trustee Under Trust Agreement, Dated December 1, 1961, and Known as Trust No. 2013, Plaintiff-Appellant, v. Village of Oak Lawn, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 50,301.
    First District, Second Division.
    December 14, 1965.
    John S. Kavanaugh, of Chicago, for appellant; Gerhardt J. Gliege, of Oak Lawn, for appellee.
   Opinion by

JUSTICE BRYANT.

Not to be published in full.


author: HOFFMAN, J.

text:
    Central National Bank & Trust Company of Peoria, Administrator of the Estate of John J. Heitzman, Deceased, Opal Heitzman and Margaret Einfeldt, Plaintiffs-Appellants, v. Central Illinois Light Company, a Corporation, Defendant-Appellee.
    Gen. No. 64-82.
    Third District.
    November 30, 1965.
    Rehearing denied January 4, 1966.

      Cassidy & Cassidy, of Peoria (John E. Cassidy, Sr., of counsel), for appellants.
    O’Hern, O’Hern & Wombacher, of Peoria, for appellee.
   HOFFMAN, J.

This is a suit brought by landowners for damages to real and personal property occasioned by an explosion caused by a leak in an underground gas main of the defendant utility company. The defendant admitted liability. The only issue before the Court, which tried the case without a jury, was the amount of plaintiffs’ damages.

On January 16, 1957, in Peoria, the residence of John J. Heitzman, now deceased, his nearby combined apartment and store building, and a garage, with the personal property located therein, were totally destroyed by an explosion of defendant’s gas main. Subsequently, plaintiffs received the full amount of the fire insurance coverage of $86,600 and the further sum of $50,000 from the sale of the vacant land upon which the buildings had been constructed. The plaintiffs, feeling that their damages exceeded this recovery, brought suit against the defendant company, and they claim that their evidence establishes a net building loss of $133,000 (being a valuation of the total real estate at $183,000 less $50,000, the value of the vacant land remaining), plus a loss of personal property in the sum of $19,324.05. They argue that this claim should not be reduced by the $86,600 received from the insurance company. Plaintiffs also ask for 5% interest on the amount claimed, annually from the date of the explosion, due to defendant’s vexatious delay in payment.

In March, 1957, at the time plaintiffs settled with their insurance company and received their policy limits, they signed the usual and customary subrogation receipts, setting over unto the insurance company “all of the rights, claims and interests which the undersigned may have to any person or corporation liable for the loss . . . and authorize said insurance company to sue, compromise, or settle in the undersigned’s names or otherwise all such claims and to execute and sign releases. . . Subsequently, on September 16, 1957, the defendant paid the sum of $43,300 to plaintiffs’ insurance company and in return therefore the insurance company sold, transferred and assigned to the defendant “all right, title and interest” which said insurance company had acquired under and by virtue of the subrogation receipts executed by plaintiffs.

Thereafter, the cause was tried and the court found plaintiffs’ damages to be $65,797.21, being $60,000 for loss of buildings and $5,797.21 for loss of personalty. The court then proceeded to hold that the defendant was entitled “to credit or set-off in the amount of $86,600 against the amount of damages of the plaintiffs . . . of $65,797.21. . . .” As a result, the court then ordered that plaintiffs take nothing by their suit and entered judgment in bar of any right of recovery by plaintiffs. From this order plaintiffs take this appeal.

Plaintiffs’ theory upon appeal is that the finding of total loss in the sum of $65,797.21 is manifestly against the weight of the evidence and, in fact, rests upon incompetent evidence. Plaintiffs further argue that they are entitled to 5 % interest for vexatious delay in payment and that the setoff allowed defendant is inequitable and insupportable in fact or law.

The first problem presented by this appeal is the question of whether or not the trial court’s finding of plaintiffs’ damages in the total sum of $65,797.21 is proper.

The apartment and store building consisted of three stores on the sidewalk level and two 6-room apartments on the second floor. The three stores were occupied by a grocery store at a monthly rental of $125, a beauty shop at $60 and a hardware store at $60. Each apartment rented for $75 per month. The residence was a two-story brick building. The garage was a concrete block building containing 6 partitioned one-stall garages. The claim for personal property is for articles of the deceased owner which were in the residence at the time of the explosion.

With regard to the trial judge’s findings on damages, both parties to this appeal agree upon the rules of valuation applicable, and, in fact, both cite the same authorities. These rules are: for real estate, the correct measure of damages is the difference in value immediately before and immediately after the occurrence. Dixon v. Montgomery Ward & Co., 351 Ill App 75, 114 NE2d 44; Clark v. Public Service Co. of Northern Illinois, 278 Ill App 426. For personal property, which is destroyed, the measure of damages is the value or reasonable worth at the time and place of its destruction. New York, C. & St. L. R. Co. v. American Transit Lines, Inc., 408 Ill 336, 97 NE2d 264.

To establish the valuation of the real estate under the rule above cited, the plaintiffs relied upon two witnesses: Russell Manning and John Erickson. The defendant relied upon witness John Manning. It is necessary to examine their testimony to decide whether or not the trial judge’s determination of the real estate loss was manifestly against the weight of the evidence.

Russell Manning testified that he was a general contractor, and, in one form or another, had been engaged in the construction business in Peoria for 37 years. He estimated that he had built more than 100 commercial buildings in Peoria. He detailed his experience in estimating costs for a new building, and stated that for more than 17 years he had been familiar with the fair market value of Peoria real estate. He testified to his acquaintance with the buildings in question and to the neighborhood involved. He gave as his opinion that the fair cash market value of the real estate prior to the explosion was $183,000. He stated that he arrived at this conclusion by figuring square foot valuation, and replacement value. He added in an architect’s fee of $7,135. He further said that the buildings were in such good shape that he allowed no dollar depreciation in computing their fair cash value. On cross-examination Manning testified: “I would have to have the replacement cost. That would be the only way I would arrive at a fair cash value.” He further admitted that he was not a realtor and did not claim any experience as an appraiser or in fixing market value of improved city real estate.

John Erickson, plaintiffs’ other valuation witness, testified that he was a graduate architectural engineer and vice-president of a Peoria firm of general contractors. He further stated that for the past ten years he had had the sole responsibility for all of his company’s estimates and bid work, that he had made many binding offers to build and was familiar with prices for material and labor in January, 1957. He estimated that between 1950 and 1957 he had the sole supervisory responsibility over 25 to 30 new commercial and industrial buildings his company constructed in Peoria. He finally testified that after the explosion at the request of the decedent owner’s administrator, he personally investigated the building site, that he familiarized himself with the buildings’ construction, and then presented to the administrator an itemized replacement cost of the three buildings, which totalled the sum of $135,680. Plaintiffs’ counsel stated that Erickson’s testimony was only offered to corroborate the previous testimony of Russell Manning who had used replacement costs as one factor in reaching his (Manning’s) opinion of value.

Defendant’s witness John J. Manning, who was no relation to Russell Manning, was a local realtor of 28 years’ experience. He stated that he had participated in over $100,000,000 worth of real estate sales and had appraised over $200,000,000 worth of real estate. He further stated that each year he appraised over 500 homes. He testified to personal familiarity with the real estate in question, detailing that he had been through the property prior to the explosion. He then testified that in his opinion the loss was $56,500, being the value of $76,500 prior to destruction, less the value of the remaining land, which he fixed at $20,000. He pointed out that the sale of the bare land 3% years after the explosion, for $50,000 was not unusual for it was purchased for a “special use” by an oil company. (Incidentally, the administrator in the Federal Estate Tax return valued the bare land after the explosion at $15,000.)

Based upon the above evidence, we are asked by the appellant to overturn the trial court’s finding of real estate damages in the sum of $60,000. It is basic that the trial court’s findings of fact cannot be disturbed unless they are against the manifest weight of the evidence. Balfour v. Balfour, 20 Ill App2d 590, 156 NE2d 629. Nor may we, except in such circumstances, substitute our opinion as to the facts. Rude v. Seibert, 22 Ill App2d 477, 161 NE2d 39. The trial judge heard and saw the witnesses. Obviously, he chose to believe and to rely upon the evidence given by defendant’s realtor rather than plaintiffs’ contractors. Obviously, he placed greater faith in the judgment of an experienced appraiser and seller of real estate than in the opinions of contractors who deal in construction costs and have little knowledge of secondhand building values. The trial judge’s judgment of real estate damages is based upon competent and persuasive evidence. Under the rules we may not set it aside.

Concerning the value of the lost personal property, the plaintiffs’ sole evidence on this point was the testimony of the decedent’s widow. She was permitted to introduce a long list of personal items which were destroyed along with the residence, and the separate replacement cost of each. She freely admitted that she had made no allowance for the age or condition of this property. Later, it was stipulated that her figures were her idea of fair market value. Defendant, to oppose this testimony, produced a witness who was the owner and operator of a furniture company, and who testified to many years experience in buying, selling and dealing in household furnishings and equipment, both new and used. He testified to a fair market value of the property upon the widow’s list which was substantially below her value. His testimony was not contradicted.

Once again, we are asked to overturn the trial court’s judgment on value. We cannot do this. It is obvious that the trial judge chose to rely upon the evidence produced by a dealer in personal property rather than that of the widow who admitted she did not know the fair market value of the items involved.

The next question to be decided is whether or not the trial court properly allowed a setoff, against the judgment, of the sum paid plaintiffs by their insurance company.

If an insurer pays a loss which is due to the wrongful act of another, the insurer is subrogated to the rights of the insured, and may, in the name of the assured, for his use, prosecute a suit against the wrongdoer and reimburse himself. This is a rule independent of contract. Egan v. British & Foreign Marine Ins. Co., 193 Ill 295, 61 NE 1081; Standard Industries, Inc. v. Thompson, 19 Ill App2d 319, 152 NE2d 500.

This common law concept of subrogation originated in equity and is designed to place the ultimate responsibility for a loss upon the one on whom in good conscience it ought to fall, and to reimburse the innocent party who is compelled to pay. Geneva Const. Co. v. Martin Transfer & Storage Co., 4 Ill2d 273, 122 NE2d 540.

However, if an insured, who has previously received payment of a loss from an insurer, as in the instant case, obtains a recovery against a wrongdoer, the insured must account to the insurer. Pontiac Mut. County Fire & Lightning Ins. Co. v. Sheibley, 279 Ill 118, 116 NE 644.

Thus, when plaintiffs received the sum of $86,600 from their insurance company, and gave the company the customary subrogation receipt above set forth, they set over to the insurance company a first and prior claim upon- any recovery from defendant to the extent of the payment ($86,600). From that point on, plaintiffs had no call upon the first $86,600, and the suit they filed was for the benefit of their insurance company for the first $86,600. What the insurance company did with this claim is of no consequence or importance to plaintiffs. Thus, the claim of plaintiffs to not have the judgment of $65,797.21 subject to the setoff of $86,600 is of no basis. Accordingly, we hold that the trial judge correctly permitted the setoff.

In the view which we have taken of this case, the plaintiffs’ complaint that they should receive 5 % interest because of defendant’s vexatious delay in payment is moot.

The judgment of the trial court is affirmed.

Judgment affirmed.

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


author: GOLDENHERSH, J.

text:
    Harold Liddell, Plaintiff-Appellant, v. Noel Smith, Sherwood Land Company, a Corporation, Midwest Construction Company, a Corporation, Defendants-Appellees.
    Gen. No. 64-81.
    Fifth District.
    November 1, 1965.
    Modified opinion, December 28, 1965.

      Craig & Craig, of Mt. Vernon (Glenn E. Moore and Ronald W. Polston, of counsel), for appellant.
    Kern and Pearce of Carmi, and Wham and Wham, of Centralia, for appellees.
   GOLDENHERSH, J.

This is one of a number of cases arising from a transaction involving several parcels of land in Wayne County.

Prior to August 1959, plaintiff, Harold Liddell, and one James Castle had an option to buy 960 acres of raw land which had never been cleared for agricultural purposes. They agreed with the defendant, Noel Smith, hereafter called Smith, that if he would furnish the money to buy the land they would clear it and prepare it for cultivation, and thereafter Castle would manage the agricultural operations.

On August 20, 1959, plaintiff, Smith and Castle, entered into a written agreement with Midwest Construction Ltd., hereafter referred to as Midwest, a corporation owned and controlled by Smith, which provided that plaintiff, Smith and Castle would organize a corporation to be known as Sherwood Land Company, hereafter referred to as Sherwood; that Sherwood would take title to the 960-acre tract above referred to; that plaintiff, Smith and Castle would clear the land and prepare it for sowing at a cost not to exceed $50 per acre; that Midwest would lend Sherwood the money with which to buy the land and pay for the preparation and clearing, and that Sherwood would execute a mortgage on the real estate and a chattel mortgage on the crops to secure the loan from Midwest.

On the same date, August 20, 1959, plaintiff, Smith and Castle entered into a written agreement which provided that plaintiff and Castle would clear the land and thereafter farm it, that Smith would use his abilities and energies to obtain necessary financing, in consideration of which services he was to be relieved of all responsibilities connected with clearing or farming the land.

The parties proceeded to organize Sherwood, each taking one-third of its capital stock. Smith became president of Sherwood, Castle its secretary and plaintiff its vice-president. The land was purchased and title taken in Sherwood.

Plaintiff and Castle organized a corporation known as Pawnee Construction Corporation, hereafter called Pawnee, and Pawnee proceeded with the land clearance project. After a part of the work was completed, Castle withdrew from the agreement. The record is not clear as to the precise basis of withdrawal but it appears that Castle withdrew some equipment which had been his capital contribution to Pawnee, and assigned to Smith his stock in Sherwood.

On May 23, 1960, Sherwood and Pawnee entered into a written agreement in which it is stated that in compliance with the earlier oral agreement between the parties, Pawnee had cleared approximately 400 acres of land, that Pawnee was to receive $20 per acre for clearing the land of timber and brush; and $30 per acre for removal of debris, and the plowing and discing of the land. It provided that Pawnee would keep certain equipment on the job at all times, weather permitting, and would complete the work as rapidly as possible. The agreement further provided that the 400 acres already cleared were to serve as a model for the project, and any disagreement as to whether the work was properly performed was to be resolved by comparing the area in dispute with the completed 400-acre tract.

On September 1, 1960, Smith wrote plaintiff a letter wherein he stated that Pawnee had entered into an agreement with Sherwood, that as of the date of the letter Pawnee had not performed the work required to be done under the terms of the agreement, that 150 shares of Sherwood’s capital stock formerly owned by Castle had been assigned to him, that in consideration of plaintiff’s completing the work which Pawnee was to have performed, Smith would assign 75 shares of Sherwood stock to plaintiff. As of the date of the letter, there were issued and outstanding 450 shares of Sherwood stock, of which plaintiff owned 150 shares.

The work proceeded through 1960, and the greater part of 1961. Apparently plaintiff and Smith enjoyed an amicable relationship, and in July of 1961, Sherwood entered into an agreement to purchase 320 acres of land which will hereafter be referred to as the Peyton land.

In addition to the work performed by plaintiff on the land clearing project, he employed other individuals and “traded out” portions of the work with one Bill O’Daniels, a dragline operator. In November of 1961 differences arose between Smith and plaintiff, and plaintiff moved his equipment off the job. The nature of the disputes and the evidence pertinent thereto will be discussed herein to the extent essential to this opinion.

On March 9, 1962, plaintiff filed suit in Circuit Court of Wayne County. In one count of the complaint directed against Sherwood, plaintiff alleged the organization of Sherwood, the agreement to clear the land for $50 per acre, Pawnee’s failure to perform, and further alleged that he and Smith agreed that in consideration of plaintiff’s completing the clearing work he was to receive one-half of Castle’s stock and the sum of $12,500. He further alleged that, in addition to the work of clearing the land, he was to construct roadways, dams and levees on the 960-acre tract, for which he was to be paid the going rate for that type of work. Plaintiff alleged the performance of all of the work required of him and prays judgment in the amount of $50,000.

In a second count, directed against defendants, Sherwood and Smith, plaintiff alleged that the stock in Sherwood is unique and of peculiar value to plaintiff, that the transfer to him of one-half of the shares (75) formerly owned by Castle will give him equal voice with defendant, Smith, in the control of Sherwood and prays that defendant, Smith, be directed to assign the shares to plaintiff, and defendant, Sherwood, be ordered to transfer the record ownership of said shares to plaintiff.

In a third count, plaintiff alleged that Sherwood executed a mortgage on the 960 acres to defendant, Midwest, that Midwest knew of and consented to plaintiff’s performing work on the 960 acres; that in addition thereto plaintiff had performed 150 hours of work of the value of $20 per hour on the Peyton tract, that said parcels were considered a single tract for all purposes by all the parties, and prayed that the court decree that plaintiff have a mechanic’s lien on said parcels, prayed for the appointment of a receiver and a sale of the land, out of the proceeds of which plaintiff was to be paid the amount claimed to be due.

Defendants were duly served with summons, failed to plead and an order of default was entered. Plaintiff notified defendants of his intent to present evidence and ask for the entry of a decree granting the relief prayed in the complaint. Defendants appeared at, and participated in the hearing, cross-examined plaintiff’s witnesses and offered evidence in mitigation.

After hearing six days of testimony, the court appointed a receiver for the crops growing on the land “for the purpose of preserving the status quo pending determination of the matters heretofore taken under advisement by the court.” Defendants Sherwood and Smith appealed from the order appointing the receiver and this court (then the Fourth District) affirmed. Liddell v. Smith, 41 Ill App2d 408, 191 NE2d 260.

The court thereafter entered a decree wherein it found that plaintiff, under an oral agreement, had performed extra work on Sherwood’s lands, entered judgment for plaintiff and against defendant, Sherwood, for $14,650, but denied plaintiff’s prayer for a mechanic’s lien. The decree denied plaintiff’s prayer for specific performance of the alleged agreement to assign 75 shares of Sherwood’s stock to plaintiff. As to plaintiff’s claim for the 150 hours of work on the 320-acre parcel, the court found that defendant, Smith, was the owner thereof and entered judgment for plaintiff and against defendant, Smith, in the sum of $3,000. Plaintiff prosecutes this appeal.

The record in this case is lengthy, consisting of 900 pages of testimony and 600 pages of pleadings, petitions, orders and exhibits. A detailed review of the evidence is not essential to this opinion, and only so much thereof as is necessary will be here recounted.

Plaintiff contends that the evidence clearly establishes he is entitled to all the relief prayed in the complaint, that defendants, by their default, have admitted the facts alleged and are precluded from questioning his right to the sums sued for, and specific performance.

In case of default, for want of appearance or for failure to plead, the allegations of the complaint are admitted. Whalen v. Twin City Barge & Gravel Co., 280 Ill App 596. Section 50(5) of the Civil Practice Act (Ill Rev Stats 1963, c 110, §50(5)) provides that a judgment by default or a decree pro confesso may be entered for want of an appearance or failure to plead, but the court may in either case, require proof of the allegations of the pleadings upon which relief is sought. Defaults are not encouraged, and the statutory provisions applicable thereto, like all other provisions of the Civil Practice Act are to be liberally construed. Dalton v. Alexander, 10 Ill App2d 273, 135 NE2d 101. A statutory provision empowering a court to require proof of the allegations of the pleadings would be meaningless unless the court is empowered to make findings of fact based on the evidence presented.

Evidence heard by the trial court without a jury, in support of a judgment by default, should therefore, be reviewed in the same manner as is other evidence heard by the court without a jury. The Supreme Court has held that where the chancellor sees the witnesses and listens to their testimony, his findings of fact will not be disturbed unless they are manifestly against the weight of the evidence. Schnepper v. Ashlock, 404 Ill 417, 88 NE2d 853. The weight to be given testimony is a matter to be determined by the trial judge, sitting without a jury, and his findings will not be disturbed unless manifestly erroneous. People ex rel. Penrod v. Chicago & N. W. Ry. Co., 17 Ill2d 307, 161 NE2d 126.

We have examined the testimony offered in support of, plaintiff’s claim for compensation for the extra work allegedly performed. We cannot say that the court’s findings are manifestly erroneous, and therefore, the judgment in the amount of $14,650 will not be disturbed.

The testimony adduced by plaintiff in support of the count seeking specific performance of the agreement to assign to him Sherwood shares formerly owned by Castle shows that certain areas of the 960-acre parcel were not cleared. Plaintiff contends that these areas, if cleared, could not be cultivated, and the agreement required only that he clear so much of the acreage as was suitable for farming. Evidence offered by defendant shows the tracts in question were cleared subsequent to the time when plaintiff withdrew his equipment, and the evidence is' conflicting as to whether these areas, were in fact, sowed, and a crop produced. We cannot say that the findings of the chancellor on the allegations in the count seeking specific performance are manifestly against the weight of the evidence.

With regard to that portion of the decree wherein the court awarded plaintiff $3,000 for work done on the Peyton land, and denied his claim for mechanic’s lien, our conclusions differ from those of the trial court. In an opinion filed simultaneously with this, this court has reversed the decree of the Circuit Court of Wayne County and found the Peyton tract to be impressed with a constructive trust for the benefit of Sherwood. The evidence shows that plaintiff’s work performed on this parcel was to be his capital contribution to Sherwood in connection with the acquisition of the Peyton land. The judgment entered in favor of plaintiff and against the defendant, Smith, in the amount of $3,000 must, therefore, be reversed.

The evidence shows that plaintiff performed services and furnished machinery of the types and kinds contemplated by the Mechanic’s Lien Act (Ill Rev Stats 1963, c 82, § 1 et seq.). Plaintiff performed services and furnished machinery for both the 960 acre parcel and the Peyton tract. The testimony shows that in performance of the work and in the use of plaintiff’s machinery, plaintiff and his employees treated both parcels as one tract. It is clear from the evidence that expenditures were made by and on behalf of Sherwood for labor and materials for both parcels, and the transactions are so commingled as to make it impossible to allocate specific expenditures to the respective parcels. If plaintiff is entitled to a lien, under the evidence, his mechanic’s lien should attach to both parcels.

The trial court denied plaintiff’s claim for lien on the ground that plaintiff knew of the existence of mortgages held by defendant, Midwest. That the lien of a jnortagage might have priority over a mechanic’s lien is not ground for denial of the lien. The lien attaches by virtue of the provisions of ch 82, § 1, Ill Rev Stats 1963; the matter of priorities is determined by section 16. (Ill Rev Stats 1963, c 82, § 16.) Moulding-Brownell Corp. v. E. C. Delfosse Const. Co., 304 Ill App 491, 498, 26 NE2d 709. The issue of priorities was not before the trial court, nor is it before this court at this time. The plaintiff is clearly entitled to a mechanic’s lien, and insofar as the decree denies his prayer therefor, the decree must be reversed.

For the reasons herein set forth, the decree of the Circuit Court of Wayne County is reversed, and the cause remanded, with directions to vacate the judgment entered in favor of plaintiff and against the defendant, Noel Smith, to enter judgment in favor of plaintiff and against the defendant, Sherwood Land Company, a corporation, in the amount of $14,650, and to render and enter its decree awarding plaintiff, Harold Liddell, a mechanic’s' lien on the 1280 acres of land described in the complaint in said sum of $14,650. The decree need not order foreclosure of the lien, or sale of the premises, since this court has today affirmed the decree of the Circuit Court of Wayne County ordering dissolution of Sherwood Land Company, and the sale of the premises and distribution of the funds derived from said sale will be effected under its terms.

Decree affirmed in part, reversed in part, and cause remanded with directions.

EBERSPACHER, P. J. and MORAN, J., concur.