text:
    Margaret L. David, Plaintiff-Appellant, v. Joseph David, et al., Defendants-Appellees.
    Gen. No. 66-18.
    Second District.
    December 30, 1966.

      Gordon Moffett, of Wheaton, and Eva R. Pollack, of Downers Grove, for appellant.

      Alan C. Hultman, of Downers Grove, for appellees.
   MR. JUSTICE RATHJE

delivered the opinion of the court.

This is an appeal from orders of the Circuit Court of the 18th Judicial Circuit, DuPage County, entered on December 1, 1965, that dismissed Dolores Black as a party defendant and dismissed the plaintiff-appellant’s (hereinafter called the wife) complaint for separate maintenance for want of equity and dissolved a temporary injunction.

Dolores Black is the daughter of the appellee, Joseph David (hereinafter called the husband), and was improperly brought into the suit. The complaint charged that Dolores was holding certain assets belonging to the husband and requested that she be enjoined from disposing of them. A determination of that question would inevitably involve an adjudication of the property rights of the parties and was beyond the scope of the court in a separate maintenance action. Boker v. Boker, 17 Ill App 2d 260, 149 NE2d 774. The order that dismissed her from the suit was clearly proper and we will not concern ourselves further with that portion of the appeal.

The record discloses an unhappy, if relatively brief, marital history. The parties were married in Las Vegas, Nevada, in November, 1955. It was a second marriage for both parties and each had grown children from their first marriage, but none from the second. Apparently the husband left the wife on several occasions during their first seven years of marriage but returned after short absences. In November, 1962, he filed a divorce action against the wife in the Circuit Court of DuPage County alleging various acts of physical cruelty on her part. The wife answered his complaint, denied the allegations, and asserted that, in fact, he was guilty of extreme and repeated cruelty to her on several specified, occasions, but did not seek any particular relief. A contested trial in that matter was concluded on November 20, 1963, and the court dismissed the husband’s complaint for want of equity.

Oii December 6,1963, the husband left the marital home in Downers Grove and established his residence in Nevada. On January 22, 1964, he filed a complaint for divorce in that State for mental cruelty; obtained jurisdiction by publication; and was awarded a decree of divorce on February 19,1964, by default.

In the meantime, the wife had commenced the instant separate maintenance action in DuPage County on January 23, 1964, with her complaint that alleged that she was living separate and apart through no fault on her part since December 6, 1963, and that she was in need of support.

The complaint also alleged the acts of cruelty on the part of the husband that she had included in her answer to his earlier action for divorce.

The husband filed a special appearance in the separate maintenance action on March 9, 1964, to object to the jurisdiction of the court in view of the Nevada divorce decree. The court, on June 23, 1964, ordered that the Nevada decree “be denied full faith and credit in this court for the reason that defendant herein did not disclose to the Nevada Court the previous unsuccessful action for divorce in Illinois.” Accordingly, the husband, on June 30, 1964, filed his answer to the complaint of his wife that denied most of her allegations and repeated his allegations of cruelty that were originally contained in his complaint for divorce that had been dismissed.

The wife promptly filed her motion for Summary Judgment pursuant to section 57 of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 57), supported by her affidavit. The husband filed a counteraffidavit that set forth particular facts that, in his opinion, forced him to leave the marital home on December 6, 1963. The wife then moved to strike the counteraffidavit on the grounds that it failed to comply with Supreme Court Rule 15. (Ill Rev Stats 1965, c 110, § 101.15.) On January 5, 1965, the motions for Summary Judgment and to strike the counteraffidavit were denied and the wife, on January 19, filed her Notice of Appeal to this court. On October 13,1965, we dismissed the appeal on the grounds that the order appealed from was not final and appealable.

Although it is a moot point at this juncture, the order that denied the motion for Summary Judgment was not in error. The pleadings at that point were at issue on an essential element in a separate maintenance suit. The wife had alleged, as she must in such a suit, that she lived separate and apart from her husband through no fault on her part. The husband’s answer denied that allegation. The burden was then on the wife to establish, by a preponderance of the evidence, that the separation was without her fault. We feel a material fact was at issue at that point and it was not a proper occasion for the use of the device of summary judgment.

The matter proceeded to trial on December 1,1965. The wife testified that she had treated her husband “as a good wife”; that she did the cooking, housework and helped with the garden work. She also stated that her husband, on November 27, 1963, “pounded” on her bedroom door and that she shouted “Help” from the window until the police were summoned by neighbors. On December 6, 1963, her husband, with no prior notice to her, left.

On cross-examination, the wife admitted that she cooked breakfast for her husband only “infrequently”; she was seldom home at night; that she turned off the television set while her husband viewed it; that she interrupted and retained his mail; and that she obtained an injunction to keep him out of the house when he sought to return in April, 1964.

The husband testified as an adverse witness pursuant to Rule 60 of the Supreme Court rules. He stated that his wife pushed him out of the kitchen when he attempted to prepare his meals; that she did not clean his room for “two or three years”; and that she rebuffed his attempts to establish a reconciliation. The other witnesses that testified could only relate the fact of the separation and had nothing to add of probative value as to the conduct of the parties. The court sustained the motion of the husband to dismiss the cause at the completion of the wife’s evidence.

In order to prevail in a separate maintenance action, it is essential that the plaintiff establish the fact that the parties are living separate and apart without fault on the part of the complaining party. Ill Rev Stats 1965, c 68, § 22; Neal v. Neal, 43 Ill App2d 108, 192 NE2d 689.

The fault that would preclude relief for the complainant has been variously described as voluntary consent to the separation or a course of conduct that itself materially contributes to the destruction of the marital relation. Johnson v. Johnson, 125 Ill 510, 16 NE 891; Elston v. Elston, 344 Ill App 233, 100 NE2d 635. It is not necessary that the conduct be itself a basis for a divorce by the other party for it to be fault in this sense. Strandquist v. Strandquist, 22 Ill App2d 107, 159 NE2d 513. At the least, it is incumbent that the plaintiff establish a reasonable performance of the duties of marriage. Slaight v. Slaight, 50 Ill App2d 31, 199 NE2d 650.

Although the testimony is in conflict, we cannot say that the order of December 1, 1965, was against the manifest weight of the evidence. There is evidence that the wife failed in her performance of those elementary duties so necessary to hold a marriage intact. It is also evident that she, by her own act, prevented his return to the marital home when he sought to do so and that she frequently discouraged his efforts at reconciliation.

The trial court was in a unique position to hear the testimony, observe the witnesses, and evaluate the evidence. It is well established that under those circumstances a court of review will affirm its factual determinations unless they are against the manifest weight of the evidence.

For the reasons given, the order of dismissal of the trial court will be affirmed.

Affirmed.

MORAN and DAVIS, JJ., concur.


source: Caselaw Access Project

author: MORAN, J.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ozean Davis, Defendant-Appellant.
    Gen. No. 64-76.
    Fifth District
    December 8, 1966.
    Harold M. Jennings, of Belleville, for appellant.
    Michael P. O’Shea, State’s Attorney of Alexander County, of Cairo, for appellee.
   MORAN, J.

Defendant was tried by the court without a jury in the Circuit Court of Alexander County, and found guilty of an attempt to murder Charles Williams. He was sentenced to a minimum of 10 years and a maximum of 20 years in the penitentiary. He contends in this appeal that there was insufficient evidence to support the finding of the trial court.

Charles Williams, a police officer of Cairo, Illinois, was shot with his service revolver while attempting to put the defendant in his police car after a traffic arrest. He testified that the defendant, without his knowledge, took his gun from his holster and shot him while he was attempting to push the defendant into the police car. The defendant testified that the officer was shot accidentally when he grabbed the officer’s wrist after the officer had pulled the gun from the holster.

Williams testified that he was on patrol duty on October 29, 1962, working the 4 to 12 p. m. shift, when he learned that a car was being driven toward Cairo, Illinois, in an erratic manner. He parked his patrol car at 38th and Sycamore Streets to watch for cars coming in from the north end of town. While there, he spotted what he thought was the car that he was watching for and followed it south on Sycamore to the middle of the 3100 block of Sycamore, where he pulled it over to the curb and parked about three to five feet behind it. He radioed the police station that he had located the car and then walked to the driver’s side of the car and asked the driver for his driver’s license. The driver’s license disclosed that the car was being driven by the defendant, Ozean Davis, but Officer Williams did not know Davis before that time.

Davis stepped from the car at Officer Williams’ request. Williams then testified:

I asked subject Davis to walk back to my patrol car, approximately halfway, and then turn around and walk back, and at this time he walked back to my patrol car and when he got approximately halfway, I asked him to turn around right quick. When I asked him to do this he turned around and lost his balance and fell up against the patrol car. This took place on the east side of the car. He fell against the car, caught his balance, straightened back up and walked back towards his car where I was standing. I then proceeded back toward the patrol car and met him at the space between the two cars where they were parked and advised him that he was under arrest for reckless driving while under the influence.
I then told Davis to walk around to the side of the police car with me which would be the west side of the car. That would be on the sidewalk side and I opened the door of the car and invited him to put his hands on the car. He did so without argument or anything; put his hands on the side of the car and I searched him for any weapons. Finding none, I told him to turn around and have a seat in the car. At this time he turned around and was standing right by the seat of the car and started to walk between me and the door and I advised him to go ahead and get in the car and he said he wanted to see his wife. I told him I would talk to his wife and tell her what the circumstances were and why he was being arrested. And he also argued about his driver’s license. He wanted his driver’s license back. I told him at that time that his driver’s license would be returned to him at the proper time. At this time, while the subject tried to push me around again and I placed both of my hands upon his shoulders. He was standing backward to the car and I attempted to force him down to the seat of the car. The subject kept resisting and grabbed hold of the car door and pulled on it and kept trying to push me back. Then I felt him push against my chest. At that time I heard a shot and felt pain. After the officer had placed his hands on Davis’ shoulders, he heard the sound which was an exploding gun and he felt pain which hurtled him backwards from the car to the ground; he was shot in the left side, right at the belt line. He twisted around and reached back to his holster for his revolver. He knew the defendant had shot him and he reached back and found that his revolver was not in the holster; he felt around for it but was unable to find it. “The thing had fell on the ground and I felt around on the ground for it and was unable to locate it.”

Defendant, OzeanDavis, testified:

Well, he come to the door and he (Williams) asked me out and I got out and he searched me and asked me for my driver’s license. That’s what he asked for —he searched me and then he asked me if I had been drinking. I told him yes, and then he asked me to walk from about the left front door of my car to about the left back door of his car and turn around and walk back, facing him, and I did that. Then he asked me to walk to the right door of his car. I start off doing that and that is when he shoved me between the back bumper of my car and the front bumper of his car and he give me a shove and I asked him what he was going to do with me and he said I was under arrest and I said, “What?” and he said, “Reckless driving,” and I said, “Well, could I tell my sister to trail us wherever you’re taking us to.” He called me a “black son of a bitchin’ nigger” and kicked me twice and I got a scar here on my left leg.

Continuing, he said:

Then he pulled his gun out and I grabbed the gun. I was afraid he was going to shoot me. When he pulled his gun out I grabbed his arm and twisted it around to keep him from shooting me. I was scared. The gun automatically discharged and when it discharged, the officer fell and I got fear and I become panic and run off and got in my car and pulled off. I drive off. Marvin or Roychester asked me what happened, some of them, but I don’t remember what it was, I was too frightened. Later on I was chased by some police cars. I did not have the gun in my hand at the time it went off. I was tussling with Officer Williams for control of the gun when it went off. I never at any time had any intention of shooting Officer Williams.

Officer Williams denied pushing or kicking Davis in the leg, denied calling him names and denied reaching for his gun. He said that his pistol was in the holster and that there was a snap on the holster. He did not recall when the gun was taken from his holster; he did not feel it being removed from his holster; the gun was fairly heavy and had a heavy frame. He admitted that if defendant Davis had taken the gun, it would have been necessary for Davis to first unsnap the holster, and then take the gun from the holster which was on the officer’s right side. He testified that he was 5'8" tall and weighed 220 pounds at that time and estimated Davis’ height at 5'6" to 5'8" and weight at about 175 pounds. The bullet hit the cartridge case, which was on the front part of his belt, and tore the cartridge case open. The bullet was deflected by the cartridges in the cartridge case. There was a hole through his belt, so it was concluded that the bullet went from the cartridge case, through the belt and into his body. Williams denied that he and Davis were scuffling for control of the gun at the time the gun went off.

Ira Sperr, on behalf of the State, testified that she resided at 416 Thirty-second Street, just west of Sycamore Street in Cairo; that she was at home around seven o’clock in the evening of October 29,1962, when she heard the siren of the police car and ran to the door to see what had happened. Her residence is the second house from a barbecue stand on the corner of Sycamore and 32nd Streets. She saw the policeman get out of the patrol car and go up to the other car. Then she saw “this fellow” get out of the car and the policeman stood there and talked with him for a few minutes. The fellow handed the officer something which she supposed to be his driver’s license. She testified that they stood and talked a bit and then walked between the cars to the side door of the patrol car and stood there talking. While they were talking some children went by. She testified that the policeman was trying to get the man into the patrol car and she could see hands and arms moving; that the car door was open, and the policeman was standing by the car door and “this other fellow hauled loose and hit him” with his left hand and called him a “son of a bitch.” She heard a shot and the policeman fell to the ground.

On cross-examination Mrs. Sperr testified that she did not know who called who a “son of a bitch”; that she just heard the name called and saw hands moving. She did not see Officer Williams search Davis, nor see Officer Williams push Davis and put his hands on Davis’ shoulders.

Mike Betts, fourteen years of age, and Ronald Clark, thirteen years of age, on behalf of the State, testified that they saw the police car stop in the middle of the 3100 block of Sycamore Street, heard Davis tell the policeman that he wanted to tell his wife where he was going and heard the policeman say that he would tell Davis’ wife where Davis was going. They saw the police officer try to push Davis into the patrol car, heard a shot and saw the policeman fall to the ground. They did not see the shot fired.

Roychester Williams, on behalf of the defendant, testified that he was seated in the right front seat of the car driven by the defendant; that Veatrice Wilson was seated in the front between him and Davis, and Myrtle Griffin, Frazier Griffin, Marvin Griffin and Tomella Griffin were seated in the back seat of the car. Davis gave the police officer his driver’s license and admitted that he had had something to drink but denied being drunk. The officer told Davis to walk from the left front door of Davis’ car to the rear of the police car and while Davis was walking, the officer kept saying, “Faster, faster.” Davis walked faster, back toward the police car. The officer then told Davis to walk between the two cars and when he did, the officer shoved him between the two cars. He testified that right after this, he heard Marvin Griffin shout to his mother that the policeman was about to shoot Ozean. He didn’t know what happened after that. A minute or two later, Davis came back, jumped in the car and drove away at a high rate of speed, without saying anything to anyone. Shortly thereafter, Davis ran the car into a telephone pole and they were then apprehended.

Myrtle Griffin, a sister of Ozean Davis, testified on behalf of the defendant that she was in the back seat of the car when the officer stopped Ozean Davis and asked him for his driver’s license. Davis gave the officer his license and the officer told Davis to stick his hands up on the side of the car. The officer searched him down, “patted him down,” and then told him to walk from the back of Davis’ car to the back of the patrol car, “and told him after he got to the back of his car, he told him, Ozean, to walk faster back to him and he came back fast, and then turned around, and he said ‘walk on the other side, on the right side.’ He made him walk between the two cars and at that time he shoved him. I was looking from the left side to where I was sitting in the car and just about as Marvin, he had the back side of the glass wiped off in the car, said ‘The cop’s fixin’ to shoot Uncle Ozean. Look, mother,’ and I was trying to turn around. I was trying to turn around, but my operation, I was so sore and stiff I couldn’t turn around fast and when I did get a chance to turn around and look, Ozean was running back to the car.” Davis got back into the car and drove off at a high rate of speed without saying anything.

Marvin Griffin, sixteen years of age, a nephew of Ozean Davis and the son of Myrtle Griffin, testified on behalf of the defendant that he was,, in the back seat of the car when he saw the officer push Davis and tell him to get in the police car; that after the officer pushed Davis, the officer jumped back and kicked him; that Ozean fell back and the officer reached for his gun with his right hand and Ozean grabbed his wrist; that they started tussling and a little later Ozean came back, got into the car and drove away at a high rate of speed; that he saw all of this out of the back window of the car.

In People v. Dawson, 22 Ill2d 260 at 264, 265, 174 NE2d 817, our Supreme Court said:

The finding of the trial judge as to the credibility of the witnesses is entitled to great weight. However, we cannot, in every case, accept the trial judge’s finding as conclusive, for the rule is that it is the duty of this court to examine the evidence in a criminal case and if it is so unsatisfactory and unreasonable as to raise a serious doubt of defendant’s guilt, the conviction must be reversed. (People v. Williams, 414 Ill 414; People v. Bucholz, 363 Ill 270.) The burden is always upon the State to prove the defendant guilty beyond a reasonable doubt and a judgment of conviction can be sustained only on credible evidence which removes all reasonable doubt of defendant’s guilt. Where the State’s evidence is improbable, unconvincing and contrary to human experience, we have not hesitated to reverse the judgments of conviction.

Since Charles Williams was the only witness on behalf of the prosecution who testified as to how he was shot, the State’s case must stand or fall on his testimony. In order to affirm this case, we must believe that Charles Williams was pushing the defendant Davis into the police car with both of his hands on the defendant’s shoulders, and that while the defendant had one hand on the door of the police car, the defendant, without Williams’ knowledge, unsnapped the catch on Officer Williams’ holster, removed the gun without Officer Williams’ knowledge, and then shot him. How all this could happen, completely unnoticed and without warning to Officer Williams, is difficult to explain.

We find that the evidence upon which this conviction is based is so unsatisfactory and unreasonable that it raises a serious doubt of defendant’s guilt of an assault with intent to commit murder, which must be proved as charged beyond a reasonable doubt. For the foregoing reasons this case is reversed.

Judgment reversed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


text:
    In the Matter of the Estate of Henry Edward Winans, Deceased. Larry Richard Manns, Claimant (Plaintiff) Appellant, v. Estate of Henry Edward Winans, Deceased, Herman V. Meyer and Charles W. Wightman, Executors, Defendants-Appellees.
    Gen. No. 66-39. (Abstract of Decision.)
    Fifth District.
    December 8, 1966.

      Emerson Baetz, of Alton, for appellant; F. Edward Todd, of East Alton, and Green & Hoagland, of Alton (Robert B. Maucker, of counsel), for appellees.
   Opinion by PRESIDING JUSTICE GOLDENHERSH. Not to be published in full.


author: TRAPP, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Paul “Podo” Hill, Defendant-Appellant.
    Gen. No. 10,738.
    Fourth District.
    December 29, 1966.
    Joseph W. Maddox, of Springfield, for appellant.

      Raymond L. Terrell, State’s Attorney of Sangamon County, of Springfield (Robert T. Lawley, of counsel), for appellee.
   TRAPP, J.

Defendant was convicted upon his plea of guilty to an indictment charging attempt to murder, aggravated assault and aggravated battery. He was granted probation upon such plea, and he now appeals from an order of the trial court denying his motion for leave to withdraw the plea of guilty.

Upon arraignment defendant pleaded not guilty. The trial of the case commenced on July 13,1965, the jury was sworn, the defendant being represented by counsel of his own choice. Upon resumption of the trial on July 14th, defendant, through counsel, asked leave to withdraw his plea of not guilty and to enter a plea of guilty. Upon admonition by the court, defendant persisted in such plea and it was accepted by the court. Motion for probation was made and such was referred to the probation officer, and the cause continued for hearing.

On September 8, 1965, trial counsel withdrew and defendant’s present counsel procured a general continuance on September 15, 1965. On October 7th the motion at issue was filed with defendant’s affidavit alleging that representations were made to him that if he pleaded guilty he would be placed on probation for 5 years, and that while he felt that he had a valid defense to the charge:

“. . . (he) decided in view of the representations, that insistence upon a trial with the chances involved therein was not desirable and that he could lose much more than he could gain, i. e., the possibility of a finding of guilty and a resulting long sentence as against a certain six months and probation.”

On October 8th evidence in aggravation and mitigation was heard, as well as, presumably, evidence upon the motion to withdraw the plea of guilty. While it was not set out in the affidavit, defendant testified that he was arrested in a bar for drunkenness during the month of August, 1965, and that the arresting officer said that they would see that he did not get probation, so that defendant felt that he should stand trial upon his defenses. Such asserted police threat was not successfully consummated.

Defendant’s theory of defense, never clearly stated, includes the facts that the victim of the shooting who was large, and the defendant, who was small, were quarreling in a bar; that the former slammed the latter against a wall during the quarrel and that as the procedure was repeated the bartender slipped a revolver across the bar to the defendant, who thereupon fired 3 times, striking the victim in the stomach on one round and hitting a bar stool with the other two. The defendant testified, in substance, that he went to St. Louis for a few days because he did not have bond money, depositing the hand-gun in a river, presumably the Mississippi, during the journey. Some 5 or 6 days later he returned to Springfield to surrender to the police. At this hearing defendant testified that the friendly bartender had returned to California. No other witnesses to the occurrence were called by the defendant. The victim Kelly admitted throwing the defendant against the wall but stated that when shot, he had raised the bar stool to protect himself from the gun held by the defendant.

We have examined the cited authorities, as well as others, upon defendant’s proposition that the trial court, in the exercise of its judicial discretion, should have granted the motion to withdraw the plea where it appears that such plea had been entered through a misapprehension of the law, or where it appears there is doubt of guilt, or any defense exists at all worthy of consideration by a jury, or where the ends of justice will best be served by permitting a plea of not guilty.

In People v. Adams, 379 Ill 323, 40 NE2d 730; People v. Morreale, 412 Ill 528, 107 NE2d 721 and People v. Zuckerman, 46 Ill App2d 210, 197 NE2d 136, probation was denied by the court, although in each case the State’s Attorney had urged that a plea be entered and that probation would be granted. In Morreale, in addition, the court found a great want of orderly procedure where the plea was changed hastily by substitute counsel at the urging of the State’s Attorney.

In People v. Ross, 409 Ill 599, 100 NE2d 923, defendant was an illiterate 16-year-old, and the proceedings were so confused that the Supreme Court could not determine whether a plea was made to murder or manslaughter, or whether the trial court was hearing evidence to determine whether or not the defendant was acting in self-defense. People v. Jameson, 387 Ill 367, 56 NE2d 790, is cited by defendant. There the death sentence was imposed upon a young man with virtually no education and without counsel, where the record was found to be clear that the defendant did not realize that he was pleading guilty to murder, but was only admitting that he fired the shot.

In this case the record discloses that the procedure was orderly and that the defendant received probation precisely as he was advised. In fact, defendant’s affidavit discloses that he acted upon the advice of retained counsel in taking a calculated step, recognizing that upon trial he might be convicted and receive a greater sentence. Under such circumstances, it is proper to deny the motion to withdraw the plea of guilty. People v. Zuckerman, 46 Ill App2d 210, 197 NE2d 136; People v. Morreale, 412 Ill 528, 107 NE2d 721; People v. Adams, 379 Ill 323, 40 NE2d 730.

Our conclusion is not altered in this case by reason of the fact that the motion to withdraw the plea was made prior to the hearing on the motion for probation. After a plea of guilty a prisoner before the court is a convicted criminal, and the presumption of innocence on which the law indulges on a not guilty plea no longer exists. People v. King, 1 Ill2d 496, 116 NE2d 623; People v. Riley, 376 Ill 364, 33 NE2d 872.

We cannot say that there was an abuse of discretion by the trial court in denying the motion to withdraw the plea of guilty, and the judgment is affirmed.

Judgment affirmed.

CRAVEN, P. J. and SMITH, J., concur.


author: CRAVEN, P. J.

text:
    June Graham Blue, Plaintiff-Appellant, v. Francis N. Bryant, et al., Christian Old People’s Home of St. Louis, a Corporation; Mother’s and Babies Home, a Corporation; Lincoln Christian College, a Corporation; First Christian Church of Clinton, Illinois, a Corporation, and Ura Clark Fuhrman, Executor of the Will of Carrie M. Graham, Deceased, Defendants-Appellees.
    Gen. No. 10,764.
    Fourth District.
    December 29, 1966.

      Herrick, Rudasill & Moss, of Clinton (A. J. Rudasill and Ray Moss, of counsel), for appellant.
    Smith & Smith, and Emerson M. Williams, of Clinton, for appellees.
   CRAVEN, P. J.

This is an appeal from a decree of the circuit court of DeWitt County dismissing a complaint seeking the construction of a paragraph in the last will of Samuel C. Graham, deceased, and for an accounting of certain personal property Carrie M. Graham allegedly received by the terms of that paragraph. The circuit court entered a decree, final in form, dismissing the action on the basis of laches.

Although the circuit court did hear the testimony of two witnesses, the essential elements of this case are supplied by a stipulation of the parties. From this we learn that Samuel C. Graham died testate in October of 1957, leaving him surviving his widow, Carrie Graham, and a brother, George Graham, as his only heirs-at-law. The will of Samuel Graham made certain specific bequests not here material and then contained a paragraph bequeathing to his wife “all the rest and residue of my personal property of every kind and character, but my will further is that in case my said wife, Carrie M. Graham, at the time of her death should then have any of my personal property remaining . . . ,” such personal property shall go to June Graham Blue, plaintiff in the instant proceedings.

A specific devise of his residence was made to his wife, and the remainder of the testator’s real estate was devised to his wife for life and on her death to June Graham Blue “to have and to hold to her and the heirs of her body; provided, however, in case my said niece, June Graham Blue, should die without heirs of her body, then I give and devise said real estate to my brother, George F. Graham, if he be then living.” A gift over in the event of the death of George was also contained in the will.

The estate of Samuel C. Graham was administered in the then county court of DeWitt County, the will admitted to probate, the wife was named executor, an inventory filed and usual administration had. In the course of the administration of that estate the executor filed a petition to sell real estate to pay debts, setting forth in the exhibit attached thereto a deficit in the personal estate in excess of $32,000.

The plaintiff in the present proceeding was made a party-defendant in that proceeding. Summons was issued and served on the plaintiff in January of 1959. She did not appear nor make any objection of any kind. In due course a decree was entered providing for the sale of said real estate, and pursuant thereto a private sale was had of 40 acres of real estate belonging to the decedent, Samuel Graham. John Blue, husband of the plaintiff, was the purchaser of the real estate and the court approved the sale by the executor. Ultimately the final report in the estate of Samuel Graham was filed and approved without objections thereto by the plaintiff.

In November of 1958, Carrie Graham, as executor of her husband’s estate, filed an Illinois inheritance tax return and on the appropriate schedule of that return listed all property held in joint tenancy by the deceased and her as his wife. That return, as filed, showed a deficiency in the personal estate in the amount hereinabove mentioned.

Carrie Graham died testate in May of 1963. Ura C. Fuhrman, the named executor in her will, filed a petition to admit the will to probate and was duly appointed executor of the estate.

By the instant proceedings the plaintiff seeks an accounting of the personal property allegedly received by Carrie Graham and not consumed by her during her lifetime by reason of the quoted paragraph in the last will of George Graham. Plaintiff likewise seeks a construction of that paragraph. It is essentially the position of the plaintiff that laches is not here applicable because of the intimate personal relationship existing between the parties and for the further reason that the rights or interests of the plaintiff as a beneficiary in the will of Samuel Graham were dependent upon contingencies or conditions so as not to give rise to the possibility of equitable action until the termination of the life estate.

We concur in the action of the circuit court of DeWitt County in dismissing this proceeding on the grounds of laches. The plaintiff was a party to and notified of the various steps in the administration of the estate of Samuel Graham. By her failure to object she acquiesced in those proceedings including the proceedings to sell real estate to pay debts and the inheritance tax proceeding. It was there disclosed that the personal estate of the decedent carried a deficit balance. The joint tenancy property was not included in that personal estate. If that property did not pass to Carrie Graham by reason of survivorship, plaintiff was then fully entitled to so assert. She failed to do so and her failure to do so may well have deterred Carrie Graham from renouncing the will and taking her statutory interests.

The real estate that was sold to pay debts was property in which the plaintiff had an interest sufficient to then invoke equitable jurisdiction.

Taking the record as we now find it, an accounting as sought would be a useless act, for no personalty was in existence to pass under the quoted paragraph of the will to the plaintiff regardless of its construction.

The equitable doctrine of laches is not merely a matter of time but is time coupled with neglect or omission to assert a right as will operate to bar relief. In Pyle v. Ferrell, 12 Ill2d 547, 552, 147 NE2d 341, 344 (1958), the court stated:

“Laches, or the doctrine of stale demand, as it is sometimes termed, is a defense peculiar to equity which is bottomed on the reluctance to aid one who has knowingly slept upon his rights and acquiesced for a great length of time, (19 Am Jur, Equity, sec 489,) and its existence depends on whether, under all circumstances of a particular case, a plaintiff is chargeable with want of due diligence in failing to institute proceedings before he did. (McCartney v. McCartney, 8 Ill2d 494 [134 NE2d 789 (1956)].) Although laches is defined by one authority as such delay in enforcing one’s rights as will work to the disadvantage of another, (30 CJS, Equity, sec 112,) it is, unlike limitations, not a mere matter of time but principally a question of the inequity of permitting the claim to be enforced, an inequity founded upon some change in the condition or relation of the property and parties, and where there is such a change as to make it inequitable to grant relief, it will be refused. (McKey v. McKean, 384 Ill 112 [51 NE2d 189 (1943)].) Laches is, therefore, such neglect or omission to assert a right, taken in conjunction with a lapse of time of more or less duration and other circumstances causing prejudice to an adverse party, as will operate to bar relief in equity. (Curtis v. Curtis, 398 Ill 442 [75 NE2d 881 (1947)] ; Gaffney v. Harmon, 405 Ill 273 [90 NE2d 785 (1950)] ; Carlson v. Carlson, 409 Ill 167 [98 NE2d 779 (1951)].)” . . .

Here, as in the cited case, the facts meet the equitable requirements for laches and demonstrate conclusively that the long delay in bringing the action, considering the nature of the property interest, is an absolute bar to the present proceedings.

The circuit court of DeWitt County properly so determined. Having so determined, the taking of evidence on matters of construction was not necessary. For the reasons stated, the decree of the circuit court of DeWitt County is affirmed.

Affirmed.

SMITH and TRAPP, JJ., concur.


text:
    Marta L. Wesch Stingley, Plaintiff-Appellee, v. Lawrence E. Wesch, Defendant-Appellant.
    Gen. No. 10,795.
    Fourth District.
    December 29, 1966.

      Raymond Lee, Jr., of Tuscola, for appellant.
    Ryan & Heller, of Mattoon (Willis P. Ryan, of counsel), for appellee.
   CRAVEN, P. J.

The parties to this proceeding were married in August of 1962. Plaintiff obtained a divorce in July of 1964. By the terms of the decree of divorce she was awarded custody of Alan E. Wesch, the only child of the marriage. Alan was born in March of 1963. The defendant husband was ordered to make certain support payments and was granted rights of visitation at certain times specified in the decree. There was no default in the ordered payments and rights of visitation were exercised except for certain periods when the defendant was on duty with the National Guard.

From the date of the divorce until September of 1965 plaintiff and the child lived with her parents in Oakland, Illinois. The defendant resided with his parents in Hindsboro, Illinois, some six miles distant. On the occasions when Alan was with his father he would also be with the paternal grandparents and on occasion the paternal grandparents would take the child, by agreement, for visits in their home.

On September 4, 1965, the plaintiff left the residence of her parents, taking the child with her. She went to the Chicago area. The next day the maternal grandfather returned the child to his home in Oakland. The stated reason, according to the plaintiff, was to prevent animosity and to permit of visits by the defendant and his parents. On September 18,1965, plaintiff married Wayne Stingley. They presently reside in Kankakee, Illinois, where Stingley, a college graduate, is employed as a teacher. One child, Dawn, resides in this home. The record indicates Wayne Stingley to be of the Negro race.

Alan has remained with the maternal grandparents since September 5, 1965, except for short periods with the father at the home of the paternal grandparents. On one occasion he visited his mother in her home and twice a month or so she was in Oakland to see the child. In February of 1966 the father sought custody by filing a petition for modification of the decree.

The petition alleged the fact of plaintiff’s subsequent marriage and further alleged that since that remarriage she “has not sought to exercise the right of care, custody and maintenance” of the child but that, on the contrary, she has placed the child in the care, custody and control of the maternal grandparents. At the hearing both parents of the child testified as to their desire to have custody. So did the maternal grandparents. The paternal grandparents expressed a desire to have their son have custody and in turn live with them.

There is evidence in the record as to the suitability of the homes of the maternal and paternal grandparents and no disqualification as to custody is indicated by reason of unsuitable moral climate or inadequate economic resources in either home.

The court specifically found “that neither the mother nor the father are unfit persons and that both desire the custody of the child.” The decree was modified and custody awarded to the maternal grandparents. In so doing the court found this to be for the best interests of the child, “for his personal benefit and for social and economic reasons.” This appeal is from the order modifying the original decree.

We are thus presented with the question of determining whether there were sufficient changes in circumstances so as to warrant modification of the decree, and then if such are found to exist to pass upon the decree of modification.

It is well-settled that a decree fixing custody is final as to the conditions then existing and should not subsequently be changed unless on altered conditions or on material facts existing at the time of the decree but unknown to the court. Even then such modification must be governed by the best interests of the child. ILP, Divorce, § 217, and cases there cited. Bulandr v. Bulandr, 23 Ill App2d 299, 162 NE2d 585 (1st Dist 1959). In the last-cited case the court used language equating change of circumstances as required for modification with parental unfitness. Clearly the change in circumstance must be substantial, must relate to the welfare of the child, and as the court there said (at 303, 162 NE2d at 587):

“Nothing short of a hearing relating to unfitness and the interests of the child and a finding thereon is adequate support for an order changing custody. . . .”

The facts in this case show that the mother consented to the child’s being cared for by the maternal grandparents. This, under the evidence, did not constitute abandonment as that term is generally used. Rather the mother acquiesced in their custody and her reason was stated to be to make effective the defendant’s right of visitation and because of the fact of her subsequent remarriage. The facts here as to relinquishment of custody are far different from those found in People ex rel. Curley v. Porter, 23 Ill App 196, relied upon by the appellant. See also 24 Am Jur2d, Divorce and Separation, § 824, and cases there cited. The remarriage of the mother is not of itself a sufficient reason for changing an order of custody. 24 Am Jur2d, Divorce and Separation, § 821. The fact of the remarriage may, however, have a bearing on change of custody. See Serotzke v. Serotzke, 335 Ill App 485, 82 NE2d 375 (1st Dist 1948).

We conclude that the relinquishment of custody and the subsequent remarriage of the mother were sufficient changes of circumstances as to warrant an examination into the custody question in the sense of a hearing to determine the necessity of a change in custody.

An annotation in 43 ALR2d 363 suggests the matters for consideration on a petition for change of custody upon remarriage of either the mother or the father. In Fountaine v. Fountaine, 9 Ill App2d 482, 133 NE2d 532 (1st Dist 1956), the court held that in determining the question of custody as between a Negro father or a Caueasion mother the question of the racial characteristics of the children was not decisive. Clearly, therefore, question of the race of a stepfather would have no significance in this proceeding. In this connection, see the annotations to the Fountaine case in 57 ALR2d 678.

By determining there were sufficient changes in circumstances to warrant a hearing to determine the question of custody, it does not follow that custody may be awarded to the maternal grandparents when both parents sought custody and both were found fit to have custody.

The rights of the parent are superior to those of any other person when the parent is a fit person to have custody of his children. This is and for years has been the rule in Illinois. Custody to persons other than a parent is considered only after a finding of parental unfitness or unwillingness or undesirability necessitating a placement other than to the parent. Cormack v. Marshall, 211 Ill 519, 71 NE 1077 (1904); Sullivan v. People ex rel. Heeney, 224 Ill 468, 79 NE 695 (1906); Jarrett v. Jarrett, 348 Ill App 1,107 NE2d 622 (3d Dist 1952); Horn v. Horn, 5 Ill App2d 346, 125 NE2d 539 (3d Dist 1955). While custody is to be determined by a consideration of all the circumstances of the particular case and the court must be mindful that the welfare of the child is the chief consideration, placement other than to parents who are willing and fit is not within the rule that recognizes the superior right of the parent. Cf. Painter v. Bannister (Iowa), 140 NW2d 152 (1966).

The decree awarding custody to the maternal grandparents and concurrently finding the parents to be fit is reversed. This cause is remanded to the circuit court of Coles County for further proceedings to determine custody as between the parents consistent with the views herein expressed.

Reversed and remanded with directions.

SMITH and TRAPP, JJ., concur.


author: STOUDER, J.

text:
    Board of Education of School District No. 108, Tazewell County, Illinois, f/u/o A. Y. McDonald Manufacturing Company, a Corporation, Plaintiff-Appellee, v. Bobby C. Collom, John Combs and Herman Wolske, a Copartnership, d/b/a United Plumbing & Heating Company, and American Casualty Company of Reading, Pennsylvania, Defendants-Appellees. American Casualty Company of Reading, Pennsylvania, a Corporation, Cross Plaintiff and Third Party Plaintiff-Appellee, v. Bobby C. Collom, John Combs and Herman Wolske, a Copartnership, d/b/a United Plumbing & Heating Company, Cross DefendantsAppellees, and Wanda Juanita Collom, Anna Belle Combs and Betty L. Wolske, Third Party DefendantsAppellees. Board of Education of School District No. 108, Tazewell County, Illinois, Intervening Petitioner-Appellee, v. First National Bank and Trust Company of Pekin, Illinois, Defendant-Appellant, and Silas Waalk, Trustee in Bankruptcy for Bobby C. Collom, et al., Respondents-Appellees.
    Gen. No. 65-85.
    Third District.
    December 29, 1966.

      E. B. Groen and Edward C. Moehle, of Pekin, for appellant.
    Dent, Hampton & Doten, of Chicago, and Pratt, Heffernan & Ramseyer, of Bloomington, for appellees.
   STOUDER, J.

On June 9, 1961, the Board of Education of School District 108, Tazewell County, for the use of A. Y. McDonald Manufacturing Company, commenced this action in the Circuit Court of Tazewell County against United Plumbing and Heating Company and American Casualty Company of Reading, Pennsylvania. The complaint alleged that the School District and United Plumbing had entered into a contract on May 18, 1960, for a school improvement, that United Plumbing as principal and American Casualty as surety had executed and delivered to the Board of Education, a bond assuring performance of the contract, that McDonald, under an agreement with United Plumbing, had furnished labor and materials under the school improvement contract, the last of said labor and material having been furnished on December 7, 1960, that the job was completed by United, December 8, 1960, and accepted by the School District on December 14,1960. McDonald claimed $4,457.84 was due for the labor and material so supplied. The complaint recites that it is filed pursuant to sections 15 and 16, chap 29, Ill Rev Stats 1959, said sections dealing with actions on contractors’ bonds, and that written notice was served on the Board of Education on May 24, 1961, as required by section 15, chap 29, Ill Rev Stats 1959. In its answer to the complaint, American Casualty admitted the execution of the school improvement contract and the execution of the performance bond but denied that McDonald had supplied the materials as alleged in the complaint, and, further, set up affirmative defenses of waiver and payment.

On May 31, 1962, School District 108 filed its petition for leave to intervene reciting that although it was already a nominal Plaintiff there were other matters requiring determination by the court. The petition alleged that the School District had in its possession $2,731.17, being the balance due on the school improvement contract with United Plumbing, and that such fund was claimed by the First National Bank and Trust Company of Pekin, Illinois by virtue of an assignment, by American Casualty Company and by the Trustee in Bankruptcy of one of the partners of United Plumbing. The petition for leave to intervene was granted and the Board of Education was directed to deposit $2,731.17 with the clerk of the court to abide the order of the court.

The First National Bank filed an answer to the intervening petition and also a motion for summary judgment supported by affidavit in which it alleged that United Plumbing had assigned to the bank, funds then due or to become due under the school improvement contract, as security for an antecedent debt from United to the bank. The assignment was executed November 16,1960, and was delivered to and accepted by the secretary of the School District on November 22,1960.

McDonald filed a motion for summary judgment claiming that it was entitled to the $2,731.17 because of its subcontractor status, the affidavit in support of said motion realleging the facts stated in the complaint. McDonald also filed a motion for summary judgment supported by affidavit against American Casualty Company alleging the same matters contained in the complaint and asking that judgment be entered against this Defendant in the amount of $4,457.84, the entire amount which it claimed to be due and unpaid.

On December 2, 1964, the court granted the motion for summary judgment of McDonald against American Casualty Company for the amount of $4,457.84. On January 13, 1965, the court denied the motion for summary judgment of the First National Bank, granted the motion for summary judgment of McDonald for the contract proceeds and directed that the $2,731.17 previously paid to the Clerk of the Court be paid to McDonald, providing further that such amount should be credited on the judgment against American Casualty.

The First National Bank appeals from the judgment denying its motion for summary judgment and granting the motion in favor of McDonald Company as to the proceeds from the school contract. No evidence was heard, the questions before us depending solely on the motions for summary judgment, together with the affidavits in support thereof.

Appellant, First National Bank, argues that its assignment of the contract proceeds has priority over the claims of Appellee, McDonald Company as subcontractor and Appellee, American Casualty Company as surety. Appellant argues that McDonald as a subcontractor could have perfected a mechanic’s lien by following the procedure as provided in section 23, chap 82, Ill Rev Stats 1959, but that it did not, and further that the failure of McDonald to comply with and proceed under such section precludes McDonald from having or asserting any right to such fund superior to those created by the assignment. No claim is made by McDonald of compliance with or rights arising from the Mechanics’ Liens Statute, chap 82, Ill Rev Stats 1959.

In Alexander Lumber Co. v. Coberg, 356 Ill 49, 190 NE 99, the court stated, “Mechanics’ Liens are purely statutory. They were unknown to the common law or to equity and this court has uniformly held that statutes creating such liens must be strictly construed.” See also 57 CJS, Mechanics’ Liens, section 1(c) and Gunther v. O’Brien Bros. Const. Co., 369 Ill 362, 16 NE2d 890. In the absence of statute or special contract provision a subcontractor supplying material or labor to a contractor is only a general creditor of such contractor. Statutes granting such subcontractor’s rights against the improvement or in the proceeds of the contract are deemed to be in addition to rights of such subcontractor against the contractor. Decatur Bridge Co. v. Standart, 208 Ill App 592. It is undisputed that Appellee McDonald could have perfected its subcontractor’s lien under section 23, chap 82, Ill Rev Stats 1959, by following the procedure therein described. In seeking the application of equitable principles and in support of the judgment of the court below Appellee McDonald makes no effort to justify or excuse its failure to perfect its lien but relies solely on its status as an unpaid subcontractor having supplied material and labor.

No Illinois precedent dealing with this precise issue has been called to our attention. We have been unable to find any precedent supporting Appellee’s theory of an equitable lien. In our opinion Appellee’s only opportunity to assert a priority over other creditors was to perfect his lien under the Mechanics’ Liens Statute. Failing to do this places Appellee in the same position as other general creditors.

People v. Village of Bradley, 367 Ill 301, 11 NE2d 415, cited by Appellee does not support his contention. The funds there involved were from a special improvement levy and the court held that those funds could not be diverted to a purpose other than payment for such improvement. The case does not deal with the rights of unsecured subcontractors as against other creditors. We likewise do not believe that the Federal authorities relied upon by McDonald support its position nor are such Federal authorities inconsistent with our views. In such cases as Martin v. National Surety Co., 85 F2d 135, 300 US 588, and Riverview State Bank v. Wentz, 34 F2d 419, general law and general equitable principles have been applied in determining the priorities to the proceeds due on a contract for the construction of a government improvement. The decisions in such cases are predicated upon the absence of statutes dealing with the rights and priorities of contractors, subcontractors or suppliers of material or labor.

Appellee, American Casualty argues that the order of the trial court was proper since it in effect was based on an assignment to American Casualty, said assignment having priority in the proceeds, it being prior in time to the assignment by United Plumbing to the First National Bank. Motions for summary judgment and supporting affidavits of the First National Bank and the McDonald Company were filed in the trial court. No motion for summary judgment was made by American Casualty in the trial court pursuant to section 57, chap 110, Ill Rev Stats 1961, nor did such Appellee file any affidavits in opposition to the motions for summary judgment in accordance with Rule 101.15, chap 110, Ill Rev Stats 1961. No claim to the contract proceeds was properly presented by Appellee, American Casualty in the trial court on any theory. The decision of the trial court was based solely on the motions for summary judgment and supporting affidavits, and the sufficiency of these motions and affidavits to support the relief sought is the only issue before this court. The issue of the assignment by American Casualty argued for the first time in this court, is not a proper matter for our consideration.

Having found that McDonald is not entitled to any priority in the application of the contract proceeds and there being no question of the validity of the assignment to the First National Bank and Trust Company we believe that such contract proceeds in the amount of $2,-731.17 should have been ordered paid to the bank. Since we find error in the judgment of the Circuit Court of Tazewell County said judgment is reversed and remanded with directions to proceed in accordance with the views herein expressed.

Reversed and remanded with directions.

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


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward P. Mitchell, Defendant-Appellant.
    Gen. No. 50,440.
    First District, Second Division.
    November 1, 1966.
    Rehearing denied November 29, 1966.
    George T. Bogert, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gene Autry Dean, et al., Defendants, (Impleaded), Appellants.
    Gen. No. 50,572.
    First District, Second Division.
    November 1, 1966.
    Walter La Von Pride, of Chicago, for appellants; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and William J. NeEis, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be pubHshed in full.


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Bobby Bright, Defendant-Appellant.
    Gen. No. 50,575.
    First District, Second Division.
    November 1, 1966.

      Archie B. Weston, Sr. and George C. Adams, of Chicago (George C. Adams, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a conviction for the crime of aggravated battery, after a verdict by a jury, with sentence in the Illinois State Penitentiary for a period of 15 to 20 years.

Albert Berg, called as a State witness, testified that on November 29, 1962, he went to a tavern located at 2506 North Lincoln Avenue, which is often called “the Club”; that at about 12:35 a. m. he saw defendant in the tavern but had no conversation with him; that defendant left the tavern; that shortly thereafter, as he stepped out of the tavern, defendant started to fire and he was shot through the stomach twice and in the hip once; that he fell to the sidewalk and defendant kept firing while he was lying on the sidewalk; and that he did not have any weapons on that particular occasion and never carries a gun. Witness Berg was then asked if he ever carried a gun, knife, any broken bottles or anything like that and he replied “no” to all of these questions. He then identified defendant as the man who shot him.

On cross-examination, complaining witness Berg testified that when he got to the tavern it was about 11:00 p. m.; that defendant was sitting at the east end of the bar; that he had come from a friend’s house, where he had one bottle of beer during the course of the visit; that he had been in the tavern before; that he knew many people in the neighborhood that went to the tavern; that he saw defendant sitting with a lady friend; that he was about 15 to 20 feet from the spot where defendant and his lady friend were sitting; that he did not have any conversation with defendant, but talked generally to the crowd; that defendant did not address him; that there was no argument in the tavern; that Bright left alone; that he left shortly thereafter, walked out the door and was shot; and that defendant was standing facing him as he came out of the door.

John Babbs was called as a witness for the State and he testified that he was a part-time bartender at “the Club”; that he had known defendant about two months; that defendant arrived about 9:80 p. m. and complaining witness Berg arrived about an hour and a half later; that Bright left the tavern about 12:30 a. m.; that a short time later Berg left the premises; that he heard a shot outside the door; that he opened the door and defendant was standing to the right of the door with a pistol in his hand and he fired three more shots into complaining witness Berg, “who was laying across in front of the door”; that after the third shot was fired into Berg, he heard a clicking noise; and that after the shooting, the defendant went down the side of the tavern to the back door and got his topcoat and left.

On cross-examination Babbs testified that defendant had several drinks while sitting at the bar; that he did not put his feet on the bar; that there was an argument between defendant and Berg; that when defendant went out the door he stated “don’t follow me”; that he did not see defendant fire the first shot; and that he did not see Berg fall.

Barbara Hutson, a witness for the State, testified that she was in “the Club” at about 12:30 a. m. when the commotion started; that she saw flashes at the front door; that she saw Berg lying on the ground outside in front of the door; that she went over to him and knelt down and he was trying to get up; and that she held him and told him not to move. On cross-examination, she testified that she did not know defendant or Berg.

The court adjourned and met the following day. Upon recovening, defendant stated that his counsel was being fired by him and made an eloquent statement to the court in which he pointed out alleged errors that had occurred during the course of the trial. The court ordered the trial to continue with representation by the same attorney. Defendant then stated that he wished to conduct the trial by himself with assistance by his defense counsel. The court did not allow defendant’s request.

Patrick Tuohy was called as a witness and testified that he is a detective with the Chicago Police Department; that on October 29, 1962, at about 12:40 a. m. he went to a tavern at 2506 North Lincoln Avenue, in response to a radio call that a man had been shot; that he went to the Del-Ray Hotel looking for defendant; that he received word on November 4,1964, from Scotts Bluff, Nebraska, that they had Bright; and that he proceeded to Scotts Bluff and brought defendant back to Illinois. He identified defendant in court. On cross-examination, he stated that defendant waived extradition and that defendant was given safe conduct to Chicago.

Jessie Lawson, a witness for the State, testified that defendant and Berg did have an argument at the bar; that defendant and Berg left “the Club” together; that he heard something that sounded like gunshots; that he called the police; and that he then went outside the door and saw Berg lying on the sidewalk. On cross-examination, he testified that Berg was talking loud while sitting at the bar.

Orlino Hosaka testified for the State that he is a licensed physician in the state of Illinois; that he received a patient by the name of Albert Berg; that said patient had gunshot wounds in the stomach and left thigh. On cross-examination, he testified that there were five bullet holes; that two of the bullet holes apparently being the result of a bullet passing through the body. The State rested and defendant requested a directed verdict, which was denied.

Defendant took the stand in his own behalf and testified that he arrived at the tavern about 8:30 p. m.; that he bought several drinks; that Berg was sitting several stools away from him; that he bought Berg several drinks; that he got up to go to the jukebox to play the music and when he came back he saw his money, which was on the bar, was “growing a little smaller”; that Berg tried to make conversation with him; that Berg made several personal remarks to him; that he put his feet up on the bar; that he asked Berg to refrain from doing this; that Berg got off the stool and got smart; that he took his drink and splashed it across Berg’s foreleg; that Berg stepped off the stool and called him names; that Berg grabbed him and pulled on the left shoulder pad of his suit; that he struck Berg on the chin, knocking Berg onto the floor; that Berg challenged him to a fight; that he told Berg he didn’t want to fight; that the two of them went outside; that he turned around and was shot in the left leg; that Berg had a gun in his hand; that he pulled out his own pistol and shot at Berg; that he left the scene; that he didn’t go back to the hotel where he was staying; that he subsequently heard there was a “shoot to kill” order on him by the police; and that he was arrested by the F. B. I. in Scotts Bluff, Nebraska. On cross-examination, he testified that he had called Superintendent Wilson of the Chicago Police Department, to guarantee his safe arrival; that he had occasion to carry pistols while he was employed as a guard over large sums of money; and that he was a former police officer.

A verdict was returned against defendant and judgment entered on said verdict. Defendant appeals from that judgment.

Defendant contends:

(1) that there was a fatal variance between the indictment and the evidence,
(2) that he was represented by incompetent counsel,
(3) that defendant’s counsel did not request the State to elect which of the indictments the State was to proceed on,
(4) that the statute requiring trial within 120 days of incarceration was violated,
(5) that the uncontradicted statement that he acted in self-defense after he was shot by complaining witness, entitled defendant to a directed verdict,
(6) that error was committed by the trial court in allowing the State’s Attorney to ask complaining witness, Berg, if he attacked defendant with a gun, knife, broken bottle or any other weapon, in that said question had drawn inferences of a prejudicial nature,
(7) that the court erred in not granting defendant’s request to discharge his attorney,
(8) that defendant was not proven guilty beyond a reasonable doubt.

We disagree with defendant’s first contention. It was uncontested that the occurrence took place on November 29, 1962. The indictment against defendant charged that the offense of aggravated battery was committed on November 29, 1962, in violation of chapter 38, section 12-4 of the Illinois Revised Statutes of 1963. Proof of the precise date as alleged is unnecessary unless the allegation of a special time is an essential ingredient. People v. Taylor, 391 Ill 11, 62 NE2d 683 (1945). The fact that the indictment charged violation of the 1963 statutes instead of the 1961 statutes, does not change the general rule. An indictment is sufficient if it informs an accused of the charge. People v. Pronger, 48 Ill App2d 477, 481, 199 NE2d 239 (1964). Defendant was aware of the charges placed against him and was able to prepare a defense.

We disagree with defendant’s second contention that he was represented by incompetent counsel. It was argued by defendant that his attorney failed to ascertain whether or not he had witnesses. It was apparent from reading the record that counsel had represented defendant and because the defense did not subpoena witnesses does not in itself indicate that defense counsel was remiss. People v. Olmstead, 32 Ill2d 306, 205 NE2d 625 (1965). Furthermore, there is no showing that there were any witnesses who could have testified favorably for the defendant. Defendant could not recall the name of the woman he was sitting with on the night of the occurrence. This precluded his attorney from calling her as a witness.

Defendant also argues that his attorney should have objected to that portion of the prosecutor’s opening argument with reference to his arrest at Scotts Bluff, Nebraska. We see no merit in defendant’s argument. The testimony of an officer regarding details of an arrest was competent evidence. People v. Durkin, 330 Ill 394, 406, 161 NE 739 (1928).

Defendant further argues that his attorney was unprepared to handle a defense because of the brief opening statement made and presented to the jury. This argument likewise does not have merit. The failure to make an opening statement does not indicate inadequate representation, People v. Olmstead, supra.

Defendant next argues that his attorney asked damaging questions on cross-examination. An examination of the record does not indicate any incompetency on the part of defendant’s counsel.

Finally, defendant’s argument that the failure of defense counsel to file a motion to exclude the witnesses was not an indication of incompetence and is without merit. Furthermore, defendant was not prejudiced by the failure to exclude the witnesses.

Defendant’s third contention, that his attorney did not request the State to elect which of the indictments the State was to proceed on, is without merit in that defendant knew what the charges were against him and that defense counsel was prepared to defend his client against said charges.

Defendant’s fourth contention, that the statute, requiring trial within 120 days of incarceration, was violated, is completely erroneous in that defendant by agreeing to a continuance tolled the statute requiring trial within 120 days of incarceration.

Defendant’s fifth contention that the uncontradicted statement that he acted in self-defense after he was shot by complaining witness, entitled him to a directed verdict, is likewise without merit. Defendant’s testimony that he was shot by Berg was contradicted by the State’s witnesses and was rejected by the jury.

We disagree with defendant’s sixth contention that error was committed by the trial court in allowing the State’s Attorney to ask complaining witness Berg, if he attacked defendant with a gun, knife, broken bottle or any other weapon. Defendant argues that said question drew an inference of a prejudicial nature. The questions propounded by the State’s Attorney during direct examination of complaining witness Berg, were proper and did not unduly prejudice defendant. The purpose of the State in asking these questions was to show that defendant shot Berg and thereby used force likely to cause death or great bodily harm, when he could have reasonably believed that it was necessary to prevent imminent death or great bodily harm to himself, since Berg was not in possession of dangerous weapons at the time of the shooting. The prosecutor sought to show malice by bringing to the attention of the jury that fact that Berg did not have any weapons. Since no guns or knives were found on Berg, the prosecutor anticipated a claim of self-defense based on the assertion that Berg attacked defendant with some other weapon.

Defendant’s seventh contention that the court erred in not granting his request to discharge his attorney is also without merit. Defendant cannot complain that he was denied the right to defend himself since he did not object to the appointment of the public defender and accepted his service throughout the earlier stages of the trial. In People v. Ephraim, 411 Ill 118, 103 NE2d 363 (1952) the public defender was appointed to represent the defendant. Later upon order of the court, the public defender withdrew and the defendant was given leave to defend himself. The case was assigned to another judge, who on his own motion, appointed an attorney to represent the defendant. The case proceeded to trial and defendant was convicted. On appeal he claimed that he was denied the right to defend himself. The court denied this claim and affirmed, saying at page 122:

. . An accused has either the right to have counsel act for him or the right to act himself. . . . a defendant must be required to make his election between the two rights at the proper time and in the proper manner. The only conclusion which obtains from the record before us is that the defendant waived his right to defend himself by not objecting to the appointment of counsel and by accepting his services completely.”

and further stated at page 123:

“. . . We hold that the defendant was not prevented from defending in person and that the record , shows that he waived that right by his acquiescence in, and failure to object to, the appointment of Attorney Bellows.”

It has been held that the right of a criminal defendant to represent himself also derives from the Federal Constitution, and that the right of a defendant in a criminal case to act as his own lawyer is unqualified, if invoked prior to the start of the trial (United States v. Denno, 348 F2d 12, 15 (2nd Cir, 1965)). Once the trial begins, however, a defendant no longer has an unqualified right to discharge his attorney and represent himself. United States v. Fay, 848 F2d 705, 707 (2nd Cir, 1965); United States v. Bentvena, 319 F2d 916, 938 (2nd Cir, 1963), cert den 375 US 940; United States v. McMann, 263 F2d 940, in which the court stated at page 943:

“. . . The right to discharge counsel after the trial has begun is a qualified one and to support a reversal of a conviction because the trial judge denied a motion to discharge counsel there must be a showing that defendant was prejudiced by the denial.”

The record speaks for itself. A reading of the transcript of defendant’s testimony reveals that Bright was not qualified to undertake his own defense and that he was not prejudiced by the court’s refusal to discharge his attorney.

There was no abuse of the court’s discretion by denying the motion since it was clear from Bright’s impromptu speech that had he been permitted to undertake the trial of the case at that point, the proceedings would have become confused and confounded. In light of the overwhelming evidence against defendant, he was properly and competently represented by counsel.

We feel defendant’s eighth contention, that he was not proven guilty beyond a reasonable doubt, is also without merit, because it is a function of the trial court to determine the credibility of the witnesses and the weight to be accorded their testimony and a reviewing court should not substitute its judgment for that of the trier of fact. People v. Scott, 34 Ill2d 41, 45, 213 NE2d 521 (1966). The judgment is affirmed.

Judgment affirmed.

BRYANT, P. J. and BURKE, J., concur.


author: MR. JUSTICE BURMAN

text:
    Marshall Savings and Loan Association, Plaintiff-Appellant, v. John R. Henson, et al., Defendants-Appellees, and Federal Savings and Loan Insurance Corporation, Petitioner-Appellee.
    Gen. No. 51,485.
    First District, First Division.
    November 9, 1966.
    Rehearing denied December 1, 1966.

      Boodell, Sears, Foster, Sugrue & Crowley, and Marcus and Orr, all of Chicago (Barnabas F. Sears, Gale L. Marcus, Wallace W. Orr and Gerald M. Sheridan, Jr., of counsel), for appellant.
    William G. Clark, Attorney General of the State of Illinois, of Chicago (Robert J. Downing and Jay Erens, Special Assistant Attorneys General, of counsel), for defendants appellees.
    Hopkins, Sutter, Owen, Mulroy, Wentz & Davis, and Thomas R. Mulroy, Mark Crane and Robert W. Patterson, all of Chicago (Kenneth E. Scott, Alan J. Moscov and Max Wilfand, of counsel), for petitioner-appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Plaintiff, Marshall Savings and Loan Association, appeals from a declaratory judgment order entered in favor of Federal Savings and Loan Insurance Corporation (FSLIC) and against Marshall Savings and Loan Association (Marshall). Marshall originally appealed to the Supreme Court and that Court transferred the matter to this court. The relevance of the declaratory judgment order is best indicated in a summary structure of the three complaints in equity that are involved. The first suit (custody case) was brought by Marshall on January 29, 1965, contesting the custodial taking of its assets by Joseph E. Knight, the Director of Financial Institutions for Illinois. On April 9, 1965, Knight filed suit (liquidation case) for liquidation of Marshall under the Illinois Savings and Loan Act. Marshall filed the third case on July 26,1965, to sequester its assets and to enjoin Knight from taking further proceedings in the liquidation case until there was a final adjudication in the custody case. It was in this last case that leave was granted FSLIC to file its Petition for Declaratory Judgment, which was declared a counterclaim, and trial was had on the petition and answers thereto. On May 4, 1966, the Chancellor signed the Declaratory Judgment Order from which Marshall appeals. This order decreed that the assignment to FSLIC of Marshall’s withdrawable share accounts was valid; that FSLIC, as assignee, had all the rights, title, and interest including the voting rights in the insured funds of the assignors; that FSLIC was a member of Marshall; that there was no just reason for delaying enforcement; and that the order did not adjudicate the pending issues of the legality of the appointment of the receiver for Marshall nor the charge of conspiracy and collusion raised by Marshall.

The detailed chronology of events that took place are as follows:

On December 81, 1964, Joseph E. Knight, as Director of Financial Institutions for Illinois, took custody of Marshall and Marshall ceased doing business. On January 29, 1965, Marshall filed the custody case in the Circuit Court contesting the legality of the custodianship and requested that Knight be enjoined. Before the case was at issue, Knight issued an order placing Marshall in receivership for the purpose of liquidation and on the following day, April 9, 1965, he filed the liquidation case in the Circuit Court under section 10-2 of the Illinois Savings and Loan Act. Ill Rev Stats 1965, ch 32, § 922.

FSLIC, by directive of the National Housing Act, paid $83,877,901.99 in insurance to over 26,000 members of Marshall between April 19, 1965, and February 28, 1966.

On July 26, 1965, Marshall filed a complaint in the Circuit Court to sequester its assets, to enjoin further proceedings in the liquidation case, and to have a disinterested receiver appointed to manage its assets until there was a final adjudication in the custody cose. Detailed averments were made concerning the “unlawful custodial taking” and the “purported” appointment of a receiver and it was alleged that the conflicting claims of the parties to Marshall’s assets required a “plenary-suit where all claimants could be made parties. . . .”

It was in this last case that leave was granted to FSLIC, on September 28, 1965, over objection by Marshall, to file its Petition for Declaratory Judgment seeking a determination of its voting rights as a member of Marshall. On October 14, 1965, Marshall requested a change of venue based upon the prejudice of the trial judge, which was denied on January 10, 1966. On February 1, 1966, the court heard and denied Marshall’s motion for a temporary injunction to restrain the prosecution of the liquidation case, and on February 8, 1966, an order was entered denying Marshall’s motion to Strike and Dismiss the Petition for Declaratory Judgment. On March 28, 1966, Marshall’s motion to dismiss its complaint without prejudice upon payment of costs was denied, the Declaratory Judgment Petition was declared a counterclaim and Marshall filed its answer thereto. Marshall then moved to transfer the cause to the law division and for a jury trial which was denied on April 12,1966.

The trial on petition and answers thereto commenced on April 25, 1966, and during its course Marshall filed a written motion for judgment on the pleadings upon which the court reserved its ruling. On May 4, 1966, after seven days of trial, Judge Cornelius Harrington (who was assigned all three cases) signed the Declaratory Judgment Order from which Marshall appeals.

We are first confronted with Marshall’s assertion that the improperly denied petition for a change of venue voided all subsequent proceedings. The Petition was filed under section 1 of the Venue Act, Ill Rev Stats 1965, ch 146, § 1, which allows a change of venue when either party believes that he will not receive a fair trial because of the judge’s prejudice against him. We stated in Miller v. Miller, 43 Ill App2d 214, 215, 193 NE2d 105, that this “statute gives an absolute right to a change of venue to a petitioner, when his petition asserting the prejudice of the trial judge is duly made, verified, and filed in accordance with the statute.” The petition is in proper form and the controlling question is whether it was filed in apt time. It is the established law in Illinois that a petition comes too late when it is presented after the judge has ruled on a substantive issue in the cause. City of Chicago v. Hamlin, 24 Ill2d 148, 180 NE2d 473. As was said in Commissioners of Drain. Dist No. 1 v. Goembel, 383 Ill 323, 328, 50 NE2d 444:

The reason that supports the rule is obvious. It would be highly improper to permit an attorney representing parties to a suit to try out the attitude of the trial judge on a hearing as to part of the questions presented and, if his judgment on such questions was not in harmony with counsel’s view, to then permit counsel to assert that the court was prejudiced and that a change of venue must be allowed.

Marshall argues that any consideration of the change of venue should be restricted to the last complaint filed and does not involve the pending custody or liquidation cases, and that no substantive rulings were made in the case at bar at the time the petition for change of venue was filed. We do not find this reasoning easy to follow. Generally both the consideration of the substantive issue and the request for a change of venue occur in the same proceeding. In the instant case the substantive issues in our judgment occur in three proceedings which should have been consolidated. All three cases primarily involved the custodial taking over of Marshall by the Director of Financial Institutions. We are at a loss to understand why they were not consolidated, particularly in view of the fact that Judge Harrington presided over all of them. To insist that they are not related seems to us to be unrealistic. Indeed, in the complaint at bar filed by Marshall, it contests the custodial taking over by the Director and seeks to enjoin him from further custody which seems to include the custody case as the prime issue in this action. It was also alleged that the restricted and sole legal jurisdiction in the custody case was for review of the administrative acts of Knight and that the court did not have jurisdiction of the liquidation case until the custody case was finally determined.

FSLIC was not a named party in the first two cases, but was included by Marshall as one of the defendants, in the case at bar, as a conspirator by “virtue of having wilfully and unlawfully” made payments to Marshall’s depositors and making claim of “some right, title or interest in and to the assets of plaintiff as subrogees pursuant to the provisions of Section 406 of the National Housing Act.” As counsel for FSLIC points out that except for different court members, the custody case, the liquidation case, and the case presently on appeal to this court, are one integrated series of legal disputes involving generally the same parties and issues even though FSLIC was not a named party in the first two proceedings.

The Chancellor ruled against Marshall’s application for fees for counsel in the custody case as of that time and the Chancellor commented that the “largest single representative in this proceeding” is FSLIC which has advanced over $82,000,000 to Marshall’s insured depositors. In the case at bar, Marshall renewed in its complaint its request for the protection of its rights in the premises. On March 25, 1965, the Chancellor also entered an order in the custody case striking certain paragraphs of a pleading filed by Marshall, and it appears that the stricken allegations are substantially realleged in the complaint at bar. The Chancellor in the custody case enjoined the directors and officers of Marshall from the prosecution of ten foreclosure cases except when authorized by the Director. Further, in the case at bar, FSLIC requested leave to file a petition for a declaratory judgment, averring that FSLIC as a holder of the majority of the voting rights in Marshall should have the right to call, hold and vote at a special meeting of the members of Marshall for the purpose of electing directors. It was after the Chancellor permitted FSLIC to file this petition over vigorous objection by Marshall, and after the aforementioned orders were entered and rulings made, that Marshall requested a change of venue.

In the course of Marshall’s argument to the Chancellor on many of the matters before him, there obviously were extensive discussions concerning the legal effects of many of the charges made by Marshall which concerned common questions of law and fact and which were intimately related to all three complaints. The decisions and remarks necessarily made by the Chancellor, in our opinion, afforded Marshall’s counsels an opportunity to try out Judge Harrington’s attitude with respect to the ultimate similar issues in all three cases, and we are of the opinion that the request for a change of venue was not filed in apt time and was properly denied.

Marshall relies on the cases of Miller v. Miller, 43 Ill App2d 214, 193 NE2d 105, Roherty v. Green, 57 Ill App2d 362, 206 NE2d 756, and Johnson v. United Motor Coach Co., 66 Ill App2d 295, 214 NE2d 326, in which the appellate court reversed the trial courts for failure to grant a change of venue. In Miller the court only considered and ruled on preliminary pretrial motions of temporary alimony and child support, the taking of a lie detector test, the substitution of attorneys, and issued two injunction writs, none of which had any direct bearing on the substantive issues presented in the complaint for divorce. The trial courts in the Johnson and Roherty cases failed to grant a change of venue after informal pretrial conferences to effect a settlement. These cases are clearly distinguishable on the facts from the case at bar.

Marshall next contends that it was a denial of due process destroying the status quo of its litigation to have the declaratory judgment trial before the issues in the pending litigations had been determined. As recited in the Declaratory Judgment Order, the Chancellor specifically declined to pass on issues of (1) the legality of the appointment of the receiver and (2) whether it was a contrived and colluded appointment, and he stated during the trial that “the only issue involved is whether the FSLIC is holding the assignments and the rights of the [Marshall] shareholders.” Marshall claims that the payouts to the shareholders by FSLIC are illegal because the appointment of the receiver was illegal, and further states that:

the question at bar is substantive due process because while our suit was pending which questioned the right of Knight to be in custody, Knight and FSLIC, under the color of state law and upon notice that they acted at their peril, illegally took physical possession of Marshall’s premises over its objections for the purpose of liquidating it and actually effected a substantial liquidation by shrinking its depositors to less than one-tenth its prior size.

Marshall argues that this is not a case where their claims have been rejected as irrelevant or immaterial so that their merits could be determined, but that this is a case where claims have been ignored and a litigant prevented from presenting evidence of his full defense and having it ruled upon at the trial.

The basic issue as we see it then, is whether it was a denial of due process for the Chancellor to determine that FSLIC had voting rights in Marshall before the issues in the prior litigation had been determined. What is due process depends on circumstances and varies with the subject matter and necessities of the situation.

The record shows that Knight took custody of MarshaE on December 31, 1964, pursuant to section 7-8 of the Illinois Savings and Loan Act, Ill Rev Stats 1965, ch 32, § 848, and later appointed a receiver for MarshaE. The power to appoint such a receiver is conferred by section 10-1 of the aforementioned act, as follows:

If the Commissioner after taking custody of an association . . . finds that any one or more of the reasons for taking custody continues to exist through the period of his custody, then he shall appoint any qualified person, firm or corporation as receiver or co-receiver of such association, or trust for the purpose of liquidation. Ill Rev Stats 1965, ch 32, § 921.

Thereafter, admittedly there arose much clamor on the part of the insured depositors for the payment of their insured accounts. The FSLIC, created in the National Housing Act by the 1934 Congress, insures savings up to $10,000 in savings and loan associations. The National Housing Act directs that the FSLIC “shall” pay insurance when a “default” occurs (12 USC § 1728 (b)) and defines “default” as:

The term “default” means an adjudication or other official determination of a court of competent jurisdiction or other public authority pursuant to which a conservator, receiver or other legal custodian is appointed for an insured institution for the purpose of liquidation. (Emphasis added.) 12 USC § 1724(d).

Section 405(b) of the National Housing Act provides:

In the event of a default by any insured institution, payment of each insured account in such insured institution which is surrendered and transferred to the Corporation [FSLIC] shall be made by the Corporation as soon as possible. . . . (Emphasis added.) 12 USC § 1728(b).

Under the Congressional mandate that it “shall” pay insurance “as soon as possible” when a “public authority” appoints a receiver for an insured institution for the purpose of liquidation (12 USC §§ 1724(d), 1728(b)), FSLIC thereafter paid out over $83,000,000 to Marshall’s insured depositors.

FSLIC, a defendant in the instant complaint filed by Marshall, requested leave to file a Petition for Declaratory Judgment which was allowed over objection of Marshall. It is there alleged in pertinent part that subsequent to the appointment of a receiver by the Director, Marshall filed a proceeding in the Federal District Court to enjoin FSLIC from paying its insured members, which was denied, and the same result occurred on appeal to the Circuit Court of Appeals and on motion in the U. S. Supreme Court; that subsequently FSLIC commenced insurance payments to Marshall’s members, obtaining assignments of their accounts and were entitled to withdrawal capital accounts at Marshall; that since holders of share accounts are entitled to one vote for each $100 of the withdrawal value of their accounts FSLIC is now the holder of more than 50% of the presently outstanding voting rights of Marshall; that it is against the public interest to permit directors of savings and loan associations to retain their offices and their voting control of an association after appropriate state authorities have ceased its operation and FSLIC has paid in full most of the withdrawal share accounts; and prayed that a declaratory judgment be entered declaring FSLIC as having the right at any meeting of Marshall’s members to cast one vote for each $100 of the aggregate withdrawal value of accounts held by FSLIC.

The matter was heard on the petition and answers of Marshall and others, and on May 4, 1966, the Declaratory Judgment was entered. The order recited that after hearing the testimony of witnesses and reviewing the documentary evidence and applicable statutes, the Chancellor found that the assignments to FSLIC from holders of Marshall’s withdrawal share accounts were valid and transferred all rights in the deposited funds including voting rights; that FSLIC holds withdrawal share accounts in Marshall with an aggregate value of $83,877,-901.99 and has been a member of Marshall continuously since April 21,1965.

From an examination of the proceedings, we take note that the Chancellor was confronted with the fact that the disposition of the allegations of Marshall in all three cases were unlikely to be determined for some period of time. A default had been declared by the State Director, a receiver appointed by him and the business of Marshall was at a standstill. Under these conditions FSLIC had no alternative and indeed it was their duty, under the National Housing Act and under the policy of the Federal Insurance Program, to make payments to the insured member of Marshall as soon as possible, as was done.

The Chancellor ruled that the matters for Declaratory Judgment should be heard prior to the hearings on the merits in the custody case and liquidation case. Under all the circumstances heretofore mentioned in this opinion, we believe this conclusion was within the Chancellor’s discretion consistent with section 57.1 of the Civil Practice Act. It provides that when “a declaration of rights is the only relief asked, the case may be set for early hearings as in the case of a motion” and permits a declaratory judgment to be entered if it would terminate the controversy, or some part thereof, giving rise to the proceeding. Ill Rev Stats 1965, ch 110, §§57.1(1), 57.1(2).

Marshall further contends that the Chancellor erred in decreeing voting rights to FSLIC and also urges that the National Housing Act does not confer upon FSLIC the right of subrogation nor the right to procure an assignment for the purpose of subrogating FSLIC to all the rights of insured members. It is Marshall’s theory that FSLIC derives the right of subrogation only where a Federal Savings and Loan Association is in default. We do not agree. The Act specifically provides that:

in the event any insured institution other than a Federal Savings and Loan Association is in default ... it shall pay the insurance as provided in section 1728 of this title, and shall have the power (1) to bid for the assets of the insured institution in default, (2) to negotiate for the merger of the insured institution or the transfer of its assets, or (3) to make any other disposition of the matter as it may deem in the best interests of all concerned. (Emphasis added.) 12 USC § 1729 (c).

This language, in our opinion, could hardly give broader power to FSLIC after payment of insurance. Nor are we in accord with Marshall that FSLIC, after paying insurance to its members and receiving an assignment of their membership, cannot become a member of the association. While we agree with Marshall that the entire concept of the Savings and Loan Act and the National Housing Act does not envision the payment of insurance of a “going concern,” such is not the case here. So far as FSLIC is concerned the State Director had taken possession of Marshall and it ceased doing business.

Marshall also contends that FSLIC acquired no voting rights even if it could legally become a member of Marshall. It is undisputed that the Illinois Savings and Loan Act gives the depositors the status of shareholders by conferring one vote for each $100 on deposit and that under this formula the depositors own the majority of the voting rights. Savings and loan associations “are so organized as to attract the savings of persons of modest means. Confidence is essential to the stability and maintenance of these institutions.” People ex rel. Barrett v. Logan County Building & Loan Ass’n, 369 Ill 518, 525, 17 NE2d 4. The public confidence inspired by the insurance would be undermined by delay in its payment under the circumstances. FSLIC properly paid that insurance and the votes which it sought to exercise are those of former members of Marshall who now claim no rights as members with respect to the insured accounts.

During the trial on the Declaratory Judgment Petition it was Marshall’s position that although the members had a right to vote one share for every $100, when they were paid off as far as the insurance is concerned, they lost their right to vote. The Chancellor then asked counsel for Marshall:

The Court: Who picks up his right to vote?
Mr. Marcus: If he has been paid off, I don’t think he has a right to vote.
The Court: Does anybody have a right to vote the stock?
Mr. Marcus: My personal opinion is no. I don’t believe anybody has a right to vote the depositor’s shares. . . .

FSLIC obtained the voting rights from Marshall’s members who were insured and we see no merit to the contention that the transfer of these rights were ineffective because the certificates or passbooks were not endorsed by those members to FSLIC. Nor have we found any trial errors in the presentment of evidence as charged by Marshall. It was unnecessary for FSLIC to deposit money in Marshall to become a member of Marshall under the facts and circumstances. We are unconvinced that the Chancellor usurped legislative powers. To discuss in detail the many articulated assertions and the numerous cited cases in Marshall’s brief and reply brief would, in our opinion, unduly and unnecessarily extend this opinion beyond all reasonable length. It suffices to say that we have carefully considered and analyzed all arguments.

There is considerable space devoted in the briefs to the custody case (65 CH 456), the liquidation case (65 CH 1875) and the other issues in the case at bar (65 CH 3955) which are still pending. We conclude, as did the Chancellor in his decree, that except for the matters contained in the declaratory judgment entered in the latter case, nothing in this opinion should be construed as deciding any of the other questions in the pending cases.

For the reasons stated in this opinion, the declaratory judgment is affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.