text:
    RICHARD LEISCHNER et al., Plaintiffs-Appellees, v. DEERE & COMPANY, Defendant-Appellant.
    Fourth District
    No. 4—83—0452
    Opinion filed August 21, 1984.

      Richard F. Record, Jr., and Michael D. Gifford, both of Craig & Craig, of Mattoon, for appellant.
    William C. Martin, Jr., and Gary E. Campbell, both of Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, for appellees.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

Product liability suit against a snowmobile manufacturer.

Jury verdict for the manufacturer.

Trial court granted new trial.

We reverse.

BACKGROUND

In February of 1978, Richard Leischner suffered a severe spinal injury in a snowmobile accident at the Cresthaven Country Club in Decatur. Leischner and his wife filed a product liability action against Deere & Company, the manufacturer of the snowmobile. They alleged that the seat and suspension system of the snowmobile were defectively designed in that the shock of bumps was transmitted to the rider instead of throughout the snowmobile. The Leischners alleged that the defective design caused Richard’s injuries.

During trial, Deere called as a defense witness Thomas Lohr, a senior engineer in Deere’s product engineering department in Horicon, Wisconsin. Lohr testified that he is familiar with Deere’s record-keeping system for accident and injury claims and product complaints. He stated that those records contained details of snowmobile accidents involving Deere snowmobiles and of the resulting injuries. Lohr testified that he had reviewed all of the records and that — with the exception of Leischner’s injury — there were no complaints of spinal injury caused by the seat and suspension system transmitting the shock of a bump to a rider.

At the close of the evidence, the jury returned a verdict in Deere’s favor.

The Leischners filed a post-trial motion alleging in part that the trial court erred in allowing Lohr to testify concerning the absence of any reports of similar accidents in Deere’s files. The trial court agreed and ruled that Deere had failed to lay a proper foundation for Lohr’s testimony. The trial court also ruled that Lohr’s testimony violated the best evidence rule because Deere failed to produce the records in question at the trial. The trial court vacated the jury's verdict and ordered a new trial.

Deere appeals.

We reverse and remand.

PROPER FOUNDATION

To lay a proper foundation for testimony concerning the absence of similar prior accidents, the offering party must show that the absence occurred during the use of equipment similar to the injury-producing equipment. (Darrough v. White Motor Co. (1979), 74 Ill. App. 3d 560, 393 N.E.2d 122.) The offering party must also show that the absence occurred under conditions substantially similar to those surrounding the accident which gave rise to the suit. Smith v. Verson Allsteel Press Co. (1979), 74 Ill. App. 3d 818, 393 N.E.2d 598; see also Parson v. City of Chicago (1983), 117 Ill. App. 3d 383, 453 N.E.2d 770.

The foundation Deere laid met those requirements. Deere showed that there were 64,000 snowmobiles of similar design in use. It is safe to conclude that a substantial number of these were used on similar terrain at similar speeds in a similar manner. And Deere demonstrated that this use did not result in any accidents of the type suffered by Leischner. Such a showing satisfied the foundation requirements. Ergo, the trial court erred when it ruled that Deere failed to lay a proper foundation.

BEST EVIDENCE RULE

The trial court also ruled that Lohr's testimony violated the best evidence rule.

We disagree.

The best evidence rule requires that when a party attempts to establish the terms of a writing, the original writing must be produced at trial unless it is unavailable. (Lam v. Northern Illinois Gas Co. (1983), 114 Ill. App. 3d 325, 449 N.E.2d 1007.) The best evidence rule, however, does not apply to testimony that records have been examined and found not to contain any reference to a designated matter. See Lam v. Northern Illinois Gas Co. (1983), 114 Ill. App. 3d 325, 449 N.E.2d 1007; see also People ex rel. Illinois State Dental Society v. Vinci (1976), 35 Ill. App. 3d 474, 342 N.E.2d 206; but see City of Chicago v. McGraw (1874), 75 Ill. 566.

The Leischners argue that it would be unfair for this court to not apply the best evidence rule to Lohr’s testimony. They maintain that such a ruling would deprive them of any opportunity to examine the records and to cross-examine Lohr concerning those records. We cannot agree.

The Leischners are ignoring the fact that they had ample opportunity during discovery to examine and copy the records. And after obtaining the records in discovery, the Leischners were free to make whatever use of them that they pleased, including using them to cross-examine Lohr.

In sum, the best evidence rule did not apply to Lohr’s testimony. And the trial court erred when it ruled otherwise.

For these reasons, we reverse and remand with instructions to the trial court to enter judgment on the jury’s verdict.

Reversed and remanded.

TRAPP and GREEN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES R. BACHMAN, Defendant-Appellant.
    Second District
    No. 2—83—0610
    Opinion filed August 30, 1984.

      Keith E. Roberts, Richard E Lanciloti, and Robert R. Verchota, all of Donovan & Roberts, P.C., of Wheaton, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The defendant, James R. Bachman, entered pleas of guilty to two counts of deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11—3(a)), two counts of aggravated kidnaping (Ill. Rev. Stat. 1979, ch. 38, par. 10—2(a)(5)), and one count of indecent liberties with a child (Ill. Rev. Stat. 1979, ch. 38, par. 11—4(a)(3)). The remaining counts of the 59-count indictment were dismissed pursuant to plea negotiations, which did not, however, encompass sentencing. Defendant was sentenced to terms of 24 years on the deviate sexual assault and aggravated kidnaping convictions and 10 years on the conviction for indecent liberties with a child, all to be served concurrently.

Defendant subsequently moved to withdraw his pleas of guilty. Alternatively, he sought to vacate the sentences imposed, to receive a new sentencing hearing, or to reduce the sentences. At a hearing on the defendant’s post-trial motion, the trial court denied the motion, except that it reduced the sentences for aggravated kidnaping to 15 years. Defendant appeals.

I

We first consider defendant’s contention that he should have been permitted to withdraw his pleas of guilty because they were not understandingly entered, in violation of Supreme Court Rule 402 (87 Ill. 2d R. 402). He claims that he was under the mistaken impression, along with the trial judge, defense counsel and the State’s Attorney, that the aggravated kidnaping charges were Class X felonies when, in fact, none of the indictments charged kidnaping for ransom, and thus the kidnaping charges were Class 1 felonies. (See Ill. Rev. Stat. 1979, ch. 38, pars. 10—2(b)(1), (b)(2).) Trial counsel, in an affidavit, stated that he had advised the defendant that because aggravated kidnaping was a Class X felony, it made little difference relative to sentencing if he pleaded guilty to the deviate sexual assault charges, which were Class X felonies (Ill. Rev. Stat. 1979, ch. 38, par. 11—3(b)).

Whether to permit a plea of guilty to be withdrawn is within the sound discretion of the trial court, not to be disturbed “unless it appears that the guilty plea was entered through a misapprehension of the facts or of law, that defendant has a defense worthy of consideration, or where there is doubt of guilt of the accused and the ends of justice would better be served by submitting the case to a trial.” (People v. Spicer (1970), 47 Ill. 2d 114, 116.) A defendant bears the burden of proving that he entered a guilty plea under a misapprehension of the facts or of law, by showing “that the circumstances as they existed at the time of the plea, judged by objective standards, reasonably justified his mistaken impression.” People v. Hale (1980), 82 Ill. 2d 172, 176; People v. Smithey (1983), 120 Ill. App. 3d 26, 33.

Here it is clear that all parties, including the judge, were under the mistaken impression that 30 charges of aggravated kidnaping which were being dismissed were Class X felonies, punishable by imprisonment for not less than six nor more than 30 years when, in fact, they were Class 1 felonies punishable by imprisonment for not less than four nor more than 15 years. (Ill. Rev. Stat. 1979, ch. 38, pars. 1005—8—1(a)(3), (a)(4).) However, not every misstatement of law will entitle a defendant to a withdrawal of his plea unless substantial prejudice is demonstrated. (See People v. Goodwin (1971), 50 Ill. 2d 99, 103; People v. Nichols (1981), 96 Ill. App. 3d 354, 357.) Defendant has shown no substantial prejudice. The defendant’s bargain was obviously for the purpose of disposing of all of the great number of remaining counts. He also pleaded guilty to Class X felonies, two counts of deviate sexual assault, as well as a Class 1 felony, indecent liberties with a child. He was, in fact, sentenced in the court’s modified judgment to the maximum 15 years provided for a Class 1 felony on the aggravated kidnaping charges. Finally, defendant was thoroughly admonished, and he conceded that his pleas were not induced by any threats or promises and that he entered his plea understanding that there was no agreement as to sentencing.

People v. Woodruff (1977), 55 Ill. App. 3d 803, principally relied upon by the defendant, is inapposite. In Woodruff, the mistaken impression that defendant was charged with a Class 3 rather than with a Class 4 felony involved a single charge. In addition, prejudice was shown by the fact that a Class 3 felony could subject him to a maximum of five years’ imprisonment, while the Class 4 felony with which he was actually charged could have resulted in a maximum three-year sentence. Consequently defendant, in consenting to a sentencing recommendation of from one to three years’ imprisonment, was under the mistaken impression that he was being given some leniency in exchange for his plea.

Other cases cited by the defendant are inapposite as they focus upon rendering a guilty plea void due to the State’s unfulfilled promises. Here there were no unfulfilled promises, since the agreement was to dismiss all the remaining counts without reference to their exact classification.

II

Defendant next asserts that, where multiple convictions are tainted by improper sentencing, the cause must be remanded for re-sentencing. People v. Jones (1980), 89 Ill. App. 3d 1030, relied upon by the defendant to support this proposition, is distinguishable on its facts. In Jones, the trial court stated that the three crimes for which defendant was convicted were Class X offenses and sentenced defendant to three concurrent nine-year terms of imprisonment. On appeal, the State conceded that the trial court mistakenly classified one of the offenses, aggravated kidnaping, as a Class X crime. In remanding for resentencing the court concluded that it would not speculate as to how the trial court would have ruled had it not been mistaken as to both the number and severity of the offense. (89 Ill. App. 3d 1030, 1036.) In this case, however, unlike Jones, the error was remedied in the trial court and the judge reduced the aggravated kidnaping sentence to 15 years, from the 24 years initially imposed, and we need not speculate to uphold the sentence. Other cases cited by the defendant also involve remandment for resentencing after one of the convictions was vacated on appeal and are thereby inapposite.

III

The defendant also argues that the court’s conduct at the sentencing hearing prejudiced him.

A

At the sentencing hearing certain poems written by the defendant which depicted fictionalized acts of violence, including murder and rape, were introduced into evidence. In support of his position that a new sentencing hearing should be granted due to the admission of the poems, defendant primarily relies on People v. Devin (1982), 93 Ill. 2d 326. However, Devin is clearly distinguishable from the facts of this case. In Devin, various conversations in which defendant described methods of torture killing and a letter in which he had admitted that he knew how to kill in cold blood and had already done so were admitted in the jury’s consideration of the death sentence. Vacating the death sentence and remanding for resentencing, the supreme court concluded that the jury should have been given cautionary instructions. It noted that there was no corroborating evidence that any of the conduct described had in fact occurred and that it was possible that the jury may have reached a conclusion as to defendant’s character and propensities on the basis of sociopathic fantasies rather than actual conduct. (93 Ill. 2d 326, 349.) Contrary to Devin, the poems here were not offered to prove that the defendant himself had ever actually committed heinous crimes. Rather, they were submitted to the court during the sentencing phase to reflect defendant’s character and attitude.

There is also substantial difference in introducing testimony which may possibly mislead a jury in imposing the death sentence and in offering information to a sentencing judge who may search anywhere within reasonable bounds for accurate information concerning a defendant’s life and characteristics. See, e.g., People v. Meeks (1980), 81 Ill. 2d 524, 535.

Moreover, it is apparent from the record that the trial judge did not consider the poems in imposing sentence. At the hearing on the motion to reduce the sentences the judge expressly stated that the poems were “not relevant according to the court” and were “not considered by the court,” and no claim of a violation of defendant’s rights arises. See People v. Poll (1980), 81 Ill. 2d 286, 289-90.

B

Defendant also contends that he was prejudiced by the State’s improper argument at the sentencing hearing: (1) that defendant is likely to commit the crimes again due to his lack of education and employable skills, (2) that defendant acts out his fantasies in his poems, and (3) that defendant was guilty of exceptionally brutal or heinous conduct indicative of wanton cruelty. Even if there were error, and we find none, the argument is waived by defense counsel’s failure to object. (See, e.g., People v. Reynolds (1980), 85 Ill. App. 3d 549, 555.) Further, in our view of the record, none of the defendant’s contentions as to the improper argument, as applied to a sentencing hearing, rise to the threshold of plain error or would show incompetency of counsel.

C

Defendant also argues that his privilege against self-incrimination was violated at the sentencing hearing by the introduction of statements he made during his presentencing interviews, since they were given without explicit Miranda warnings. We conclude that Miranda warnings are not required in connection with the submission by a defendant to a routine authorized presentence interview. See Baumann v. United States (9th Cir. 1982), 692 F.2d 565, 576.

Defendant’s reliance on Estelle v. Smith (1981), 451 U.S. 454, 68 L. Ed. 2d 359, 101 S. Ct. 1866, is misplaced. In Estelle, the United States Supreme Court overturned a death sentence imposed by a Texas jury under bifurcated proceedings, when it concluded that under the particular circumstances the failure to provide defendant with Miranda warnings prior to the court-ordered psychiatric inquiry rendered his statements involuntary and not admissible at the penalty phase. (451 U.S. 454, 469, 69 L. Ed. 2d 359, 373, 101 S. Ct. 1866, 1876.) The Supreme Court expressly noted it did not hold that the same fifth amendment concerns “are necessarily presented by all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination.” (Estelle v. Smith (1981), 451 U.S. 454, 469 n.13, 68 L. Ed. 2d 359, 373 n.13, 101 S. Ct. 1866, 1876 n.13.) The Baumann court interpreted the Estelle holding as being “limited to the distinct circumstances of the bifurcated capital proceedings presented in that case.” (Baumann v. United States (9th Cir. 1982), 692 F.2d 565, 576; see also United States v. Hinckley (D.D.C. 1981), 525 F. Supp. 1342, 1349, aff’d (D.C. Cir. 1982), 672 F.2d 115.) We agree.

D

Defendant has also argued that his sentences are excessive. There is no evidence in the record that the trial judge was unmindful of the testimony of witnesses who said that defendant was respectful, friendly and nonviolent, or of the provision of the presentence report describing his superior intellectual ability and his good employment record. It can be presumed that the sentencing judge considered this evidence in determining the appropriate sentences. (See People v. Bergman (1984), 121 Ill. App. 3d 100, 109.) The court did not abuse its discretion in imposing the sentences which were within the statutory range.

E

Finally, defendant argues that he was denied effective assistance of counsel. He charges that his trial counsel was incompetent because his advice as to whether aggravated kidnaping was a Class X or a Class 1 felony was erroneous, because he failed to inform him that any discussion of his prior drug use during his psychological interview could be used against him in sentencing, and because he failed to object to improper arguments by the State at the sentencing hearing. From our view of the entire record we conclude that there has been no showing of incompetence under the general requirement that the representation must produce substantial prejudice to the defendant without which the results would probably have been different. See People v. Royse (1983), 99 Ill. 2d 163, 168.

The judgments of the circuit court of Du Page County are therefore affirmed.

Affirmed.

REINHARD and NASH, JJ., concur.


author: JUSTICE NASH

text:
      In re ESTATE OF JEANETTE T. WATSON, Deceased (Thomas Watson, Petitioner-Appellant, v. WILLIAM WALSH, Ex’r of the Estate of Jeanette T. Watson, Deceased, et al., Respondents-Appellees).
    Second District
    No. 2—83—0784
    Opinion filed August 30, 1984.

      A. J. Hardiman, Ltd., of Chicago, for appellant.
    LeRoy W. Gudgeon, of Northfield, and Ellis E. Fuqua and Douglas W. Stiles, both of Fuqua, Winter, Wysocki and Stiles, Ltd., of Waukegan, for appellees.
   JUSTICE NASH

delivered the opinion of the court:

Petitioner, Thomas Watson, appeals from a judgment which dismissed his petition to set aside the will of Jeanette T. Watson, deceased, on the grounds petitioner lacked standing to contest the will and that the petition failed to state a cause of action. He also appeals from the order of the trial court which denied all discovery to petitioner until the petition stated a cause of action.

Jeanette T. Watson died May 31, 1982, leaving an instrument dated July 30, 1980, which purported to be her last will and testament. It was admitted to probate on petition of respondent, William Walsh, who was appointed as executor of the estate. The approximate value of the estate was $66,500 and the will named as residuary legatees: St. Ann’s Home for the Aged, one half; John M. Walsh, one quarter; and William Walsh, one quarter.

The first petition to set aside the will was filed January 10, 1983, and alleged decedent lacked testamentary capacity and that the will was executed as a result of undue influence. The petition also alleged that decedent had executed a prior will in 1966, wherein petitioner was bequeathed 50% of the residuary of the estate, and that it was decedent’s true and valid will.

Petitioner also served written interrogatories upon respondents William Walsh and St. Ann’s Home, together with a notice for depositions and demand for documents. Respondents did not comply with these requests and on March 7 and March 22, respectively, filed motions to strike the petition on grounds it failed to state a cause of action and was not verified. Petitioner thereupon moved to be permitted to complete discovery prior to the hearing of the motions to strike the petition. This motion was denied and, after a hearing held April 15, the first petition was dismissed on the grounds petitioner lacked standing and was not verified. The court noted it was not ruling upon the sufficiency of the petition and that matter could be raised again.

A verified amended petition filed June 1 alleged, inter alia, that petitioner had been advised by decedent in 1979 that he was permanently named in her will to receive a part of her estate; that petitioner believed the prior will was in existence at the time of the alleged execution of the will dated July 30, 1980, and may be in the possession of the attorneys for the executor; that one of those attorneys had acknowledged that petitioner was a 50% residuary legatee in a prior will of decedent; that petitioner was unable to secure a copy of that will to attach to the petition as respondents have failed to reply to his requests and the trial court had ordered they need not comply with discovery. Affidavits in support of these allegations of fact were attached to the petition.

As to the document dated July 30, 1980, the amended petition alleged it was not decedent’s will for these reasons:

“(a) That at the time of the alleged or supposed execution of said instrument, Jeanette T. Watson was of unsound mind and memory and did not have the physical or mental capacity to execute a will as she was suffering from, and for a long time prior thereto had suffered from a cerebral deficit and other cardiovascular difficulties.
(b) That at the time of the execution of said instrument, Jeanette T. Watson did not have the mental capacity, power or ability to know or understand what property she had to dispose of, or know who were the natural objects of her bounty.
(c) That at the time of the execution of said instrument, Jeanette T. Watson was under the influence, domination and control of certain unidentified agents and employees of respondent, St. Ann’s Home for the Aged, which deprived the decedent of'her free agency and the freedom of her will and it was not her free and voluntary act.”

The petition further alleged that when allowed by the court to conduct discovery, an amended petition would be presented.

Respondents sought dismissal of the amended petition alleging, inter alia, it failed to state a cause of action, that a copy of the prior will was not attached, and that petitioner lacked standing to contest the will. Petitioner again sought leave of court to pursue discovery before it ruled upon respondents’ motions to strike, and his request was denied. A notice to the executor’s attorneys to be examined concerning any prior will of decedent was quashed as was also a subpoena duces tecum which had been served upon one of the attorneys for the executor to require him to produce all records relating to any prior wills of decedent. Petitioner appeals.

Standing

Section 8—1(a) of the Probate Act (Ill. Rev. Stat. 1981, ch. 1101/2, par. 8—1(a)) provides that any interested person may file a petition to contest the validity of a will. It has been held that legatees of a prior will of a decedent, even though not heirs at law, are “interested” persons within the meaning of the Act. (Kelley v. First State Bank (1980), 81 Ill. App. 3d 402, 413, 401 N.E.2d 247; In re Estate of King (1968), 91 Ill. App. 2d 342, 235 N.E.2d 276.) Although in the present case the alleged prior will could not be produced, section 2— 606 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—606) provides that where a claim is founded upon a written instrument which is not available, the pleader may attach to the pleading an affidavit stating facts showing the instrument is not available to him. Petitioner did so in this case, and we conclude he had standing to bring the will contest under the allegations of the amended petition.

Discovery

Petitioner contends the trial court erred in denying him any right by discovery processes to seek facts from respondents regarding decedent’s physical and mental condition and the existence of her prior will. He sought production from respondents William Walsh and St. Ann’s Home for the Aged, Inc., of information relating to the execution of the second will dated July 30, 1980, the names of persons having knowledge of the mental and physical condition of decedent at that time, together with the identity of persons who rendered medical or mental treatment to her, and any drugs or medication administered. Petitioner also sought information whether any agreement had been entered between decedent and St. Ann’s Home for the Aged, Inc., concerning the testamentary disposition of her property. Petitioner argues that had he been permitted to pursue discovery procedures in these matters, it may have been possible for him to file a more complete and factually detailed petition.

Respondent, William Walsh, executor, contends the trial court correctly denied discovery as the petition did not allege facts stating a cause of action, and to require respondents to undergo the expense of discovery prior to pleading a cause of action would be an abuse and harassment. Respondent, St. Ann’s Home for the Aged, Inc., argues that petitioner, without leave of court, initiated discovery on February 17, 1983, prior to the time all defendants had appeared or were required to appear, contrary to Supreme Court Rule 201(d) (87 Ill. 2d R. 201(d)). It further contends that petitioner’s failure to seek to reinstitute discovery procedures until he had filed his amended petition on May 30 shows a lack of diligence and effort to delay the ruling on respondents’ motions to strike, citing Supreme Court Rule 201(f) (87 Ill. 2d R. 201(f)).

Pretrial discovery is controlled by Supreme Court Rules 201 through 219 (87 Ill. 2d Rules 201 through 219), and Rule 201(d) determines when it may be commenced:

“(d) Time Discovery May Be Initiated. Prior to the time all defendants have appeared or are required to appear, no deposition or other discovery procedure shall be noticed or otherwise initiated without leave of court granted upon good cause shown.” 87 Ill. 2d R. 201(d).

The first petition to set aside the will was filed January 10, 1983, and named as respondents William Walsh, the executor and a legatee; John M. Walsh, a legatee; St. Ann’s Home for the Aged, Inc., a legatee; Marie Goodlander; Daniel Walsh, James Walsh and Rita Wren, heirs at law; and “other unknown heirs.” Summons was issued to the named parties, and all of them, except for Marie Goodlander and St. Ann’s Home for the Aged, Inc., were personally served by January 27, 1983. Marie Goodlander is described in the record as a grandniece of decedent residing in Grand Haven, Michigan. Service on St. Ann’s Home is not shown in the record; however, on February 14 it gave notice to petitioner of its motion to strike the petition, which it filed on March 7. The executor thereafter filed his motion to strike the petition, and none of the other respondents have appeared in the cause.

It is unclear when, in the context of a proceeding to contest a will, it will be considered that “all defendants have appeared or are required to appear” so that discovery procedures may be initiated pursuant to Supreme Court Rule 201(d). In a case wherein this court considered whether discovery depositions could be taken of the witnesses to a will prior to and in preparation for the hearing of the petition to admit the will, the court held they could not. (In re Estate of Kvasauskas (1972), 5 Ill. App. 3d 202, 282 N.E.2d 465.) It reasoned such procedures would unnecessarily delay prompt administration of the estate and that the rights of all interested parties were safeguarded by the provisions of the Probate Act to contest the validity of the will where “the full panoply of discovery tools is available and should be utilized by a litigant.” (5 Ill. App. 3d 202, 204, 282 N.E.2d 465.) As relevant to the issue presented in the present case, the court, in considering application of Supreme Court Rule 201(d) to the issue before it, noted that while the Probate Act provided for notice of a petition to admit a will to be furnished to heirs, devisees and legatees of testator, those persons were not “defendants” or required to appear at the hearing. Similarly, in Forys v. Bartnicki (1982), 107 Ill. App. 3d 396, 437 N.E.2d 706, the court recognized that section 8—1(a) of the Probate Act (Ill. Rev. Stat. 1981, ch. 1101/2, par. 8—1(a)) requires joinder of all heirs of decedent as parties to a will contest proceeding, and they are thus necessary parties whose presence is required for the court to make a complete judgment binding on all who may be interested in the litigation. It characterized, however, the non-contesting heirs as neutrals, or nominal defendants, whose actual alignment of interest is with the plaintiff. Forys v. Bartnicki (1982), 107 Ill. App. 3d 396, 399-400, 437 N.E.2d 706.

In determining when, in a will contest proceeding, those “defendants” necessary to invoke a right to undertake discovery processes under Supreme Court Rule 201(d) have appeared, we do not consider that noncontesting heirs at law of decedent must have done so. Respondents here note, for example, that service was not obtained on all of the heirs listed in the affidavit of heirship, such as, unknown heirs of decedent; Frank Tagler, her brother, or if deceased, his descendants, if any; or descendants of her deceased mother and father. Rather, the real parties in interest who should be considered as defendants in this context appear to us to be the executor and beneficiaries under the will sought to be contested. The executor is required by statute to defend the will (Ill. Rev. Stat. 1981, ch. 1101/2, par. 8—1(e)) and, together with those parties who may benefit if its validity is upheld, should be considered as the “defendants” whose appearance will meet the requirements of Supreme Court Rule 201(d).

In applying this conclusion to the present case, it may be seen that the executor and all of the legatees under the contested will were either required to appear or had appeared by March 7, 1983, when St. Ann’s Home filed its motion to strike the petition. Petitioner’s early requests to these parties to respond to interrogatories and for depositions brought no response, and on April 8 he requested an order of court to undertake discovery before hearing of the motions to dismiss. That request was denied, as was also petitioner’s second motion to be permitted discovery before hearing of respondents’ motions to dismiss the amended petition.

As we have noted, discovery procedures may be initiated before all defendants have appeared or are required to appear only with leave of court granted upon good cause shown (Supreme Court Rule 201(d)). Petitioner was premature when he noticed interrogatories and depositions on February 17, 1983; the executor and St. Ann’s Home were not yet required to respond and did not do so. After March 7, however, petitioner was authorized, without leave of court, to commence discovery procedures, and we conclude the trial court abused its discretion when on April 8 and again on August 12, 1983, it denied him a right to do so.

Respondents have argued that no right to pretrial discovery arises until a pleading has been filed which states a valid cause of action. They offer no relevant authority in support of this proposition and such a requirement is not found in Supreme Court Rules 201 through 219 (87 Ill. 2d Rules 201 through 219). (See Crinkley v. Dow Jones & Co. (1978), 67 Ill. App. 3d 869, 880-81, 385 N.E.2d 714.) Supreme Court Rule 201(c) is designed to prevent an abuse of discovery and may be applied to that end, if necessary. We do not consider that petitioner’s efforts to seek information relating to the physical and mental condition of decedent at the time she executed the disputed will or efforts to locate a prior will to be an abuse of discovery so as to require a protective order barring all discovery, as appears to have occurred in this case.

Cause of Action

On the striking of the amended petition for failure to state a cause of action, petitioner advised the trial court he intended to stand on the petition as, in view of the lack of discovery, he was unable to allege further facts relating to the mental and physical condition of the decedent.

We have determined that the court erred in this regard, and the cause must be remanded to give petitioner an opportunity through discovery procedures to find what were the facts relating to decedent’s condition when she executed the second will. It would serve little purpose to analyze the pleading which petitioner acknowledges he wishes to amend after undertaking discovery, and we will not do so.

Accordingly, the judgment of the circuit court that petitioner lacked standing and barring him from use of discovery procedures is reversed and the cause remanded to permit discovery and the amendment of the petition.

Reversed and remanded.

SEIDENFELD, P.J., and HOPF, J., concur.


author: JUSTICE GREEN

text:
    FIRST NATIONAL BANK OF SULLIVAN, Plaintiff-Appellant and Cross-Appellee, v. ROBERT R. BERNIUS, Defendant-Appellee and Cross-Appellant.
    Fourth District
    No. 4—84—0016
    Opinion filed August 21, 1984.

      Dale A. Cini, of Ryan, Grabb, Cini & Bennett, of Mattoon, for appellant.
    Burger, Fombelle, Dvorak, Baxter & Zachry, P.C., of Decatur (Norman J. Fombelle and James E. Zachry, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On June 14, 1982, plaintiff, First National Bank of Sullivan (Bank), filed suit in the circuit court of Moultrie County against defendant, Robert R. Bernius, seeking recovery on two promissory notes. Count I concerned a note in the principal sum of $53,170.64, and a jury trial was held on that count in May 1983. On May 12, 1983, the jury returned a verdict in favor of defendant. Judgment was subsequently entered on the verdict. Plaintiff appeals. Defendant has cross-appealed. We affirm.

We consider the cross-appeal first. Defendant claims that the trial court erred in denying his motion to dismiss plaintiff’s post-trial motion because that motion was not filed within 30 days of the entry of the judgment on the verdict as required by section 2—1202(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—1202(c)). The post-trial motion was filed on July 1, 1983. A dispute exists as to whether the judgment on the verdict was (1) entered on May 31, 1983, as maintained by defendant, in which case the July 1, 1983, motion was tardy, or (2) entered on June 1, 1983, as asserted by plaintiff, in which case it was timely.

The docket (1) indicated that a judgment on the verdict was pronounced in open court on May 12, 1983, and also (2) contained a notation stating “Written Order to be filed.” The docket for May 31, 1983, then stated “Judgment Orders on Counts I and II on file.” However, a written judgment order as to count I, signed by the trial judge stating that it was “entered” on May 31, 1983, but bearing the file mark of June 1,1983, appears in the record.

Supreme Court Rule 272 (87 Ill. 2d R. 272) provides that if, when final judgment is pronounced, the judge directs that a written form of judgment be signed by him, the clerk shall, as here, so note “and the judgment becomes final only when the signed judgement is filed.” (Emphasis added.) The parties do not dispute that the time for filing the post-trial motion began to run upon the filing of the signed order. Thus, the dispute is as to whether the file mark of June 1, 1983, or the docket entry stating that the filing took place on May 31, 1983, should have been followed.

We hold that plaintiff’s post-trial motion was timely filed on July 1, 1983, because the judgment attacked was entered on June 1, 1983. In making our decision we note that the Director of the Administrative Office of the Illinois Courts has not designated the circuit court of Moultrie County to be a court in which the Supreme Court Administrative Order on record keeping (Ill. Ann. Stat., ch. 25, par. 16 (Smith-Hurd 1984 Supp.)) is applicable. Accordingly, we need not consider the effect, if any, that order might have here. Under prior precedent, a docket entry is not the ultimate entry of the court’s judgment in a civil case, at least when there is an additional entry to be made. (See Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 983-84, 326 N.E.2d 74, 82.) By analogy, a docket entry would not control over the ultimate order even as to the filing date when a written order is required. (See Davidson Masonry & Restoration, Inc. v. J. L. Wroan & Sons, Inc. (1971), 2 Ill. App. 3d 524, 275 N.E.2d 654.) It did not do so here.

Uncontradicted affidavits submitted by plaintiff in support of its response to defendant’s motion to dismiss the post-trial motion clearly showed that (1) the trial judge signed the judgment on May 31, 1983, and mailed it on that date from his office in his county of residence to the Moultrie County circuit clerk, (2) the clerk filed the judgment on June 1, 1983, and (3) the docket entry showing the filing date of May 31, 1983, was entered by inadvertence. We need not decide whether this information was proper for consideration in interpreting the court records but, if we are permitted to consider the affidavits, they fully support our decision.

Our ruling on defendant’s cross-appeal obviates a need for us to consider, sua sponte, whether we are deprived of jurisdiction on the theory that (1) the post-trial motion was tardy and a nullity, (2) thus, the time for filing notice of appeal began upon the entry of the judgment on the verdict, and (3) notice of appeal was not filed within 30 days from that date.

We now consider the issues raised on plaintiff’s appeal. It contends that (1) the trial court should have entered judgment n.o.v. in favor of plaintiff; (2) error arose from rulings on evidence; (3) defense trial tactics improperly prejudiced plaintiff; and (4) the court erred in ruling on instructions. It requests that a judgment n.o.v. in its favor be entered, or in the alternative, that it be awarded a new trial.

On March 17, 1980, Michael Bernius, defendant’s son, gave the Bank a short term note in exchange for a loan of $55,690.61. The proceeds were used in partial payment of a previous loan. At the same time Michael sold his home, using part of the proceeds to pay the balance of the previous loan and another part of the proceeds to purchase a house with the deed taken in defendant’s name. Some days after Michael executed that note, defendant also signed it. By the terms of the document, his liability was limited to his equity in that real estate. On June 17, 1980, Michael met at the Bank with its cashier, Richard H. Burcham, and signed the note upon which count I was brought. It was in the principal sum of $53,170.64, bore interest at the rate of 17% per annum, and had a duration of three months. The March 17, 1980, note was paid with the proceeds of this note and by money which Michael had received from the sale of a boat. After some payments had been made on the June 17, 1980, note, Michael’s obligation on the note was discharged by his bankruptcy.

A signature purporting to be that of defendant also appeared as a maker on the June 17, 1980, note. This note contained no provision which purported to limit the liability of defendant. The parties are in agreement that defendant did not sign the note on June 17, 1980. The dispute is as to whether he signed the note later. Defendant concedes that if he did, in fact, sign the note, he has no defense on the note. Thus, the question of whether plaintiff was entitled to a judgment n.o.v. depends entirely upon whether the proof that defendant did sign the note is so strong that a contrary decision could never stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

The thrust of the plaintiff’s proof that the defendant had signed the note was the testimony of Burcham. He stated (1) that when Michael signed the note, he told Michael to have his father come over to the bank and sign the note, and (2) that several days later, defendant came over and, after reading the note, signed without comment. The Bank’s president, John Hagen, testified that the note had been in the continuous possession of the Bank from June 17, 1980, until turned over to its attorneys for collection.

When shown a copy of the June 17, 1980, note while testifying in his own behalf, defendant denied signing the note. When asked if the signature on the.note purporting to be his was, in fact, his, defendant answered, “No, I don’t think it is, no.” He stated that he was positive that no one from the Bank ever asked him to sign the note and that the first he heard that the Bank might be looking at him for payment was a letter from Hagen on October 6, 1981. Evidence was introduced of a deposition wherein defendant had testified that he could not remember signing the note, but the signature could be his and then stated, “No, I am not saying that I didn’t sign it, no.” However, defendant testified that he had studied the matter since suit was filed and had become positive that he had not signed the note. He further testified that he would not have signed a note for the amount of money involved, because he could never have paid the note.

Defendant’s testimony was supported by that of his son Michael, who denied that (1) Burcham had asked him to obtain defendant’s signature, (2) he had asked defendant to sign the note in question, or (3) he had placed the disputed signature on the note himself. Certain circumstantial evidence also supported the defense. When Michael had signed the note, he had immediately been given a copy of the note, although it was not usual bank practice to disburse copies of a note until all of the signatures had been obtained. The Bank also treated the prior note as having been discharged on July 17, 1980, even though, admittedly, defendant’s signature had not yet been obtained. Burcham explained this procedure on the basis that Michael and defendant were being given a “break” because the interest of the new note was 17% and it was 25% on the old one.

Certain other circumstantial evidence had at least some probative value in supporting defendant’s position. We will later discuss the admissibility of that evidence.

In the state of this evidence, plaintiff’s contention that it was entitled to judgment as a matter of law is not aided by section 3—307 (l)(b) of the Uniform Commercial Code (Ill. Rev. Stat. 1983, ch. 26, par. 3—307(l)(b)), which provides that, when the validity of a signature on an instrument is put in issue, “the signature is presumed to be genuine or authorized except” under circumstances not applicable here. The Uniform Commercial Code Comment to that section indicates that the presumption vanishes when sufficient evidence is put on to justify a finding that the signature is not valid. (Ill. Ann. Stat., ch. 26, par. 3—307, Uniform Commercial Code Comment, at 203-04 (Smith-Hurd 1963).) Thus, the presumption is one of going forward -with the evidence and is subject to the “bursting bubble” theory of presumptions. (See Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872.) The question as to whether the presumption vanishes involves the same test as that to determine whether the verdict can stand absent the existence of the presumption.

Defendant relies on Steven v. Falese Land Co. (1977), 50 Ill. App. 3d 231, 365 N.E.2d 967, and dictum in Burkett v. Finger Lake Development Corp. (1975), 32 Ill. App. 3d 396, 336 N.E.2d 628. In Steven, a counterclaim was brought on a note that had not been inventoried in the estate of the deceased payee nor had any prior demand been made although it was overdue. By answer to the counterclaim, the alleged maker had denied under oath that he had signed the note, but he was not permitted to testify because of the Dead Man’s Act. (Ill. Rev. Stat. 1973, ch. 51, par. 2.) Evidence showed that the alleged maker had received, endorsed, and deposited a check from the payee in the amount of the note on the day of the note. A trial court judgment in favor of the alleged maker was overturned on the basis that the prima facie case put on by the payee’s estate had not been overcome. In Burkett, the court stated that a simple denial of the signing of a note was not sufficient to support a motion to open up a judgment by confession and that the motion must state facts to overcome the statutory presumption.

In Steven, unlike here, the alleged maker did not testify at trial, was not subject to cross-examination, and the inference from the maker’s having received a sum of money from the payee equal to the amount of the note on the day of the note was very strong. Here, defendant did testify, and the proceeds of the note were, in effect, distributed on the day of Michael’s signature without defendant having yet signed the note. Here, unlike in Burkett, there was a presentation of some facts lending support to defendant’s position.

We conclude that a question of fact for the trier of fact was presented as to whether defendant signed the June 17, 1980, note. His denial was subject to some equivocation, but some circumstantial evidence supported his contention. The presentation of a factual question both overcame the presumption of section 3—307(l)(b) and supported the jury’s verdict. We cannot say that a different result was clearly evident. (Clark Oil & Refining Corp. v. Golden (1983), 114 Ill. App. 3d 300, 448 N.E.2d 958.) Nor can we say that defendant could never prevail on the evidence. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

A question closely related to the matter of the sufficiency of the evidence to support the verdict arises from the trial court’s ruling on an instruction. Plaintiff asserts that error resulted from the trial court’s giving of defendant’s instruction No. 2, which was Illinois Pattern Jury Instruction (IPI), Civil, No. 1.03 (2d ed. 1971). It stated:

“A fact may be proved by circumstantial evidence. Circumstantial evidence consists of proof of facts or circumstances which give rise to a reasonable inference of the truth of the facts sought to be proved.”

Plaintiff’s objections in the trial court and here are not in exactly the same language, but both raise the concern that, in a case where the validity of a signature to a negotiable instrument is in issue, the proof of invalidity is required to be very strong to support a determination that a purported maker did not sign the document.

Here, plaintiff asserts that the instruction was in error because by virtue of the provisions of the Uniform Commercial Code the inference that the signature was not that of defendant can only be drawn from circumstantial evidence if that is the only inference to be drawn from the evidence. At trial, plaintiff’s objection was stated in these words:

“[Tjhere is no circumstantial evidence which would support a finding that the defendant did not execute the note in question and to give this instruction would suggest to the jury and they can conclude, the person’s signature is a forgery or not genuine, based on circumstantial evidence. I submit higher proof is required and there is no circumstantial evidence which would permit such a finding or support such a finding.”

We need not determine whether the disparity between the objections to the instruction stated at trial and the claim of error made before us cause the issue to be waived. Nor need we consider whether the usual rules concerning circumstantial evidence in civil cases are applicable to a case where the validity of a signature on an instrument is in issue. The evidence tending to show that defendant did not sign the note was not entirely circumstantial, for he testified that he did not sign it. Any equivocation on his part does not eliminate his testimony as direct evidence. For the jury to conclude that defendant was lying or mistaken in his testimony that he did not sign the instrument but, nevertheless, to determine that he did not sign it because of circumstantial evidence would be almost impossible. Thus, the chance of prejudice in the instruction was very remote. The purpose of the circumstantial evidence here was to add weight to defendant’s direct evidence.

We also note that no case has been called to our attention holding the giving of IPI Civil No. 1.03 to be erroneous, because the instruction does not require the inference drawn to be the only inference that can be drawn.

Plaintiff maintains that various items of evidence admitted by the court were irrelevant or immaterial and were prejudicial to it. Defendant contends that the evidence was probative and proper. Although some of the evidence had limited probative value and was somewhat prejudicial, we conclude that reversible error did not occur.

Prior to trial the court allowed a portion of a motion in limine and prohibited defendant from introducing evidence of his financial circumstances or his ability to pay the debt. After the plaintiff had introduced portions of defendant’s deposition in which he had equivocated concerning his certainty as to whether he signed the note, defendant was permitted to introduce portions of the deposition where defendant had stated that he did not think he had signed the note, because he would not have taken on such a large debt at his age. The court did not abuse its discretion in permitting this testimony. The court properly permitted the plaintiff to cross-examine defendant concerning the state of his mind in regard to whether he signed the note. This raised the issue of defendant’s uncertainty in his mind as to whether he had signed the note. The reasons why defendant believed that he had not signed the note then had some relevancy as to defendant’s state of mind. A witness’ testimony as to his state of mind is not hearsay and is admissible if material and relevant. See Pfiester v. Western Union Telegraph Co. (1917), 282 Ill. 69, 74, 118 N.E. 407, 409; People v. Weil (1910), 244 Ill. 176, 182, 91 N.E. 112, 114.

The evidence that Michael was given a copy of the note when no other signature had been placed on the note was probative, circumstantially, that the Bank was following the procedure which would be used if no other signature was expected before completion of the transaction. The court properly permitted defendant to cross-examine Burcham in regard to the criticism he might receive from bank examiners for making bad loans. This was probative as to the incentive that Burcham might have to make his testimony favorable to the Bank. Questioning as to the number of loans that the bank had was probative of whether the Bank official’s memory might be faulty as to this loan. This information could have been put before the jury without requesting dollar amounts of loans, but no reversible error resulted from the dollar amount also being requested. Evidence of the procedures followed when the March 17, 1980, note was signed bore upon the reasonableness of the testimony of the parties’ witnesses as to what occurred with regard to the June 17, 1980, transaction. Evidence as to when defendant first learned that the Bank was maintaining that he was liable on the note was immaterial absent any contention that the Bank had taken action inconsistent with his being considered to be a maker on the note. However, no prejudice arose from this evidence. Similarly, evidence concerning matters involving a sale of Michael’s first home had little probative value but was not prejudicial.

We also find no reversible error arising from a group of other matters concerning evidence. Defense counsel improperly repeated a question upon which objection had been sustained in regard to whether defendant had personal liability on the March 17, 1980, note. Although a demand letter by Hagen to defendant requesting payment on the July 17, 1980, note introduced by defendant had little probative value, the foundation for the exhibit was not insufficient for lack of showing that it was in the same condition when offered as at relevant times. That requirement applies to physical objects other than writings. (E. Cleary & M. Graham, Illinois Evidence sec. 901.2, at 482 (3d ed. 1979).) The trial court refused to permit plaintiff to cross-examine defendant as to whether he knew that some equipment Michael held as security had disappeared. We fail to see any substantial probative value in an affirmative or negative answer to that question.

The trial court did not err in refusing plaintiff’s instruction No. 5, which informed the jury that the fact that the note was executed on a date after June 17, 1980, and the proceeds of the loan were used to repay the March 17, 1980, note were not defenses. This instruction might have been applicable if the question of consideration were in issue at the conclusion of the case, as it bore on that issue, but did not speak to an issue before the jury. Furthermore, even if that issue had been before the jury, the verdict would have been controlled by an interrogatory submitted to the jury on the question of whether defendant signed the note. The interrogatory was answered in the negative. The court also acted in its discretion in refusing plaintiff’s instruction No. 6 concerning the issues. Court’s instruction No. 1, given as to the issues, was more concise and fully set forth the issues. The court properly refused plaintiff’s instruction No. 7 which told the jury of the presumption arising from section 3 — 307 of the Uniform Commercial Code. As we have previously held, the evidence in this case destroyed that presumption. Without objection by plaintiff, the court gave an instruction defining the word “genuine” which was not used in any given instruction. No substantial prejudice arose thereby, and no plain error resulted.

We find no reversible error to have occurred. We do not find plaintiff to have suffered a substantial amount of prejudice from those few errors that did occur. Our affirmance is for these reasons.

Affirmed.

MILLS, P.J., and MILLER, J., concur.


author: JUSTICE TRAPP

text:
    AMERICAN NATIONAL BANK OF CHAMPAIGN, Plaintiff-Appellant, v. HENRY A. WARNER, Defendant-Appellee (Frank C. Pesek, Defendant).
    Fourth District
    No. 4—83—0673
    Opinion filed August 21, 1984.

      Robert J. Beyers, of Law Offices of Dodd & Beyers, of Champaign, for appellant.

      William M. Goldstein, of Urbana, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

The plaintiff, American National Bank of Champaign (Bank), appeals from a judgment holding that the defendant, Henry Warner, is not liable for the unpaid amount of a debt as to which he and Frank Pesek are co-obligors. The court held that (1) Warner is not a guarantor of any of the notes which evidence the debt; (2) the Bank’s continually asking Warner to sign renewal notes in effect estopped the Bank from asserting that language in preceding notes which Warner signed, consenting to all renewals and extensions thereof, was binding on Warner; and (3) that Warner did not agree to be bound by notes which Pesek alone signed at times subsequent to the joint execution of notes by Warner and Pesek. Although we agree that Warner is not a guarantor of any of the notes, we hold that language contained in the notes which both Warner and Pesek signed, by which they consented to all further renewals or extensions thereof, rendered Warner liable as to the amount remaining due on the debt evidenced by renewal notes which only Pesek signed, and that the Bank has not released Warner’s obligation to pay this amount.

In view of our decision, an extensive review of all the evidence presented at trial is unnecessary. On January 22, 1979, Warner and Pesek executed a $15,000, six-month, promissory note to American' National Bank, bearing 123/4% interest per annum. Among the terms of the note was a provision that “[e]ach of the undersigned consents to any and all renewals or extensions of this Note.” The note was secured by Warner Management Consultants stock, and the principal purpose of the transaction was to enable Pesek to purchase stock in that firm. Prior to the sale of the stock to Pesek, Henry Warner owned approximately 90% of Warner Management’s outstanding shares.

On July 26, 1979, the same parties signed a renewal of the above note in the amount of $14,000 on the same terms as previously. On February 4, 1980, a further renewal note was executed by Pesek and Warner in the amount of $13,107.78. This note contained the same terms as the prior notes, except that the interest rate was 151/2% per annum.

On November 26, 1980, Pesek alone signed an additional renewal note in the amount of $12,107.78. Except for an interest rate of 183/4% and some other relatively minor variations not relevant to the issues which this case presents, this note also contained terms similar to the prior notes. Despite his refusal to sign the renewal note just mentioned, Warner signed a purported guaranty of all of Pesek’s liabilities to the Bank “howsoever evidenced, whether now existing or hereafter created or arising” on December 12, 1980. This purported guaranty consisted of a printed form, and its language was circumscribed by the following hand-printed language appearing on the form: “This is limited to the original amount of $15,000 and will not exceed that amount which is currently being reduced.”

Following execution of the November 26, 1980, renewal note, there were apparently some renewals of that note which were evidenced by the Bank’s simply stamping a renewal form on the reverse thereof. During late 1980 and 1981, Pesek continued to repay the loan and by August 26, 1981, the principal had been reduced to $9,600. Subsequently, however, Pesek’s rate of repayment slackened and by March 23, 1982, the principal had increased to $10,700 as a result of the addition of accrued interest to the principal amount of the loan. On that date, Pesek alone executed another renewal note in the amount of $10,700, bearing interest at a floating rate of 1% over prime and payable in monthly installments of $314.32. Following Pesek’s failure to make regular payments on the last mentioned note and Warner’s failure to make the note good, the Bank filed suit against both Pesek and Warner. Pesek subsequently consented to the entry of a judgment against him in the amount of $11,946.62. He is not a party to this appeal. Following a bench trial, the court held that Warner is not liable for the amount of the $15,000 debt remaining due to the Bank. From this judgment the Bank appeals.

As a basis for affirming the trial court’s judgment, Warner asserts that the Bank intended to release him from all liability on the notes which he signed when it accepted the November 26, 1980, renewal note or when it accepted his guaranty, and that the guaranty is unsupported by consideration. At the outset, we note that Warner does not contend that he is anything other than a principal maker (as opposed to an accommodation maker) of the notes that he signed. These notes explicitly provide that the makers consent “to any and all renewals or extensions” thereof. In the absence of ambiguous contractual language, the intention of contracting parties as to the import of their contract must be ascertained solely from the contractual language itself. (J.L. Simmons Co. v. Lumbermens Mutual Insurance Co. (1967), 84 Ill. App. 2d 98, 228 N.E.2d 227.) The contractual language at issue binds the principal signers of the notes to all renewals and extensions of the notes in the clearest and most explicit terms. We must therefore give effect to the nonambiguous contractual language which the parties adopted and hold that Warner is, on the basis of the language pertaining to renewals and extensions in the notes that he and Pesek signed, liable for the amount of the original $15,000 debt remaining unpaid (see Lee v. Pioneer State Bank (1981), 97 Ill. App. 3d 97, 423 N.E.2d 218; Jacobson v. Devon Bank (1976), 39 Ill. App. 3d 1053, 351 N.E.2d 254), unless the Bank at some point released Warner from his liability for this debt.

In order to be accorded legal effect, a release of an obligation must be premised upon adequate consideration. (Toffenetti v. Mellor (1926), 323 Ill. 143, 153 N.E. 744.) A search of the record before us reveals that Warner provided the Bank with no consideration which would have supported a release of his liability on the basis of the notes either prior to or at the time of the Bank’s acceptance of the November 26, 1980, renewal note. Thus, the Bank’s subjective intent in accepting the renewal note of November 26, 1980, is irrelevant, since on the basis of the evidence there could not have been a release of Warner’s obligation prior to or at the time of the Bank’s acceptance of that note.

This brings us to the interrelated questions of whether Warner’s purported guaranty was supported by adequate consideration and whether the Bank’s acceptance of this alleged guaranty constituted a release of Warner’s liability on the notes. It is elemental that a guaranty agreement is of no legal effect unless supported by adequate consideration. (Blakely Printing Co. v. Barnard (1896), 63 Ill. App. 238.) Where a guaranty is executed contemporaneously with the note or obligation guaranteed, the consideration for the note or obligation furnishes consideration for the guaranty, but where the guaranty is executed after the guaranteed debt is incurred, new consideration is necessary to support the guaranty. (First National Bank v. Chapman (1977), 51 Ill. App. 3d 738, 366 N.E.2d 937.) An agreement to perform one’s preexisting contractual obligations does not constitute legally sufficient consideration for a guaranty agreement. Vanderbilt v. Schreyer (1883), 91 N.Y. 392.

What consideration flowed between the parties to the alleged guaranty at issue here? The short answer is none. Warner had previously consented to an unlimited number of extensions or renewals of the notes which he signed and was thus liable for the principal amount of those notes remaining unpaid, plus accrued interest, at the time that he signed the guaranty. His guaranty was limited to the amount of the original debt evidenced by those notes remaining unpaid. Thus, in signing the guaranty, Warner agreed to do nothing more than make good on an existing legal obligation. Likewise, there is no indication that the Bank, in accepting the guaranty, agreed to forbear collection of the debt for a period longer than the six months for which it was obligated to forbear by the terms of the November 26, 1980, note or that it provided Pesek or Warner with any other consideration for the guaranty. Thus in executing and accepting the guaranty, Warner and the Bank, respectively, agreed to do nothing more than that which they were already obligated to do. It follows that the alleged guaranty was unsupported by adequate consideration, that it was in reality a nudum pactum, and that it could not have constituted adequate consideration for the alleged release of Warner’s liability on the notes. See Northern Crown Bank v. Elford (1916), 9 Sask. 306, 30 D.L.R. 562 (execution and delivery of guaranty which is invalid for want of consideration is not adequate consideration for cancellation of previously existing guaranty).

Moreover, even if we were to assume that Warner's alleged guaranty was supported by adequate consideration, we would nevertheless be compelled to hold that the execution of this guaranty did not constitute adequate consideration for the Bank’s purported release of Warner’s obligation on the notes. An agreement to do that which one is already under an existing legal obligation to do does not constitute adequate consideration for the release of an obligation (Beyer v. Wolfe (1923), 228 Ill. App. 429; see Salvaggio v. Schofroth (1971), 133 Ill. App. 2d 811, 272 N.E.2d 53 (abstract of opinion)), and by virtue of the guaranty, Warner agreed to do no more than to pay the amount of the original debt remaining due if Pesek failed to do so, which is exactly what he had a preexisting legal obligation to do.

In summary, we hold that the language in the three notes which Warner signed, consenting to all renewals or extensions thereof, rendered Warner liable for the amount of the original $15,000 debt remaining unpaid on the basis of the renewal notes signed by Pesek alone; that Warner’s purported guaranty was unsupported by adequate consideration, and that even if this guaranty were supported by adequate consideration, it nevertheless could not have constituted legally adequate consideration for the Bank’s purported release of Warner’s obligation on the notes; that there was no other adequate consideration for the Bank’s purported release of Warner’s liability on the notes, and that Warner is thus liable for the amount of the original $15,000 debt remaining unpaid, plus accrued interest. The cases which Warner cites in support of his argument that we should affirm the trial court’s decision do not require a contrary result. None of these cases deal with contractual language consenting to automatic extensions or renewals of notes, and none involved the situation where the only consideration supporting a purported release of an obligation was an agreement to perform one’s preexisting legal duties. The principal case upon which the trial court relied in support of its decision, Holcomb State Bank v. Adamson (1982), 107 Ill. App. 3d 908, 438 N.E.2d 635, is likewise inapposite, since the defendant in that case was an accommodation maker as opposed to a principal, and the gravamen of the court’s decision was that the defendant was not liable on the note that he signed because the words of guaranty did not appear in close proximity to his signature. No such issue is present in the case at bar.

Since the trial court erred in entering judgment for Warner, we must reverse the judgment below. Warner maintains that if we reverse, we should remand, ‘ ‘for further proceedings on the issue of the March 23, 1982, note [the final renewal note which Pesek signed] and the effect of same on Mr. Warner’s guaranty.” The only material respects in which the latter note differs from the previous notes is that it is unsecured by Warner Management stock, its principal amount includes $1,100 accrued interest, and it is payable in monthly installments of a fixed amount. Neither party contends that this note is not premised on the amount of the original $15,000 debt remaining unpaid at the date of its execution, and Warner does not state in what manner he considers the differences between this note and the prior notes to be relevant to the issue of his liability for the amount of the debt represented by the note. In our view, the only one of these differences which is of any importance is the inclusion of previously accrued interest in the principal amount of the March 23, 1982, note. None of the notes which Warner signed provide for compound interest or interest on accrued interest, and the Bank therefore should not have included accrued interest in the principal amount of this note.

We therefore reverse the circuit court’s judgment and remand this cause with directions that the circuit court enter judgment in favor of plaintiff American National Bank of Champaign and against defendant Henry Warner in the amount of $9,600, plus accrued simple interest, and that the court hold an evidentiary hearing in order to ascertain the amount of simple interest due.

Reversed and remanded with directions.

MILLS, P.J., and MILLER, J., concur.


author: JUSTICE WHITE

text:
    THE BOARD OF EDUCATION OF NILES TOWNSHIP HIGH SCHOOL DISTRICT NO. 219, COOK COUNTY, Plaintiff-Appellant, v. THE REGIONAL BOARD OF SCHOOL TRUSTEES OF COOK COUNTY et al., Defendants-Appellees.
    First District (3rd Division)
    No. 83—2702
    Opinion filed August 1, 1984.
    Rehearing denied September 24, 1984.
    Seyfarth, Shaw, Fair weather & Geraldson, of Chicago (R. Theodore Clark, Jr., and Fay Hartog-Rapp, of counsel), for appellant.
    Peterson, Ross, Schloerb & Seidel, of Chicago (Russell M. Pelton, Craig A. Varga, and Paulette J. Morgan, of counsel), for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Certain residents of Niles Township High School District No. 219 filed a petition with the Cook County Regional Board of School Trustees to detach the village of Golf and the Golf Acres subdivision of the village of Glenview from Niles Township High School District No. 219 and to attach the property to Northfield Township High School District No. 225. The object of the petitioners was to permit children of the proposed detachment area to attend Glenbrook South High School in Glenview, rather than Niles North High School in Skokie. The petition was signed by more than two-thirds of the registered voters in the detachment area. After hearings, the regional board entered an order which contained detailed findings of fact and conclusions of law and which granted the petition. On administrative review, the circuit court of Cook County affirmed the regional board’s decision granting the petition. District 219 now appeals from the order of the circuit court which affirmed the decision of the regional board.

The issues presented for review are: (1) whether the decision of the regional board was against the manifest weight of the evidence, and (2) whether the participation of Rosalie Stein as a board member in the decision of the regional board invalidated the regional board’s decision. Since we hold that the participation of Rosalie Stein did invalidate the regional board’s decision, we do not address the manifest weight of the evidence issue.

The record on appeal shows that at the outset of the first day of the hearings before the regional board on the petition, and before the regional board had ruled on any substantial issue in the case, District 219 presented a written motion to disqualify Rosalie Stein from participating as a board member in the detachment proceeding. The motion, in relevant part, stated:

“Rosalie Stein is one of the Committee of Petitioners in Ruth Beck, Rosalie Stein, Roberta Shapiro, Micki Abrams, Fred Elikan, Jutta Stone, Maryann Fields, Sheldon Abrams, Shirley Margolis, and Sandy Aberman v. Regional Board of School Trustees of Cook County, Docket No. 82 L 7874, a case currently on administrative review before the Circuit Court of Cook County, a proceeding in which petitioners, including Rosalie Stein, are seeking to detach a portion of Evanston Township High School District No. 202 and to have said area attached to Niles Township High School District No. 219. Since Niles Township High School District No. 219 is one of the parties to the instant proceeding, it necessarily follows that Rosalie Stein has a ‘personal interest in the ruling to be made.’ ”

The regional board denied the motion for procedural and substantive reasons. Subsequently, Ms. Stein voted with the majority of the regional board to grant the petition.

In its initial brief on appeal, District 219 described Ms. Stein’s “personal interest” in the decision of the instant case in the following words:

“[T]he record is clear that Rosalie Stein and Niles Township High School District No. 219 were adverse parties in pending litigation initiated by Ms. Stein and her co-petitioners at the time the instant petition was pending before the Regional Board of School Trustees. The mere fact of Stein’s involvement in a similar proceeding before the same Regional Board involving an adverse party impaired her ability to be open-minded, objective and impartial.”

In its appellate reply brief, District 219 further described Ms. Stein’s personal interest as follows: “Ms. Stein may have believed that the loss of the territory involved herein would make District 219 more disposed to supporting her petition to annex territory to District 219.”

We first consider whether District 219’s motion to disqualify Rosalie Stein was untimely and properly denied on procedural grounds. It appears that on July 19, 1982, the regional board set August 16, 1982, as the date for a special meeting to hear the merits of the detachment petition. It also appears that the board ordered that all procedural motions be filed within 10 days, in accordance with rules established previously by the board. Since District 219 did not file its motion to disqualify Ms. Stein until August 16, 1982, appellees, District 225 and the petitioners in the detachment proceeding, contend that the motion was properly denied on procedural grounds.

Appellees find support for their position in section 114 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114—5(a)), which provides that in criminal cases a motion for an automatic substitution of judges must be made within 10 days after the case has been placed on the trial call of a judge, and in title 28, section 144 of the United States Code (28 U.S.C. sec. 144 (1982)), which permits the removal of a judge for bias or prejudice by affidavit “filed not less than 10 days before the beginning of the term at which the proceeding is to be heard.” Clearly, however, neither of these statutes was applicable to the administrative proceedings before the regional board.

District 219 contends that the rules of the regional board cannot be enforced to affect its substantive rights, relying on the principie that “the authority of an administrative agency to adopt rules and regulations is defined by the statute creating that authority, and such rules and regulations must be in accord with the standards and policies set forth in the statute.” (Popejoy v. Zagel (1983), 115 Ill. App. 3d 9, 11, 449 N.E.2d 1373.) According to District 219, the Illinois School Code confers no authority upon the regional board to adopt procedural rules in detachment hearing matters, and absent such authority, the regional board cannot enforce any such rule to affect the substantive rights of District 219. Without adopting this argument, we are of the opinion that District 219’s motion to disqualify Rosalie Stein should not have been denied on procedural grounds. District 219 sought to disqualify Ms. Stein for cause, and its motion was presented to the regional board before the hearings on the petition began and before the board ruled on any substantial issue in the case. Under these circumstances and in the absence of any statute to the contrary, we believe that the regional board erred in denying the motion for procedural reasons.

Accordingly, we consider whether the motion to disqualify was properly denied on substantive grounds.

The Illinois Supreme Court has established that no person may play a decision-making role in a judicial or administrative proceeding in which he or she has a personal interest. In In re Heirich (1956), 10 Ill. 2d 357, 384, 140 N.E.2d 825, cert, denied (1957), 355 U.S. 805, 2 L. Ed. 2d 49, 78 S. Ct. 22, our supreme court stated:

“It is a classical principle of jurisprudence that no man who has a personal interest in the subject matter of decision in a case may sit in judgment on that case.
The principle is as applicable to administrative agents, commissioners, referees, masters in chancery, or other arbiters of questions of law or fact not holding judicial office as it is to those who are technically judges in the full sense of the word.”

(See also Smith v. Department of Registration & Education (1952), 412 Ill. 332, 343, 106 N.E.2d 722; City of Naperville v. Wehrle (1930), 340 Ill. 579, 581, 173 N.E. 165.) Such a “personal interest” need not be pecuniary; “[i]t need only be an interest which can be viewed as having a potentially debilitating effect on the impartiality of the decision maker.” (International Harvester Co. v. Bowling (1979), 72 Ill. App. 3d 910, 914, 391 N.E.2d 168; see also In re East Maine Township Community Association (1957), 15 Ill. App. 2d 250, 259-62, 145 N.E.2d 777.) And if one member of an administrative body is not disinterested, his or her “participation infects the action of the whole body and makes it voidable.” City of Naperville v. Wehrle (1930), 340 Ill. 579, 581.

Case law from other jurisdictions supports the position taken by the Illinois cases. In Board of Education v. International Union of Operating Engineers, Local No. 68 (1970), 109 N.J. Super. 116, 262 A.2d 426, the court held that the decision of a commission should be set aside because it was infected with a conflict of interest in that one of the commissioners was a partner in the law firm which represented the union in the proceeding before it. The court stated:

“Representatives of the public acting in a judicial or giicm-judicial capacity must be required to perform their duties free of any interest, personal or pecuniary, possessing the potentiality of influencing their judgment.
*** [T]he interest which disqualified an official need not be a direct or pecuniary one.” 109 N. J. Super. 116, 120, 262 A.2d 426, 428.

Similarly, in Chicago, Milwaukee, St. Paul & Pacific R.R. Co. v. Washington State Human Rights Com. (1976), 87 Wash. 2d 802, 557 P.2d 307, the Washington Supreme Court held that an impermissible conflict of interest existed where one of the members of a tribunal had a job application pending with the commission during the time period the tribunal was processing and deciding the case. In holding the decision of the tribunal invalid, the court stated:

“The extension to *** administrative tribunals of the disqualification rules applicable to judges is a well established concept. [Citations.]
It is fundamental to our system of justice that judges be fair and unbiased. [Citations.] An interest that is alleged to create bias or unfairness need not be direct or obvious. ‘Any interest, the probable and natural tendency of which is to create a bias in the mind of the judge for or against a party to the suit, is sufficient to disqualify. *** Pecuniary interest in the result of the suit is not the only disqualifying interest.’ [Citations.]” 87 Wash. 2d 802, 807-08, 557 P.2d 307, 311.

Applying these principles to the instant case, we are of the opinion that Ms. Stein had a “personal interest” in the decision of the regional board. Not only were Ms. Stein and District 219 adverse parties in pending litigation initiated by Ms. Stein and her co-petitioners at the time the instant petition was pending before the regional board, but Ms. Stein may have believed that the loss of territory from District 219 in the instant case might have made District 219 more disposed to support her petition to annex territory to District 219. Under these circumstances, we are compelled to conclude that Ms. Stein was not disinterested and that her participation in the decision of the regional board rendered void the action of the regional board.

Appellees contend that any interest of Ms. Stein in the decision of the regional board was remote and speculative, and consequently, not sufficient to invalidate the decision of the regional board. Appellees state that District 219 never participated at any level or in any way in the earlier case and that District 219’s assertion that its status as a nominal defendant in that case rendered Ms. Stein incapable of reaching an objective conclusion in the instant case was speculation. We do not agree. In our opinion, under the circumstances of this case, the fact that Ms. Stein and District 219 were adverse parties in pending litigation did not constitute a remote or speculative interest.

In reaching this conclusion, we do not suggest that Ms. Stein performed her duties as a board member in less than an exemplary manner. However, the existence of her personal interest was sufficient, in itself, to invalidate the decision of the board.

For the aforementioned reasons, the order of the circuit court of Cook County which affirmed the decision of the regional board is reversed, and the cause is remanded to the regional board for further proceedings not inconsistent with this opinion.

Reversed and remanded.

McNAMARA and McGILLICUDDY, JJ., concur.