text:
    THE CITY OF PEORIA, Plaintiff-Appellant, v. ILLINOIS COMMERCE COMMISSION, Defendant-Appellee.
    Third District
    No. 3—84—0396
    Opinion filed April 25, 1985.
    James A. Murphy and David L. Thomas, both of Peoria, for appellant.

      Neil F. Hartigan, Attorney General, of Springfield (Hercules F. Bolos, Allen C. Wesolowski, and Eva-Maria Wohn, Special Assistant Attorneys General, of Chicago, of counsel), for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The city of Peoria (Peoria) appeals from a judgment of the circuit court of Peoria County confirming certain orders of the Illinois Commerce Commission (ICC).

The facts are undisputed. In 1975, the Illinois General Assembly enacted “An Act in relation to the designation of an emergency telephone number for use throughout the State” (911 Act) (Ill. Rev. Stat. 1983, ch. 134, par. 31 et seq.). On June 8, 1977, the ICC adopted a resolution to commence formal proceedings leading to the adoption of its General Order 207, “Standards of Service Applicable to 911 Emergency Systems.” On December 27, 1979, the ICC entered an order pursuant to its procedures under the Public Utilities Act (Act) (Ill. Rev. Stat. 1983, ch. lll2/3, par. 1 et seq.), adopting as rules binding on units of local government, General Order 207. Peoria filed an application for rehearing or reconsideration and the ICC subsequently, on July 16, 1980, entered its “ORDER ON RECONSIDERATION,” which, with only minor wording changes to General Order 207, affirmed the earlier December 27, 1979, order. Peoria then filed a complaint for administrative review in the circuit court of Peoria County. The court found that the ICG’s orders of December 27, 1979, and July 16, 1980, are not contrary to the manifest weight of the evidence nor contrary to law, and are within the jurisdiction conferred upon the ICC pursuant to the 911 Act.

On appeal, we are asked to decide whether the 911 Act vested authority in the ICC to regulate the operation of emergency communications centers by local governments. Peoria contends the primary role of the ICC is to exercise its expertise and authority to regulate the telephone companies, while it aids and assists local governments as they deal with those telephone companies in setting up telephone systems to service their 911 emergency communications centers. The gist of this contention is that Peoria views the 911 Act as either creating an exhortatory role for the ICC or that the provisions are only applicable to telephone companies. The ICC maintains that the intent of the legislature was to give the ICC ongoing authority to supervise all aspects of 911 systems. For the following reasons, we affirm.

We note initially that the ICC is an administrative body which was established by and derives its authority from the Public Utilities Act. (Ill. Rev. Stat. 1983, ch. lll2/3, par. 1 et seq.) The purpose of the Act is to provide for regulation of public utilities, and its provisions grant authority to the ICC over the ownership and operation of “public utilities” as the term is defined therein. (Inland Real Estate Corp. v. Village of Palatine (1982), 107 Ill. App. 3d 279, 437 N.E.2d 883.) The ICC has no authority except that expressly conferred upon it (Black Hawk Motor Transit Co. v. Illinois Commerce Com. (1947), 398 Ill. 542, 76 N.E.2d 478), and is without power to extend its jurisdiction, as that is within the prerogative of the legislature. Illinois-Indiana Cable Television Association v. Illinois Commerce Com. (1973), 55 Ill. 2d 205, 302 N.E.2d 334.

A statute should be evaluated as a whole; each provision should be construed in connection with every other section and in light of the statute’s general purpose. (Miller v. Department of Registration & Education (1979), 75 Ill. 2d 76, 387 N.E.2d 300.) The 911 Act begins with a statement of its “declaration and purpose”:

“The General Assembly finds and declares that it is in the public interest to shorten the time required for a citizen to request and receive emergency aid *** further *** that the establishment of a uniform, statewide emergency number is a matter of statewide concern and interest to all inhabitants and citizens of this State. It is the purpose of this Act to establish the number ‘911’ as the primary emergency telephone number for use in this State and to encourage units of local government and combinations of such units to develop and improve emergency communication procedures and facilities in such manner as to be able to quickly respond to any person calling the telephone number ‘911’ seeking police, fire, medical, rescue, and other emergency services.” Ill. Rev. Stat. 1983, ch. 134, par. 31.

Section 3 of the 911 Act mandates that every local public agency in a county having 100,000 or more inhabitants within its respective jurisdiction shall establish a basic or sophisticated system as specified in the 911 Act and that other public agencies may establish such a system. (Ill. Rev. Stat. 1983, ch. 134, par. 33.) “Basic system” means a telephone service which automatically connects a person dialing the digits “911” to an established public safety answering point through normal telephone service facilities. (Ill. Rev. Stat. 1983, ch. 134, par. 32.07.) “Sophisticated system” means a basic system with the additional capability of automatic identification of the caller’s number, holding the incoming call, reconnection on the same telephone line, clearing a telephone line, or automatic call routing or combinations of such capabilities. (Ill. Rev. Stat. 1983, ch. 134, par. 32.08.) Section 6 provides that the most critical aspect of the design of any system is the procedure established for handling a telephone request for emergency services. Ill. Rev. Stat. 1983, ch. 134, par. 36.

Section 7 mandates that the ICC shall establish a general overview or plan to effectuate the purposes of the 911 Act. (Ill. Rev. Stat. 1983, ch. 134, par. 37.) Section 8 further mandates that the ICC shall coordinate the implementation of systems established under the 911 Act and shall assist local public and public safety agencies in obtaining financing help to establish emergency phone service, and shall aid such agencies in the foundation of concepts, methods, and procedures which will improve the operations of systems required by the 911 Act. (Ill. Rev. Stat. 1983, ch. 134, par. 38.) Section 10 requires that the ICC shall establish and review technical and operational standards for the development of the local agency systems. Ill. Rev. Stat. 1983, ch. 134, par. 40.

Section 11 mandates that those public agencies required to establish a system shall within the time specified submit tentative plans of the establishment of the system to the public utility providing public telephone service within their respective jurisdictions. Further, within the time specified these public agencies shall submit final plans for the establishment of the system to such utilities for the system’s implementation. A copy of the plan required by this section shall be filed with the ICC. In order to secure compliance with the standards promulgated under section 10, the ICC shall have the power to approve or disapprove such plan. Ill. Rev. Stat. 1983, ch. 134, par. 41.

A careful reading of the 911 Act as a whole discloses that the ICG’s role is contemplated to be more than merely advisory to governmental units or merely the regulation of telephone companies. We agree with the ICC’s contention that it is difficult to believe the legislature would have enacted a statute to create a uniform statewide emergency telephone system and also intend that there should be no agency to ensure the 911 systems are functioning properly once they are established.

Section 6 declares the most critical aspect of any system is the procedure established for handling a telephone request for emergency services. Section 10 mandates the ICC to establish and review technical and operational standards for the development of local agency systems. Each of the foregoing sections addresses itself to operations, standards and procedures beyond the operation of a telephone utility, and we are directed at the functions of the local agencies as users rather than the telephone companies as utilities. If the statutory provisions are to be carried out, mere regulation of the telephone company utility would not be within the scope of the provisions of the 911 Act. Indeed, no legislation applicable to 911 systems would be necessary, since the authority of the ICC is already sufficient to regulate such activities of a telephone utility. Section 11 grants the ICC power to secure compliance with the standards it promulgates under section 10. The language of these provisions does not support Peoria’s conclusion that toothless homilies were intended or that the statute was only intended to apply to telephone companies. A contrary interpretation would lead to the conclusion that this statute would not be needed at all.

The legislature intended the ICC to be the agency responsible for the implementation and ongoing supervision of 911 systems. We find General Order 207 was an appropriate exercise of the ICC’s statutory authority. The judgment of the circuit court of Peoria County is affirmed.

Affirmed.

HEIPLE, P.J., and BARRY, J., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    BERTINA D. GROSS, a Minor, by Bernice Gross, Her Mother and Next Friend, Plaintiff-Appellant, v. KATHY HARRELL, a Minor, by Helen Harrell, Her Mother and Next Friend, et al., Defendants-Appellees.
    Third District
    No. 3—84—0539
    Opinion filed April 25, 1985.

      Anthony J. Basile, of Heller & Morris & Associates, Ltd., of Chicago, for appellant.
    Barry L. Kroll, Donald E. Stellato, and Lloyd E. Williams, Jr., all of Jacobs, Williams, Montgomery, Ltd., of Chicago, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from an interlocutory order granting defendant Keith Martin a continuance until he returns from military service in Korea pursuant to section 521 of the Soldier’s and Sailor’s Relief Act (50 U.S.C. sec. 521 (1982)). The sole issue before us is whether the language of section 521 is mandatory or discretionary. The circuit court of Will County granted the continuance after finding that Martin was a serviceman and, therefore, was entitled to a stay under the Soldier’s and Sailor’s Relief Act.

The underlying claim was filed in 1981 and involves an automobile-pedestrian accident where plaintiff was struck by a car driven by either Martin or another defendant, Kathy Harrell. The case was called for trial December 12, 1983, a jury was selected and plaintiff presented her case. Before the defendants presented their case, the judge declared a mistrial because the Harrells had not received proper notice of the trial. This case was then set for trial in May 1984. By this time, Martin, who was present at the trial in December, had reenlisted and was stationed in Korea. Several other continuances ensued based upon a telephone conversation between Martin and his attorney, where Martin stated he would not be reassigned to the United States for at least 10 months. Finally, a letter requesting a stay was sent to the court, and this continuance until May 1985 resulted.

Section 521 of the Soldier’s and Sailor’s Relief Act provides:

“At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act *** unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.” (50 U.S.C. sec. 521 (1982).)

At first glance, the language of the statute appears to mandate a stay of proceedings when requested by a serviceman unless his/her defense will not be materially affected by his/her absence. However, the United States Supreme Court in Boone v. Lightner (1943), 319 U.S. 561, 87 L. Ed. 1587, 63 S. Ct. 1223, interpreted the statutory language to vest considerable discretion in the trial court to meet “a great variety of situations that no legislator and no court is wise enough to foresee.” (319 U.S. 561, 568, 87 L. Ed. 1587, 1593, 63 S. Ct. 1223, 1228.) Therefore, the interest of the plaintiff in bringing her case to trial before the memory of the accident has faded from the minds of witnesses or witnesses have died or disappeared must be balanced against the inconvenience to serviceman Martin in either returning to the States especially to attend this trial or having the case tried in his absence. Keeping in mind that Martin voluntarily reenlisted and accepted an assignment abroad when he knew this case would be set for trial soon after the mistrial was declared and that he has not cooperated with the court in arranging a specific time when he will be available for trial after he returns to the United States in early May 1985, we are afraid that Martin has come dangerously close to using “this Act *** as a sword against persons with legitimate claims against servicemen,” as the appellate court cautioned against in Slave v. Strohm (1968), 94 Ill. App. 2d 129, 236 N.E.2d 326. In Slave the first district weighed the need to proceed to trial against the serviceman’s request for a delay in a paternity action. The court made it clear that a defendant must allege something more than merely being in the military service in order for a stay to be granted. Because the defendant in Slave had declined to set a date in the reasonable future, had given no indication as to when he would be entitled to leave so that he could be present at trial, submitted no letters from commanding officers that he could not be released to attend a trial or that his continued presence in the Marine Corps was essential to the defense of the country, the trial court did not abuse its discretion in denying defendant’s motion for a stay. Obviously, the would-be father in a paternity proceeding would be affected by the trial of the paternity action in his absence. Therefore, in this case, even though the defendant’s interests may be affected by his absence, the trial court could have denied the stay and proceeded to trial.

However, because it would serve no purpose for us to reverse the decision of the trial court and remand for a consideration of the stay in light of our opinion here when May and Martin’s apparent return to our shores loom on the horizon, we instead affirm the continuance until May 1985 with the instruction that the trial court order Martin to contact the circuit court of Will County now to set a date as soon as is reasonably possible for the trial of this matter and that no further continuances be granted to defendant Martin for any reason having to do with his military service.

We, therefore, affirm the decision of the circuit court of Will County with instructions that this case proceed to trial as soon as is reasonably possible.

Affirmed.

HEIPLE, P.J., and WOMBACHER, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL ENSLEY, Defendant-Appellant.
    Third District
    No. 3-84-0614
    Opinion filed April 25, 1985.

      Robert Agostinelli and Verlin R. F. Heinz, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Larry Vandersnick, State’s Attorney, of Cambridge (John X. Breslin and Peter H. Tumminaro, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Michael Ensley, was convicted of theft, sentenced to a term of 18 months of periodic imprisonment and ordered to pay restitution in the amount of $1,486. The defendant appeals, arguing that the restitution order should be vacated because it was based on the replacement cost of the stolen items as well as the cost of items that the defendant was not charged with stealing. We affirm.

At the sentencing hearing, the court considered information received from the victim’s insurance company regarding the value of stolen items. The insurer listed the total replacement cost of the items as $2,710, the replacement cost of recovered items as $480, and the amount paid to the victim for insured items as $744. Using these figures, the court ordered restitution in the amount of $1,486. The defendant then filed the instant appeal.

On appeal, the defendant argues that the restitution order should be vacated because the trial court erred in using replacement cost rather than the fair market value of the property at the time of its taking. The defendant also contends that, because he was charged with the theft of seven items and the order was based upon 19 stolen items, the amount of restitution was excessive. The defendant further asserts that the application of the restitution statute and its recent amendment violated ex post facto principles.

An order of restitution to a victim of an offense is governed by section 5 — 5—6 of the Unified Code of Corrections: “In fixing the amount of restitution to be paid in cash, the court *** shall assess the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in the charge ***.” (Ill. Rev. Stat., 1983 Supp., ch. 38, par. 1005 — 5—6(b).) Amendment of this statute was made by Public Act 83 — 1061, effective July 1, 1984. This amendment clarified and expanded the nature and scope of the restitution statute. It has also broadened the class of victims entitled to receive restitution.

The defendant bases his contention that the trial court erred in using the replacement cost of the items on People v. Morrison (1983), 114 Ill. App. 3d 828, 449 N.E.2d 859, wherein we stated that the amount of restitution should be based on the fair market value of the property at the time of its taking or loss. The standard of fair market value was also utilized in In re F.D. (1980), 89 Ill. App. 3d 223, 411 N.E.2d 1200.

We find in the case at bar that the trial court’s reliance on the value assigned to the items by the insurance company was proper. Because the items were various pieces of jewelry, they constituted property which would normally appreciate in value. Although the insurance company used the term, “replacement cost,” the insurer was, in essence, simply referring to the fair market value of the stolen items at the time of the offense. The items at issue in Morrison, unlike the instant property, were primarily depreciable items. The replacement cost in Morrison, as a result, differed from the fair market value.

Basing the restitution order on the value of all 19 stolen items was also proper. Under the restitution statute, the victim is entitled to recover restitution for losses “proximately caused by the conduct” of the defendant. (Ill. Rev. Stat., 1983 Supp., ch. 38, par. 1005 — 5—6(c)(1).) Although the defendant was charged with stealing only seven items, the theft of all 19 items stemmed from the same offense involving the same victim. The instant facts differ from those presented in People v. Mahle (1974), 57 Ill. 2d 279, 312 N.E.2d 267. There the court stated that the restitution order was improper because it included payment for matters unrelated to the charges before the court. Unlike Mahle, the trial court in the instant case ordered restitution only for the value of property related to the conduct set forth in the charges and to the victim named in the charging instrument.

We also find that the restitution order does not violate ex post facto principles. The recent amendment to the restitution statute does not impose upon the defendant an amount of restitution greater than that possible under the prior law. The legislative changes enacted by the amendment address other issues pertaining to restitution which are not relevant to the case at bar.

Because we find that the trial court’s order of restitution was proper, the judgment of the circuit court of Henry County is affirmed.

Affirmed.

SCOTT and WOMBACHER, JJ., concur.


author: JUSTICE BARRY

text:
    MADGE HOBART, Plaintiff-Appellee, v. CHESTER O. HALE et al., Defendants-Appellants.
    Third District
    No. 3—84—0341
    Opinion filed April 25, 1985.

      Glenn F. Ruud, of Rock Island, for appellants.
    Peter Denger, of Rock Island, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The matter before us today was initiated by plaintiff Madge Hobart as a complaint and confession of judgment on a note dated January 28, 1980, signed by defendants, Chester and Genevieve Hale, and in the amount of $10,000. The note on its face was made payable on demand to Walter Stradley and endorsed on the reverse side to the plaintiff. Judgment by confession was entered January 14, 1984, by the circuit court of Rock Island County in the sum of $12,000— $10,000 in principal plus $2,000 in attorney fees. Summons to confirm judgment by confession was served on February 1, and on February 29, 1984, defendants filed motions to open and vacate the judgment by confession as well as their answer to the complaint. On May 1, 1984, the court granted defendants’ motion to vacate and opened the matter for a trial on the merits. At the conclusion of testimony and presentation of counsel’s arguments, the court took the matter under advisement. The court’s decision of May 11, 1984, found in favor of plaintiff and awarded judgment of $10,000 plus costs and $2,081.25 in attorney fees. Defendants thereafter filed a timely notice of appeal to this court.

Defendants’ primary contention is that the trial court’s judgment is contrary to the manifest weight of the evidence. Defendants urge that the judgment be reversed and vacated, that judgment be entered for defendants, and that plaintiff’s cause of action be dismissed with prejudice. Plaintiff maintains that the trial court’s decision should be affirmed and an additional award of $1,968.75 be approved for attorney fees incurred at the appellate level. We find neither party’s position persuasive, but find that the matter must be remanded to the trial court for the purpose of joining a necessary party — namely, the estate of Alice Dinkle, deceased since 1981.

The facts as they appear from the testimony of the parties and Walter Stradley are somewhat complex, but will be set forth chronologically to the extent possible. In 1972 and 1973 Walter Stradley, an attorney, represented defendants Chester and Genevieve Hale with respect to certain real estate litigation in Warren County entitled Hale v. Ault. Stradley became ill, and the matter was taken over by other counsel. Stradley was not paid for his services, but maintained an ongoing relationship with the Hales. He was kept apprised of the progress of the litigation, which eventually wended its way to Federal court in Chicago as a discrimination suit.

Meanwhile, it appears that in 1973 a woman named Alice Dinkle sued Stradley and received a judgment against him for an unknown sum. A copy of the judgment cannot be found in the record before us. In supplemental proceedings to enforce that judgment, Stradley was ordered to assign to Dinkle the unpaid fees owed by the Hales. Although a copy of the assignment itself is not in the record, it appears that the court’s order was dated February 25, 1976, and that Stradley complied by executing the assignment as ordered in 1976.

Stradley lost his license to practice law in 1977. His secretary, plaintiff Madge Hobart, who had been with Stradley since 1968, kept Stradley’s law office open until 1979 at her own expense, and she was continuing to work for Stradley on a part-time basis at the time of the trial of this matter on May 1, 1984. Hobart testified that she had received no reimbursement or compensation from Stradley since early 1978.

Mrs. Dinkle never cancelled, reassigned or collected on Stradley’s 1976 assignment during her lifetime. She died in 1981. According to the record before us, the assignment was not included in her estate’s inventory.

Although the record is extremely confused as to the next series of events relevant to this suit, it appears that in early 1982 or 1983 Stradley appeared on behalf of the Hales at a deposition in connection with the Federal litigation in Chicago. The matter of fees owed Stradley on the Warren County litigation was broached, and the Hales and Stradley agreed upon a sum of $10,000 for legal services. The judgment note which is at the heart of the matter now before us was drawn confessing judgment in the amount of $10,000 payable to Stradley. Although it bears a date of January 28, 1980, testimony of the Hales and Stradley indicate that it was not in fact signed until 1982 or 1983. According to Stradley, another document bearing the date of January 3, 1983, was signed by the Hales concurrently to secure the note. That document is entitled “assignment” and reads as follows:

“FOR VALUE RECEIVED, the undersigned do HEREBY ASSIGN, TRANSFER AND SET OVER TO WALTER E. STRADLEY the sum of $10,000.00 of the proceeds received pursuant to a judgment that may be entered in a certain action pending in the United States District Court of the Northern District of Illinois, Eastern Division, Chester O. Hale and Genevieve A. Hale, Plaintiffs, vs. Lula L. Ault and Russell F. Ault, et al Defendants, No. 81 C 3169, to secure a certain promissory note Dated January 28, 1980 payable to said Walter E. Stradley.
Dated at Rock Island, Illinois, this 3rd day of January, 1983.
Chester 0. Hale (signature)
Genevieve A. Hale (signature).”

Although the Hales expressed some reluctance to sign the note and assignment document, they did so on Stradley’s assurances that Alice Dinkle had died some time ago without acting on Stradley’s prior assignment of his fees to her.

On January 6, 1984, Stradley procured a document entitled “disclaimer” from Robert Ellison, an attorney with Klockau, McCarthy, Ellison, Rinder & Hartsock, the firm that had represented Mrs. Dinkle in her 1973 suit against Stradley. This document reads as follows:

“An Assignment of fees owed Walter E. Stradley by Chester 0. and Genevieve Hale was given to Alice Dinkle, which Assignment stated as follows:
‘Pursuant to prior order of the Circuit Court of the Fourteenth Judicial Circuit, Rock Island County, Illinois, entered on the 25th day of February, 1976, in Cause No. 73 LM 391, Walter E. Stradley does hereby transfer and assign to Alice Dinkle all right, title and interest in and to a certain statement or claim for legal services and costs previously rendered by Walter E. Stradley to Chester 0. and Genevieve Hale, R.R. #2, Taylor Ridge, Illinois, on account of Walter E. Stradley’s prior representation of Hales in the trial of a cause entitled Chester 0. Hale and Genevieve Hale vs. Russell Ault and Lula Ault, Warren County, Illinois, cause number 73 LM 26.
Walter E. Stradley’
Signature duly notarized.
The law firm of Klockau, McCarthy, Ellison, Rinden & Hart-sock disclaims any intention of pursuing the claim against Chester 0. and Genevieve Hale for fees owed to Walter E. Stradley concerning the law suit.
Dated this 6th day of January, 1984.
klockau, McCarthy, ellison,
RINDEN & HARTSOCK
By Robert L. Ellison (signed)
Robert L. Ellison.”

No date appears of record as to when Stradley endorsed the 1982 or 1983 judgment note to Hobart; however, the record indicates the endorsement may have taken place after the disclaimer document was signed by Ellison.

Finally, although no evidence was introduced, counsel for both parties suggested during the cross-examination of defendant Chester Hale that Dinkle had reassigned Stradley’s 1976 assignment of fees to the Klockau law firm to pay fees owed them by Dinkle. The record does not reveal the identity of the attorney or personal representative for Alice Dinkle’s estate.

Perhaps the dearth of evidence concerning Stradley’s 1976 assignment to Alice Dinkle and the aura of mystery created by the alleged misdating of documents most poignantly illustrates why the trial court erred in awarding judgment to plaintiff in this case. Neither plaintiff nor defendants had any incentive to join the estate of Alice Dinkle, since it is quite clear that the deceased Alice Dinkle was the only individual in the complex paper transactions who received a valid assignment of the fees owed Stradley by the Hales.

While it is true there was no proof of collusion adduced at trial, it is undeniable that fertile ground existed for charges of unfairness in the absence of any representation of the estate at the proceedings in this matter. Hobart herself typed up most, if not all, of the documents purporting to assign, confess judgment, reassign and disclaim the assignment of the fees owed by the Hales for Stradley’s legal services. Chester Hale admitted that he knew of the assignment to Dinkle when he and his wife signed the confession of judgment note dated January 28, 1980, and the assignment document dated January 3, 1983, in 1982 or 1983. The parties were painfully aware that the estate of Dinkle may have had a superior interest in the fund at the heart of this litigation. By proceeding to trial without joining the estate, Hobart could hope to realize the full face value of defendants’ judgment note. Had she joined the estate, she risked losing part or all of the $10,000, depending on the estate’s ability to establish its rights to the same fund.

Similarly, the Hales were able to assert defenses to resist Hobart’s claim and could hope to avoid paying the $10,000 to anyone in the absence of representation on behalf of Dinkle’s estate. On the other hand, had the Hales joined the estate of Alice Dinkle, their defenses against Hobart would merely have been assumed by the estate, and the only question would have been to whom or in what proportions the $10,000 would be paid, since the Hales never denied owing $10,000 for Stradley’s services.

As indicated above, the only nonparty witness to testify at the trial of this matter was Walter Stradley. Stradley, like the others, cannot be said to have represented interests friendly to those of Alice Dinkle’s estate. He could hope to pay off two debts from the same fund. By avoiding the estate’s rights to fees owed by the Hales, Stradley could discharge his obligations to Hobart for unpaid salary as well.

Although our research has revealed no cases involving a similar scenario, we find the primary legal concepts relevant to our resolution of the issue on appeal succinctly stated in Litwin v. Timbercrest Estates, Inc. (1976), 37 Ill. App. 3d 956, 958, 347 N.E.2d 378, 379-80:

“As a general rule, an assignment is a transfer of some identifiable property, claim or right from the assignor to the assignee. (Buck v. Illinois National Bank & Trust Co., 79 Ill. App. 2d 101, 223 N.E.2d 167.) The assignment operates to transfer to the assignee all the right, title or interest of the assignor in the thing assigned. (American Sand & Gravel Co. v. Chicago Gravel Co., 184 Ill. App. 509.) It is an elementary principle of law applicable to all assignments, that they are void unless the assignor has either actually or potentially the thing which he attempts to assign. (North Chicago Street R.R. v. Ackley, 171 Ill. 100, 111, 49 N.E. 222.) In any event, the assignee can obtain no greater right or interest than that possessed by the assignor, inasmuch as one cannot convey that which he does not have. North Chicago Street R.R.; Mid-City Trust & Savings Bank v. City of Chicago, 292 Ill. App. 471, 11 N.E.2d 617.”

Further guidance relevant to the facts before us is found in McHenry Hospital v. Metropolitan Life Insurance Co. (N.D. Ill., 1983), 578 F. Supp.122,125:

“The Hornbook rule is that the obligor, once on notice of the existence of an assignment, may not subsequently enter an accord and satisfaction to defeat the assigned rights. 4 A.L. Cor-bin, Corbin on Contracts §894 (1951).”

The issue in this case is really whether the 1976 assignment to Dinkle was still valid at the time the documents were executed assigning $10,000 of the proceeds of the Federal suit to Stradley and confessing judgment in the same amount. If it was, then according to the foregoing principles of law, the assigned note upon which this suit is based was at least voidable because of Dinkle’s prior and superior interest in the fund.

Plaintiff assumes three alternate positions to defeat any rights that the estate of Alice Dinkle might have: (1) that Robert Ellison’s disclaimer of January 6, 1984, waives the estate’s rights; (2) that the 1973 judgment against Stradley had become dormant since it was not satisfied within seven years; and (3) that the estate’s failure to include the assignment in its inventory effectively abandoned Dinkle’s claim. We reject these positions for reasons which follow.

Since Robert Ellison has not been shown in the record here to be a representative of either the estate of Alice Dinkle or its beneficiaries, he had no standing to waive the estate’s interest in the fees owed by Hale for Stradley’s services, and his “disclaimer” of January 6, 1984, cannot defeat the rights obtained by Mrs. Dinkle by the 1976 assignment. Attorney Ellison did not testify at the hearing. (No factual basis was presented to support counsel’s suggestion during Hale’s cross-examination that the Klockau law firm had obtained a reassignment of Stradley’s assignment from Mrs. Dinkle prior to her death.) If such were the case, certainly the estate had an interest in ascertaining its rights in the suit initiated by Hobart for the same fund.

Secondly, the trial court’s 1976 order resulting in Stradley’s assignment of fees owed by the Hales satisfied Mrs. Dinkle’s 1973 judgment to the extent that the fees Stradley had earned in the Ault case were adequate to do so. Since the 1973 judgment was satisfied within three years, the seven-year limitation period alluded to by plaintiff (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 108(a)) cannot debar the estate from claiming its rights based on the 1976 assignment. Although the record contains mention of a 1980 petition to revive judgment, which apparently was answered by Hobart’s attorney on behalf of Stradley and not thereafter acted upon by Dinkle, it is not at all clear that this action, or inaction as the case may be, was indicative of Mrs. Dinkle’s intent to abandon her interest in the 1976 assignment. Since the written instrument could be acted upon at any time within 10 years (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 206), it cannot be seriously argued that Dinkle’s failure to pursue the 1980 action debarred her estate from claiming an interest in the fund when this suit was brought in 1984.

We find no merit in plaintiff’s third contention that the estate’s failure to inventory the assignment among the estate’s assets constitutes an abandonment of its interest. No representative of the estate, so far as the record on appeal reveals, was even given notice that the sum of $10,000 had been determined as the amount of fees owing to Stradley from his services on the Ault case, or that a fund from which the fees could be paid had come into existence. Although the Hales’ confession of judgment note is dated January 28, 1980, over a year before Alice Dinkle died, all of the witnesses who testified at trial in this cause admitted that the date was false. In fact, the note was not signed until 1982 or 1983. Furthermore, it is abundantly clear that the fund from which the $10,000 was to be paid did not come into existence until 1982 or 1983, at the earliest. The lawsuit from which the fees were to be generated was still in the discovery stage when Stradley appeared for his deposition in 1982 or 1983 and secured the Hales’ assignment and note. The 1982 or 1983 assignment and note were void or at least voidable, since the Hales, as assignors, had knowledge of Stradley’s prior assignment of his fees to Alice Dinkle. The instruments furnish evidence of the amount of fees due for Stradley’s legal services on the Ault case, but could not confer a renewed interest in Stradley absent a cancellation, reassignment or other renunciation of interest in the fees by a representative of Alice Dinkle’s estate, which, as we have hereinabove indicated, was not done.

Although this case must be remanded, we choose to address a final matter which undoubtedly would otherwise inspire renewed dispute in the trial court.

The question of whether $10,000 represented only fees earned by Stradley in 1972 and 1973 while representing the Hales in their suit against the Aults or whether the amount included payment for some services thereafter was raised in the trial court. The court found that the entire sum was subject to the 1976 assignment executed as satisfaction of Alice Dinkle’s claim against Stradley. The testimony and evidence of record supports the conclusion that Stradley’s fees, as determined in 1982 or 1983, represented the amount due for legal services performed by him during the Ault litigation in Warren County in 1972 and 1973. Neither party in this appeal has embraced this factual finding in their arguments to this court; however, because their positions are not friendly to the interests of Alice Dinkle’s estate, we observe simply that the trial court’s conclusion on this issue is not contrary to the manifest weight of the evidence and need not be relitigated on remand.

Since none of the persons who testified in the instant suit represented the interests of the estate of Alice Dinkle, who, as we have indicated, held the sole legitimate interest to the fees via the 1976 assignment from Stradley, the trial court had a duty to direct that the estate be made a party pursuant to section 2 — 406(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 406(a)).

Accordingly, we reverse the judgment of the circuit court of Rock Island County and remand this cause with directions to join the estate of Alice Dinkle and to conduct a new trial pursuant to the views expressed herein.

Reversed and remanded with directions.

STOUDER and WOMBACHER, JJ., concur.


author: PRESIDING JUSTICE HEIPLE

text:
    BRENT DAVIS, Plaintiff-Appellee, v. THE BOARD OF REVIEW OF THE DEPARTMENT OF LABOR et al., Defendants-Appellants.
    Third District
    No. 3—84—0549
    Opinion filed May 2, 1985.

      Neil F. Hartigan, Attorney General, of Springfield (Vincenzo Chimera, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Stephen A. Yokich, of Cornfield & Feldman, of Chicago, for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff, Brent Davis, was employed as a schoolteacher in the Wilmington School District during the 1981-82 school year. When the school term ended, the plaintiff did not have a contract with the district to teach during the upcoming 1982-83 school year. Plaintiff applied for and received unemployment insurance benefits starting in June 1982.

On July 18, 1982, plaintiff signed a contract to teach during the 1982-83 school year in the Wilmington School District. Plaintiff continued to receive unemployment benefits until he started teaching on August 23, 1982.

On March 31, 1983, an Illinois Department of Labor claims adjudicator found that when the plaintiff had signed the teaching contract for the 1982-83 school year he became ineligible for unemployment benefits. The plaintiff was sent a notice of reconsidered determination and recoupment decision which stated that $930 must be repaid and that this amount was subject to recoupment within three years from March 31, 1983. A Department of Labor referee affirmed the adjudicator’s decision as did the Board of Review.

In an appeal under the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 101 et seq.), the circuit court of Will County reversed, finding that: (1) the plaintiff was entitled to continue receiving benefits after his contract was renewed; (2) the Department did not sustain its burden of proof so as to justify recovery and; (3) the Department waived its right to recover by waiting seven months before taking action against the plaintiff. We reverse.

Section 612 of the Illinois Unemployment Insurance Act (Ill. Rev. Stat. 1981, ch. 48, par. 442) governs the eligibility of academic personnel to receive unemployment benefits:

“Sec. 612 Academic Personnel — Ineligibility between academic years or terms.
* * *
1. An individual shall be ineligible for benefits, on the basis of wages for service in employment in an instructional, research, or principal administrative capacity performed for an educational institution, for any week which begins after December 31, 1977, during a period between two successive academic years, or during a similar period between two regular terms, whether or not successive, or during a period of paid sabbatical leave provided for in the individual’s contract, if the individual performed such service in the first of such academic years (or terms) and if there is a contract or a reasonable assurance that the individual will perform service in any such capacity for any educational institution in the second of such academic years (or terms).” (Emphasis added.)

This section is clear and unambiguous. A teacher’s eligibility is determined on a weekly basis. During any week in which a teacher has a contract or reasonable assurance of employment during the upcoming school year, the teacher is not eligible to receive unemployment compensation. Therefore, as soon as the plaintiff’s contract for the 1982-83 school year was approved, he was not entitled to unemployment compensation. The circuit court’s finding to the contrary is patently erroneous and runs counter to the plain language of section 612.

In finding that the Department had failed to meet its burden of proof so as to justify its claim, the circuit court held that the Department was required to prove that the plaintiff was at fault in obtaining benefits he was not eligible for and that recovery of the overpayment would not be against equity and good conscience. The Act places no such pleading burden on the Department.

Whenever an individual has received benefits for which he was ineligible, section 900 of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 490) permits the Department to recoup the overpayment from future unemployment benefits payable to the recipient. The recipient can request the Department to waive recoupment if the overpayment was made without fault on the part of the recipient and if such recoupment would be against equity and good conscience. (Ill. Rev. Stat. 1981, ch. 48, par. 490(2).) The Department is not required to make findings as to fault and equity. These factors are relevant only when the recipient seeks waiver of recoupment. It is then up to the recipient to show that he was without fault and that recoupment would be inequitable and unconscionable. Furthermore, the waiver provisions of section 490(2) presuppose that recoupment is taking place. Here, there is no action for recoupment, since the plaintiff is not currently receiving benefits. The decision of the claims adjudicator stated only that $930 was subject to recoupment in the event plaintiff receives unemployment benefits during a three-year period commencing March 31, 1983. The Department is not required to make specific findings in support of such recoupment decisions.

As a final ground for reversal, the circuit court held that the Department waived its rights in this matter by waiting seven months to attempt recovery. Under section 703 of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 453), a claims adjudicator has one year in which he may reconsider his decision to pay benefits. Here, the adjudicator’s finding of ineligibility was made seven months after the plaintiff started receiving benefits, well within the statutory period for reconsideration.

We also reject any argument that the Department is barred by laches. In fixing the period in which rights and claims will be barred by laches, equity follows the law. Generally, courts of equity will adopt the period of limitations fixed by statute. Thus, where a party’s rights are not barred by the statute of limitations, he is not barred by laches unless his conduct or special circumstances make it inequitable to grant him relief. (Wall v. Chicago Park District (1941), 378 Ill. 81, 96.) There are no special circumstances of record to justify equitable relief in the present case. Accordingly, the doctrine of laches is inapplicable.

The judgment of the circuit court of Will County is reversed.

Reversed.

SCOTT and WOMBACHER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE W. SMITH, Defendant-Appellant.
    Third District
    No. 3—84—0552
    Opinion filed April 25, 1985.
    Robert Agostinelli and Kenneth D. Brown, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Peter M. Tumminaro, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

On July 19, 1984, defendant, George Smith, was convicted of burglary and armed violence and sentenced to an extended term of 40 years on the armed violence count, with credit for 228 days served. Smith was not sentenced on the burglary conviction.

The burglary occurred on May 31, 1981, when Elizabeth Blatt, George Zdralevich’s mother-in-law and next-door neighbor, heard a loud thud in Zdralevich’s house and saw his back door standing open. Mrs. Blatt called the mayor, who arrived at Zdralevich’s house minutes later accompanied by the chief of police. The police entered Zdralevich’s house and found Smith in the basement, where he surrendered and was taken into custody. Another suspect was found in the attic. When Zdralevich arrived on the scene, a search of the house was conducted, and police found two guns which Zdralevich testified did not belong to him. Zdralevich, a registered firearm dealer, testified that he kept 12 guns in his home and that one gun which he kept under a pillow on a footstool in the living room had been moved. Following a jury trial in the circuit court of Will County, the defendant was found guilty of both offenses charged. Smith appeals.

The defendant raises five issues on appeal. First, he argues that a bill of sale found at the address defendant gave police at the time of his arrest which contained a description and the serial number of one of the two guns found in Zdralevich’s house was hearsay and, therefore, improperly admitted. Second, defendant contends that he did not receive adequate representation and that the trial court erroneously allowed the public defender to argue his ineffective-assistance-of-counsel claim. Third, defendant argues that the trial court improperly considered the threat of serious harm as an aggravating factor. Fourth, the trial court erred by refusing to give defendant credit for time spent in custody in another State. And last, the defendant’s burglary conviction is based upon the same physical act as the armed violence conviction and must be set aside.

As to the defendant’s first contention that the trial court erroneously admitted a bill of sale from defendant’s brother to him which reads as follows:

“3-3-81
One Huger RDA 34-357 Cal. D.A.R.
S. No. 156-45972
Sold to George W. Smith, Jr.
F.O.I. # 2167807 for the sum of $200.00
by David Smith F.O.I. -1709231,”

the defendant objected on the grounds that the document was hearsay, and the trial court overruled the objection on general grounds. The defendant contends that this document was clearly hearsay, because it was offered to prove the truth of the matter asserted. We disagree and find that this document was offered to establish a link between the defendant and the gun found in the burglarized house. It is immaterial that David Smith, the alleged brother of the defendant, sold defendant the gun for $200.

Recently the Illinois Supreme Court decided a similar case. In People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840, the supreme court found that a laundry receipt found at the motel room recently occupied by the defendant was properly admitted. The court reasoned that the receipt was not offered to prove that Stewart had his clothes cleaned at the particular laundry. Instead, the receipt linked Stewart to the motel room, which in turn linked him with the automobile involved in the murders at Fredd’s grocery store. (105 Ill. 2d 22, 57-58.) Like the laundry receipt in Stewart, the bill of sale in this case linked the gun found in Zdralevich’s house to the defendant. Therefore, because the bill of sale was not offered to prove the truth of its contents, we find that it is not hearsay.

The defendant goes on to argue that if the bill of sale was not offered for the truth of the matter asserted, then it was irrelevant. The defendant cites People v. Coleman (1983), 116 Ill. App. 3d 28, 451 N.E.2d 973, for the proposition that if the probative value of evidence depends completely upon its truth it is not admissible. The probative value of this document extends far beyond its truth. The document would have probative value so long as it was found in a place known to be occupied by defendant and having the same serial number as the weapon found in the burglarized home. The probative value of the bill of sale cannot be limited to the transaction between the brothers. Furthermore, in Coleman this court found a note naming the defendant, the victim of the murder, and a person known to have dated the victim (although the note was so cryptic as to be meaningless) to be admissible because “defendant’s possession of the note shows knowledge of a possible romantic triangle and, hence, jealousy as a possible motive for the murder.” (116 Ill. App. 3d 28, 35, 451 N.E.2d 973, 977.) We, therefore, find that the bill of sale was not hearsay and was properly admitted.

The second allegation of error concerns various aspects of the defendant’s contention that the representation he received from the public defender’s office was ineffective and denied him his constitutional rights. Defendant complained about his representation at various stages of the proceedings and at one point made a pro se motion to dismiss on the grounds that the public defender was not prepared for trial. Defendant’s argument is based in large part upon a recent Illinois Supreme Court case, People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045. In Krankel, the supreme court found that failure to appoint counsel other than originally appointed counsel to argue defendant’s pro se motion for new trial based upon ineffective assistance of counsel was error and remanded the cause for a new hearing on the ineffective-assistance-of-counsel issue. In Krankel, the original appointed counsel had apparently failed to raise and investigate an alibi defense which defendant Krankel had informed the public defender of and had provided names of witnesses. No witnesses were interviewed. The supreme court remanded with instruction to the trial court to conduct a post-trial hearing on the ineffective-counsel issue with newly appointed counsel. However, shortly after Krankel was decided, the United States Supreme Court decided Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. Most recently, in People v. Albanese (1984), 104 Ill. 2d 504, the Illinois Supreme Court has interpreted Strickland to combine the standards of People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203, and United States ex rel. Williams v. Twomey (7th Cir. 1975), 510 E2d 634. The standard enunciated by the Illinois Supreme Court in Greer is that a defendant is entitled to a new trial if the incompetence created such substantial prejudice that the result of the trial would probably have been different. The Twomey standard entitles a defendant to the minimum standards of professional representation.

In Albanese, the Illinois Supreme Court stated the standard in Strickland v. Washington as follows:

“[T]he constitutionally guaranteed assistance of counsel has not been provided if the defendant can prove that counsel’s representation fell below an objective standard of reasonableness and that counsel’s shortcomings were so serious as to ‘deprive the defendant of a fair trial, a trial whose result is reliable.’ [Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.]” (104 Ill. 2d 504, 525.)

Furthermore, the United States Supreme Court offered the following guidelines in applying the newly enunciated standard:

“[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. *** If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (Strickland v. Washington (1984), 466 U.S. 668, 697, 80 L. Ed. 2d 674, 699, 104 S. Ct. 2052, 2069-70.)

Applying Strickland, the Supreme Court in Albanese assumed that all ineffective-assistance-of-counsel allegations constituted substandard representation and then determined if, as such, they would have changed the result of the trial.

Using the analysis of our supreme court in Altánese, we do not find that the error claimed by defendant would have changed the result in this case. The gist of defendant’s claim is that his meeting with defense counsel lasted only 10 to 12 minutes and used faulty strategy in trying this case. Unlike Krankel and People v. Simpson (1984), 129 Ill. App. 3d 822, 473 N.E.2d 350, where defendants claimed counsel had failed to raise alibi defenses in their respective lawsuits which, if proved, would have resulted in their acquittal, in this case, where defendant was caught burglarizing Zdralevich’s house, it is unlikely that a longer conference between client and counsel would have changed the result. In fact, defendant points to nothing concrete which counsel neglected to do which would have had any bearing on the result of this proceeding. This the defendant must do in order to meet the test recently enunciated in Strickland and adopted by the Illinois Supreme Court in People v. Altánese.

Third, defendant contends that the trial court improperly considered the threat of serious harm as an aggravating factor when the threat of serious harm is inherent in the offense of armed violence. As the State points out, the threat of harm is greater in this case because it involved the entry into a residence. As we held in People v. Gomez (1983), 120 Ill. App. 3d 545, 458 N.E.2d 565, there was a rational basis for a distinction between residential and nonresidential burglary, because in a residential burglary “there is a considerably greater chance of injury and danger to persons in the home context than in the burglary of a place of business.” (120 Ill. App. 3d 545, 549, 458 N.E.2d 565, 568.) Therefore, we find that the trial court could consider the threat of serious harm as an aggravating factor even though it is arguably implicitly included in the offense of armed violence.

The fourth and fifth allegations of error, that defendant was not given credit for time spent incarcerated in another State and that his burglary conviction must be vacated because it was based upon the same physical act as the armed violence conviction, are conceded by the State. Because we find no other error here, we remand with instructions to vacate the burglary conviction and credit the defendant for 75 days spent in custody in Michigan and that the mittimus be amended accordingly.

Affirmed in part, reversed in part and remanded with instructions.

BARRY and WOMBACHER, JJ., concur.


author: JUSTICE SCOTT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID R. WILSON, Defendant-Appellant.
    Third District
    No. 3-84-0403
    Opinion filed May 3, 1985.

      Robert Agostinelli and Thomas A. Lilien, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE SCOTT

delivered the opinion of the court:

The defendant, David R. Wilson, appeals following a jury trial in Peoria County which found the defendant and his brother, William L. Wilson, guilty of murder, felony murder and armed robbery. The jury further determined that the death penalty should not be imposed on either defendant. The trial court sentenced the defendant to natural life imprisonment for the felony murder conviction and a consecutive sentence of 60 years’ imprisonment for armed robbery. The State has since conceded that the defendant’s conviction and sentence for armed robbery must be vacated as being a lesser included offense of felony murder. People v. Abrams (1982), 109 Ill. App. 3d 901, 441 N.E.2d 352; People v. Devine (1981), 98 Ill. App. 3d 914, 424 N.E.2d 823.

The defendant presents the following issues for review: (1) whether the trial court properly denied the defendant’s motion to suppress statements made and evidence seized following his arrest without a warrant which allegedly lacked probable cause; (2) whether the trial court abused its discretion in sentencing the defendant to natural life imprisonment.

At the hearing on defendant’s motion to suppress, the evidence indicated that during the late afternoon of October 31, 1983, Marion Wood was found dead of multiple stab wounds at the Bi-Sel Novelty Store in Peoria. There were footprints from a tennis shoe in the blood. A man who lived in the building in which the shop was located found the victim’s body about 4 p.m. The police arrived at the scene around 4:30 and found that the body was still warm.

One of the investigating officers, Detective Dale Whitledge, testified that he talked with Herman Capshaw, a private citizen, at the police station on November 1, 1983. Capshaw indicated that he had arrived at the novelty store between 2:30 and 3 p.m. on October 31 and left about 3:30 or 4 p.m. At one point while Capshaw was in the store, Wood waited on two men who were looking at television sets. The men described by Capshaw matched the physical characteristics of the defendant and his brother. The two men bargained with Wood over a television set but left the store without making a purchase, but they told Wood that they would return before closing time, which Wood told them was 4:30 p.m. After the two men left, Wood told Capshaw that it was a shame someone so young, referring to one of the men, had been in prison.

The police learned from a Mr. Burns that Wood was alive and behind the counter in the store just before 4 p.m. on the afternoon he was murdered.

Additional investigation led Whitledge to talk with Evelyn Wood, the mother of the defendants, at the Pour House Tavern, which was approximately 50 feet from the novelty store. Mrs. Wood told the police on November 1 that she had just spoken with Cheryl Wilson, William’s wife, that morning and that apparently William had come home the night before with blood all over his clothes and a severe cut on his index finger. According to Evelyn, William told his wife that he was injured fighting some black men who had raped a white girl on Main Street in Peoria. There was no record that either the defendant or his brother had reported the incident to the police, nor did the rape complaint mention the intercession of the defendant or his brother. The police had no suspect in the rape at the time. Mrs. Wood told the police that her sons had been in trouble before. Mrs. Wood further indicated that at one time she had been married to the decedent’s nephew and that the defendants knew the decedent.

The bartender at the tavern told Whitledge that the defendant and his brother had been in the bar on the day of the murder from approximately 11 a.m. to 3 p.m. and that they had been drinking beer.

When Whitledge left the tavern on November 1, he was approached by Richard Curtis, an employee of a Firestone store in the area, and was told that Curtis had seen two men matching the defendants’ descriptions walking side-by-side down an alley on the afternoon of the murder between 3 and 3:30 p.m. One of the men had a wallet with a chain and a knife in a sheath. Mrs. Wood had just told Whitledge that the older brother, the defendant, carried a chain-type wallet with a knife in a sheath.

When Whitledge returned to the police station, he reported the results of his investigation to his supervisor, who told him that the defendant’s fingerprints had been matched with a fingerprint found at the scene of the murder. In addition, the owner of the shop later told the police that a knife was missing from the glass display case which the police found to have been left open 3 to 4 inches on the afternoon of the murder.

The officers believed that more than one assailant was involved in the murder, since not only had several people seen the victim and the men in the shop and the immediate area on the afternoon of the murder, but the victim had a large number of wounds both to the front and back of his body.

Before arresting the defendant and his brother, the police secured their mug shots from prior arrests which matched the descriptions given them by their mother and various witnesses at or near the scene of the crime.

In addition to the foregoing prearrest information obtained by the police in their investigation, it was apparent that exigent circumstances required that the police act quickly to apprehend the persons who had murdered the decedent. The evidence obtained at the scene of the crime indicated that the attack had been a vicious assault, with multiple stab and slash wounds on the victim’s body, face and head. The victim’s throat had been slashed and he had been stabbed in the eyes. Certainly the police could reasonably have concluded that the assailants were armed and dangerous. While it may have been preferable, in hindsight, once they discovered that the defendant’s fingerprint had been found on the glass display case at the scene of the crime, to pause and conduct a photographic lineup "with Mr. Capshaw and the other witnesses in the area before arresting the defendant and his brother, it is no less clear that the trial court properly determined that at least probable cause existed for the defendant and his brother’s arrest.

It must be remembered that it is not necessary that the information available to the police prove a defendant’s guilt beyond a reasonable doubt in order to justify an arrest. (People v. Coleman (1977), 50 Ill. App. 3d 1053, 364 N.E.2d 742.) Practically speaking, both the trial court and this court are reviewing the officer’s conduct after the fact, and a determination of whether probable cause existed must likewise be based upon the factual and practical considerations of everyday life on which reasonable men, not legal technicians, act. People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861; People v. Gray (1981), 95 Ill. App. 3d 879, 420 N.E.2d 856.

Probable cause exists when the facts and circumstances within an arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested committed the offense. People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861.

In judging whether probable cause existed it must be recognized that police officers must act upon a quick appraisal of the data before them and that the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and to catch criminals. People v. Walls (1980), 87 Ill. App. 3d 256, 408 N.E.2d 1056; People v. Robinson (1976), 62 Ill. 2d 273, 342 N.E.2d 356.

In addition to the foregoing, it appears that when the defendant and his brother were initially stopped outside their homes on the day after the murder, the defendant was wearing tennis shoes whose tracks appeared to match those found in the victim’s blood at the scene of the crime. Also, the defendant’s brother was wearing brown suede-type shoes which had blood on them. One of his fingers had been bandaged.

Each defendant signed a consent-to-search form for his residence, and the police found clothing with dried blood on it in the defendant’s brother’s house. They also found a paper bag containing pairs of socks, toys and cigarette lighters like those on display in the novelty store, plus a lock-blade knife with blood on it in the blower unit of the furnace in the same residence. In a dumpster in the alley behind the defendant’s residence the police found a knife, a torn-up customer copy of a receipt for a lock-blade knife from the novelty store, and toy wrappers of the same type as those from the store with the defendant’s brother’s fingerprints. The police also seized the defendant’s belt, which was later found to have blood on it which matched the same blood type as the decedent’s.

When the defendant was initially questioned by the police, after being read his Miranda rights, he denied any knowledge of the events which had occurred at the novelty store. However, when the defendant was confronted with the fingerprint evidence, he confessed to the murder and robbery of the decedent. He further implicated his brother in the commission of the crime.

When the defendant’s brother was told that the defendant had confessed to the killing and implicated him, he acknowledged his guilt and corroborated the defendant’s version of the murder and robbery.

Finally, Mr. Capshaw identified the defendant in a lineup as being in the novelty store with the decedent just before the murder.

Based upon the foregoing, we cannot say that the trial court’s decision to deny the defendant’s motion to suppress statements made and evidence seized was against the manifest weight of the evidence. (People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861.) Considering the knowledge and information possessed by the police at the time the defendant and his brother were arrested, it is clear that the trial court properly determined that probable cause existed for their arrest.

Finally, the defendant contends the trial court abused its discretion by sentencing him to a term of natural life imprisonment instead of a definite term of years which would allow his eventual release.

The defendant admits that the murder was brutal, but claims it was not premeditated. The defendant further claims that the trial court ignored his evidence in mitigation, specifically that he had a history of substance abuse, particularly alcohol and drugs.

The defendant claims he has rehabilitation potential despite prior convictions for possession of stolen property, armed robbery and aggravated assault (with a knife). It is apparent from our review of the record that the defendant’s prior periods of parole and probation failed to deter his criminal conduct.

Following the brutal murder, the defendant showed no remorse whatsoever, and wanted “to party” with the proceeds of the crime. The defendant admitted joking about writing a book concerning the murder which he would call “The Halloween Massacre.”

While the defendant acknowledges that a sentence should not be overturned unless there has been a clear abuse of discretion (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541), he argues that in this case, the sentence of natural life imprisonment was excessive, especially in view of the fact that he is only 27 years old.

Although the defendant may be of relatively few years, his prior criminal record sufficiently demonstrates that he is also a recidivist.

“The day is long past when this court, or any court, should quiver like a pole-axed blancmange at the mention of youth and rehabilitation. These are proper considerations in the fixing of sentences, but they are not the sole elements. The nature of the crime, the protection of the public, deterrence and punishment have equal status in the consideration.” People v. West (1977), 54 Ill. App. 3d 903, 909, 370 N.E.2d 265, 270.

The defendant and his brother perpetrated the murder of the victim in an extremely brutal manner. The pathologist testified that the decedent suffered 50 to 60 stabbing and slicing wounds. Section 5 — 8—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005— 8 — 1) permits the imposition of a natural life sentence when the trial court finds that the murder was “accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” The record indicates that the trial court relied upon this section in imposing the sentence, and in our opinion the trial court was clearly justified in doing so. Furthermore, it is not within our province to reduce the defendant’s sentence merely as an act of judicial clemency. People v. Barber (1983), 116 Ill. App. 3d 767, 452 N.E.2d 725.

For the foregoing reasons, the judgment and sentence of the circuit court of Peoria County are affirmed with respect to the defendant’s conviction for felony murder and reversed with respect to the defendant’s conviction and sentence for armed robbery.

Affirmed in part, reversed in part.

STOUDER and WOMBACHER, JJ., concur.


text:
    BITUMINOUS CASUALTY CORPORATION, Plaintiff-Appellant and Cross-Appellee v. IOWA NATIONAL MUTUAL INSURANCE COMPANY et al., Defendants-Appellees and Cross-Appellants.
    Third District
    No. 3—84—0431
    Opinion filed March 19, 1985.
    Rehearing denied June 4,1985.

      Murvel Pretorius, Jr., and Paul P. Gilfillan, both of McConnell, Kennedy, Quinn & Johnston, of Peoria, for appellant.
    Jordan A. Fifield and Kenneth M. Snodgrass, Jr., both of Goldsworthy & Fifield, of Peoria, for appellees.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

Bituminous Casualty Corporation (Bituminous) brought the instant complaint for declaratory judgment against Iowa National Mutual Insurance Company (Iowa National). The circuit court dismissed the complaint with prejudice. Iowa National counterclaimed against Bituminous for fees and costs under an assignment of rights from the parties’ mutual insured, Peleo Structures, Inc. (Peleo). The counterclaim was also dismissed. We affirm on both counts.

Peleo is a third-party defendant in a personal injury suit brought in Cook County. Bituminous is Pelco’s primary insurer for occurrences of the type at issue in that suit. The applicable policy has a $100,000 coverage limit. Iowa National issued an umbrella excess liability policy to Peleo with a $300,000 coverage limit. The duty to defend contained in the Bituminous policy reads as follows:

“II. Defense, Settlement, Supplementary Payments: As respects the insurance afforded by the other terms of this policy the company shall:
(a) defend any proceeding against the insured seeking such benefits and any suit against the insured alleging such injury and seeking damages on account thereof, even if such proceeding or suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient; ***
(c) pay all expenses incurred by the company, all costs taxed against the insured in any such proceeding or suit and interest accruing after entry of judgment until the company has paid or tendered or deposited in court such part of such judgment as does not exceed the limit of the company’s liability thereon;
(d) reimburse the insured for all reasonable expenses, other than loss of earnings; incurred at the company’s request.”

Iowa National’s policy also contains a duty to defend clause. The underlying insurance referred to therein is the Bituminous policy.

“When underlying insurance does apply to an occurrence:
This policy does not apply to defense, investigation, settlement or legal expenses covered by underlying insurance, but the company shall have the right and opportunity to associate with the insured in the defense and control of any claim or proceeding reasonably likely to involve the company. In such event the insured and the company shall cooperate fully.
In the event that the limits of liability of the underlying insurance listed in the schedule of underlying insurance are exhausted by occurrence, the company shall be obligated to assume charge of the settlement or defense of any claim or proceeding against the insured resulting from the same occurrence, but only where this policy applies and is immediately in excess of such listed underlying insurance without intervening excess insurance with another insurer.”

Bituminous undertook the defense of Peleo upon the filing of the action against it. As the potential exposure of the two insurers became apparent, Iowa National took charge of directing the course of Peleo’s defense. Bituminous continued to assume all costs of defending.

Realizing that its policy limits would probably be exhausted by the suit, Bituminous tendered the defense of the suit to Iowa National. The policy limit of $100,000 was tendered toward the settlement of the claim. Iowa National refused. Its position was and continues to be that as primary insurer, Bituminous has a nondelegable duty to defend Peleo against all claims until its policy limits have been exhausted. Consequently, Bituminous would have no standing to call on Iowa National to defend under the terms of the latter’s policy.

Bituminous’ brief is premised on a theory of equitable subrogation (also known as equitable apportionment). The gist of this theory is that both insurers have obligated themselves to defend their mutual insured. In a situation where the unliquidated claim clearly exceeds the primary insurer’s policy limits, the vigorous defense of the action inures to the principal benefit of the excess insurer. Since the primary insurer is solely responsible for underwriting the costs of defense, the excess insurer derives the benefit of protection of its policy limits without assuming any of the costs. Thus, it would be inequitable to prevent the primary insurer from shifting some portion of this cost to the excess insurer. While Illinois has not faced this doctrine head-on, a few jurisdictions have accepted it. See, e.g., Celina Mutual Insurance Co. v. Citizens Insurance Co. of America (1984), 133 Mich. App. 655, 349 N.W.2d 547; Aetna Casualty & Surety Co. v. Certain Underwriters at Lloyds (1976), 56 Cal. App. 3d 791,129 Cal. Rptr. 47.

We are unable, however, to review this contention on its merits. Bituminous’ complaint does not request that the court apportion the costs of defense between the insurers. Rather, the prayer for relief requests that the court enter an order declaring that Iowa National “is obligated to assume responsibility for the settlement and defense of any *** claims against Peleo arising out of [the Cook County suit].” Bituminous’ memorandum in opposition to defendant’s motion to dismiss framed the issue as follows:

“Thus, the issue to be presented by this complaint *** is when a primary insurer's duty to defend terminates, and/or when an excess insurer’s duty to defend begins.”

While the equitable subrogation theory appears in passing in Bituminous’ memorandum, it is evident that the only theory raised by the pleadings is that of shifting the costs of defense to Iowa National. Accordingly, we decline to entertain a new claim or theory which was not properly raised before the trial court. Baker v. Collins (1963), 29 Ill. 2d 410,194 N.E.2d 353.

We are thus faced with the propriety of the dismissal with prejudice of the complaint under the theory originally proposed by Bituminous. Initially, we reject the suggestion of the trial court and Iowa National that this case is controlled by Conway v. Country Casualty Insurance Co. (1982), 92 Ill. 2d 388, 442 N.E.2d 245. There, the sole insurer tendered the policy limits to its insured and purported to withdraw from its defense of a claim. The supreme court, in construing the relative breadth of the duties to indemnify and defend, concluded that the latter extended beyond the former. The insurer’s duty to defend was held to continue in spite of the exhaustion of policy limits. Here, there is no question of the insured being denied a defense. Instead, we are concerned only with the question of which of two insurer’s duties to defend applies under the relevant policies.

As in any insurance case, the principal source of the rights and duties of the parties is the policy language. Here, the clauses quoted above define the duties of Bituminous and Iowa National to defend the action against Peleo.

The duty undertaken by Bituminous is simple and straightforward. The obligations to “defend any proceedings *** pay all expenses incurred by the company” and “reimburse the insured for all reasonable expenses” are in no way made less absolute by the existence of other insurance. The attempt to call on Iowa National to defend under the terms of its policy is ineffective, even assuming the benefits of the Bituminous to be “exhausted” by the tender of policy limits to Iowa National. Iowa National’s duty to defend runs only to Peleo. As far as Bituminous is concerned, its duty to defend is no different than if there were no excess insurance policy at all.

A reading of 7C J. Appleman, Insurance Law & Practice sec. 4682, at 30 (Berdal ed. 1979), clarifies this issue:

“Nevertheless, some courts appear to have difficulty in recognizing the distinction between the fact that a duty exists upon the part of the excess insurer to provide a defense to the insured and the fact that only the insured, or its representative, can call upon the excess insurer for the performance of this duty. And the insured can do so only when the applicable limits of the primary insurer are exhausted, in accordance with the terms of the policy, or possibly under certain circumstances, threatened to be exhausted. It should be clear that third parties to the contract have no standing to make such a demand.”

Without expressing any opinion on the subject of equitable subrogation, we find that Bituminous has no right to deny the clear terms of its own policy based on language from a policy to which it is not a party.

As to Iowa National’s counterclaim, we agree with the trial court that no relief should be granted. The decision below was premised on a lack of bad faith on Bituminous’ part in bringing the instant action.

This position is essentially correct. Had Bituminous chosen not to defend at all, thus forcing Peleo or Iowa National to sue, we might view the case differently. However, the record shows that Bituminous has continued to provide a defense in the underlying action. The instant action is not a bad faith or vexatious attempt to avoid contractual obligations. Rather, Bituminous simply requests a declaration of the duties of multiple parties within the proper scope of section 2 — 701 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 701). Accordingly, we affirm the judgment of the circuit court of Peoria County.

Affirmed.

BARRY and SCOTT, JJ., concur.


author: JUSTICE STOUDER SCOTT, J., JUSTICE BARRY,

text:
    JACK CRANWILL, Plaintiff-Appellant, v. JAMES R. DONAHUE et al., Defendants-Appellees.
    Third District
    No. 3—83—0796
    Opinion filed April 10, 1985.
    Rehearing denied June 4, 1985.
    BARRY, J., dissenting.
    James P. Kellstedt, of Peoria Heights, for appellant.
    John E. Cassidy, Jr., of Cassidy & Mueller, of Peoria, for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff, Jack Cranwill, filed a complaint for damages for false arrest and false imprisonment, invasion of privacy, malicious prosecution and abuse of process against defendants, James Donahue, sheriff of Tazewell County, and Patrick Landrith, his deputy. After trial in the circuit court of Tazewell County a jury verdict was returned in favor of defendants.

This well-traveled cause of action began in 1975 when plaintiff was arrested by Landrith and his now-deceased partner and charged with driving under the influence of alcohol. Plaintiff was taken to the sheriff’s office and given two breathalyzer tests, which he passed. Even so, the sheriff’s department issued an arrest citation, and plaintiff had to post bond. This action began in Federal court, worked its way into State court and, following our holding in Cranwill v. Donahue (1981), 99 Ill. App. 3d 968, 426 N.E.2d 337, that the Federal decision was not a bar to the present action nor was the present action time-barred, the instant case finally went to trial.

On appeal, plaintiff contends the defendants’ continued reference, over objection, to an arrest report prepared by Landrith; the acceptance and subsequent denial of the report in evidence; and the occurrence of the report’s finding its way into the jury room were prejudicial. Defendants assert that even if the circumstances surrounding the police report constitute error, it is not prejudicial and further, it would not have been error to admit the police report into evidence.

The principal issue on appeal is whether the circumstances surrounding the use of the police report during the trial were prejudicial to the plaintiff’s case in chief.

Elinois courts have generally held that a police report is not admissible in corroboration of a witness’ testimony, and that the mere attempt to introduce such an exhibit may be considered reversible error. (Johnson v. Plodzien (1961), 31 Ill. App. 2d 222, 175 N.E.2d 560; Dembinski v. F. & T. Corp. (1970), 124 Ill. App. 2d 112, 260 N.E.2d 359; Jacobs v. Holley (1972), 3 Ill. App. 3d 762, 279 N.E.2d 186.) The theory behind this line of cases is that police reports are in the nature of hearsay or state conclusions. (Walls v. Jul (1969), 118 Ill. App. 2d 242, 254 N.E.2d 173.) Furthermore, where exhibits are not admitted in evidence, it is error to permit the jury to take them to the jury room. (People v. Holcomb (1938), 370 Ill. 299, 18 N.E.2d 878.) Not all errors committed at trial, however, constitute grounds for reversal. Only those errors which are prejudicial to the rights of the complaining party are reversible. Gertz v. Bass (1965), 59 Ill. App. 2d 180, 208 N.E.2d 113.

In the present case, defendants first brought up the existence of the arrest report in their opening statement. They next brought the police report to light during the examination of Landrith, whom plaintiff had called as an adverse witness. Subsequently, during their case in chief defendants were successful in placing the police report in evidence as a business record; however, the trial court reversed itself and disallowed admittance of the report. Plaintiff raised objections throughout the trial concerning defendants’ use of the report, and many of the arguments made by the adverse parties concerning the report were made in the presence of the jury. These circumstances, coupled with the undisputed fact that the police report found its way into the jury room, are enough to show prejudice to plaintiff’s case in chief. The aura of mystery surrounding the subject of such heated debate was great enough for the jury to believe its mere existence proved plaintiff’s arrest was proper and justified. The culmination of the report’s finding its way into the jury room is too great to be allowed as harmless error.

For the foregoing reasons, the judgment of the circuit court of Tazewell County is reversed, and this cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

SCOTT, J.,

concurs.

JUSTICE BARRY,

dissenting:

I dissent. In my opinion, the circumstances surrounding defendants’ use of the arrest report did not constitute prejudicial error in this case. The cases cited by the majority for the general proscription against admitting police accident reports (Johnson v. Plodzien (1961), 31 Ill. App. 2d 222, 175 N.E.2d 560; Dembinski v. F. & T. Corp. (1970), 124 Ill. App. 2d 112, 260 N.E.2d 359) are inapposite to the situation presented here.

Police accident reports are specifically excluded from the business record exception to the hearsay rule in Illinois (94 Ill. 2d R. 236(b)). In the case of an accident lawsuit, the fact that a police investigation report is made is rarely of any relevance to the issues to be decided by the jury. The introduction of a report signed by an officer merely reciting whatever witnesses have to say about the incident is generally hearsay within hearsay and properly rejected when offered to bolster the credibility of the party advocating admission of the report at trial.

The judge-made extension of the rule is that the mere attempt to introduce a police accident report may be reversible error. This seemingly harsh derivative of the supreme court rule recognizes a greater danger posed by this particular form of hearsay evidence than wou'd be the case with other hearsay documents. The obvious reason for the unique rules pertaining to police accident reports is not merely t\..t they are hearsay and state conclusions, but that by their very nature they are clothed with an aura of authority and tend to overpersuade the jurors that the hearsay facts taken down by the officer investigating an accident are more credible than the version testified to at trial by the party opposing the admission of the report.

Nonetheless, exceptions to the rules of exclusion may be found where an officer’s first-hand observations are recorded and the officer’s report is offered at trial to clarify his testimony. (Walls v. Jul (1969), 118 Ill. App. 2d 242, 254 N.E.2d 173.) A police report may be used to refresh the officer’s recollection at trial (City of Crystal Lake v. Nelson (1972), 5 Ill. App. 3d 358, 283 N.E.2d 239) and may be received into evidence under the “past recollection record” exception to hearsay, if a proper foundation is laid (of Noumoff v. Rotkvich (1967), 88 Ill. App. 2d 116, 232 N.E.2d 107).

As I see it, of particular significance is the fact that the report in this case was of an arrest, as opposed to an accident. Fair analysis of the rationale underlying the foregoing evidentiary rules and exceptions illustrate why the introduction of the arrest report in this case may not be characterized mechanically as prejudicial. In particular, the rule finding reversible error in the mere attempt to introduce a police accident report finds no justifiable application to the arrest report proffered here. This case did not arise out of an accident. It arose out of the plaintiff’s arrest by defendant Landrith. At issue was whether the arrest itself and the subsequent events directly related to that arrest were wrongfully initiated by the defendant officers.

The arrest report was prepared by Landrith and contained a narrative description of the direct observations of officers Landrith and Righi at the time of plaintiff’s arrest. Landrith’s in-court testimony substantially recited the same matters contained in the report. The fact that a report of the arrest was in existence and had been made promptly and in the usual course of business was relevant to the factual issues presented for the jury’s determination — i.e., whether the defendant officers proceeded against the plaintiff without reason to believe that he had committed an offense.

Under these circumstances, I believe that the decision to admit or refuse the report was within the discretion of the trial judge. Even if the arrest report was properly excluded upon defendants’ attempt to place it before the jury as a business record, the fact of its existence was admissible in this case. I find no abuse of the trial judge’s discretion in refusing admission of the exhibit. By my view the manner in which the report was handled by defense counsel at trial was not per se prejudicial, and plaintiff has made no clear showing of prejudice.

Next, I do not dispute that error is committed when an exhibit properly refused admission finds its way to the jury room. However, the circumstances surrounding the incident in this case convince me there was a mistake, that the mistake was inadvertent and that it was resolved appropriately without prejudice to the plaintiff. Very soon after the jury retired to deliberate, a note was sent to Judge Yontz reporting that the arrest report had been sent into the jury room despite the court’s ruling. Judge Yontz promptly directed the bailiff to remove the exhibit from the room, and this was done. After the verdict was returned, Judge Yontz interviewed the jury foreman, Louis Lowery, to determine whether any of the jurors had, in fact, read the arrest report. Lowery said that none had. On this basis, the trial court found that the mishandling of the exhibit was harmless. In my opinion, the situation was adequately remedied by the trial court.

While the plaintiff’s trial was not error-free, it was fair. Thus, the constitutional mandate is satisfied. In my opinion, the trial court properly denied plaintiff’s motion for a new trial, and the case should be put to rest. I would affirm the judgment of the circuit court of Tazewell County.