text:
    Apollo Metals, Inc., an Illinois Corporation, Plaintiff-Appellant, v. Standard Mirror Company, Incorporated, a Corporation, Defendant-Appellee, v. Ford Motor Co., a Corporation, Garnishee-Appellee.
    Gen. No. 51,718.
    First District, First Division.
    October 30, 1967.
    Rehearing denied November 22, 1967.

      Petit, Olin, Fazio & Safeblade, of Chicago (David C. Falls, of counsel), for appellant.
    William T. Kirby and Alan O. Amos, of Chicago, for appellee Standard Mirror Company.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal by plaintiff, Apollo Metals, Inc., from an order which quashed a writ of attachment that had been served upon the Ford Motor Company. Plaintiff, Apollo Metals, Inc., instituted attachment proceedings naming Ford Motor Company, a foreign corporation, as garnishee defendant. A writ of attachment was issued against the property of defendant, Standard Mirror Company, also a foreign corporation and served upon Ford’s registered agent at its registered office in Chicago, Illinois. Ford Motor appeared and in its answer stated it was indebted to Standard Mirror. Standard Mirror filed a special appearance for the sole purpose of seeking a dismissal of the suit for want of jurisdiction of the subject matter, and of Ford and themselves. Upon its motion, supported by an affidavit, an order was entered quashing the writ of attachment, discharging the garnishee, and dismissing the cause. Plaintiff appeals from this order.

The record reveals that plaintiff originally brought proceedings to recover the purchase price of certain specially fabricated steel in the amount of $5,687.70, which was allegedly sold and delivered by plaintiff, an Illinois corporation, to defendant, a New York corporation. Defendant filed its special appearance pursuant to Ill Rev Stats c 110, § 20(1) and moved to quash the return of service of summons, contending that it had not transacted any business in Illinois within the meaning of section 17(1) (a) of the Illinois Civil Practice Act. The affidavits filed in support of this motion contesting the jurisdiction of the court over the defendant set out that Standard is a New York corporation having no office, agents, employees, representatives or other personnel in Illinois; that none of its officers or agents who were involved in the transaction were ever present in Illinois; and that the defendant was not registered as a foreign corporation in Illinois. After a hearing in which it found that the defendant had not transacted any business in Illinois, within the purview of section 17(1) (a), the court entered an order quashing the return of service of summons upon Standard Mirror; the order was entered on March 9, 1966.

On March 14, 1966, plaintiff filed an affidavit for attachment in the same proceedings naming Ford Motor Company and Chrysler Corporation as garnishees, together with an attachment surety bond in the amount of $12,000. The writ directed the sheriff of Cook County “to attach in your county the property of Standard Mirror. . .” The answer of Ford and Chrysler whose registered agents were served in Chicago showed that they were indebted to Standard. Ford Company filed an answer in which it stated that it is a Delaware corporation with offices in Dearborn, Michigan, and that it held a credit balance for the account of Standard in the amount of $14,812.53. On motion of plaintiff, Chrysler was dismissed.

The defendant, Standard Mirror, was served by publication in the attachment proceedings, and filed its second special appearance moving to quash the attachment on the ground that the court did not have jurisdiction to attach Ford’s indebtedness to it. The affidavit of David A. Jones, the treasurer of Standard, alleged that Ford was indebted to Standard for automotive mirrors delivered to Ford in New York pursuant to contracts entered into in the state of Michigan. It was further alleged that the State of Illinois was never involved in these transactions. No counteraffidavits were filed. After considering the arguments and briefs of both sides, the court entered an order quashing the return of the writ of attachment, thereby discharging Ford Motor as garnishee, and dismissed the action. It is from this order that plaintiff appeals.

The sole question raised on this appeal is whether under the Illinois Attachment Act the indebtedness owed by the garnishee, Ford to defendant, Standard, is subject to the jurisdiction of Cook County in an attachment action brought by plaintiff, Apollo, when it has already been judicially determined that Illinois has no jurisdiction over the original action between plaintiff and defendant.

Section 1 of the Attachment Act (c 11 § 1, Ill Rev Stats) provides, as follows:

“§ 1. Causes. That in any court of record having competent jurisdiction, a creditor having a money claim, whether liquidated or unliquidated, and whether sounding in contract or tort, may have an attachment against the property of his debtor, or that of any one or more of several debtors, either at the time of instituting suit or thereafter, when the claim exceeds $20, in any one of the following cases:
“First: Where the debtor is not a resident of this State . . .”

Section 21 provides as follows:

“§ 21. Garnishment. The sheriff or any other person authorized to serve writs of summons shall, in like manner as writs of summons are served in ordinary civil cases, summon, wherever they may be found in the State, the persons mentioned in such attachment writ as garnishees and all other persons whom the creditor shall designate as having any property, effects, choses in action or credits in their possession or power, belonging to the defendant, or who are in anywise indebted to such defendant, the same as if their names had been inserted in such writ; the persons so summoned shall be considered as garnishees, and the return shall state the names of all persons so summoned, and the date of such service on each. Persons summoned as garnishees shall thereafter hold any property, effects, choses in action or credits in their possession or power belonging to the defendant which are not exempt, subject to the court’s order in such proceeding, and shall not pay to the defendant any indebtedness owed to him subject to such order, and such property, effects, choses in action, credits and debts shall be considered to have been attached and the plaintiff’s claim to have become a lien thereon pending such suit. 1871, Dec 23, RS 1874, p 152, § 21; 1935, July 10, Laws 1935, p 210, § 1.”

Attachment proceedings derive all of their validity from statutes, and must conform in all respects to the statutory requirements. Cariker v. Anderson, 27 Ill 358. Plaintiff argues that the language in section 21 supports his claim that personal service upon a registered agent of a garnishee is sufficient to support an attachment of property owed by the garnishee to the principal defendant, no matter where the property itself is located. Section 21 states that parties “who are in anywise indebted to such defendant” may be served as garnishees under a writ of attachment. However, this language does not vitiate the necessity of there being some “property” for the garnishee to “hold” that belongs to the defendant; a necessity referred to later in the same section that the plaintiff relies upon.

Section 21 must be read in light of sections 6 and 8 of the Act. Section 6 sets out in the form of the writ what kind of property can be attached. This section refers to property found within the particular county where it is served. Section 8 of the Act similarly provides that the writ of attachment may be levied only in the county to which the writ is issued. Thus, although for the purpose of the service of process upon a garnishee named in a writ of attachment any individual debtor of the principal may be served, for the purpose of the execution of the writ there must be actual property in the possession of the garnishee within the jurisdiction of the court authorizing the writ. Therefore, the Attachment Act can only apply where the garnishee holds some property of the principal defendant within the jurisdiction of the court.

“A garnishee proceeding is in the nature of a proceeding in rem, and to the effectual creation of a lien it is not enough that the garnishee be within the jurisdiction of the court issuing the process. The res itself must also be within the jurisdiction of such court (citations omitted). . . .” Bowen v. Pope, 26 Ill App 233, affd 125 Ill 28, 17 NE 64. See also, Keller v. Snyder, 344 Ill App 294, 100 NE2d 672; Clymore v. Williams, 77 Ill 618.

At the hearing on defendant’s motion to quash the return of the writ of attachment directed against Ford the plaintiff introduced no counteraffidavits. The only testimony taken in the attachment proceedings, subsequent to the motion to quash, was the affidavit of Standard’s treasurer, David Jones. This testimony showed that the contract debt which Apollo sought to attach came into being pursuant to negotiations held outside of Illinois, and also that payment under the contract was to be made outside of Illinois. Ford’s answer, made prior to the motion to quash, showed only that Ford owed a debt to the defendant; no connection between the Ford Motor Company and the State of Illinois, other than the presence of a registered agent for the service of process, was demonstrated.

Sufficient evidence was not introduced before the trial judge during the attachment proceedings to allow the judge to issue the writ. The attaching creditor has the burden of proving that the property involved is subject to attachment and in our judgment has not met this burden. The only evidence before the trial judge was contained in the answer of Ford and in the affidavit of Jones. These facts were not sufficient to show that Ford actually held property of Standard in Illinois so that the writ might be issued under the statutory authority. Nor did the evidence disclose sufficient contact between Ford Company and Illinois to bring the instant case within the rationale of the cases plaintiff relies upon. See Lancashire Ins. Co. v. Corbetts, 165 Ill 592, 46 NE 631. Therefore, the fact of jurisdiction was not established by plaintiff. Reimers v. Seatco Mfg. Co., 70 F 573 (6th Cir). The attachment action was an obvious attempt by plaintiff to relitigate the original claim in Cook County for the purpose of forcing the defendant to come here and defend. This procedure seems highly improper to us. Neither the Attachment Act nor the case law supports this attempt to sidestep the original order quashing judgment service upon Standard Mirror from which no appeal was taken and in which the court held that Illinois had no jurisdiction over plaintiff’s action against defendant.

In view of the basic lack of jurisdiction to proceed by way of attachment, the motion to quash the writ of attachment and dismissal of the action was correct and therefore affirmed.

Affirmed.

MURPHY, P. J. and ADESKO, J. concur.


source: Caselaw Access Project

author: MR. JUSTICE BURMAN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clinton L. Johnson, Defendant-Appellant.
    Gen. No. 51,789.
    First District, First Division.
    October 30, 1967.

      C. August Taddeo, of Melrose Park, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward J. Downs, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Clinton L. Johnson, was indicted and charged with the unlawful sale of narcotic drugs in Count I, the unlawful possession of narcotic drugs in Count II, and the unlawful dispensation of narcotic drugs in Count m of a three-count indictment. After a waiver of jury by the defendant, the trial judge found him guilty of unlawful possession of narcotic drugs as charged in Count II, and sentenced him to serve a term of not less than five and not more than eight years in the State Penitentiary. The defendant contends, on appeal, that the finding of guilty and the judgment entered thereon should be reversed because the verdict of the trial judge was based on insufficient evidence. He contends that the testimony elicited at trial was insufficient to convict because it was based upon incompetent, contradictory testimony.

William Malek, an informer, and two police officers, Harrison Harvick and Prank Gill who were assigned to the narcotics division, testified to the events that resulted in defendant’s conviction. The evidence on behalf of the State shows that at 8:30 p. m. on August 3, 1960, Malek was thoroughly searched to see if he had any money or contraband in his possession. In the presence of all three witnesses the serial numbers of a five-dollar bill and five one-dollar bills were recorded. The bills were dusted with powder and given to Malek. According to Officer Harvick when he arrived near a gas station at 13th and Blue Island Avenue in an unmarked police car, Malek was already parked next to the station. It was about 9:45 p. m. when Officer Harvick arrived on the scene and he observed that the defendant and Malek were talking intermittently. Harvick was parked about a block and a half from where Malek was parked. The witness observed that after two or three conversations, the defendant who was working as an employee in the gas station, got into his automobile, returning in fifteen or twenty minutes. Officer Harvick further testified that when the defendant returned he again “joined the company” of Malek. At this time Harvick said he got a signal from Officer Gill that he was “moving in.” Harvick advanced on the scene, took the contraband from Malek, and arrested the defendant. The officer testified that the defendant’s person was then searched and two of the previously recorded one dollar bills were found on his person. Harvick did not recall whether or not the hands of the defendant were tested to ascertain whether or not they had handled the chemically dusted money that had been given to Malek. The package that Officer Harvick took from the defendant was found to contain marijuana.

Officer Gill testified that he arrived in the vicinity of the gas station before the arrival of Malek, and parked approximately twenty feet north of the station. He possessed a “full vantage point of the station and the people in it. . . .” Gill testified that when Malek arrived on the scene, ten to twenty minutes after Gill himself had arrived, the defendant approached Malek’s car and began to engage Malek in conversation. A second conversation occurred between the two approximately a half hour later, at the conclusion of which the defendant got into his car and drove off. The defendant returned in about fifteen or twenty minutes and Gill testified that he saw him hand something to Malek. Gill further testified that Officer Harvick was the first officer to reach the defendant, and that Harvick immediately informed him that he “had the stuff.” Gill said that he could not recall whether or not the defendant’s hands were tested to see if they had handled the chemically treated money. On cross-examination, Gill stated that he had witnessed Malek go to the washroom in the gas station at one point, but that he had not seen Malek either ask for change or make any phone calls.

_ The informer, William Malek, testified that when he first arrived at the gas station around 9:30 p. m., the defendant approached his car, at which point Malek asked the defendant if he could get some marijuana. At approximately 10:30 p. m. the defendant returned to Malek’s car and Malek gave him the money previously given to him by the police officers. The evidence shows that the conversation between Malek and the defendant could not have been overheard by the police officers. Malek further testified that the defendant drove off in his car, returning in twenty minutes. The defendant handed Malek a package and began to walk back to his car. Malek testified that at this time the officers arrived on the scene and arrested the defendant; at the same time Officer Harvick took the package from Malek. On cross-examination, Malek testified that he had smoked marijuana for about six months prior to April 7, 1960. He had been arrested on that date, and a resulting narcotics charge was pending against him. Since his arrest Malek admitted that he had been working with the police in attempts to purchase narcotics.

Testifying on his own behalf the defendant stated that he had known Malek for about a year. He testified that on the night in question Malek had pulled up next to the station where he was employed at around 9:30 p. m. The defendant further testified that Malek had initiated the conversation by getting out of his car and approaching the defendant. Their conversation did not pertain to a possible sale of narcotics. The witness stated that the defendant twice asked for change to make telephone calls from inside the station. He further testified that at around 10:45 he had finished his work at the station for the evening and left in his car to buy a “couple of quarts of beer.” When he returned to the station with the beer a police officer immediately pulled up behind him, asked him “where is the pistol,” and when he didn’t produce the weapon the officer began to severely beat bfm about the face. The defendant further testified, in his own behalf, that he had not made any sale of marijuana to Malek on the night of his arrest. He also testified that on the night of his arrest Officer Gill had tested his hands to see if they had handled the chemically treated money, and that the results of the test were negative. Other defense witnesses also testified that the police had severely beaten the defendant, and that the defendant had suffered serious physical harm at the hands of the police.

Defendant contends that “Malek’s testimony is scarcely believable in view of his current pending indictment for the sale of narcotics.” The credibility of a narcotics addict is for the trier of the facts to determine, although drug addiction must be considered in the determination of the addict’s veracity as a witness. People v. Larry, 30 Ill2d 533, 198 NE2d 334. The informer’s testimony should be closely scrutinized. People v. Golliday, 20 Ill2d 29, 169 NE2d 263. The fact that the informer in the instant case had been arrested for a narcotics offense and whether his testimony is reliable was also primarily a matter of fact for the trial court to consider in determining the weight of his testimony. The testimony of a narcotics addict may be sufficient evidence to sustain a conviction, even though the accused contradicts the addict’s testimony. People v. Romero, 54 Ill App2d 184, 203 NE2d 635; People v. Carter, 69 Ill App2d 448, 217 NE2d 413.

The defendant asserts that Malek’s testimony was directly contradicted by the defendant’s own testimony that Malek left his car several times to ask for change and to make phone calls. We must note that only the defendant did so testify and it is contradicted by the testimony of the two police officers. The defendant also asserts that the evidence showed the absence of some of the marked money from the defendant’s possession at the time of the arrest; he also argues that the testimony of the two police officers was conflicting as to the administering of chemical tests to ascertain whether or not the defendant had handled the money given to the informer. We need not consider these contentions in detail. Conflicts and inconsistencies in the evidence are to be resolved by the trier of the facts while weighing the evidence and determining the credibility of the witnesses. We will not substitute our judgment for that of the trier of the facts. People v. Scott, 34 Ill2d 41, 213 NE2d 521. Also, these contentions of defendant relate to the illegal sale count of the indictment, and as the defendant was convicted only of illegal possession of narcotics, we need not adjudge the sufficiency of evidence pertaining to the sale. Evidence as to injuries sustained by the defendant at the time of the arrest was conflicting and was also for the trial court to resolve.

The evidence introduced at trial was sufficient as a matter of law to sustain the defendant’s conviction of possession of narcotics. The issue of the informer’s credibility is not determinative here because his testimony was substantially corroborated by the testimony of the two police officers. See People v. Golliday, 20 Ill2d 29, 169 NE2d 263. The officers from two vantage points had Malek under constant surveillance. Officer Gill testified that he saw the defendant hand Malek a package; the package was found to contain marijuana.

For the reasons given the judgment of the Criminal Court Division of the Circuit Court is therefore affirmed.

Affirmed.

MURPHY, P. J. and ADESKO, J., concur.


author: MR. PRESIDING JUSTICE MURPHY

text:
    In the Matter of the Estate of Nick Onischuk, Incompetent. The Department of Mental Health of the State of Illinois, Petitioner-Appellee, v. Samuel Nineberg and Sam Onischuk, as Co-conservators of the Estate of Nick Onischuk, an Incompetent, Respondents-Appellants.
    Gen. No. 51,895.
    First District, First Division.
    October 30, 1967.
    Arthur S. Gomberg, of Chicago (Samuel Nineberg, of counsel), for appellants.
    William G. Clark, Attorney General of the State of Illinois, of Chicago (Richard A. Michael and Philip J. Rock, Assistant Attorneys General, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

This is a statutory proceeding for treatment charges brought under the Mental Health Code of 1963, against the estate of Nick Onischuk, an incompetent. (Ill Rev Stats 1965, c 91%, §§ 12-21,12-22 and 12-23.)

The conservators appeal from an order of the Probate Division of the Circuit Court of Cook County, entered on March 16, 1966, directing them to pay to the Department of Mental Health, out of the assets of the estate of the incompetent, for the care and maintenance of the incompetent, (1) for past due maintenance, $2,778 for the period from January 1, 1952, through November 30, 1964; and (2) “the further monthly per capita charge as determined by the Department of Mental Health, State of Illinois, for maintenance of the said Incompetent in Manteno State Hospital until the assets of Nick Onischuk, Incompetent herein, have been depleted to a sum of not more than $500.00, or until said Incompetent is discharged from Manteno State Hospital, or until the further Order of this Court.”

The facts are not in dispute. The third current account (1954) showed assets in excess of $15,000 held on restricted deposit. There were no expenditures since 1954. The petition of the Department of Mental Health showed a credit to the incompetent of $8,952, representing social security benefits turned over intact to the Department. The treatment charge since January 1, 1964, has been $132 per month, against which has been credited monthly social security benefits of $81.

The conservators filed an answer to the petition of the Department, in which they allege “that the calculations of petitioner are erroneous, and that there is no audit or proper basis for the computations set forth . . . They also deny that they received monthly statements.

It is the theory of the conservators that “the monthly sums of $81.00 received by the Department of Mental Health from the Incompetent’s Social Security benefits adequately compensate the Department for his maintenance costs at Manteno; that in any event the Conservators were never given a statement showing what these maintenance costs are.”

The conservators argue, “If Nick Onischuk is compelled to pay a per capita tax which includes a computation of the cost of maintaining indigent patients, then the State has now shifted its burden for the maintenance of these indigent patients to Nick Onischuk and others in similar situations.” The conservators maintain that it would be “more equitable if the agency or hospital would give the statement the Act intended, namely a statement of the cost of maintenance of the individual inmate, and then require payment of this actual cost. To require otherwise would be to compel our incompetent to pay part of the cost of maintaining other inmates who have no estate or who have no method of paying for their maintenance.”

The Department asserts that sections 12-21 to 12-27 of the Mental Health Act (Ill Rev Stats 1965, c 91^) authorize the Department of Mental Health to establish an average per capita cost of maintaining a patient in a state mental institution and further provide for means and methods of collecting the per capita cost from the incompetent’s estate or from close relatives. The Department submits that the average per capita cost calculation under section 12-22 is not unreasonable, discriminatory or a denial of due process (Kough v. Hoehler, 413 Ill 409, 109 NE2d 177 (1952)), and “that decision further stated that it is proper that the estate of a patient should reimburse the State for so much of the expense of his care as possible thereby lessening the burden upon the public.”

As we understand the contention of the conservators, it is that the “general average per capita cost of operation of all state hospitals for the mentally ill” (section 12-22— Rates) is so calculated as to place the entire cost of the operation of the state hospitals for the mentally ill on the financially responsible patients or relatives, with no part being assumed by the State for those unable to pay.

We find no merit in this contention. In Kough v. Hoehler, 413 Ill 409, 109 NE2d 177, it is said (p 417):

“The plaintiffs complain that the charges are computed on the general average per capita cost of operation of all State hospitals, making no distinction between institutions or the care and treatment rendered the various types of patients. They therefore claim a lack of due process. Section 9-20 [now 12-22] of the Mental Health Code constitutes a direction to the Department by the legislature concerning the method by which the charges shall be computed. Nothing herein reveals that the charges under this section are unreasonable or result in discrimination. It is purely a legislative function to direct the method whereby these charges may be determined, and presents no proper constitutional question.”

At p 418:

“Since these charges partake of a public charity, (rather than a governmental purpose,) the original cost of which is borne by the public, it is entirely proper and fitting that the patients, their estates and relatives, in so far as they are able, should reimburse the State for so much of the expense of their care as possible, and thereby lessen the burden upon the public. Plaintiffs seem to base their argument upon the fact that the regulations promulgated by the Department fix the amount to be paid by or for a patient in accordance with the financial ability of the patient, or his estate or near relatives, as the case may be, or upon their income. Since caring for these patients is a work of charity, and they are not all in need of gratuitous services to the same extent, it is entirely equitable and just that those who are able to pay should pay and that those who are not able to pay need not pay.”

At p419:

“We know of no fairer nor better way to carry out these principles than to fix the amount that each is to pay according to his income or financial ability, and to exempt entirely those whose income or financial ability is not sufficient to enable them to bear any part of the cost. The charge does not in any way partake of the nature of a tax. The distinction between this case and the cases cited by plaintiffs in support of their argument is that in those cases the amount of the charge bore no relation to the amount of the services rendered, whereas in the instant ease the basis of the charge is the same in all cases, namely, the per capita cost, but the entire cost is not collected from all the patients if they are financially unable to pay it. This would seem to be a proper practice for a charitable or eleemosynary institution operated by the State.” (Italics added.)

It is also said (p 421):

“The power vested in the Department by the act here in question is not an arbitrary, unlimited discretion to enforce the law against some individuals and not others. The Department is specifically directed to investigate the ‘financial condition’ and ‘ability to pay’ of each person liable under this act. For this purpose the Department is first required to set a definite standard to be used as a basis of ability to pay in each instance. That standard is the same for all persons, at any specific time. However, the Department is directed to recompute that standard periodically to reflect changes in the cost of living and other pertinent factors. . . . The act provides for an administrative hearing at the instance of any person affected or aggrieved by the administration of the act, and allows judicial review under the Administrative Review Act of any final decision of the Department. . . . The discretion allowed the Department is therefore far from arbitrary, being subject to all these limitations, rules, and provisions of law.”

In Department of Public Welfare v. Haas, 15 Ill2d 204, 154 NE2d 265 (1958), the Supreme Court reviewed at length the sections of the Mental Health Act which deal with the maintenance charges for an incompetent and their collection, and said (p 217) :

“An examination of these provisions of the code indicates that an action brought under section 9-28 [now 12-25] is only for the enforcement of unreleased charges as established in conformity with its preceding sections. No action thereunder is contemplated until the defendant has exhausted his administrative remedies or the allotted time has expired within which he can pursue them. Conversely, where a defendant has failed to pursue those remedies, he cannot raise in the county court questions which should have been raised in the administrative proceedings, such as the propriety of the amount of the charges as fixed and determined or his ability to pay. This construction is in accord with judicial precedent which has sustained the validity of legislation whereby the existence of liability or the validity of a regulation is determined by one process and enforcement is achieved by a separate proceeding. . . . (Italics added.)
“When statements are received from the Department pursuant to section 9-21 [now 12-23], it is the right and duty of the party affected to pursue the remedies provided under section 9-22 [now 12-24] if he contends that the charge is improperly determined, excessive in amount, or not in reasonable relation to his financial ability.”

The conservators excuse their failure to follow the administrative remedy for the “release or modification of statement of sums due” (section 12-24) on the ground that they did not receive from the Department statements for the charges assessed against the incompetent by the Department. They argue, “how can we seek a release or modification of a statement unless and until we have received the same,” and that “this failure to provide a ‘statement’ or a ‘re-computation’ when a drastic increase from $81.00 per month to $132.00 per month was affected constituted an attempt to take property without due process of law.” While the record is unclear on this contention, we note that during oral argument it was conceded by the conservators that some statements had been received from the Department, but they were unsure as to what these statements reflected.

The Department asserts that its petition affirmatively alleged that it submitted monthly statements for the cost of treatment of the incompetent to the conservators of his estate, and that this allegation “was denied by respondents and the lower court made no specific factual finding on this issue. However, petitioner submits that even if, assuming arguendo, no statements were submitted, by operation of law under the provisions of the Mental Health Code, a liability for maintenance attaches from the effective date of the Act or from the admission of the patient whichever occurs later and no formal billing of charges is necessary.”

On this point we agree with the Department that the liability for treatment charges under the provisions of the Mental Health Code attaches “either from the effective date of the act or from the admission of the patient, whichever occurs later.” (Department of Public Welfare v. A’Hern, 14 Ill2d 575, 153 NE2d 22 (1958).) No “statement of amount due as treatment charges” is required to be issued to create the liability for the payment of sums representing treatment charges of an incompetent or for “actions for the recovery of treatment charges.”

We conclude that the conservators have failed to demonstrate in this record that the per capita charge for all patients is entirely borne by the financially able patients or relatives, without any part of the per capita charge being assumed by the State for the maintenance of indigent patients.

As the statutory method of calculation by the Department of “the average per capita cost of the treatment of all such patients” has been approved by our Supreme Court in a number of cases, such as Kough v. Hoehler, 413 Ill 409, 109 NE2d 177, and Department of Public Welfare v. Haas, 15 Ill2d 204, 154 NE2d 265 (1958), the order of the Circuit Court is affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


author: MR. JUSTICE MORAN

text:
    Lucille Lemanski, Plaintiff-Appellee, v. Melvin G. Lemanski, Defendant-Appellant.
    Gen. No. 67-19.
    Second District.
    October 31, 1967.
    Rehearing denied December 6, 1967.

      William B. Petty, of Mount Carroll, for appellant.
    George H. Schirmer, Jr., of Freeport, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

Defendant-husband appeals from a decree granting the plaintiff-wife a divorce on the grounds of physical cruelty and awarding her the jointly owned marital home.

On appeal, he urges 1) that the decree is in violation of the doctrine of res judicata; 2) that the trial court erred in limiting the appellant’s cross-examination of the appellee; 3) that the decree entered was against the manifest weight of the evidence; and 4) that there were insufficient equities shown by the appellee for the trial court to award his share of their joint real properties to the appellee.

The record shows that the wife filed a prior action for separate maintenance. This action was subsequently amended to divorce on the grounds of two acts of alleged extreme and repeated cruelty, which took place approximately one hour apart on May 23,1964.

The first case was tried on its merits in November of 1964 and, while the case was under advisement, the wife, by amendment, added another alleged act of cruelty apparently to conform the proofs to the pleadings. This additional act was alleged to have occurred in June, 1961.

On December 21, 1964, the trial court entered a decree dismissing the action for want of equity with an express finding that the plaintiff had failed to prove the allegations of her complaint.

Two days later, the present action was filed as a complaint for separate maintenance and was later amended to divorce. In this action two acts of cruelty on May 23, 1964, and one act in September, 1965, were alleged. The defendant husband filed a motion to dismiss on the grounds of res judicata as to the alleged two acts of May 23, 1964, and after this motion was overruled, he filed an answer denying the material allegations of the divorce complaint.

The trial court heard evidence and granted the decree of divorce on the grounds of the husband’s extreme and repeated cruelty. A later hearing was held as to property rights, support and education and the decree was entered. A post-trial motion, raising the points above referred to, was heard and denied and this appeal follows.

With reference to the first issue of res judicata, the defendant urges that the ruling of the trial court in the first case resolved all issues of cruelty alleged in the first proceeding in his favor and that since there must be two acts of cruelty to constitute repeated cruelty, the second divorce complaint failed because there is only one act of cruelty properly alleged, that being the act of September, 1965.

In Hoffman v. Hoffman, 330 Ill 413, 161 NE 723 (1928), the Supreme Court stated, at page 417:

“Where a former adjudication is relied upon as an absolute bar, there must be, as between the actions, identity of parties, of subject matter and of cause of action. When the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered. Where some controlling fact or question material to the determination of both causes has been adjudicated in the former suit by a court of competent jurisdiction and the same fact or question is again at issue between the same parties, its adjudication in the first cause will, if properly presented, be conclusive of the same question in the later suit, irrespective of the question whether the cause of action is the same in both suits or not. This is sometimes denominated as an estoppel by verdict. (Public Utilities Com. v. Smith, 298 Ill 151.)”

In a divorce proceeding based on extreme and repeated cruelty a plaintiff must prove two separate and distinct acts of cruelty in order to establish extreme and “repeated cruelty” within the meaning of the statute. Mikkelsen v. Mikkelsen, 239 Ill App 366, 368 (1926). In the first proceeding between the parties in the case at bar, it is possible that the trial court found that the proof did not establish an act of cruelty in June of 1961. With reference to the allegations of May 23, 1964, the trial court could have found either that only one act of the acts of cruelty was proved or that the occurrences of that day, although fully proved, constituted only one act of cruelty. In either event the trial court would then have been justified in dismissing the proceedings for want of equity. If such were the case, then, with one provable act of cruelty on May 23, 1964, and another in September of 1965, the plaintiff had a cause of action. We cannot tell with any certainty whether, in the first action, the trial court found that none of the alleged acts of cruelty was proved or that only one act of cruelty on May 23, 1964, was proved. We do not feel that we can invoke the rule of estoppel by verdict or res judicata on pure speculation as to the finding of the trial court in the prior litigation. We are not satisfied by the finding “that the plaintiff has failed to prove the allegations of her complaint” meant that the court found that the plaintiff had failed to prove any of the allegations. For this reason we feel that the defense of res judicata is not applicable in this case. We have reviewed the cases cited by defendant on the res judicata question and feel that none of these authorities are in conflict with the view we hold in this case.

Considering next the ruling of the trial court on the cross-examination of the plaintiff wife by defendant’s counsel, an examination of the abstract and the record indicates that during the cross-examination the wife denied any knowledge of having been named as the third party in a divorce action between other persons. The court sustained objection to further interrogation along these lines. The defense offered no evidence in connection with this matter. In the absence of any showing that further cross-examination would have been material, there is nothing before us to pass upon, with reference to this objection.

The third point involves the manifest weight of the evidence with reference to the finding of the defendant guilty of cruelty. We believe that there was evidence in the record to substantiate the finding by the trial court that on May 23,1964, the defendant pulled the plaintiff out of bed, “knocked” her to the floor and “knocked” her into a dresser in the bedroom. With reference to the alleged act of cruelty on September 8, 1965, there was evidence from which the trial court could find that the defendant “knocked” the plaintiff into a bedroom wall causing her to have a bruise on her arm and when she attempted to call the police, he struck her. The trial judge had the opportunity to hear the testimony of the witnesses and to observe their demeanor and conduct. We cannot say that the finding of cruelty is contrary to the manifest weight of the evidence.

Finally, the defendant-appellant complains of the disposition of the marital home which, under the decree, was granted to the plaintiff. This property had a fair market value of $23,000 to $25,000 and at the time of the decree was subject to a mortgage in the amount of $5,900 with past due interest of $413.98. The decree provided that the plaintiff should have the real estate subject to the existing mortgage.

Defendant contends that it is improper for the jointly owned property to be awarded to one of the spouses in the absence of special equities alleged and proved.

The evidence established that at the time of the divorce hearing the plaintiff resided in the house with the three minor children, she earned $315 per month and the defendant was employed at $72 per week. No interest payments had been made on the house for two and one-half years at the time of the trial. Defendant was paying $25 per week for the support of the three minor children. There was testimony that if the plaintiff were awarded the house, she could and would pay off the existing mortgage indebtedness. There was no evidence that defendant had the means or desire to make any payments on the mortgage indebtedness.

In light of the meager support which defendant was able to contribute to the support of his children, the arrearage on the mortgage, the need to provide a home for the minor children and the past performances of each party, we believe the trial court was justified in finding that sufficient equities existed to award the jointly owned home to the plaintiff.

The decree is affirmed.

Affirmed.

DAVIS, P. J. and BAUER, J., concur.


author: MR. PRESIDING JUSTICE DAVIS

text:
    In re Estate of J. Paul Kuhn, Deceased. Arleene K. Elwood and Lura K. Freedlund, Petitioners-Appellants, v. Wanda H. Kuhn, as Executor of the Purported Last Will and Testament of J. Paul Kuhn, Respondent-Appellee.
    Gen. No. 67-35.
    Second District.
    October 31, 1967.
    Rehearing denied December 1, 1967.

      Boodell, Sears, Sugrue and Crowley, Barnabas F. Sears, and Gerald M. Sheridan, Jr., of Chicago, for appellants.
    O’Brien, Burnell, Puckett and Barnett, of Aurora, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal from an order denying a petition for removal of an executor. In his last will, J. Paul Kuhn named his wife, Wanda H. Kuhn, (herein referred to as “Mrs. Kuhn”), as executor. The will was admitted to probate, the decedent’s widow qualified and letters testamentary were issued to her on April 26,1966.

Under the terms of the will, the decedent left the bulk of his estate to his surviving spouse, and also made specific bequests of $5,000 to each of his two adult daughters — children of a prior marriage. On September 30, 1966, the two daughters commenced a proceeding to contest the will, and charged lack of testamentary capacity, actual and constructive fraud and undue influence on the part of Mrs. Kuhn. Then, on October 6, 1966, they commenced this proceeding for the removal of Mrs. Kuhn as executor.

The petition for removal charged that Mrs. Kuhn had become incapable of or unsuitable for the discharge of her duties as executor (1) by reason of the fact that she had a personal interest in the outcome of the will contest which conflicted with her fiduciary duty as executor to conduct a fair and impartial defense to the will contest, (2) because the estate was of substantial value— the personal estate exceeding $600,000 — and Mrs. Kuhn lacked experience in handling securities and real estate, and, therefore, was incapable of managing the same, (3) in that Mrs. Kuhn caused herself to be awarded an excessive widow’s award in the sum of $37,500, and (4) because there are certain goods and chattels of the decedent for which Mrs. Kuhn had failed to account or have appraised.

The grounds for removal of an executor are set forth in section 276 of the Probate Act (Ill Rev Stats 1965, c 3, par 276) as follows:

“On the verified petition of any interested person or upon the court’s own motion, the court may remove an executor, administrator, administrator to collect, guardian, conservator or conservator to collect for any of the following causes:
“(a) When the executor, administrator, administrator to collect, guardian, conservator or conservator to collect:
“(1) is acting under letters secured by false pretenses; or
“(2) is adjudged a person in need of mental treatment under the Mental Health Code or is adjudged an incompetent; or
“ (3) is convicted of a felony; or
“ (4) wastes or mismanages the estate; or
“(5) conducts himself in such a manner as to endanger his co-fiduciary or the surety on his bond; or
“(6) fails to give sufficient bond or security, counter security or a new bond, after being ordered by the court to do so; or
“(7) fails to file an inventory or accounting after being ordered by the court to do so; or
“(8) conceals himself so that process cannot be served upon him or notice cannot be given to him; or
“ (9) becomes incapable of or unsuitable for the discharge of his duties; or
“(10) there is other good cause.
“(b) When the executor, administrator, administrator to collect, guardian, conservator or conservator to collect, other than the guardian or conservator of a person, becomes a non-resident of this state.”

An executor may be removed only for the reasons stated in the above statute. In re Estate of Breault, 29 Ill2d 165, 180, 193 NE2d 824 (1963). Section 276 of the Probate Act was amended in 1965. Prior to its amendment, section 276 applied only to executors, administrators and administrators to collect, and the causes for removal were similar, but not identical to those now specified. Section 277 of the Probate Act, prior to the amendment pertained to the removal of a guardian or conservator. By the amendment, section 277 was repealed and the grounds for removal of representatives of decedent’s estates and guardians, conservators and conservators to collect, were amalgamated into section 276. The resulting section added two additional grounds for removal of the named fiduciaries; viz., subparagraphs (a) (9) and (10) which specified that the court could remove any such fiduciary who “becomes incapable of or unsuitable for the discharge of his duties,” or when “there is other good cause.” Prior to the 1965 amendment, these two grounds were found only in section 277 and applied only to the removal of a guardian or a conservator.

We agree with the petitioners that the addition of these two paragraphs add to the grounds presently available for the removal of a representative of a decedent’s estate, and are not to be read as limited only to the circumstances enumerated in the preceding subparagraphs (a) (1) through (a) (8). Paragraph (a) of section 276 contains ten alternative grounds each joined by the word “or.” Each ground is mutually exclusive of and cumulative to the others. Subparagraphs (a) (9) and (a) (10) must be read as two distinct and additional grounds permitting removal. Campbell v. Prudential Ins. Co. of America, 15 Ill2d 308, 311-313 incl., 155 NE2d 9 (1958); People v. Vraniak, 5 Ill2d 384, 389, 125 NE2d 513 (1955). The legislature saw fit to add these two sub-paragraphs as grounds for removal, and they should not be rendered meaningless by interpreting them to relate only to the grounds previously set forth. People ex rel. Barrett v. Barrett, 31 Ill2d 360, 364, 365, 201 NE2d 849 (1964); 34 ILP, Statutes, § 123, p 110.

We cannot agree, however, that the addition of these grounds for removal is of any help to the petitioners under the factual background found in this case. The petitioners charge that the executor failed to file a proper inventory and seek an appraisal of the chattels until after these proceedings were commenced, and that this warrants her removal. The executor filed an inventory approximately three and one-half months after letters were issued. This inventory omitted certain personal jewelry, household and office chattels, a few shares of corporate stock and a number of old promissory notes, and certain notes secured by a mortgage and trust deed on parcels of real estate. However, the bulk of the estate was listed therein. A supplemental inventory was filed within nine months from the issuance of letters, which included all of the items above mentioned, and noted that the mortgage and trust deed notes were in default long prior to the death of the decedent; that the debtor’s whereabouts was unknown; that the real estate securing said notes had an appraised value equal to % of the total indebtedness; and that the real estate had been forfeited for taxes.

We do not find it unusual or shocking, in an estate of this size, that the original inventory failed to include all of the assets of the estate, and that a supplemental inventory was necessary. Likewise, we are not surprised that the executor did not seek the appointment of an appraiser, nor that the court did not order the appointment of one until after the will contest proceedings were commenced. Under the terms of the will, the bulk of the estate was devised and bequeathed to the surviving spouse, who also was named as the executor. In the light of these circumstances and as a practical matter, we believe that the court was justified in awarding a surviving spouse award without an appraisal. (Ill Rev Stats 1965, c 3, par 173.) It is interesting to note that the legislature, in 1965, amended sections 178 and 179 of the Probate Act (Ill Rev Stats 1967, c 3, pars 178 and 179), to place the responsibility for making the spouse and child awards on the court rather than on the appraisers.

The challenge of the will which gave rise to a possible change in the beneficial interests in the estate if its property should pass by intestacy rather than by the will, altered the procedures which otherwise would not have been necessary to the proper administration of the estate, and caused the court to appoint an appraiser as provided for in section 173.

Subparagraph (a) (7) of section 276 provides only, that the executor who “fails to file an inventory or accounting after being ordered by the court to do so” may be removed. (Emphasis added.) The court never deemed it necessary to order the executor to file either an inventory or supplemental inventory, yet such instruments were filed. As far as the record indicates, all assets of the estate have been inventoried. We do not interpret subparagraphs (a) (9) or (a) (10) to provide for the removal of an executor for failure to file a complete inventory, or a supplemental inventory, absent a court order to do so, in that subparagraph (a) (7) specifically requires such prior court order. Subparagraphs (a)(7), (9) and (10) are free from inconsistency, and we should not, by construction, create one. Mann v. Board of Education of Non-High School Dist. No. 216, 406 Ill 224, 230, 92 NE2d 743 (1950); People ex rel. Roan v. Wilson, 405 Ill 122, 127, 128, 90 NE2d 224 (1950). Apparently, the trial court did not attribute the same sinister motives to the executor as do the petitioners, and neither do we.

Petitioners argue that the will contest suit creates a personal interest in the executor which is in conflict with her interests and duties as executor and thus renders her incapable of serving. We are aware of the high standards imposed upon an executor, as a fiduciary, in his dealings with and in behalf of the estate. Nonnast v. Northern Trust Co., 374 Ill 248, 261, 262, 29 NE2d 251 (1940); Christensen v. Christensen, 327 Ill 448, 453, 158 NE 706 (1927); In re Estate of Glenos, 50 Ill App2d 89, 95, 96, 200 NE2d 64 (1964). We are in accord with the burden thus imposed.

We do not agree, however, that the personal interests of the executor in the case at bar are such that they render her incapable or unsuitable to serve as executor. While an executor’s duty must be to the estate and all of those interested in it, the position of executor is not limited to one who has no personal interest in an estate. (Ill Rev Stats 1965, c 3, par 77.) Unless a bank is named as executor, the executor normally will have a personal interest in the estate. Does the fact that an individual executor may also be a beneficiary under the will, render her or him unsuitable to act when a creditor files a claim against the estate which the executor may dispute? We think not, even though the executor’s personal interest in the estate will be enhanced if the claim is defeated.

Absent unusual and extraordinary circumstances, such as those found in In re Estate of Abell, 395 Ill 337, 70 NE2d 252 (1946), the duty of the executor to contest a claim or defend a will, of itself, does not create such conflict of interest between the executor, claimant, legatee or devisee, as to render him or her incapable or unsuitable to serve. In Abell, the sole substantial matter remaining to be completed in the estate, which had been open for more than fourteen years, was the sale of real estate to pay debts, and there the heirs seeking to be appointed administrator to prosecute such petition for such sale were the very persons who were to be benefited if their petition were denied. Abell is readily distinguishable from the case at bar. Generally, the conflict of interest which arises by virtue of the executor and a legatee, devisee or creditor having a personal interest in the estate is not enough, standing alone, to disqualify that person as executor.

The petitioners urge that the alleged conflict of interest, created by the persons who attack the validity of a will and arising thereupon, may be asserted by the same persons as a ground for removing the executor. We find this contention to be particularly unconvincing. Here the petitioners — daughters by a prior marriage— were left a relatively inconsequential amount under the decedent’s will, but would be entitled to a substantially larger portion of the estate if the will were set aside. The petitioners assert that because the surviving spouse — the qualified executor — will receive a much smaller portion of the estate if they are successful in setting aside the will than she otherwise would receive under the will, she should not continue to act in her capacity as executor. They urge that this is especially true since they charge that she was guilty of undue influence in procuring the will.

It is the duty of the executor to defend a will in a will contest proceeding. (Ill Rev Stats 1965, c 3, par 93.) Mrs. Kuhn’s personal interests are totally compatible with her interests and duties as executor. In both capacities, she should desire to see the will upheld. Through some circuity of reasoning and the assumption of the facts alleged in their suit to set aside the will as binding determinations upon the trial court and this court in this action, the petitioners conclude that in defending the will, the executor will be involving the estate in unnecessary litigation, using its funds to defend her own conduct in procuring the will, and pursuing an issue at great cost to the estate when she has reasonable grounds to believe that a finding of undue influence would be proper.

While we do not suggest what may or may not be the outcome in the suit to contest the validity of the will, the record before this court relative to the manner of its execution and the conduct of the executor with reference thereto, does not warrant our acceptance of the conclusion of the petitioners that the executor would be acting improperly in defending the will. To the contrary — we believe she would be derelict in her duties if she did not defend it.

It is a safe assumption that in the vast majority of the will contests, those who are attacking the will do so because their share of the estate, in the event of intestacy, would be greater. In all of these cases, the executor, in defending the will, is acting against the “interests in the estate” of those who would benefit by intestacy. However, this circumstance alone cannot disqualify the executor. Such disqualification would arise only under a factual situation where the personal interests of the executor are so adverse to the interests of the estate and those entitled to its distribution, that both cannot be fairly represented by the same person, such as would exist where the executor also would acquire a larger share of the estate in the event of intestacy. Such circumstances are absent in the case at bar and are nonexistent in the majority of the estates which are administered.

Petitioners contend that the case of Luckey v. Superior Court in and for Los Angeles County, 209 Cal 360, 287 P 450 (1930) is nearly identical to the case at bar. There Luckey was administrator of the estate in question. He subsequently offered a will for probate which disinherited certain beneficiaries under the supposedly existing intestacy. The will also gave Luckey a substantial share of the estate. The court held that it was proper to remove Luckey as administrator because he had a personal interest in upholding the will (which was attacked as being a forgery and as being procured by the fraud and undue influence of Luckey) rather than the intestacy of the estate under which he was acting as a fiduciary. Thus, his personal interests were directly in conflict with and adverse to his interests and obligations as a fiduciary. The factual situation in Luckey was opposite to that in the case at bar.

A number of other cases from other jurisdictions are cited by petitioners. Without referring to them singularly, we agree with the conclusions reached in most of those cases; namely, that where an executor’s personal interests are so conflicting with and adverse to the interests of the estate that both such interests cannot fairly be represented by the same person, he may be removed as such executor. We disagree with the petitioners’ conclusion that the factual situation here warrants such action; and that the effect of the petitioners’ will contest action is to place the executor in a position where her personal interests are so conflicting with and adverse to her interests and duties as executor that she cannot fairly carry out her obligations as executor.

Petitioners also assert that the surviving spouse’s award in the sum of $37,500 was grossly excessive and is evidence that the executor should be removed. If excessive, the award was, and is, subject to review under section 180 of the Probate Act. (Ill Rev Stats 1965, c 3, par 180.) We agree with the trial court that this would not be grounds for the removal of the executor, absent other incriminating facts and circumstances not present here.

The petitioners also contend that the executor is not capable of managing an estate of the size involved. It is conceded that Mrs. Kuhn has not had substantial experience in managing financial affairs. The evidence indicates that she has obtained the assistance of a person experienced in business and financial matters— the investment counselor of the trust department of a reputable local bank — , and that she has retained competent legal counsel. The proof falls far short of showing any mismanagement or waste on her part, as executor.

Our review of the record suggests that the evidence amply supports the order of the trial court. We do not believe that the facts in this case came close to establishing grounds which would permit the removal of Mrs. Kuhn as executor.

While the right of a testator to name an executor is not an unrestricted right to have that person so act, the selection should not be set aside lightly. Unlike the other fiduciaries named in section 276, the selection of an executor is left neither to chance nor to the choice of others. The person whose estate is being administered, has designated, for reasons which may be obvious or unknown, the individual or corporate executor that he or she wants to take charge of this responsibility. This selection should be altered only for the specific reasons enumerated in subparagraphs (a) (1) through (9) of section 276 and for “other good cause” as expressly stated in subparagraph (a) (10) thereof.

For the foregoing reasons, the order of the trial court is affirmed.

Judgment affirmed.

MORAN and ABRAHAMSON, JJ., concur.


author: TRAPP, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George Samuel Dawdy, Defendant-Appellant.
    Gen. No. 10,876.
    Fourth District.
    November 1, 1967.
    Julian Hutchens, of White Hall, for appellant.
    Jack A. Alfeld, State’s Attorney of Greene County, of Carrollton, for appellee.
   TRAPP, J.

Upon a jury trial defendant was convicted of the offense of forgery of a bank check. An issue upon this appeal is whether or not the indictment was sufficient to state an offense.

In People v. Tilden, 242 Ill 536, 90 NE 218, it is stated that at common law an indictment must profess, on its face, to set out an exact copy of the forged instrument and that in the absence of a statute providing otherwise, an indictment which fails to do so is fatally defective. In People v. Brown, 397 Ill 92, 72 NE2d 859 (1947), the Supreme Court states the rule to be that an indictment for forgery must profess to set out the instrument according to its tenor, i. e., in exact copy, except where the instrument is in the possession of the accused, destroyed, or for some other reason is not accessible to the grand jury, in which event the reason for not setting it out must be distinctly averred. In People v. Crouch, 29 Ill2d 485, 194 NE2d 248 (1963), the Supreme Court reiterates the rule and applied it to an indictment drawn under our present Criminal Code, chapter 38, § 17-3 (Ill Rev Stats 1965).

In this case the indictment did not undertake to set out the forged instrument in haec verba, as words and figures, or by attaching a photo, or other form of exact copy. There is no distinct, or other averment, that the instrument is in the possession of the accused, destroyed or otherwise not accessible to the grand jury.

No statute altering this rule of the Supreme Court has been cited and we have found none.

The insufficiency of the indictment in charging the offense may be raised by writ of error, People v. Furman, 26 Ill2d 334, 186 NE2d 262, or upon appeal, People v. Stringfield, 37 Ill App2d 344, 185 NE2d 381.

Where the indictment is insufficient to charge an offense, the reviewing court must reverse. People v. Pronger, 48 Ill App2d 477, 199 NE2d 239; People v. Stringfield, 37 Ill App2d 344, 185 NE2d 381.

Reversed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Mark Thompson, Defendant-Appellant.
    Gen. No. 67-41.
    Second Division.
    November 3, 1967.
    John O. Vogel, Deputy Public Defender, of Glen Ellyn, for appellant.

      William V. Hopf, State’s Attorney of DuPage County, of Wheaton (Kevin P. Connelly, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The defendant, Mark Thompson, was found guilty by a jury of attempted rape and sentenced to the penitentiary for a minimum of five years and a maximum of fourteen years, from which he appeals.

On April 28, 1966, at about 12:15 a. m., one Mrs. Stephanie Wawak was alone, driving her car westerly, on Route 64 in DuPage County, Illinois. At the intersection of Route 83, while stopped at a stop light, she noticed the defendant’s car enter Route 64 from a side street and come to a stop behind her car. She proceeded westerly, for approximately a mile, and signaled a right-hand turn onto Michigan Avenue. As she commenced her turn, and about halfway toward execution of it, the defendant’s car rammed her car in the rear. She proceeded a short distance, in order that the defendant’s car could get off of Route 64 and avoid other traffic, and stopped.

As she alighted from her car, the defendant approached and hit her about the head with his fists until she “went down.” The defendant got into the driver’s seat of Mrs. Wawak’s car, after putting her into the passenger’s side of the front seat, and moved the car to the side of the road, as it was blocking the street. He then went to the passenger’s side of the car, pulled Mrs. Wawak out and struck her on the back until she “went down” again. He picked her up, carried her to his car, placed her in the front seat and drove northward on Michigan Avenue for about one and one half blocks, until his car became stuck in the mud. There, he took her scarf from the visor and tried to wipe blood from her face, but she resisted. He then attempted to kiss her, which she also resisted, and he pushed her down on the seat and climbed on top of her. She struggled and was able to open the car door. He then closed the door and placed her on the back seat and, again, climbed on top of her. She continued to struggle and was successful in escaping from the car and ran toward approaching headlights, which turned out to be a police car.

On the same date, two complaints, one charging the defendant with battery, a misdemeanor (Ill Rev Stats 1965, c 38, § 12-3), and the other with attempt to commit rape, a felony (Ill Rev Stats 1965, c 38, § 8-4), were sworn out against him.

To best understand the points involved in this appeal, a chronological relation of the proceedings will be stated. On May 5, 1966, the defendant appeared in court; the Public Defender was appointed for him; the battery charge was continued to May 12, 1966, for arraignment and the attempt to commit rape charge was continued to May 18, 1966, for preliminary hearing. On May 12, 1966, the defendant entered a plea of not guilty to the offense of battery and the trial on that charge was set for June 14, 1966; on May 17, 1966, the Public Defender, on behalf of the defendant, requested the Clerk of the Court to place the misdemeanor charge on the court’s call for the next day and signed a statement that he was appearing, at that time, to waive the defendant’s right to trial by jury. He stated that he had no intention of giving the State’s Attorney notice of the same. The following day, the defendant, his attorney and an assistant State’s Attorney, not in charge of prosecuting the felony offense but assigned to the misdemeanor call, appeared in court. The defendant withdrew his jury demand as intended, but in addition, he also withdrew his not guilty plea and pled guilty to the charge of battery. The court continued sentencing on the guilty plea since it assumed that the State had no knowledge that the entering of a plea of guilty had been contemplated.

On the same day, within a matter of a short time and in another courtroom, the defendant was bound over to the grand jury on the felony charge. On June 1, 1966, the defendant was brought before the court for arraignment on the felony charge but requested and was granted a continuance in order to file a prearraignment motion. On June 8, 1966, the State filed a motion in the misdemeanor charge requesting the court to vacate its order of May 18, 1966, which allowed the defendant to plead guilty to the battery offense. On June 9, 1966, the defendant filed a motion to dismiss the felony charge on the basis of sections 3-3 and 3-4 of the Criminal Code (Ill Rev Stats 1965, c 38, §§ 3-3 and 3-4). On June 24, 1966, at 9:30 a. m., the court vacated its order of May 18,1966, allowing the defendant to plead guilty to the misdemeanor and the State then nolle pros’d the misdemeanor charge. That same afternoon the court denied the defendant’s motion to dismiss the felony indictment.

It is contended by the defendant on this appeal that 1) prosecution of the attempted rape constituted double jeopardy, and 2) prosecution for the attempted rape was improper since it was not prosecuted in a single prosecution along with the offense of battery.

Article V of the U. S. Constitution and Article II, section 10 of the Illinois Constitution prohibits a person from being twice put in jeopardy for the same offense. Our Supreme Court has interpreted the phrase “for the same offense” in the case of People v. Flaherty, 396 Ill 304, 71 NE2d 779 (1947), where it was stated at page 309:

“Before the defense of former jeopardy can be sustained the offense involved must be the same, both in law and in fact. If the offenses are distinct in law, the defense of former jeopardy is not available, regardless of how closely they are connected in point of fact.”

See also, People v. Williams, 4 Ill2d 440, 441, 123 NE2d 326 (1954) and ILP; Criminal Law, § 160.

In the case at bar, the defendant was charged with two separate and distinct crimes. Battery is neither the same nor is it an includable offense in the crime of attempted rape. People v. Dravilles, 321 Ill 390, 391, 152 NE 212 (1926). Therefore, the defendant’s first contention is without merit.

The second alleged error claimed by the defendant is founded on his interpretation of sections 3-3 and 3-4 of the Criminal Code, the pertinent parts of which are herewith stated:

Sec. 3-3: “(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.
“(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act.”

The defendant relies upon section 3-3 (b) and further claims that if the State fails to follow the mandate of the legislature with respect to said subsection, then the defendant is entitled, upon motion, under section 3-4 of the Criminal Code, to have the subsequent prosecution dismissed.

At first glance, the defendant’s reasoning seems quite logical and is buttressed, somewhat, by the case of People v. Mullenhoff, 33 Ill2d 445, 211 NE2d 744 (1965). However, we cannot agree with one of the premises relied upon by the defendant. Section 3-3 (b) requires that the offenses be compulsorily joined and prosecuted only if they are based upon the same act. People v. Griffin, 36 Ill2d 430, 433, 223 NE2d 158 (1967). In the Mullenhoff case, the same identical act at the same time and place was the basis for the second prosecution for a different offense. That is not the case before us.

The defendant in his statement of facts and in his argument refers to the plural of the word “act” and substitutes the word “conduct” for the word “acts.” These two words cannot be used interchangeably. One of the differences between section 3-3 (a) and 3-3 (b) is that in subsection (a) the conduct of the defendant is the primary object whereas, in subsection (b) the act of the defendant is a qualifying factor.

As was stated in the Griffin case at pages 433 and 434:

“Section 3-3 requires that offenses be prosecuted together only ‘if they are based on the same act.’ The comments of the drafting committee make it clear that this provision was not meant to require joinder of separate offenses resulting from the same ‘conduct’ (Committee Comment, SHA chap 38, par 3-3) which is defined as ‘an act or a series of acts.’ (Ill Rev Stat 1965, chap 38, par 2-4.) ”

For further interpretation of this section see, People v. Miller, 35 Ill2d 62, 219 NE2d 475 (1966).

From a review of the facts in the case before us, it can be seen that the first two batteries suffered by the complaining witness and the later attempt to commit rape did not arise from the same act; consequently, the State was not bound by the provisions of section 3-3 (b) of the Criminal Code, and the defendant’s second contention is, therefore, also without merit.

The judgment of the Circuit Court of DuPage County is affirmed.

Affirmed.

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


author: MR. JUSTICE ABRAHAMSON

text:
    Nationwide Insurance Company, a Foreign Corporation, Plaintiff-Appellant, v. Douglas Ervin, Jones Transfer Company, and Robert Holmes, Defendants-Appellees.
    Gen. No. 67-37.
    Second District.
    November 7, 1967.

      Barrick, Jackson and Switzer, of Rockford, for appellant.
    Nordquist and Anderson, of Rockford, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The Nationwide Insurance Company brings this appeal from a decree of the Circuit Court of the 17th Judicial Circuit, Winnebago County, entered December 29, 1966, that found that an automobile insurance policy issued by it to Douglas Ervin “covered” an accident that had occurred on September 26, 1964, and that a certain automobile operated by Ervin at the time of the accident was a “replacement” as defined in the policy.

On August 16, 1963, Nationwide issued its policy of automobile insurance number 94-441-489 to Ervin for coverage of his 1958 Chevrolet. In July of 1964 the transmission of the Chevrolet, according to Ervin, “went out” and he purchased a 1958 Cadillac. The Chevrolet was retained by Ervin, although inoperable, and left in the driveway of his home.

On September 26, 1964, Ervin was in an automobile accident with the Cadillac that involved a truck owned by the Jones Transfer Company, and another automobile in which Robert Holmes was a passenger. Holmes subsequently brought suit against Ervin and Jones Transfer for injuries allegedly suffered as a result of that accident. Nationwide was called upon by Ervin to defend him in that suit pursuant to the policy.

Nationwide did employ counsel to represent Ervin but reserved its rights to disclaim coverage for the accident. They then filed a second suit that requested the court to determine its obligations under the insurance contract with Ervin and to find that it had no obligations with respect to the accident with Holmes. This appeal is from the adverse determination of the trial court.

Section VI of the insurance contract, entitled “Use of Other Land Motor Vehicles,” provides that the policyholder would be insured against liability to third parties within the specified limits under certain circumstances even when he was operating an automobile other than that named in the policy. Paragraphs (a) and (b) of that section provide that there would be coverage in the following situations:

“a. A land motor vehicle not owned by the Policyholder, while temporarily used as a substitute for the described automobile when withdrawn from normal use because of breakdown, repair, servicing, loss or destruction, or
“b. A land motor vehicle, ownership of which is acquired by the Policyholder first named in the Declarations, and if an individual, his spouse residing in the same household, which has not, except as a replacement, been the subject of such ownership for more than 30 days next preceding the occurrence . . ."

It is agreed by the parties that the policy would have afforded protection to Ervin at the time of the accident if the Cadillac was in fact a “replacement” of the Chevrolet, but that it would not be applicable if the Cadillac was an “additional automobile” purchased by Ervin, since it was acquired more than 30 days preceding the accident.

Ervin testified that the Chevrolet had completely broken down in July of 1964 and that the Cadillac was purchased to replace it. He secured a new license for the Cadillac and explained he did not sell or trade the Chevrolet because he still owed a substantial balance to a finance company for its original purchase. He further stated that it would have been necessary for him to pay $75 in cash to repair the Chevrolet and that he purchased the Cadillac with no cash down payment. The Chevrolet remained in Ervin’s driveway until it was repaired in the spring of 1966. He paid the bill of $75 to repair the transmission and with Ervin’s permission, a friend of his drove the car on a few occasions. In a statement made to an adjuster for Nationwide Ervin testified that he bought the Cadillac as an additional car for one of the children. In addition, he admitted that he would have driven the Chevrolet to work after it was fixed if he had possessed a valid driver’s license.

Nationwide contends in this appeal that, under the circumstances, the Cadillac was not a “replacement” of the Chevrolet as contemplated by the insurance contract since a replacement, by definition, must replace something that is discarded. Ervin, on the other hand, urges that he did in fact, discard the Chevrolet since it was no longer of service to him and that he retained it only because of the financial obligations involved in its disposition or repair.

The parties to an insurance contract are free to incorporate such provisions into it, if not unlawful, as they see fit and it is then the duty of the court to enforce those provisions. The well known rule that all ambiguities in an insurance policy will be construed most strongly against the insurance company, as the party that drafted the policy, only has application where an ambiguity in fact exists and a court may not distort the contract to create the ambiguity itself. Pioneer Life Ins. Co. v. Alliance Life Ins. Co., 374 Ill 576, 30 NE2d 66; Dreher v. Aetna Casualty & Surety Co., 83 Ill App2d 141, 226 NE2d 287; Canadian Radium & Uranium Corp. v. Indemnity Ins. Co. of North America, 342 Ill App 456, 97 NE2d 132.

An insurance contract should be construed in accordance with the general contract rule of construction that the agreement should be ascertained as a whole to determine the intention of the parties and the purpose which they sought to accomplish. Jensen v. New Amsterdam Ins. Co., 65 Ill App2d 407, 213 NE2d 141; Fogelmark v. Western Casualty & Surety Co., 11 Ill App2d 551, 137 NE2d 879.

When we apply this general rule of construction to the policy before us, it is apparent that protection against the enumerated risks was afforded to the insured for the so-called “named” automobile, the Chevrolet, and in certain circumstances for an automobile other than that named. The coverage for the non-named automobile was restricted to three situations, to wit:

(1) A replacement for the named automobile
(2) A temporary substitute, not owned by the insured, while the named automobile was withdrawn from normal use, and
(3) An additional, owned automobile but for only 30 days after acquisition by the insured.

The enumeration in the policy of those few situations where coverage was afforded to the insured with reference to another automobile obviously served to limit the areas of risk assumed by the insurer. It provided coverage for a second automobile for only a short time to permit the owner an adequate opportunity to acquire the necessary additional insurance and was never intended to cover two automobiles for any protracted period. The provision for a substitute automobile is applied to those situations where the named automobile was in a repair shop or withdrawn from use for a short period since the substitute could not be owned by the insured. It was never contemplated that coverage would be extended to more than one automobile for other than a brief period of time. Consequently, a replacement could only exist under the provisions of this contract where the insurer had no further obligations in regard to the named automobile.

It is the contention of Ervin that Nationwide had no obligations in connection with the Chevrolet during the period from July of 1964 to the spring of 1966. We do not agree with that contention.

Under the facts and circumstances herein related, we are of the opinion that the Cadillac automobile was not a replacement as contemplated by the insurance contract and Nationwide had no obligation to Ervin in regard to the accident in September of 1964.

Judgment reversed.

DAVIS, P. J. and MOKAN, J., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Julius Garb, Plaintiff-Appellant, v. Samuel E. Harris, et al., Defendants-Appellees.
    Gen. No. 50,498.
    First District, Third Division.
    September 21, 1967.

      Piacenti & Cifelli, of Chicago Heights (Silvio E. Piacenti, John L. Cifelli, James F. Creswell, Richard S. Jemilo, and Joseph R. Pigato, of counsel), for appellant.
    Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (William H. Symmes and John M. O’Connor, Jr., of counsel), and Baker, McKenzie & Hightower, of Chicago, for appellees.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This appeal arises from a suit brought by Julius Garb for injuries allegedly sustained in an automobile accident. Subsequent to the date of the accident Phelan E. Henno, one of the defendants, died from unrelated causes, and William H. Bassett, Jr., the administrator of his estate, was substituted as a party defendant.

During the trial plaintiff Garb attempted to testify with regard to incidents relating to Henno. The administrator’s attorney objected to and moved to strike such testimony on the basis that it was prohibited by section 2 of the Evidence Act, (Ill Rev Stats 1968, c 51, par 2). The trial court sustained the motion and instructed the jury that the testimony of the plaintiff would apply only to the defendant Harris and not to the defendant William H. Bassett, Jr., as administrator of the estate of Phelan Henno.

The ad damnum in the complaint was $15,000.

The trial before a jury resulted in a verdict of not guilty as to Samuel Harris. At the close of the plaintiff’s evidence, on motion of the administrator of the estate of Phelan Henno, the court directed a verdict in favor of the administrator. A judgment was entered on the verdict, from which judgment plaintiff appeals.

Plaintiff raises only one point on this appeal, namely: the trial court erred in sustaining the motions of the defendant administrator under section 2 of the Illinois Evidence Act. Section 2 of the Evidence Act reads in part as follows:

“No party to any civil action, suit or proceedings, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends . . . as the executor, administrator, heir, legatee or devisee of any deceased person, . . . unless when called as a witness by such adverse party so suing or defending.” (Emphasis supplied.)

Plaintiff cites the case of Fredrich v. Wolf, 383 Ill 638, 50 NE2d 755, which held, in effect, that the purpose of section 2 of the Evidence Act is to protect estates of deceased persons against fraudulent claims, in providing that no party to a civil action may testify therein in his own behalf when an adverse party sues or defends as the executor of a deceased person. From that case the plaintiff deduces that the purpose of section 2 of the Illinois Evidence Act is to protect the estate of a deceased person from being depleted. Actually, the intent of Fred-rich v. Wolf, supra, as we read it, is that the purpose of section 2 is to protect the estates of deceased persons against the possibility of fraudulent claims by eliminating the testimony of the living claimant and thereby placing the parties in a comparable position. On page 642, in Fredrich v. Wolf, supra, the court said:

“Whether Wolf testified to the facts included in the offer as a witness in his own behalf or when called by plaintiff as an adverse party under section 60, the possibilities of opening the door to fraudulent claims against estates of deceased persons is the same. The intent and purpose of the statute was to protect estates of deceased persons against such possibilities and its purpose should not be defeated by a too restricted application.”

The plaintiff argues that the decedent’s administrator was represented by the law firm of Baker, McKenzie & Hightower, who are exclusively employed by the American Insurance Company. We find nothing in the record to support the statement that that law firm was exclusively employed by the American Insurance Company. The plaintiff then argues that since the policy of insurance amounts to $15,000 and the amount sued for by the plaintiff does not exceed $15,000, the real party in interest herein is the American Insurance Company. The plaintiff by this argument overlooks the fact that the liability of the insurance company is strictly derivative. Unless a judgment is obtained against the administrator of the estate of Henno there can be no liability against the insurance company.

Section 2 of the Evidence Act has been construed on numerous occasions. In Redden v. Inman, 6 Ill App 55, the court said at page 58:

“The mischief intended to be prevented by the second section, was that by the first a party to the suit might have an under (sic) and dangerous advantage, and would be under strong temptation to commit perjury if he were allowed to testify in regard to a transaction with the other party since deceased.”

In Smith v. Billings, 177 Ill 446, 452, 53 NE 81, the court said:

“The theory of the general statute, innovating, as it did, so thoroughly upon the rule of the common law, was, that the light should not be excluded because it might come from a possibly interested source, and hence that those persons, the parties who were presumed to know more about the transaction in dispute, should each be allowed to give their own version of the transaction, leaving the jury to judge of their credibility. But in perfect harmony with this general theory, and in the utmost accord with the reason of the law, it was deemed wise to provide that if one could not, by reason of death, give his version neither shall the other. The want of opportunity to assist in the preparation of the cause by the decedent is not the sole ground for excluding the testimony of the survivor, nor by any means the principal ground. The prime reason is found in the inability of the party to oppose his statements, — his testimony, — to that of the surviving adversary, and this has been more than once announced as the reason of the law. (Citing cases.)”

In Van Meter v. Goldfarb, 317 Ill 620, 622, 148 NE 391, the court said:

“The purpose of sections 1 and 2 of the Evidence act is to emancipate the parties as witnesses. Such statutes were not designed to restrict the admissibility of evidence but were intended to enlarge the competency of witnesses, so that, with the statutory exceptions, all persons might testify in an action. The purpose of the exception in favor of one suing as administrator in statutes removing the incompetency of parties as witnesses is to guard against the temptation to give false testimony in regard to the transaction in question on the part of the surviving party and to put the two parties to a suit upon terms of equality in regard to the opportunity of giving testimony. (4 Jones’ Commentaries on Evidence, sec 773.) ”

It would appear to be obvious from these cases that sections 1 and 2 of the Evidence Act have been interpreted so as to allow parties in interest the privilege of testifying only on terms of apparent equality. The existence or nonexistence of liability insurance can in no way change this purpose. The duty of the insurance company to indemnify the insured arises only after liability has been established against the insured. The insurance company, while it may owe a duty under its policy to defend the insured, is not directly liable to a third party who may be injured.

Plaintiff argues “that through the evolution of torts law and through the requirements of justice therein to allow this insurance company to take advantage of a right inherent to the personal estate of the decedent herein would be against all concepts of justice and fair play as has evolved in our society.” At common law parties and those interested in the subject matter of the litigation were disqualified to testify. The legislature, by section 1 of the Evidence Act removed the disqualification of parties to litigation and persons interested in the subject matter thereof, and by section 2 of the Evidence Act sought to protect the estates of deceased persons, as well as of incompetents, from the possibility of fraudulent claim?? being asserted.

In 37 ILP, section 29, we find the following:

“At common law all persons, whether or not parties to the record, who had an interest in the subject matter in litigation or in the results of the proceeding were disqualified as witnesses as long as that interest existed, . . . .”
“Evidence Act section 1 changed the common-law rule and, subject to certain exceptions, a party to, or person interested in the event of, a proceeding is not thereby disqualified from testifying therein as a witness.”

See cases therein cited.

In 37 ILP, section 41, we find the following:

“Section 2 of the Act is a limitation on section 1 of the Act, and it has been stated that the purpose of section 2 of the Act is to put both parties on an equal footing, to protect the adverse party, and to protect the estates of deceased persons against fraudulent claims.”

See cases therein cited.

The “Dead Man’s Act,” as section 2 of the Evidence Act is sometimes known, is discussed in the case of Pink v. Dempsey, 350 Ill App 405, 113 NE2d 334. At page 415 the court said:

“The nature of this case reveals that there is still essential wisdom in the “deadman’s” statute. Some sentiment for a repeal of the statute exists because, undoubtedly, at times injustice or considerable annoyance and difficulty is put upon a claimant against an estate because of the disqualification. How does this disadvantage weigh against the deceit, fraud, perjury and exaggeration temptingly put before a claimant making a case based on personal transactions with a dead man? Should the statute be amended? If so, how and with what restrictions, if any, upon claims based on purely personal transactions? ... We consider it our duty to give the statute a fair and reasonable meaning and not, by a process of indirect attenuation, repeal or partially repeal it. The legislature, unlike the court, could hear testimony pro and con and could, as a matter of policy, determine whether the statute should be repealed, qualified, or remain as it is. . . .”

The foregoing statement was reaffirmed in Spitzer v. Bradshaw-Praeger & Co., 10 Ill App2d 445, 135 NE2d 114.

The plaintiff also argues that his case against the defendant Harris was prejudiced because the trial court erroneously sustained the administrator’s motion under section 2 of the Evidence Act and, secondly, plaintiff’s case against Harris was prejudiced because the trial court erroneously sustained the administrator’s motion for a directed verdict and instructed the jury to that end. We find no basis for either contention. The motions to exclude the testimony of the plaintiff because of section 2 of the Evidence Act were made solely by the attorney for the administrator of the estate of Phelan Henno, and applied only to the administrator. The evidence was not excluded as to Harris. After hearing all of the evidence the jury found for defendant Harris. The plaintiff does not contend, nor does he raise the point in his brief, that the verdict was contrary to the manifest weight of the evidence, therefore, that point is waived and cannot be argued in this court. Bourne v. Seal, 53 Ill App2d 155, 160, 203 NE2d 12.

We conclude that the trial court properly excluded the testimony of the plaintiff insofar as it related to the incidents of the accident with Phelan Henno, deceased, and that the trial court correctly construed section 2 of the Illinois Evidence Act in so doing.

We also conclude that the action of the court in directing a verdict in behalf of the administrator did not prejudice the plaintiff in his case against Harris.

For the foregoing reasons the judgment of the trial court is affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.