author: JUSTICE UNVERZAGT

text:
    JAMES V. SUDDRETH, Plaintiff-Appellant, v. CATERPILLAR TRACTOR CO., Defendant-Appellee.
    Second District
    No. 82—583
    Opinion filed May 5, 1983.
    Jay R. Giusti, of Gary B. Friedman, Ltd., of Chicago, for appellant.
    Keith C. Hult and Gerald D. Skoning, both of Seyfarth, Shaw, Fair-weather & Geraldson, of Chicago, and Theodore R. Johnson, of Caterpillar Tractor Co., of Peoria, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

James V. Suddreth filed a two-count complaint in the circuit court of Kane County wherein he sought compensatory and punitive damages based upon his allegedly retaliatory discharge for the filing of a workers’ compensation claim. The trial court dismissed the complaint in view of the fact that Suddreth had failed to exhaust the remedies available to him under his collective bargaining agreement. He appeals from the dismissal of his complaint.

The complaint alleged that on October 3, 1978, the plaintiff, an employee of defendant, Caterpillar Tractor Co., sustained an injury to his back during the course of his employment. In consequence of this injury, the plaintiff was unable to perform his duties for several weeks. On October 13, 1978, the plaintiff filed a claim for workers’ compensation. The complaint alleged that, as a direct result of the filing of his claim, plaintiff’s employment with defendant was terminated on November 10, 1978. Accordingly, the plaintiff sought $30,000 in compensatory damages and $500,000 in punitive damages. The complaint was originally filed in Cook County and thereafter, pursuant to defendant’s motion, the case was transferred to Kane County.

Following the transfer of venue, Caterpillar filed a motion to dismiss wherein it alleged that, at the time of the plaintiff’s discharge, both parties were bound by a collective bargaining agreement entered into by Caterpillar and the plaintiff’s union. The agreement provided that an employee could only be discharged for just cause and any disputes concerning discharge would be resolved according to an established grievance procedure. Pursuant to this procedure, plaintiff filed a grievance concerning his discharge which was ultimately settled when plaintiff was reinstated on January 22, 1980. Accordingly, defendant asserted that the subject action was barred under the authority of Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, which held that an employee must exhaust his remedies under a collective bargaining agreement prior to filing suit for retaliatory discharge.

The motion further alleged that, on October 4, 1979, the parties entered into a settlement agreement which discharged defendant “of and from any and all liability under the workers’ compensation act.” This settlement agreement apparently included monies awarded to plaintiff by the Illinois Industrial Commission in connection with the original claim for workers’ compensation. Defendant asserted that the settlement agreement, by its terms, defeated plaintiff’s claim.

The trial court dismissed Suddreth’s complaint with prejudice on the basis of the decision in Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402. This appeal followed.

Two issues are raised: (1) whether an employee who is protected by the grievance procedures of a collective bargaining agreement may sue in tort for retaliatory discharge if he is discharged for filing a workers’ compensation claim and (2) whether Federal law preempts the instant action.

In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, our supreme court established a cause of action for retaliatory discharge on behalf of employees, otherwise terminable at will, who are discharged for filing claims under the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.). The court reasoned:

“[T]he legislature enacted the workmen’s compensation law as a comprehensive scheme to provide for efficient and expeditious remedies for injured employees. This scheme would be seriously undermined if employers were permitted to abuse their power to terminate by threatening to discharge employees for seeking compensation under the Act. We cannot ignore the fact that when faced with such a dilemma many employees, whose common law rights have been supplanted by the Act, would choose to retain their jobs, and thus, in effect, would be left without a remedy either common law or statutory. This result, which effectively relieves the employer of the responsibility expressly placed upon him by the legislature, is untenable and is contrary to the public policy as expressed in the Workmen’s Compensation Act.” (74 Ill. 2d 172, 181-82.)

Accordingly, the court concluded that an employer who fires an employee, otherwise terminable at will, for the filing of a workers’ compensation claim would be liable for both compensatory and punitive damages.

On appeal, plaintiff asserts that the cause of action enunciated in Kelsay should be available here, notwithstanding the fact that the plaintiff was protected by a collective bargaining agreement which prohibited the defendant from discharging employees without “just cause” and which provided a grievance and arbitration procedure for all discharged employees. This contention was expressly rejected in Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402.

In Cook, the plaintiff was discharged after having filed a claim for workers’ compensation. Pursuant to a collective bargaining agreement apparently identical to the one in the case at bar, the plaintiff filed a grievance which was later submitted to arbitration. The grievance did not contain an allegation regarding retaliatory discharge and it appears that the plaintiff similarly did not make this allegation at the arbitration hearing. Subsequent to the hearing, the labor arbitrator rendered a decision that plaintiff had been discharged for just cause. Plaintiff then filed suit alleging retaliatory discharge. There, as here, the complaint was dismissed. On appeal, the appellate court concluded that retaliatory discharge is subsumed within the just cause provision of the collective bargaining agreement and is within the power of the arbitrator to consider when determining if a discharge was for just cause. Therefore, the plaintiff failed to exhaust his administrative remedies under the contract by raising the issue of retaliatory discharge at the arbitration hearing. The court also determined that the Kelsay doctrine would only apply to an employee who is terminable at will, since that employee would have no recourse against his employer if he were discharged for filing a workers’ compensation claim. In such a case, the necessity of choosing between continued employment and the filing of a claim would undermine the Workers’ Compensation Act. But where, as here, an employee is protected by a collective bargaining agreement which permits discharge only for just cause and allows for arbitration to guarantee the parties’ rights, the policy considerations in Kelsay are not present. An employee protected by such an agreement would be free to apply for workers’ compensation without the concern that he would have to sacrifice his job to gain those benefits. On the basis of Cook, the action here would be barred.

The holding and rationale of Cook has been adopted without further discussion in Deatrick v. Funk Seeds International (1982), 109 Ill. App. 3d 998. However, in Wyatt v. Jewel Companies, Inc. (1982), 108 Ill. App. 3d 840, the reviewing court disagreed with Cook and allowed a cause of action for retaliatory discharge not withstanding the existence of a collective bargaining agreement. In Wyatt, the court concluded that Kelsay established an independent action in tort for retaliatory discharge which is totally separate and distinct from any contractual remedies which an employee might have. The court reasoned that a limitation of Kelsay to employees who are terminable at will would lead to absurd results since employers who are not restricted by a labor agreement could be held liable for punitive damages whereas such damages would not be available against an employer restricted by a union contract. The Wyatt court indicated that the defense of failure to exhaust administrative remedies would only be available under a breach of contract action and not for a cause of action sounding in tort. 108 Ill. App. 3d 840, 841.

Upon weighing the relative merits of the opinions expressed in Cook and Wyatt, we are persuaded that Cook presents the more reasoned approach. (See also Lamb v. Briggs Manufacturing (7th Cir. 1983), 700 F.2d 1092.) The Kelsay decision established a cause of action for employees who would otherwise not have any recourse if they were discharged for the filing of a workers’ compensation claim. In the same vein, the court provided for the assessment of punitive damages in order to impress upon employers the necessity of tempering their otherwise unfettered discretion in terminating employees where that discretion might be utilized to limit their liability under the Workers’ Compensation Act. This protection is not necessary where, as here, an employee is protected by a collective bargaining agreement. In such a case, an employer does not have the unfettered right to discharge his employees and, as the Cook court determined, it is not unreasonable to suggest that the “just cause” provisions of a bargaining agreement protect an employee from retaliatory discharge.

Suddreth also asserts that Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, should not stand as a bar to the instant complaint since Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, had not yet been decided when he was discharged and the grievance was filed. Under Cook, an employee is required to raise the issue of retaliatory discharge during the course of the grievance and/or arbitration proceedings. Suddreth contends that it was impossible for him to have raised the issue since, prior to the decision in Kelsay, he could not possibly have known that retaliatory discharge for the filing of a compensation claim would constitute wrongful discharge.

Arguably, there is a flaw in Cook in view of the fact that the plaintiff there was discharged prior to the decision in Kelsay. That is, in part, the basis for Justice Barry’s dissent in Cook. However, this problem does not exist in the case at bar. Here, Suddreth is correct that the discharge occurred on November 10, 1978, and the grievance was filed on November 28, 1978, whereas Kelsay was not decided until December 4, 1978. But, Suddreth overlooks the fact that, according to the affidavit of Keith Knott, the manager of the defendant’s personnel services division, the grievance was settled with plaintiff’s reinstatement as of January 22, 1980. The averment stands unrefuted by counteraffidavit. Accordingly, it is not unreasonable to suggest that the plaintiff had ample time in which to assert the question of retaliatory discharge as enunciated in Kelsay.

As a final note, the record establishes that on September 25, 1979, the parties entered into a settlement agreement in connection with the workmen’s compensation claim. Defendant asserted this settlement as an alternative basis on which to dismiss the instant action. This assertion was not discussed nor ruled on by the trial court. We determine that the existence of this agreement is not, in and of itself, sufficient to sustain the motion to dismiss. In his affidavit, Suddreth denied that the agreement encompassed the instant claim, and the language of the agreement itself is somewhat equivocal on this point.

Since we adhere to the decision in Cook v. Caterpillar Tractor Co. (1980), 85 Ill. App. 3d 402, it is not necessary to determine whether Federal law preempts the instant action.

The judgment of the circuit court of Kane County is affirmed.

Judgment affirmed.

HOPF and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HEIPLE

license: Public Domain

text:
    ARLINDA LEDBETTER, Plaintiff-Appellant v. LANNIE CRUDUP, Defendant.—(Illinois Founders Insurance Company, Garnishee-Appellee.)
    Third District
    No. 82—733
    Opinion filed May 12, 1983.

      Steven N. Fritzshall, of Fritzshall, Fritzshall & Bensinger, of Chicago, for appellant.
    Andrew H. Marsch, of Wheaton, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff, Arlinda Ledbetter, was injured while on property owned by Lannie Crudup. Ledbetter sued Crudup and obtained a default judgment in the amount of $25,000, because of Crudup’s failure to answer the complaint. Ledbetter, then, initiated a garnishment proceeding against Crudup’s insurer, Illinois Founders Insurance Company (IFIC), the garnishee-appellee, in order to collect the judgment amount. IFIC filed its answers to the garnishment interrogatories stating that it was not in possession of any property or funds owing to Crudup. IFIC alleged, as a policy defense, that it had never received notice of the lawsuit and therefore, under the terms of the insurance contract, was not obligated to provide Crudup with insurance coverage in this case. In his statement, Crudup claimed that he delivered the summons and complaint to James Fox of the Baldwin Insurance Company (it was through James Fox that Crudup kept his coverage by IFIC current). It must be noted that Mr. Fox and Baldwin Insurance are not licensed agents of IFIC, but are brokers of IFIC insurance policies. IFIC filed a motion for summary judgment supported by the affidavit of Mr. Fox in which Mr. Fox denied having received the complaint and denied having sent the same to IFIC. The trial court resolved the conflict between the statements of Crudup and Fox in favor of Ledbetter by assuming that Crudup did deliver the complaint to Fox. However, the trial court found that the portion of Fox’ statement wherein Fox claimed he did not forward the complaint to IFIC was undisputed. The court further found that Fox, a broker, was the agent of Crudup and not the agent of IFIC for the receipt of notice. The trial court ruled in favor of IFIC’s motion and Ledbetter appealed.

The issue before this court is whether the lower court erred in holding that notice to the broker, Fox, was not notice to the insurance company, IFIC. Stated another way, the issue is whether, based upon the facts presented to the trial court, Mr. Fox was the agent of the insurance carrier or the agent of the insured for receipt of notice of the suit. If Mr. Fox acted on behalf of the insurance company, then the notice delivered to Mr. Fox would be considered as notice delivered to the insurance company.

The trial court correctly stated that it is the general rule that a broker is one who acts on behalf of the insured, and not on behalf of the carrier. (Ill. Rev. Stat. 1981, ch.73, par. 1065.37; Lynn v. Village of West City (1976), 36 Ill. App. 3d 561, 564.) Nonetheless, the court below noted that there are two exceptions to the rule. One exception is custom. Courts have found an insurance company can be estopped from denying the authority of a broker to act on its behalf where the broker had acted in accordance with customary practices. A custom or usage becomes binding upon parties if it has been uniformly acquiesced in and applied by the parties for such a period of time so as to indicate that the custom was contemplated by the parties at the time formation of the contract was undertaken. A custom or usage should be established by the testimony of several witnesses. (DeGraw v. State Security Insurance Co. (1976), 40 Ill. App. 3d 26, 34.) In the instant case, the lower court observed that Ledbetter simply did not present the court with any witnesses which could have established the existence of a custom that brokers are the agents of insurance companies for notice of a suit.

The other exception considered by the lower court is course of dealings between a broker and an insurance company. In Boston Store v. Hartford Accident & Indemnity Co. (1922), 227 Ill. App. 192, 201, it is explained that “sometimes the actions of the company and its dealings with the broker create the relation of principal and agent between the company and the broker.” This relation must be established by evidence of the dealings of the broker and the insurance company. On this issue, too, the trial court found an absence of evidence sufficient to establish an agency for notice of the suit.

Although not an issue on this appeal, it is worthwhile to note there is a third exception to the rule and that is a statutory exception. For example, the legislature has specifically made brokers the agent of the insurance carriers for the receipt of insurance premiums. Ill. Rev. Stat. 1981, ch. 73, par. 1065.52. See also Davidson v. Comet Casualty Co. (1980), 89 Ill. App. 3d 720, wherein the court held that this provision does not make a broker the insurer’s agent for the purpose of transmitting refunds to the insured.

After reviewing the record, this court must agree with the conclusions of the trial court. We find no evidence of a customary practice, applicable to the case at hand, of allowing brokers to be the agents of insurance companies for the receipt of notice of a suit. On the issue of course of dealing, Ledbetter, in' his brief, points to statements of Crudup and Fox which suggest that Fox told Crudup to bring any notice of claims directly to Fox and that Fox would forward the notice to the insurance carrier. This is only evidence of the conduct of Fox. In order to establish an agency relationship in fact or by estoppel, it was incumbent upon Ledbetter to provide the trial court with evidence of informed acquiescence or conduct of IFIC sufficient to create an agency. (Fredrich v. Wolf (1943), 383 Ill. 638, 640; Crittendon v. State Oil Co. (1966), 78 Ill. App. 2d 112, 117.) The trial court, being unable to find such evidence in the pleadings, statements and affidavits, properly found that Fox was not the agent of IFIC for the receipt of notice of the suit. Compare Lynn v. Village of West City (1976), 36 Ill. App. 3d 561, 565 (no conduct on the part of the insurance carrier), with American Home Assurance Co. v. City of Granite City (1978), 59 Ill. App. 3d 656, 663 (statements of insurance company employee as to course of dealing of insurance company with the broker).

It is the opinion of this court that the conclusions of fact made by the trial court are supported by the record and that its finding that Mr. Fox was not the agent of IFIC for receipt of the notice of the suit was correct. Therefore, the decision of the trial court is affirmed.

Affirmed.

STOUDER, P.J., and BARRY, J., concur.


author: JUSTICE ALLOY

text:
    RICKY RUTH, Plaintiff-Appellant, v. DARIO BENVENUTTI, Indiv. and d/b/a Rusty Rail, Defendant-Appellee.
    Third District
    No. 82—696
    Opinion filed May 6, 1983.
    Curt N. Rodin, of Anesi, Ozmon, Lewin & Associates, Ltd., of Chicago, and John A. Grivetti, Jr., of Spring Valley, for appellant.
    Bradley W. Hayes, of Dunn & Hayes, of Morris, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

The plaintiff Ricky Ruth appeals from the dismissal of complaint, seeking compensatory damages for the defendant Dario Benvenutti’s alleged wilful, wanton, and intentional misconduct in serving him alcoholic beverages. The trial court dismissed Ruth’s complaint, finding it insufficient at law to state a cause of action. Plaintiff Ruth’s action was premised upon a common law action for wilful and wanton misconduct, and not upon the Dramshop Act. (Ill. Rev. Stat. 1981, ch. 43, par. 94 et seq.) The question on appeal is whether in Illinois there is a common law cause of action for the wilful, wanton and intentional misconduct of a tavern owner who sells intoxicating liquors to a minor, knowing him to be a minor and to be particularly susceptible to the effects of alcohol.

The facts are taken from the complaint, which, for purposes of the motion to dismiss, are to be taken as true. Near the end of August 1981, Susan Wallace, mother of the plaintiff, went to the defendant’s tavern, the Rusty Rail, and specifically requested that the defendant not serve any alcoholic liquors to her son, Ricky Ruth. Mrs. Wallace informed the defendant that her son was underage and that he had previously injured himself after being served drinks by the defendant. Several weeks later, on or about September 11, 1981, Ricky Ruth went to the Rusty Rail and the defendant served, sold or gave him alcoholic liquors. The complaint states that the defendant, at the time he served the plaintiff, knew him to be a minor, not of legal drinking age. It is also alleged that the defendant’s actions in serving Ricky Ruth were in knowing disregard of his mother’s request, and with the knowledge that Ricky was dangerous and unable to control himself when intoxicated. After being served at the Rusty Rail, an intoxicated Ricky Ruth severely injured himself in an auto accident when he lost control of his auto. His suit, premised upon a common law wilful and wanton misconduct theory, was later filed. The trial court dismissed the complaint, finding it insufficient to state a cause of action.

On appeal, the plaintiff urges that a cause of action premised upon the wilful and wanton misconduct of a tavern owner in serving liquor to a minor should be adopted in Illinois. This contention acknowledges that no such cause of action existed at common law (Cunningham v. Brown (1961), 22 Ill. 2d 23, 28-29, 174 N.E.2d 153), nor has it been adopted by any Illinois court. In fact, it has been repeatedly held that the Dramshop Act’s imposition of liability on tavern owners and tavern keepers is the exclusive remedy against such defendants for injuries to person, property or means of support by an intoxicated person or in consequence of intoxication. (22 Ill. 2d 23, 30-31; Knierim v. Izzo (1961), 22 Ill. 2d 73, 76-77, 174 N.E.2d 157; Shepherd v. Marsaglia (1961), 31 Ill. App. 2d 379, 176 N.E.2d 473; Richardson v. Ansco, Inc. (1979), 75 Ill. App. 3d 731, 732, 394 N.E.2d 801; Miller v. Moran (1981), 96 Ill. App. 3d 596, 598, 421 N.E.2d 1046.) In Knierim, relying upon Cunningham, the court found there was no common law action against a tavern keeper for supplying intoxicating liquor to a person the supplier knows has no volition with regard to consuming the intoxicant. (Knierim v. Izzo (1961), 22 Ill. 2d 73, 77.) In Shepherd v. Marsaglia the plaintiff alleged in his complaint that the tavern owner negligently, wilfully, wantonly and intentionally served him alcoholic beverages at a time when he was a minor and intoxicated, when the owner knew or should have known of his minority and his intoxicated state. Thus, the question there, as here, was whether a common law cause of action, premised upon a tavern keeper’s wilful and wanton misconduct, existed. The court concluded, based upon Cunningham, that no common law action of that kind was available to the plaintiff, and the dismissal of those counts of the complaint was affirmed. (Shepherd v. Marsaglia (1961), 31 Ill. App. 2d 379, 382.) Shepherd is clear and controlling precedent for the trial court’s dismissal of plaintiff’s complaint in the instant case. In Miller v. Moran the court refused to create a common law cause of action against a social host who wilfully and wantonly served liquor to a guest, relying upon the exclusivity of the Dramshop Act, as set forth in Cunningham. (Miller v. Moran (1981), 96 Ill. App. 3d 596.) The plaintiff seeks to distinguish Shepherd, arguing that the facts herein are more egregious in that the tavern keeper is alleged to have affirmatively known of the plaintiff’s minority and to have acted in disregard of his mother’s prior warning and request. While the particular underlying facts of the wilful and wanton misconduct may well be more egregious here than in Shepherd, that does not change the legal conclusion of the court that there is no common law cause of action based upon wilful and wanton misconduct by a tavern owner, however egregious the underlying facts of the cause of action are. As has been established, the only remedy against tavern owners and keepers for the sale of intoxicating beverages is that provided by the legislature in the Dramshop Act. Cunningham v. Brown (1961), 22 Ill. 2d 23; Shepherd v. Marsaglia (1961), 31 Ill. App. 2d 379. We are aware of judicial trends elsewhere expanding such common law actions. (See Annot., 98 A.L.R.3d 1230 (1980).) However, the law is established in Illinois, and changes of such nature should normally come either through legislative action (Graham v. General U.S. Grant Post No. 2665, V.F.W. (1969), 43 Ill. 2d 1, 248 N.E.2d 657; Richardson v. Ansco, Inc. (1979), 75 Ill. App. 3d 731, 394 N.E.2d 801) or through action by the Illinois Supreme Court. As plaintiff’s counsel concedes in his reply brief, the plaintiff is asking the court to create a limited and sui generis exception in this case from the general and established rule of law concerning Dramshop Act exclusivity in this field. Despite the temptation to do so, arising from the facts herein, we decline. We suggest that the instant case is an excellent vehicle for a reexamination of the law, in the face of a lack of legislative action, should the Illinois Supreme Court so decide. We suggest careful scrutiny of any leave to appeal petition from our action in affirming.

The decision of the circuit court of La Salle County is affirmed.

Affirmed.

STOUDER, P.J., and SCOTT, J., concur.


author: JUSTICE HOPF

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PAUL REDMOND, Defendant-Appellee.
    Second District
    No. 81—964
    Opinion filed May 6, 1983.

      Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert J. Hauser, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Defendant, Paul Redmond, was charged by information with unlawful possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1979, ch. 56V2, par. 705(e)). Pursuant to a search warrant, law enforcement officials searched defendant’s residence and found marijuana on the premises. Defendant subsequently filed a motion to suppress, which attacked the validity of the search warrant under the principles of Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674. After an evidentiary hearing the circuit court of Lake County granted defendant’s motion to suppress. The State’s motion to reconsider was denied. In this interlocutory appeal, the State appeals from the trial court’s order granting defendant’s motion to suppress.

The search warrant in the present case was issued on November 20, 1980, pursuant to the sworn complaint of Marcea Ross, a police officer for the Northshore Metropolitan Enforcement Group. The complaint for search warrant stated that within the past 48 hours the affiant had had a conversation with a reliable informant who had told her that he had been inside the residence located at 201 Washington Road in Lake Forest and had observed on the kitchen table a black plastic film cannister which contained a quantity of LSD in the form of purple microdots; he had also observed a quantity of LSD in the nature of purple microdots on the living room coffee table. According to the affiant-officer, the informant had provided information on three occasions within the past year regarding the existence of cocaine and quaaludes. Arrests occurred on those occasions as a result of the information which the informant had supplied. The affiant’s complaint also recited that the informant had told her that he had seen and used LSD on numerous occasions and was familiar with its appearance and form.

At the hearing held on the motion to suppress the defense presented the testimony of six witnesses. The defendant and two individuals with whom he shared the residence, Charles Smith and Eleanor Hodgkins, testified. Additionally, three other individuals, Mike Hennel, Scott Thompson, and Joseph O’Loughlin, who visited the residence during the period of November 18 to 20, 1980, gave testimony on behalf of defendant. By contrast, the State did not present any witnesses.

All six defense witnesses testified to substantially the same events. They related that they were the only persons who were in the house in question during the time period of November 18 to 20, 1980, except for the additional presence of a Cecily Brainard, who was unavailable to testify. Their testimony revealed that at no time when they were in the house during that time did they see any small purple objects such as microdots of LSD on either the kitchen table or the living room table. Furthermore they did not speak about or have any LSD during the period in question. Charles Smith, who lived at the house that was searched, admitted that a few empty film cannisters were in the living room, but he did not notice any film cannisters on the kitchen table. Other witnesses testified that there were no film cannisters on the kitchen and living room tables although one witness stated that he had observed an empty film cannister on the windowsill of the kitchen. The three occupants of the house further related that they always locked the doors upon leaving the residence and followed that practice during the period in issue. Furthermore they did not lend their keys to the house.to friends or anyone else.

The evidence adduced at the hearing revealed that at approximately 7 o’clock on November 20, 1980, Marcea Ross, the affiant, and Larry Mulchrone, of the Northshore Metropolitan Enforcement Group, as well as two Lake Forest policemen, executed the search warrant and searched the house at 201 Washington Road in Lake Forest. The officers found a quantity of marijuana in the house. Upon entering the home, Officer Mulchrone gave the defendant the search warrant. After reading the warrant the defendant asked Mulchrone if he expected to find purple microdots of LSD in the house. Although the officer did not respond verbally to the defendant’s inquiry both the defendant and Eleanor Hodgkins stated that Mulchrone smirked and shook his head indieating no.

The defendant also testified that he had seen Marcea Ross on two occasions during the summer of 1980. In August she came to the house in question and asked whether a person named Mark lived there. She then inquired whether the defendant knew where she could get some “stuff.” The defendant responded in the negative and asked her to depart. Approximately two weeks later the defendant saw Ross again when she came to his residence and informed him she had to get some “stuff.” Defendant again told her to leave after responding that he did not know what she was talking about. Ross replied that a person named Larry King had sent her and then broke down in tears. According to the defendant he went to get a pad of paper to write down the license number of Ross’ car in order to call the police. When he did this Ross bolted for the car and sped away. The defendant testified on cross-examination that Larry Mulchrone was the driver of the vehicle. He also related that he did not know a person named Larry King.

After hearing the testimony presented at the evidentiary hearing the trial court granted the motion to suppress. In reaching its decision, the court expressly found that credible evidence had established that all the occupants of the premises in question who testified had a believable explanation for the situation which existed in the residence during the period in issue. The trial court stated in effect that it did not believe that any of the witnesses who testified on behalf of defendant was the informant. It also found that a sufficient factual basis had been presented for questioning the integrity of the warrant and the existence of the informant. It emphasized the fact that the affiant officer did not testify at the hearing. The court found that in light of the evidence which the defendant had presented to challenge the sufficiency of the complaint for search warrant, the affiant officer should have testified under oath that she did converse with the informant, if such were the case, and should have offered some explanation regarding the evidence which defendant had adduced at the hearing. Furthermore it referred to the fact that the affiant had attempted to gain admission to the defendant’s residence on two prior occasions but was unsuccessful. The court noted that it felt that she was frustrated in her purpose.

At a subsequent hearing on the State’s motion for reconsideration the court stated that after considering all of the evidence it was of the opinion that the preponderance of the evidence established that the affiant either lied or had exhibited a reckless disregard of the truth when she stated that she had had the conversation with a reliable informant. Therefore, it was held, probable cause did not exist for the issuance of the warrant. The State’s motion for reconsideration was denied. After filing the requisite certificate of substantial impairment, the State appealed.

The State contends on appeal that the trial court erroneously allowed the suppression of the evidence in this cause and misapplied the holding of Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674. It contends that none of the evidence adduced at the evidentiary hearing established the requisite showing that “a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” (Franks v. Delaware (1978), 438 U.S. 154, 155-56, 57 L. Ed. 2d 667, 672, 98 S. Ct. 2674, 2676.) At best, the State argues, the evidence adduced at the hearing showed that the informer who spoke to Officer Ross was either mistaken or lying. It contends this is insufficient to overturn a warrant under Franks. It urges that the falsehood must emanate from the affiant, i.e., Officer Ross, and that there was no testimony which established that Officer Ross had intentionally lied or recklessly disregarded the truth. Our analysis of this case and the case law in this area leads us to conclude that the trial court’s findings were within the manifest weight of the evidence for the following reasons.

In the Franks opinion the United States Supreme Court held that under certain circumstances a defendant must be afforded an evidentiary hearing at which he could attempt to challenge the truthfulness of the factual statements contained in an affidavit supporting a search warrant. The court’s landmark decision set forth the following governing standards:

“There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing.” (438 U.S. 154, 171-72, 57 L. Ed. 2d 667, 682, 98 S. Ct. 2674, 2684-85.)

The Supreme Court also articulated the additional guidelines which apply when the trial court determines that an evidentiary hearing is required:

“In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” (438 U.S. 154, 156, 57 L. Ed. 2d 667, 672, 98 S. Ct. 2674, 2676.)

Thus, the two-part test of Franks requires that an evidentiary hearing must be held when a defendant attacks the veracity of an affiant’s affidavit supporting a search warrant if (1) the statement at issue was necessary to a finding of probable cause and (2) there are specific allegations showing deliberate falsehood or reckless disregard of the truth. People v. Hothersall (1981), 103 Ill. App. 3d 183, 187, 430 N.E.2d 1142; People v. Crowder (1981), 99 Ill. App. 3d 500, 507, 425 N.E.2d 994.

The scope of the Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, decision, however, is narrowly limited, concerning both the circumstances under which the defendant must be accorded a hearing on his allegations and when the exclusion of the seized evidence is mandated. (People v. Hothersall (1981), 103 Ill. App. 3d 183, 186, 430 N.E.2d 1142; People v. Anderson (1979), 74 Ill. App. 3d 363, 369, 392 N.E.2d 938.) The Supreme Court in Franks clearly circumscribed its ruling to apply only to the impeachment of the statements of the affiant, not to the statements of any nongovernmental informant. (438 U.S. 154, 171-72, 57 L. Ed. 2d 667, 682, 98 S. Ct. 2674, 2684-85; People v. Ortiz (1980), 91 Ill. App. 3d 466, 475, 414 N.E.2d 1072; cf. People v. Born (1983), 113 Ill. App. 3d 449, where the trial court’s conclusion that Franks did not encompass challenges to nongovernmental affiants was error.) Cases from other jurisdictions also discuss this distinction. E.g., United States v. Luschen (8th Cir. 1980), 614 F.2d 1164, 1172, cert. denied (1980), 446 U.S. 939, 64 L. Ed. 2d 793, 100 S. Ct. 2161; State v. Babbitt (La. 1978), 363 So. 2d 690, 693-94; State v. White (Me. 1978), 391 A.2d 291, 293-94; State v. Baca (1973), 84 N.M. 513, 515, 505 P.2d 856, 858; Taylor v. State (Tex. Crim. 1980), 604 S.W.2d 175, 178 n.1; State v. Larson (1980), 26 Wash. App. 564, 569, 613 P.2d 542, 546.

We turn next to some cases which are analogous to the issue raised in this appeal. In People v. Farnsworth (1981), 95 Ill. App. 3d 105, 419 N.E.2d 693, the appellate court affirmed the trial court’s order which quashed the search warrant and suppressed the evidence seized pursuant to its execution. In that case affirmative evidence was adduced at the hearing to establish that the affiant had deliberately sworn falsely in the affidavit by using a false name to identify the informant. By comparison, in the case at bar the trial court concluded, by inference or implication from the testimony of record, that the affiant’s statements and the complaint for search warrant were either fabricated or made with reckless disregard of the truth in light of the court’s finding that the informant did not exist. People v. Coleman (1980), 91 Ill. App. 3d 646, 415 N.E.2d 553, is similar to the case at bar in that the defendant in Coleman made the assertion that the informant did not exist. The court in Coleman emphasized that the defendant supported that contention with only the bare assertion that he never sold drugs, and the court ruled that the accused had not made the substantial preliminary showing of falsity or reckless disregard of the truth which Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, required. Another insufficient showing to attack the veracity of a warrant was found by the court in People v. Anderson (1979), 74 Ill. App. 3d 363, 392 N.E.2d 938. Defendant in Anderson alleged merely that he did not sell cocaine to the informant during the date stated in the affidavit. By contrast, in the case at bar, the defendant adduced evidence at the hearing which the trial court found established by a preponderance of the evidence that the affiant had intentionally falsified information contained in the affidavit or had made the statements with reckless disregard of the truth. We believe that the evidence adduced by defendant in the case at bar was far more convincing than that in either People v. Coleman or People v. Anderson.

In the recent case of People v. Garcia (1982), 109 Ill. App. 3d 142, 440 N.E.2d 269, the court addressed the question of when a post-search evidentiary hearing is justified. In Garcia, defendant chailenged the warrant, alleging the police officer’s affidavit was knowingly and intentionally false. The police officer’s affidavit stated that an anonymous reliable informant and an anonymous friend were present in defendant’s apartment when defendant sold cocaine to the anonymous friend. The affidavit also stated that defendant’s vehicle was parked in front of the subject apartment, it gave the make, model and license number of the vehicle and alleged that a computer check had revealed that the vehicle belonged to defendant.

Defendant’s affidavit denied each allegation the police officer had made. It also stated that his car could not have been parked in front of the apartment at the time indicated in the police affidavit, because at that time defendant was en route from Miami, Florida, to Chicago. The State objected to defendant’s request, arguing that only the four corners of the search warrant could be examined. The court sustained the objection and denied defendant’s hearing request.

On appeal, however, defendant’s affidavit was held to be sufficient to allow him an evidentiary hearing. (See also People v. Cook (1978), 22 Cal. 3d 67, 85-86, 583 P.2d 130, 139-40, 148 Cal. Rptr. 605, 614-15.) The court noted that there was no reason to presume that a police officer was telling the truth in his affidavit and that a defendant was not telling the truth in his affidavit. (People v. Garcia (1982), 109 Ill. App. 3d 142, 146, 147, 440 N.E.2d 269.) Applying this principle to the case at bar, where the defendant’s evidence regarding the police affidavit went uncontroverted, it is clear the court properly suppressed the evidence. The presumption of validity of an affidavit supporting a search warrant is not irrebuttable. Franks v. Delaware (1978), 438 U.S. 154, 171, 57 L. Ed. 2d 667, 682, 98 S. Ct. 2674, 2684.

In holding that defendant could place in issue the integrity of a police officer’s oath as to the entire warrant affidavit the Garcia court stated:

“Our conclusion is consistent with the principle that an affidavit for a search warrant should not be deemed insufficient because it is based on hearsay averments of an unidentified informer so long as there is a substantial basis for crediting such hearsay. (United States v. Ventresca (1965), 380 U.S. 102, 108, 13 L. Ed. 2d 684, 688, 85 S. Ct. 741, 745; Jones v. United States (1960), 362 U.S. 257, 269, 272, 4 L. Ed. 2d 697, 707, 708, 80 S. Ct. 725, 735, 736; see Aguilar v. Texas (1964), 378 U.S. 108, 114-15, 12 L. Ed. 2d 723, 729, 84 S. Ct. 1509, 1514.) However, if the oath of the police officer as to the affidavit is impugned and shown to have been untruthful and not made in good faith, there would not be a substantial basis for crediting the hearsay averments in the affidavit. Moreover, if the oath upon which the affidavit is based is shown to have been untruthful and not made in good faith, it would follow that the affidavit itself would have to be voided. (People v. Farnsworth (1981), 95 Ill. App. 3d 105, 107, 419 N.E.2d 693, 694-95.) Also, there would not be probable cause ‘supported by oath’ which is required for the issuance of the warrant. People v. Cook (1978), 22 Cal. 3d 67, 85-86, 583 P.2d 130, 140-41, 148 Cal. Rptr. 605, 615-16; but see Franks.” People v. Garcia (1982), 109 Ill. App. 3d 142, 148, 440 N.E.2d 269, 274.

In the case at bar the State contends that defendant made no showing that the affiant, Marcea Ross, intentionally lied or disregarded the truth. It contends that, at most, the evidence supports an attack on the credibility of the informant. Therefore, it argues, the trial court erred in suppressing the evidence. We disagree.

It is apparent that where a defendant shows that an affidavit contains deliberate lies, that affidavit will not always support a warrant. The case at bar differs somewhat from People v. Garcia (1982), 109 Ill. App. 3d 142, 440 N.E.2d 269. Here, the defendant had an evidentiary hearing, and the court determined that the defendant had established, by a preponderance of the evidence, that the affiant had included a deliberate falsehood or had acted in reckless disregard of the truth in making the complaint.

In a recent Illinois case, the rule of Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, was held to encompass challenges to the veracity of nongovernmental as well as governmental affiants. (People v. Born (1983), 113 Ill. App. 3d 449.) In Born, however, the court did not remand for an evidentiary hearing because defendant had failed to make a showing of a false statement. The anonymous affiant alleged that he had been at defendant’s home and had observed valium, amphetamines, marijuana, cocaine, two machine guns and four stolen slot machines. Defendant’s challenge to the veracity of the John Doe affidavit was that the affiant was not at his home on the morning the drug sale was alleged to have occurred. This challenge was supported by the affidavit of defendant’s minor son who stated that at the time in question no one other than himself and his parents were present in the home. The defendant in Born challenged the presence of the drugs only on the morning of the alleged sale, whereas the John Doe allegation was that affiant had sometime within the last three months sold drugs from defendant’s home. The court stated in Born that this denial did not address the allegation it was supposed to refute. We note that in the case at bar, the trial court found that the time of the alleged illegal activity was accounted for by defendants. Thus, Born is distinguishable.

In the present case the trial court heard the evidence of the six witnesses who testified on behalf of the defendant. Apparently it believed they were credible witnesses and accepted their explanation that microdots of LSD were not present in the house during the period in question. It also determined that none of them was the alleged informant. While one of the visitors to defendant’s residence during the time in issue, Cecily Brainard, did not testify at the hearing because she was in the Canary Islands, the affidavit attached to defendant’s motion to suppress stated she would give testimony identical to that which the other witnesses proferred at the hearing. The trial court was correct in indicating that the State was not required to reveal the identity of the informant in the present situation where that informant’s identity related only to an attack upon the issuance of a search warrant for lack of probable cause. (Theodor v. Superior Court (1972), 8 Cal. 3d 77, 88, 501 P.2d 234, 241, 104 Cal. Rptr. 226, 233.) The court did conclude that a sufficient factual basis existed for questioning the existence of the informant and therefore the integrity of the warrant.

Contrary to the State’s assertion, we believe that the validity of the warrant as a whole was a proper consideration for the court in the case at bar. (People v. Garcia (1982), 109 Ill. App. 3d 142, 149, 440 N.E.2d 269.) The trial court emphasized that the affiant officer did not testify under oath at the hearing; that she had, in fact, conversed with the informant regarding the information which the informant had allegedly given her. The court articulated its feeling that either the affiant or the other police officer who executed the warrant should have offered some testimony to explain or rebut the evidence which the defendant had adduced at the hearing. Aware that on two prior occasions the affiant had visited the defendant’s home and unsuccessfully sought to purchase some “stuff,” the court expressed its belief that the affiant was frustrated. Apparently, the court drew the inference that the affiant, having been unsuccessful on previous occasions, attempted to gain access to the defendant’s home to search for drugs by fabricating both the existence of the informant and the information which the nonexistent informant supposedly conveyed to her. In addition, the court underscored the fact that uncontroverted evidence was presented at the hearing that Officer Mulchrone, who was at defendant’s home during the incident search and seizure, had indicated by gesture that he did not expect to find any LSD in the home.

Based on this evidence and the circumstances of this case, including the failure of the State to produce any evidence at the hearing, we believe that the trial court’s finding — that the affiant committed a deliberate falsehood or acted with disregard of the truth in preparing the complaint for search warrant — was within the manifest weight of the evidence. It is well established an order which quashes a search warrant and suppresses evidence will be reversed only when it is manifestly erroneous. (People v. Brumfield (1981), 100 Ill. App. 3d 382, 385, 426 N.E.2d 1012.) Where testimony is neither contradicted, either by positive testimony or by circumstances, nor inherently improbable, and there is no impeachment of the witnesses, that testimony should not be disregarded by the trier of fact. (People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 85, 430 N.E.2d 1126, 1127.) The court below also correctly concluded that, given the nonexistence of the informant, probable cause was lacking for the issuance of the warrant, for the reason that the falsified statements in issue were essential to establishing probable cause for the search and seizure. For the reasons stated we conclude that the trial court properly granted defendant’s motion to quash the search warrant and suppress the evidence seized pursuant thereto.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

SEIDENFELD, P.J., and REINHARD, J., concur.


author: PRESIDING JUSTICE BARRY

text:
    THE PEOPLE ex rel. PENNY CHRISCO, Plaintiff-Appellee, v. JERRY L. CARNES, Defendant-Appellant.
    Third District
    No. 82—447
    Opinion filed May 6, 1983.

      Thomas H. Ramsey, Public Defender, of Canton, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of counsel), for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The defendant, Jerry Carnes, was found by the circuit court of Fulton County to be the father of a child born out of wedlock to the plaintiff, Penny Chrisco. The defendant has been represented by the Fulton County public defender during both the bench trial on the issue of paternity and during the course of this appeal. On appeal the defendant asserts that the court committed reversible error in denying his motion for a jury trial on the issue of paternity. The defendant further contends that the public defender should be compensated for his representation of the defendant in this appeal.

On February 23, 1981, the plaintiff filed a complaint alleging that the defendant was the father of the plaintiff’s daughter, Amanda Chrisco. On April 2, 1981, the defendant appeared before the court and a public defender was appointed to represent him. The defendant’s answer to the complaint was filed on April 9, 1981. A bench trial on the issue of paternity began on February 5, 1982. Following the trial testimony of the plaintiff, the court noted that a jury waiver was not included in the case file. At that point the defendant demanded a jury trial. The defendant’s demand was refused and the trial continued, culminating in a finding that the defendant was the father of Amanda Chrisco. Defendant’s post-trial motion was heard and denied on May 26,1982.

In June 1982, the defendant filed a timely notice of appeal and the Office of the State Appellate Defender was appointed by the court to represent him. The court subsequently vacated its appointment and appointed the Fulton County public defender as counsel for the defendant. On August 13, 1982, the public defender moved to withdraw as counsel for the defendant on appeal. This motion was denied by the trial court.

The defendant argues that it was error to deny him a jury trial because there was no showing that to do so would have inconvenienced the court. The proceeding in the instant case was brought pursuant to the Paternity Act (Ill. Rev. Stat. 1981, ch. 40, par. 1351 et seq.). Section 6 of the Paternity Act creates a statutory right to a jury trial. (Ill. Rev. Stat. 1981, ch. 40, par. 1356.) However, section 14 of the Paternity Act specifies that the provisions of the Civil Practice Act apply to paternity proceedings unless otherwise specifically provided by the Paternity Act. (Ill. Rev. Stat. 1981, ch. 40, par. 1366.) Under section 64(1) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 64(1)), the defendant was required to file a jury demand not later than the filing of his answer. The defendant did not demand a jury until after commencement of the trial. His failure to file a timely demand results in a waiver of his statutory right to a trial by jury. People ex rel. Cizek v. Azzarello (1980), 81 Ill. App. 3d 1102, 401 N.E.2d 1177.

The defendant argues that his demand for a jury should have been granted, despite his waiver, based on the decision in Hartsock v. Bress (1963), 40 Ill. App. 2d 66, 189 N.E.2d 673. The court in Hartsock was required to interpret a defendant’s statutory right to a jury trial in a paternity proceeding where, as in the instant case, the demand for a jury is made after the time allowed in section 64(1) of the Civil Practice Act. The court in Hartsock held that a defendant should not be denied a jury trial when there is no showing of inconvenience to the court or the parties or prejudice to any rights.

The defendant’s reliance on Hartsock is misplaced. The Illinois Supreme Court in Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205, considered the circumstances under which a jury demand made after the time allowed by section 64(1) should be allowed. In its discussion, the court cited the Hartsock decision as representative of a line of cases from the appellate courts which resolved the issue of late jury demands by considering the inconvenience to the court and parties. The Greene court rejected the Hartsock analysis and held that in addition to a showing of no inconvenience, a defendant seeking to avoid waiver of his right to a jury trial must also show good cause for failure to comply with section 64(1) of the Civil Practice Act.

At the time the defendant’s demand for a jury trial was made in the case at bar, the trial on the merits of the case had begun. Clearly the court and the plaintiff would have been inconvenienced by the granting of the defendant’s demand since a new trial would have been required. It is equally clear that the defendant has failed to show good cause for his noncompliance with the statutory requirements of section 64(1) of the Civil Practice Act. The defendant’s untimely demand for a jury trial was properly denied.

The trial court apparently required the public defender to prosecute this appeal without making a finding of defendant’s indigency. On appeal defendant claims that his counsel is entitled to compensation for services rendered in pursuing this appeal on the theory that counsel’s appointment as public defender was improper, and counsel therefore is entitled to compensation as private counsel. Defendant asks this court to order compensation for the public defender.

We note that the sole compensation of a public defender is a salary paid by the county and that prosecution of an appeal is one of the duties of the public defender. (Ill. Rev. Stat. 1981, ch. 34, pars. 5604, 5605.) Hence, there is nothing inherently improper in having the public defender appear in this court as a part of his regular duties for which he is paid a salary. Defendant cites no authority which would require a reviewing court to order payment of attorney fees for appellate work under the circumstances of this case. In addition, we decline to fix attorney fees in this case where there has been no showing of time spent or other basis for determining what would be a reasonable fee.

The judgment of the circuit court of Fulton County is affirmed.

Affirmed.

STOUDER and ALLOY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. KENNETH KOREN, Respondent-Appellant.
    Third District
    No. 82—674
    Opinion filed May 4, 1983.
    Robert Agostinelli and Verlin R.F. Meinz, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edwrd F. Petka, State’s Attorney, of Joliet (John X. Breslin and Patricia Hartmann, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE ALLOY

delivered the opinion of the court:

The respondent, Kenneth Koren, an inmate at the Joliet Correctional Center, is the subject of a petition for temporary custody filed by the State of Ohio pursuant to the Interstate Agreement on Detainers. The respondent appeals from the denial of his petition for writ of habeas corpus. We reverse.

On July 22, 1982, the prosecutor of Cuyahoga County, Ohio, served the warden of the Joliet Center with a request for temporary custody of the respondent pursuant to section 3 — 8—9 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9), the Illinois codification of the Interstate Agreement on Detainers. The respondent replied with a petition for writ of habeas corpus. The State then filed a petition to transfer temporary custody.

During the hearing on the State’s and the respondent’s petitions, the State presented the testimony of Kathy Cummings, a clerk-typist at the Joliet Center. Cummings testified that the Joliet Center, after receiving a request for temporary custody of the respondent, notified the Governor’s office and the Joliet Center’s legal staff of the request. The Governor’s office responded with a letter approving the transfer of custody. It was during the cross-examination of Cummings that the question of whether the respondent had been notified of his right to petition the Governor to disapprove the request for temporary custody was raised.

Edward Kovacic, a detective in the Cleveland, Ohio, police department, testified that he investigated a murder and armed robbery which occurred in Cleveland, Ohio, on December 20, 1975. Kovacic interviewed the respondent in connection with his investigation. The respondent was subsequently indicted in connection with the murder and armed robbery. On cross-examination Kovacic acknowledged that he did not advise the defendant of his right to petition the Governor to disapprove the request for temporary custody.

The respondent moved for a finding in his favor at the conclusion of Detective Kovacic’s testimony, arguing that his right under the Interstate Agreement on Detainers (hereinafter the Agreement) to petition the Governor had been denied. The court found that there was no affirmative duty imposed on the State by the Agreement to inform the respondent of this right. The court further found that the requirements of the Agreement had been met. The respondent’s petition for writ of habeas corpus was therefore denied. The State’s petition for transfer of custody was granted, but the order transferring the respondent was stayed pending this appeal.

The issue on appeal is whether the respondent was denied due process of law by not being advised of his right under the Agreement to petition the Governor to disapprove the request for temporary custody. This issue raises questions not previously addressed by the courts of Illinois. The State argues in response that the issue of whether the respondent was informed of his right to petition is not properly raised in a hearing under the Agreement, and, alternatively, that the respondent has no right to be informed of his right to petition the Governor.

We initially determine whether the respondent properly raised this issue in an extradition-type hearing under the Agreement. A prisoner who has a detainer lodged against him pursuant to article IV of the Agreement retains the rights afforded him under the Uniform Criminal Extradition Act (Ill. Rev. Stat. 1981, ch. 60, pars. 18 through 49), including a pretransfer hearing. (Cuyler v. Adams (1981), 449 U.S. 433, 449-50, 66 L. Ed. 2d 641, 654-55, 101 S. Ct. 703, 712.) The scope of a pretransfer extradition hearing, which is heard as a habeas corpus proceeding, is generally limited to resolution of the questions: (1) whether documents are regular in form; (2) whether the prisoner is the person named in the warrant; (3) whether the prisoner is a fugitive; and (4) whether the prisoner has been charged with a crime in the demanding State. (Michigan v. Doran (1978), 439 U.S. 282, 58 L. Ed. 2d 521, 99 S. Ct. 530.) However, this court has affirmed the inquiry during an extradition hearing into the question of whether the prisoner’s right to a speedy trial was violated. People v. McInery (1980), 91 Ill. App. 3d 68, 413 N.E.2d 876.

The State argues that because the issue raised by respondent is beyond the scope of inquiry permitted in an extradition proceeding, it should not be considered here. (As we discussed above, the courts of this State have permitted inquiry during an extradition hearing into at least one issue not among the four issues set forth in Doran.) In support of this argument, the State also cites People ex rel. Levin v. Ogilvie (1967), 36 Ill. 2d 566, 224 N.E.2d 247. We find both Doran and Levin to be distinguishable from the instant case. In Doran, the issue raised by the accused in his habeas corpus proceeding was whether probable cause existed in the demanding State to arrest him. The Supreme Court phrased the issue on appeal as one concerning the power of the courts of an asylum State to review the finding of probable cause made by a judicial officer in the demanding State. The Supreme Court held that the courts of an asylum State had no power to review the finding of probable cause, reasoning that to allow review in an asylum State of issues which can be litigated in the demanding State would defeat the purposes of the extradition clause, article IY, section 2, clause 2 of the United States Constitution, which is intended to permit the swift processing of criminal offenders. Michigan v. Doran (1978), 439 U.S. 282, 58 L. Ed. 2d 521, 99 S. Ct. 530.

Similarly, in Levin, the issue raised was whether statements made by the demanding State’s district attorney in the application for extradition proceedings to the demanding State’s Governor were false. The Illinois Supreme Court noted that the purpose of the evidence offered by the accused was “to challenge the good faith of the complainant and the authorities of the demanding State, matters we have consistently held may not be inquired into by the courts of this State in extradition matters.” People ex rel. Levin v. Ogilvie (1967), 36 Ill. 2d 566, 567, 224 N.E.2d 247, 247.

A finding in the instant case that the question of whether the respondent was notified of his right to petition was properly raised in the pretransfer hearing creates no conflict with the reasoning or holdings of either Doran or Levin. The matters inquired into in order to resolve the respondent’s issue all relate to procedures implemented and executed by the asylum State. Evidence was already taken during the habeas corpus proceeding regarding the regularity of the demanding State’s papers. Indeed, in the instant case, the same witness, Kathy Cummings, who testified regarding the receipt of the demanding State’s papers was also questioned regarding the delivery of Illinois’ forms to the respondent. Clearly, the inquiry necessary to determine the respondent’s right was directed solely to the actions of officers of the asylum State. The inquiry neither reviewed issues which could be litigated in the demanding State nor challenged the authorities of the demanding State.

Further, the action against the respondent was brought pursuant to the Agreement and not the Extradition Act. While Cuyler v. Adams (1981), 449 U.S. 433, 66 L. Ed. 2d 641, 101 S. Ct. 703, established that a person against whom a detainer is lodged must have the protection afforded him by the Extradition Act, we do not believe that the guarantees in Cuyler define the maximum protection which may be afforded a prisoner under the Agreement.

We find that the pretransfer hearing is the appropriate place for the prisoner to raise any questions regarding compliance by the asylum State with the procedural requirements of the Agreement. The burden on the asylum State of refuting issues raised regarding the compliance of the asylum State’s procedures with the requirements set forth in the Agreement would therefore be minimal. Resolution of questions relating to procedural compliance by the asylum State during the habeas corpus hearing would not cause delay in the transfer of custody. Conversely, to deny a prisoner the opportunity to present these issues in the pretransfer hearing would be to deny the prisoner a forum in which he may protect the rights afforded him by these procedures. When balanced against the minimal burden imposed on the State, the need to provide a forum wherein a prisoner may protect his right to proper statutory procedure convinces us that the better rule is to allow the prisoner to raise the issue of whether he must be informed of his right to petition the Governor in his habeas corpus hearing.

Having determined that the question raised by the respondent was properly before the lower court, we now consider the merits of the respondent’s claim. This is also a question of first impression in Illinois. After a careful review of the case law from our sister States and the Federal courts, we conclude that the respondent possessed a statutory right to be informed of his right to petition the Governor.

Article IV(a) of the Agreement, codified in Illinois as section 3— 8 — 9 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 8—9, art. IV(a)), provides:

“(a) The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with Article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated: provided that the court having jurisdiction of such indictment, information or complaint shall have duly approved, recorded and transmitted the request: and provided further that there shall be a period of 30 days after receipt by the appropriate authorities before the request be honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.”

The respondent argues that the State, having created a statutory right to petition, must give the respondent notice of that right in order to satisfy procedural due process requirements. The State concedes that a prisoner who is transferred under the Agreement has a right to petition the government to disapprove the transfer. The question before this court therefore is whether due process requires notification of that right. We hold that it does.

The State, in its argument that no right to notice exists, relies on the decision in Adams v. Cuyler (E.D. Pa. 1977), 441 F. Supp. 556, in which the district court held that a prisoner had no right under the Agreement to petition the Governor. The court declined to decide whether a prisoner must be informed of the petition to the Governor because it “concluded that while the Governor has the power to deny another state’s request for custody of a Pennsylvania prisoner, the prisoner has no ‘right’ to have his case reviewed by the Governor.” (441 F. Supp. 556, 558. See also Commonwealth ex rel. Coleman v. Cuyler (1978), 261 Pa. Super. 274, 396 A.2d 394.) This holding was not reviewed by the circuit court. (Adams v. Cuyler (3d Cir. 1979), 592 F.2d 720.) Consequently, the Supreme Court did not address this issue in its opinion. Cuyler v. Adams (1981), 449 U.S. 433, 66 L. Ed. 2d 641, 101 S. Ct. 703.

The State’s reliance on the district court’s opinion in Adams is misplaced. The critical issue in Adams was whether a right to petition the Governor existed. Where no right to petition exists, there is obviously nothing of which to notify the prisoner. However, the existence of the right to petition the Governor is not at issue in the instant case. The district court’s opinion, therefore, is immaterial to our consideration of the issue in the case at bar.

Our research has revealed only one case in which the issue in the instant case was resolved. The prisoner in State ex rel. Garner v. Gray (1972), 55 Wis. 2d 574, 201 N.W.2d 163, contended that the Agreement as enacted in Wisconsin violated his right to due process because it did not require that he be informed of his right to petition the Governor. The court held that the Agreement failed to adequately protect a prisoner’s right to petition by failing to require that notice of the right be given to the prisoner. The court therefore construed the Agreement to require that a prisoner be advised of his rights, including his right to petition the Governor.

We find the reasoning in Garner persuasive. As the Garner court noted, the existence of a right is meaningless without notification of that right. The United States Supreme Court recognized this point in its decision in Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. In establishing the procedural rights due an individual in police custody, the court consistently required notification of these procedural rights. The court required that a person held for interrogation be informed of his right to remain silent, reasoning: “[f]or those unaware of the privilege, the warning is needed simply to make them aware of it — the threshold requirement for an intelligent decision as to its exercise.” (Miranda v. Arizona (1966), 384 U.S. 436, 468, 16 L.Ed. 2d 694, 720, 86 S. Ct. 1602, 1624.) The fact that notice is necessary in order to allow an individual to effectively exercise his rights is acknowledged repeatedly by the court in Miranda.

The respondent has been given the right to petition the Governor in this State under the Agreement. In order to intelligently and effectively exercise this right, he must know of that right. Without notice of the right to petition, the prisoner has been effectively deprived of the right itself. A statutory right, once created, cannot be arbitrarily denied by the State. The failure to give notice of the statutory right denies a prisoner due process of law. We therefore hold that a prisoner must be informed by the State of his right to petition the Governor under article IV(a) of the Agreement when a detainer is lodged against him.

Following the respondent’s pretransfer hearing, the lower court found that the respondent had no right to be informed of his right to petition the Governor. Consequently, no finding of fact was made as to whether the respondent was informed by the State of his right to petition the Governor. We therefore remand this case to the lower court for a determination as to whether respondent was, in fact, informed of his right to petition.

The judgment of the circuit court of Will County is reversed, and the cause is remanded for further proceedings in accord with this decision.

Reversed and remanded.

SCOTT and BARRY, JJ., concur.


author: JUSTICE MILLER

text:
    JOHN T. HARTZLER et al., Plaintiffs-Appellees, v. HERBERT UFTRING et al., Defendants-Appellants.
    Fourth District
    No. 4—82—0633
    Opinion filed May 9, 1983.

      Presney, Huffman, Kelly & Appleton, of Springfield, and John B. Huschen, of Huschen & Huschen, of Roanoke, for appellants.
    Leiken, Leiken & Leiken, of Eureka, for appellees.
   JUSTICE MILLER

delivered the opinion of the court:

Facts

Plaintiffs, John and Donna Hartzler, filed a complaint in the circuit court of Woodford County seeking declarative and injunctive relief against defendants, Herbert and Irene Uftring.

The parties dispute ownership of a strip of land five feet in width on the west edge of plaintiffs’ property and the east edge of defendants’ property. Plaintiffs’ complaint sought a declaratory judgment that plaintiffs owned the disputed strip and a permanent injunction ordering defendants not to enter onto the strip. Defendants answered that the disputed strip was part of their property as a result of an implied agreement between the parties’ predecessors in interest, or, in the alternative, that they had acquired the disputed strip by adverse possession.

The property owned by the parties had originally, been part of a single tract of land owned by Clara Barth. Barth died in 1956 and her executor sold the property in two parcels on July 11, 1956. One parcel was sold to Frank Oldenburg, defendants’ predecessor in interest, and the other was sold to Robert and Inez Oldenburg, plaintiff’s predecessor in interest. The deeds from Barth’s executor to Frank and to Robert and Inez Oldenburg, identified the boundary between the two properties as a north-south line commencing at a point on the north line of Outlot 51 in the city of Minonk 194 feet east of the northwest corner of Outlot 51. The deeds of plaintiffs and defendants also identify this line as the boundary line between the two properties.

Defendants moved onto Frank Oldenburg’s property as tenants in May 1963. Mr. Uftring testified that there was a fence about 35 or 40 feet east of the house and about 20 trees along the fence on either side of it. The edge of a concrete floor, all that remained of a chicken house, ran along the fence line. Mr. Uftring testified that since his family moved onto the property in 1963, they had mowed the grass up to the fence. Defendants acquired title to their property from Frank Oldenburg on October 4,1972.

Plaintiffs acquired title to their parcel from Robert, Phyllis and Delores Oldenburg on April 17, 1975. Mr. Hartzler testified that when plaintiffs moved on to their property there were fence posts, but no fence, and trees along the west side of the property. Shortly after moving onto the property, Mr. Hartzler pulled up the fence posts and cut down trees along the fence line. As a result of these acts, heated arguments arose between the parties over the ownership of the trees. Mr. Hartzler had a survey made in 1975 which showed that the trees along the fence line were on plaintiffs’ property and plaintiffs’ boundary line was approximately five feet west of the fence line. Plaintiffs moved off the property in 1976 and rented it to two elderly women. However, the old dispute over the trees was renewed in 1979 when plaintiffs returned to their property and Mr. Hartzler continued spraying and trimming the remaining trees along the fence line.

The trial court found that plaintiffs established they had legal title to the land described in their deed and entered a declaratory judgment to that effect. The court also found that defendants failed to establish any of their affirmative defenses.

Opinion

I

Defendants first argue that the trial court erred in failing to recognize their defense based on the doctrine of the establishment of boundary lines by agreement.

Where a boundary line between two tracts is unascertained or in dispute, the line may be established by parol agreement and possession or by an agreement implied from the unequivocal acts and declarations of the parties and acquiescence for a considerable period of time. (McLeod v. Lambdin (1961), 22 Ill. 2d 232, 174 N.E.2d 869; Ginther v. Duginger (1955), 6 Ill. 2d 474, 129 N.E.2d 147; Jones v. Scott (1924), 314 Ill. 118, 145 N.E. 378.) When an unascertained or disputed boundary is established by either of these methods it will be binding on the parties to the agreement and their privies in estate. (McLeod.) The boundary, once established, will control the parties’ deeds notwithstanding the statute of frauds. (See Ginther.) The principle upon which this conclusion is reached is that the effect of the agreement is not to pass real estate from one party to another but simply to define the boundary line to which their respective deeds extend. (See Ginther; Jones; 11 C.J.S. Boundaries sec. 67, at 639 (1938).) The requirement that the boundary be unascertained or in dispute is therefore a necessary prerequisite to any agreement, since “[i]f the location of the true boundary line is known to the owners they cannot transfer the land from one to the other by an agreement changing such location.” See Jones v. Scott (1924), 314 Ill. 118, 121, 145 N.E. 378, 380; see also Loverkamp v. Loverkamp (1942), 381 Ill. 467, 45 N.E.2d 871.

Defendants do not assert that there was a parol agreement to establish the boundary line, but maintain that an implied agreement existed which established the fence line as the boundary line. Obviously, there has been no implied agreement between the parties as to a boundary line. Since plaintiffs and defendants acquired their respective parcels from the Oldenburgs, with no intervening owners, and the parcels were part of a single tract prior to the Oldenburgs’ ownership, defendants would have had to prove that Frank Oldenburg had agreed with Robert and Inez Oldenburg to establish an unascertained or disputed boundary line by their unequivocal acts and declarations and by their acquiescence for a long period of time.

The boundary line between the properties was described in the deeds in which Barth’s executor conveyed the property to Frank Oldenburg and to Robert and Inez Oldenburg. The deeds clearly and consistently show the boundary line between the two properties to be a line running due south from a point on the north line of Outlot 51 194 feet east of the northwest corner of Outlot 51. There is no evidence whatsoever in the record that this line was ever in dispute or unascertained while the parties’ property was owned by the Olden-burgs.

While we are aware of the statement in Boyer v. Noirot (1981), 97 Ill. App. 3d 636, 423 N.E.2d 274, that a dispute between the parties litigating the location of the boundary line meets the dispute requirement of the doctrine of the establishment of boundary lines by agreement, we cannot abide by this interpretation. In Jones, the supreme court said, “There are but two conditions under which the rule in relation to establishment of boundary lines by agreement applies: One is where a line is in dispute, and the other is where it has not been ascertained. In either case the agreement is for the purpose of establishing the disputed, or unascertained line.” (Emphasis added.) (Jones v. Scott (1924), 314 Ill. 118, 121, 145 N.E. 378, 380.) This language clearly requires that the dispute precede the agreement and that the purpose of the agreement be to resolve the dispute. (See also Ginther, wherein the supreme court stated, “where there is a dispute between adjoining land owners as to the true boundary line between their respective lands or if the line between them is unascertained, the agreement to establish a line, when so in dispute or unascertained, may be implied from the unequivocal acts and declarations of the parties, either expressed or implied.” (Emphasis added.) (Ginther v. Duginger (1955), 6 Ill. 2d 474, 482, 129 N.E.2d 147, 151; Loverkamp.) Furthermore, if a current dispute between the parties in court would suffice to invoke the doctrine, it is superfluous to say that a dispute is a condition to the application of the doctrine since there will always be a dispute between parties litigating over the location of a boundary line.

Even if there had been evidence of a disputed or unascertained boundary line in the present case, the record is devoid of any evidence of an agreement between the parties’ predecessors in interest to establish the fence line, or any other monument, as the boundary line between the two properties.

The only testimony regarding the period of time between 1956 and 1975 (the period of the Oldenburgs’ ownership) was that of defendants’ relating to the time subsequent to 1963 while defendants were living on Frank Oldenburg’s property as tenants. Mr. Uftring testified that in 1963, there was a fence east of the house and there were trees along the fence on either side of it. There was no evidence explaining how or why the fence or the trees came to be where they were. Furthermore, the presence of the fence cannot be construed as evidence of an agreement between the Oldenburgs to establish the fence as the boundary line because the fence was apparently in existence before the land was divided and sold to the Oldenburgs. Defendants’ witness Wayne Kettwich testified that the fence was in place when he lived on the property from 1951 until 1956 when Clara Barth’s executor sold the property to the Oldenburgs. In Cienki v. Rusnak (1947), 398 Ill. 77, 75 N.E.2d 372, the defendants argued that the parties’ predecessors in interest had, by their unequivocal acts, established the boundary line at the end of a garage on plaintiff’s property. The supreme court upheld the trial court’s decision in favor of the plaintiff and stated, “the brick garage with a solid wall facing the south line of the disputed strip is utterly devoid of any implication of an agreement to fix a boundary line because the building was erected prior to the division of [the property] into two separate parcels.” 398 Ill. 77, 88, 75 N.E.2d 372, 378.

The existence of an agreement is the distinguishing factor between the present case and the two cases on which defendants rely most heavily, McLeod and Boyer. In both McLeod and Boyer the court specifically found that the conduct and acquiescence for many years of the adjacent landowners was evidence of an implied agreement to establish a boundary line between the respective properties.

We conclude that the trial court did not err in finding that the defendants failed to prove an implied agreement to establish the fence line as the boundary line between the parties’ properties.

II

Defendants also maintain that they had acquired the property up to the fence line by adverse possession. In Joiner v. Janssen (1981), 85 Ill. 2d 74, 81, 421 N.E.2d 170, 174, the supreme court stated:

“What is essential in order to establish title under the 20-year adverse-possession doctrine incorporated in section 1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 1) is that there must be 20 years’ concurrent existence of the five elements: (1) continuous, (2) hostile or adverse, (3) actual, (4) open, notorious, and exclusive possession of the premises, (5) under claim of title inconsistent with that of the true owner.”

Presuming that defendants had exclusive possession of the disputed strip when they acquired title to their property in October 1972, their exclusive possession ended in May 1975 when plaintiffs, the legal title holders, exercised their rights of ownership over the land in the disputed strip. (See Towle v. Quante (1910), 246 Ill. 568, 576, 92 N.E. 967, 970, wherein the supreme court stated, “A joint possession by two, even though the claim of each is adverse to the other, will not be a disseizin of one by the other. Where two are in possession the seizin follows the title, and there can be no disseizin unless the rightful owner is altogether deprived of possession.”) Consequently, defendants would have had to prove that the 20-year period began no later than May 1955. Since the parties’ properties had been part of a single tract of land owned by Clara Barth until July 11, 1956, defendants could not have established exclusive possession for 20 years.

Furthermore, even if defendants could show their own exclusive possession up to the filing of plaintiffs’ complaint, they still would have had to “tack” their claim to Frank Oldenburg’s in order to prove 20 years’ adverse possession. However, there is little, if any, evidence in the record to show that Frank Oldenburg possessed the property in dispute adversely to the interests of Robert and Inez Oldenburg. Consequently, we find that defendants failed to establish such possession by clear and unequivocal evidence.

The judgment of the trial court is affirmed.

Affirmed.

WEBBER, P.J., and TRAPP, J., concur.


author: PRESIDING JUSTICE WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KELVIN OSBORNE, Defendant-Appellant.
    Fourth District
    No. 4—82—0660
    Opinion filed May 4, 1983.

      Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Anthony B. Cameron, State’s Attorney, of Quincy (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Defendant was convicted by a jury in the circuit court of Adams County of two counts of forgery and one count of misdemeanor theft in violation of sections 17 — -3(a)(1) and 16 — 1(a)(1) of the Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, pars. 17-3(a)(l), 16-l(a)(l).) He was sentenced to concurrent terms of imprisonment for four years on each forgery count and 364 days on the theft count.

On appeal the principal issue is the trial court’s handling of defendant’s alibi defense. As a derivative of that issue, some discussion is in order concerning obligations of the parties under the Supreme Court Rules governing discovery in criminal cases. 87 Ill. 2d Rules 411 through 415.

The factual situation may be briefly summarized. The State’s evidence showed that defendant and three confederates obtained checks belonging to Dennis Goodwin. Between April 24, 1982, and April 26, 1982, defendant signed Goodwin’s name to two of the checks and one of the confederates, Bowen, cashed them; the proceeds were then divided among defendant, Bowen, and a third confederate, Hickman. Bowen was the principal witness against defendant and testified that she had pleaded guilty to attempt (theft) and had received probation for her part in the offenses. Forgery counts against her were dismissed.

Informations were filed against defendant on April 28, 1982; he made a first appearance on April 29 and filed his motion for discovery; a preliminary hearing was held on May 20, probable cause was found and the case was set for later arraignment. On June 2, 1982, defendant was arraigned and entered a plea of not guilty; the cause was then set for jury trial. On June 4, 1982, the State filed its motion for discovery.

On July 16, 1982, defendant filed his answer to the State’s motion for discovery and in it raised an alibi defense. The pertinent parts of his discovery answer are:

“2. Defendant did not commit the offenses as charged, and at the time of the alleged offenses, he was at Pierson Construction Company, Quincy, Illinois.
* * *
6. Defendant attaches a copy of his time sheet for employment at Pierson Construction and a copy of his W-4 form is not in possession of defense counsel at this time, but will be provided when that document is received.
7. Defendant intends to use an alibi defense, namely that he was, at the time of the alleged offense, at the location of Pier-son Construction Company near Quincy, Illinois.”

On August 16, 1982, defendant filed a supplement to his answer in which he stated that he intended to call as a witness Diane Dade Buckner.

The trial began on August 19, 1982, and at the conclusion of the State’s evidence and after a motion for directed verdict had been denied, the prosecutor in chambers moved to exclude Buckner as a witness. He stated that she had been interviewed at 1:30 p.m. that date and would state that she had transported defendant to the Quincy Soybean location to make a job application on April 26, the date of the alleged offense. The time of the motion in chambers was fixed at 2:43 p.m.

Defense counsel answered that it was common knowledge in the area that Pierson' Construction Company was engaged in a construction project for Quincy Soybean, near Quincy, Illinois. The argument then progressed over the question as to whether a “location” had been disclosed by defendant. The prosecutor made only a mild objection over the timing of the disclosure of the name of Buckner. His chief, if not only, emphasis was on the matter of location, claiming that the information given was not specific as required by Supreme Court Rule 413(d)(iii) (87 Ill. 2d R. 413(d)(iii)).

The issue is carved in sharp relief by the trial court’s ruling in which it said:

“Gentlemen, if the Pierson Construction Company had a permanent location in Quincy, then I would think the disclosure would be adequate; but as I understand the situation, it’s a Missouri company, and they’re based in Missouri somewhere, Columbia, perhaps. They have no permanent basis in Quincy that has been disclosed to me; and accordingly, I don’t believe that the response to the State’s motion for discovery complies with the rule, because they don’t give a specific place. They name an employer, but that is all.
Accordingly, I’m going to sustain Mr. Cameron’s [State’s Attorney] motion to exclude the testimony of Miss Buckner as it relates to accompanying the defendant to the Quincy Soybean Company on the day of April the 26th of 1982.”

Defense counsel then moved for a continuance in order to obtain other witnesses to corroborate defendant’s alibi; this motion was denied. He also moved for a continuance in order to present evidence that Pierson Construction Company’s only jobsite near Quincy was at Quincy Soybean and that the construction project was well known throughout the community. This motion was likewise denied.

While the criminal discovery rules possess a much shorter history in this State than do the civil discovery rules, the underlying rationale is the same. They are intended as procedural tools whereby a prompt and just disposition of the case may be made by educating the parties in advance of trial as to the real value of claims and defenses. (People ex rel. Terry v. Fisher (1957), 12 Ill. 2d 231, 145 N.E.2d 588.) It seems to us that in the instant case the State declined to be educated as to the validity of the alibi defense, but rather elected to use semantics in its efforts to thwart that defense. Information regarding alibi had been furnished to the State more than 30 days prior to trial and the name of a corroborating witness had been furnished three days prior to trial. Yet the record is barren of any indication that the State attempted to investigate the alibi. On the other hand, the record is clear that it did not interview the witness until it had concluded its case in chief and then complained that it was not furnished with a “specific location.”

The disclosure of an alibi defense by a defendant is almost precisely analogous to answering an interrogatory in a civil case. The remedy for an incomplete or evasive answer is well known: an objection to the answer and a motion to make it more definite and certain. If, upon investigation, the State’s Attorney was unable to find any location for Pierson Construction Company near Quincy, he had ample time in which to demand that the defendant point out to him exactly where it was; or alternatively, he could have earlier obtained from the witness Buckner the name of Quincy Soybean. However, he did neither. The State’s theory of “specific location,” pressed to its logical extreme, would require a defendant to state his position in alibi by coordinates of latitude and longitude expressed in degrees, minutes and seconds.

In our opinion this was not the purpose of the rule. The purpose was to avoid vague generalities, e.g., “I was in Chicago,” or “I was fishing on the lower Zambesi,” which would be humanly impossible to investigate. In the instant case the information furnished delineated prima facie a specific location within the knowledge of the defendant and if the State’s Attorney found it inadequate, it was his duty to seek clarification. Under Supreme Court Rule 415(b) (87 Ill. 2d R. 415(b)) there is a continuing duty to disclose on both parties. We believe there is a corollary duty on both parties to seek clarification of disclosure which they deem inadequate or evasive. In this context the instant case is unlike People v. Braxton (1980), 81 Ill. App. 3d 808, 401 N.E.2d 1062, and People v. Short (1978), 60 Ill. App. 3d 640, 377 N.E.2d 389, both cited by the State for its position. In each of those cases the defendant completely failed to notify the State of any asserted alibi prior to trial.

It is elemental that sanctions for violation of discovery lie within the discretion of the trial court and its decision will not be lightly overturned. However, in this case we do find an abuse of discretion in barring the corroborating witness’ testimony. Lesser sanctions were clearly indicated. It is a fundamental right of a defendant to present his theory of the case, no matter how overblown or specious it might appear. In the case at bar the defendant did testify as to his alibi, but he was barred from corroborating it. The situation is even more exacerbated by the prosecutor’s final argument in which he commented on the lack of corroboration. Barring testimony as a sanction is an extremely harsh remedy, and its inappropriate use may constitute reversible error. (People v. Rayford (1976), 43 Ill. App. 3d 283, 356 N.E.2d 1274.) We find such an inappropriate use and consequential error here.

In view of our disposition of this issue, we need not consider other issues raised by defendant: improper use of a prior inconsistent statement which had not been disclosed to him, and cumulative error.

The judgment and sentence of the circuit court of Adams County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

TRAPP and MILLER, JJ., concur.