author: Mr. JUSTICE McNAMARA

text:
      In re Estate of Titus Palm, Incompetent—(Ethel Anderson, Executor, Petitioner-Appellee, v. Helen Smith, Respondent-Appellant.)
    (No. 55856;
    First District (3rd Division)
    March 22, 1973.

      Eugene P. Meegan, of Chicago, for appellant.
    James T. Holton, and Ackerman & Nichele, both of Chicago, for appellee,
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

This action involved a petition for citation, pursuant to Section 183(1) of the Probate Act, brought by the Estate of Titus Palm, an incompetent, to recover certain property. (Ill. Rev. Stat. 1965, ch. 3, par. 183.) The estate sought to recover 231 shares of American Telephone and Telegraph Company common stock and dividend checks which it charged had been concealed, converted or embezzled by the respondents. After a jury trial, a verdict was returned against one of the respondents, Helen Smith. The trial court entered judgment on the verdict, ordering Smith to turn over to the petitioner the proceeds of tire stock sold in the amount of $13,398.00 and the amount of three dividend checks converted in the sum of $602.20. Upon Smith’s failure to turn over the proceeds, the court entered a rule to show cause against her. At the same time, the court, by virtue of a settlement received by petitioner from certain other respondents in return for covenants not to sue, reduced the judgment turn-over order against respondent Helen Smith to $6,063.89. Upon her continued refusal to turn over the proceeds, respondent was found guilty of wilful contempt, was committed to jail, and this appeal follows.

Originally, the action was brought by the conservator of the incompetent’s estate. Upon his death, the executor was substituted as petitioner. One. of the respondents, Gustav Anderson, also died. The court appointed an attorney as special administrator of Anderson’s estate.

At a pre-Mai conference, petitioner negotiated a settlement with certain respondents. Under its terms, the petitioner was authorized to execute a covenant not to sue and an agreement to dismiss the pending suit against the respondent, American Telephone and Telegraph Company, and against the third party respondent, First National Bank of Chicago, in return for the sum of $1,201.91 and 150 shares of common stock of American Telephone and Telegraph Company.

The appellant, Helen Smith, contends on appeal that: (1) a remark made by the special administrator during the course of the trial and in the presence of the jury was so prejudicial as to require reversal; (2) the trial court incorrectly calculated the amount of the reduction of the judgment order; (3) the trial court improperly found her guilty of contempt; and, (4) the court abused its discretion in awarding costs and fees to the petitioner and special administrator under Section 41 of the Civil Practice Act.

In the instant case, both sides have set forth divergent statements of facts in then briefs. Appellant, however, in compiling the record on appeal, has failed to file a Report of Proceedings. We therefore are unable to determine the facts elicited at trial.

The amended petition, briefly summarized, alleged that for a short time prior to his adjudication as an incompetent, Titus Palm was a boarder in a rooming house operated by Helen Smith, and that Gustav Anderson was also a boarder. The petition further alleged that some time after Palm left the boarding house, and subsequent to his adjtidication as an incompetent, 231 shares of telephone stock were transferred into the name of Gustav Anderson. Petitioner also alleged that the transfer bore the purported signature of Palm, but that the signature was not genuine. The petition went on to charge that the certificates were subsequently delivered to Helen Smith and that the shares were sold through a person named William Richard. According to the petition all the proceeds were eventually delivered to Helen Smith. The petition also charged that Palm’s signature was forged to certain dividend checks.

Appellant filed an answer in which, while denying each allegation of the petition, she denied that she received any proceeds of the stock. She also filed sworn answers to a request for admission of facts in which she denied each and every act in the chain of conduct leading to the forgery, transfer and sale of stock, and the negotiation of the dividend checks. Appellant now concedes that she did in fact receive the stock proceeds, but maintains that they were received innocently.

Appellant, in her first contention before this court, claims that a remark by the special administrator characterizing her as a “thief” was so improper and prejudicial as to require a reversal of the trial court. However, a determination of this claim would require a review of an issue of fact which review is precluded by appellant’s failure to file a Report of Proceedings. Since all reasonable presumptions favor the action of the trial court, the burden is on the appellant to overcome such presumptions by affirmatively showing the errors charged. (Husted v. Thompson-Hayward Chemical Co., 62 Ill.App.2d 287, 210 N.E.2d 614.) The absence of a Report of Proceedings makes it impossible to search for facts which might support appellant’s argument.

We next consider appellant’s contention that she was not given full credit for the money and stock received by the petitioner from other respondents in return for the covenant not to sue. Petitioner had received 150 shares of telephone stock and $1,201.91 in return for that covenant. As a result, the judge reduced the judgment order against the appellant to $6,063.89, setting the value of each share of stock at $50.25. In setting that value, the trial court found that the stock in question had declined in value after the time of the conversion in 1967. The judge concluded that the decline in stock value should be borne by the respondent rather than by the estate. Appellant, however, maintains that the jury determined the total value of the stock proceeds as $13,-398.00, and that the court therefore was compelled to accept that value in reducing the judgment. In our view, the trial judge correctly decided that the decline in the value of the stock after the conversion should be charged against appellant. The estate was not obtaining a double recovery. The value of the stock was easily ascertained, and the court did not abuse its discretion in fixing the amount of the judgment.

Appellant has also urged that the trial court improperly found her guilty of contempt, and wrongfully committed her to jail. However, in this court, appellant apparently does not seriously contest appellee’s position that the issue is moot since appellant was released from jail by operation of law. Moreover, where the court has determined that a person has wrongfully converted funds to her own use which belong to an incompetent, the court may enforce its judgment by execution or by proceedings in contempt. (Keshner v. Keshner, 376 Ill. 354, 33 N.E.2d 877.) And, in a case where a trial court had committed a respondent-appellant to jail for six months or until he complied with an order requiring the payment of money wrongfully converted, this court held that there was no duty on the conservator to prove that respondent was financially able to comply with the order to return the funds. (In re Estate of Porter, 43 Ill.App.2d 416, 193 N.E.2d 617.) In the instant case, commitment of appellant to jail for failure to return the stock proceeds which she wrongfully converted was not an abuse of the court’s discretion.

We consider finally the propriety of the trial court’s award of costs and attorneys’ fees to both petitioner and the special administrator under Section 41 of the Civil Practice Act. At the conclusion of the jury trial, the petitioner and special administrator requested such an award. The trial court granted appellant’s motion for a bill of particulars; a bill of particulars was furnished; and the court subsequently denied appellant’s motion for a more detailed bill of particulars. After a hearing, the court awarded costs to the petitioner in the amount of $3,298.77, fees to petitioner’s counsel in the amount of $8,000, and fees to the special administrator in the amount of $3,000.

Section 41 of the Civil Practice Act gives a party the right to recover reasonable expenses and attorneys’ fees from an offending party which fees and expenses were incurred by reason of the untrue pleadings, made without reasonable cause and not in good faith, filed by the offending party. The allowance of counsel fees and expenses under Section 41 is an attempt to penalize any litigant who pleads false matter and thereby puts an undue burden on an opponent to expend money in order for his attorney to disprove such pleadings. Lipscomb v. Coppage, 44 Ill.App.2d 430, 197 N.E.2d 48.

We believe that the instant case is an appropriate one for the award of costs and attorneys’ fees under Section 41. Appellant’s pleadings, particularly her answer to the amended petition and her answers to the request for facts, were untrue. Since she subsequently admitted receiving the proceeds of the stock sale, it would be inconceivable that her pleadings were properly made or that they were made in good faith. Consequently we hold that the trial court properly imposed costs and fees against appellant under Section 41.

The more difficult question, however, is whether the amounts imposed as sanctions by the trial court under Section 41 were proper. Although appellant argues that the sums awarded were excessive, we need not reach that issue because we agree with appellant that the hearing conducted by the trial court was inadequate to determine the amount of costs and fees properly due from appellant by virtue of her false plead- , ings. I

In support of her request for costs and fees, the petitioner furnished a bill of particulars setting forth her litigation costs. The cost items included $1,123.39 for court reporting services at trial and at various discovery and evidence depositions; $1,347.00 for the services of an examiner of questioned documents; $341.60 for the expenses of one of petitioner’s attorneys in connection with a trip to California to interview a witness; $164.16 for subpoena fees; $56.00 for death records; $86.00 for long distance calls to American Telephone and Telegraph in New York, to California regarding a witness investigation, and to Milwaukee regarding expert testimony; $203.10 for various copying services; $77.20 for service of process; $40.75 for copies and certifications of documents from the court clerk; and $28.00 for costs of translations of papers from a foreign language. The total costs were set at $3,467.52. The court awarded petitioner $3,298.20 in costs and, as far as we are able to determine, the record does not reflect which items were disallowed by the trial judge.

As to attorneys’ fees, the bill of particulars requested $12,000 for attorneys James T. Holton and John B. Nichele for legal services rendered from the cause’s inception in July, 1967, to the completion of the trial on July 31, 1970. It listed 57 court appearances, four discovery depositions, one evidence deposition and eight days of trial.

Petitioner also stated in the bill of particulars that she was informed that Ira B. Schultz, the special administrator of the estate of Gustav Anderson, would request fees under Section 41 in the amount of $5,000, $2,500 for services prior to trial, and $2,500 for services rendered during trial. After the hearing, the judge awarded $8,000 to petitioner for her counsels’ fees, and $3,000 to the special administrator for fees.

Recovery under Section 41 is restricted to reasonable expenses and reasonable attorney’s fees incurred by reason of the untrue pleadings. (People ex rel. Henderson v. Redfern, 104 Ill.App.2d 132, 243 N.E.2d 252.) The reasonableness of expenses is a matter of proof, both as to costs and as to attorney’s fees, and the party sought to be charged therewith should be afforded an ample opportunity to cross-examine as to the reasonableness of the amounts claimed and, if necessary, to present evidence in rebuttal. Adams v. Silfen, 342 Ill.App. 415, 96 N.E.2d 628.

Although no report of proceedings of the instant trial has been furnished, a report of proceedings of the Section 41 hearing is a part of the record on appeal. It reveals that the hearing consisted entirely of a colloquy among the court and counsel for aH parties. Through no fault of the conscientious trial judge, the coHoquy reverted from appellant’s attorney’s objections to any award back to his objections to specific items of costs as being excessive, unnecessary or not incurred by reason of any pleadings in the case. Since we have determined that a Section 41 award of costs and fees is proper under the facts and circumstances of the case, we believe that an orderly hearing is necessary to establish which amounts were caused by the false pleadings, and the reasonableness of those fees and costs so established.

Accordingly, the judgment of the circuit court assessing damages against the appellant Helen Smith in the amount of $6,063.89 is affirmed and the order finding her in wilful contempt of court for failure to return the proceeds of the stock sale is also affirmed. That part of the order finding that petitioner, her attorneys and the special administrator were entitled to costs and fees under Section 41 is affirmed, but that part of the order fixing those amounts is reversed, and tire cause is remanded for further proceedings not inconsistent with this opinion.

Affirmed in part; reversed in part and remanded with directions.

DEMPSEY, P. J., and McGLOON, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE DRUCKER

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Bush, Defendant-Appellant.
    (No. 56117;
    First District (5th Division)
    March 23, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Stephen R. Kramer, and James R. Carlson, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court:

In a bench trial defendant was convicted of rape and armed robbery. He received two concurrent terms of five to 15 years.

On appeal he contends that: (1) his waiver of a jury was not made knowingly and understandingly; (2) prejudicial hearsay deprived him of a fair trial; (3) he was not proven guilty beyond a reasonable doubt because the complaining witness lacked credibility and her story was improbable; and (4) it was error to convict and sentence him on both the rape and armed robbery charges where the force used in each offense was identical.

The convictions arose from an alleged rape and robbery of Mrs. Addie Smith on December 13, 1970. These offenses occurred in an elevator of a public housing project at 1847 West Lake Street, Chicago.

Evidence

Mrs. Addie Smith, for the State: On December 13, 1970, at about 6:00 A.M., she and her companion, Fred Frazier, had just left the Carver Hotel. She was in her car. Frazier had started the engine and then gotten out to scrape ice off of a window. As Frazier was scraping the window, two men ran up to the car. Frazier told her to lock the door of the car. A man, later identified by her as defendant, approached the car and told her to get out. Meanwhile the other assailant was holding Frazier at gun point. She refused to leave the car until the accomplice brought Frazier around to the front of the car, still at gun point. Defendant then grabbed her by the arm, pulled her out of the car and at gun point took her across the parking lot through an adjoining vacant lot and into a housing project at 1847 West Lake Street. The three then entered the elevator in the project and one of the assailants stopped the elevator between floors. They ordered her to undress and kept her at gun point at all times. As the assailants were going through her coat pockets she tried to start the elevator. Defendant then struck her and told her not to try such a move again. She completed undressing and defendant then raped her. After defendant had intercourse with her the other assailant demanded that she perform an act of oral intercourse but she refused. The accomplice then raped her. While she dressed, defendant and his accomplice went through her purse, removed $120 and also took her watch. The assailants then started the elevator, got out at the top floor and told her to remain in the elevator.

She rode the elevator to the main floor and walked to the Carver Hotel about a block away. She saw no one on the street. The hotel manager, who was coming out of the hotel to move her car, asked if she was the girl they took from her boyfriend. She answered, “Yes” and he rushed her into the hotel. She was crying and hysterical. She told the lady clerk what had happened and asked her to call the police. “By that time” Frazier, two policemen and security guards came in. She told them what had happened and gave a description of the two assailants.

Then Officer Ed Nakutis took her to the Cook County Hospital where Detective Booker Porter showed her a stack of photographs and she picked out defendant’s photograph. She was in the elevator for about 45 minutes and a bulb in the ceiling Hluminated the elevator.

She was married, had spent the previous night with Mr. Frazier in the Carver Hotel and had had sexual intercourse with him at about 11:00 P.M. She was employed by Sara Lee for a year and a half.

Fred Frazier, for the State: He substantiaHy corroborated Mrs. Smith’s testimony as to the events at the car leading to her being forcibly taken away. He added that after the assailants took Mrs. Smith from the car, he was told by defendant’s accomplice not to foUow or he would be shot. He returned to the hotel, instructed the desk clerk to caH the police and then drove around the vicinity with a hotel security guard in search of Mrs. Smith. When she returned to the hotel, he and the security guard were notified by radio and returned to the hotel. When he returned to the hotel, Mrs. Smith was crying. The prosecutor asked him what Mrs. Smith said and he answered:

“I asked her what happened. She told me, ‘They took me in tire project/ They took her up in the project, and jammed the elevator and had raped her up in it. I asked her what she heard and she said she didn’t know.”

Officer Nakutis was also present at this time. Frazier went to the Cook County Hospital when the police took her there. While there, Detective Porter showed him a stack of 20 to 25 photographs and asked if he could identify the assailants. He picked the photograph of the defendant.

Officer Ed Nakutis, for the State: On December 13, 1970, at about 6:00 A.M., he went to the Carver Hotel. He met Mr. Frazier who informed him that Mrs. Smith had been taken away by two men. He received a description of the offenders and Mrs. Smith and then proceeded with his partner to cruise the area in search of Mrs. Smith. He and his partner returned to the hotel about 45 minutes later and found Mrs. Smith at tire hotel desk. She was crying and shaking. She told him that two male Negroes had taken her into a housing project and raped her in the elevator. She gave a description of the two males. Pie then took Mrs. Smith to the hospital. The prosecutor then asked him if Mrs. Smith had made any other remarks. Defense counsel objected, contending that any conversation would be hearsay. The trial court overruled the objection and the witness testified in response:

“Well, I had asked Mrs. Smith what had happened and she said she had been raped. And I asked her how and where and at what time and she says that the two offenders had taken her across what would be like a vacant lot that runs next to the parking lot and into this project, housing project building, and they had stopped the elevator between floors and made her undress, raped her and before leaving, had taken her purse with a substantial amount of money.”

Detective Booker Porter, for the State: He was assigned to the case on December 13, 1970, at about 7:00 A.M. and went directly to the Cook County Hospital where he met Fred Frazier, the hotel security guard and Mrs. Smith. He showed Mr. Frazier a group of photographs of male Negroes between the ages of 17 and 25, and Mr. Frazier selected a photograph of the defendant. He then showed the group of photographs to Mrs. Smith, and she too selected defendant’s photograph.

Larry Bush, in his own behalf: On December 13,1970, he was living at 703 North Central Park but had lived at 1850 West Washington Street until November of 1970. He denied having committed the rape or robbery and could not recall what he had been doing on December 13, 1970, or where he had been that day. On cross-examination he testified that he was familiar with the Carver Hotel.

No physical evidence was introduced at trial. A lab report showing positive results for the presence of spermatozoa was admitted by stipulation.

Opinion

Defendant’s first contention is that the trial court did not adequately advise him of his right to a jury trial and that the waiver of a jury was not made knowingly or understandingly. At the start of the trial defendant’s counsel informed the trial court that the case would be a bench trial. The trial court then addressed defendant, stating:

“Larry Bush, your counsel advises me that you wish to waive your right to a jury trial and submit this case to this court. Before permitting you to do so, it is my duty to advise you that under the law you have a right to a jury trial and submit this case to this court. Before permitting you to do so, it is my duty to advise you that under the law you have a right to a jury trial if you desire. You understand what a jury trial is?
THE DEFENDANT: Yes.
THE COURT: Knowing of that legal right to a jury trial, do you wish to waive your right to a jury trial and submit your cause to this court without a jury?
THE DEFENDANT: Yes.
# * *
MR. MURPHY: Mr. Larry Bush is signing the jury waiver before this bench.
THE COURT: Jury waiver is signed.”

Defendant contends that the jury waiver in the case at bar was not made understandingly because “the record does not show that the defendant had an adequate understanding of his right to a jury and the consequences of his waiver.” We believe that the trial court adequately informed defendant of his rights and nothing in the record indicates that the trial court should have been put on notice of the need for a more detailed admonishment. People v. Dotson, 124 Ill.App.2d 384, 260 N.E.2d 400.

Defendant’s second contention is that the trial court erred in admitting testimony by Fred Frazier and Officer Nakutis as to what the complaining witness had told them regarding the assault immediately upon their return to the hotel. Frazier and Nakutis reached the hotel “about a minute” after Mrs. Smith had returned. She was crying and shaking according to Nakutis, When asked what had happened she stated that she had been taken to the project and raped. We believe the testimony was admissible as a spontaneous exclamation, an exception to the hearsay rule. In People v. Damen, 28 Ill.2d 464, 471, 193 N.E.2d 25, the court quoted from Keefe v. State, 50 Ariz. 293, 72 P.2d 425:

“A spontaneous exclamation may be defined as a statement or exclamation made immediately after some exciting occasion by a participant or spectator and asserting the circumstances of that occasion as it is observed by him. The admissibility of such exclamation is based on our experience that, under certain external circumstances or physical or mental shock, a stress of nervous excitement may be produced in a spectator which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, rather than reason and reflection, and during the brief period when consideration of self-interest could not have been fully brought to bear, the utterance may be taken as expressing the real belief of the speaker as to the facts just observed by him.”

In the instant case Mrs. Smith went back to the hotel immediately after the rape, met no one on the street in the one block return to the hotel, told the lady clerk what had happened and asked her to call the police and “by that time” Frazier and Nakutis arrived finding her shaking and hysterical. Her statement to them that she had been taken to the project and raped was a spontaneous exclamation. The fact that she was asked “what happened” was insufficient to destroy the spontaneity. Damen at 472.

Mrs. Smith’s statement that she was raped was also admissible as corroboration of the occurrence. It was promptly made under the circumstances, it did not contain details of the offense and was not in response to a series of questions. Damen at 473 and cases cited therein.

Defendant relies on People v. Stewart, 130 Ill.App.2d 623, 264 N.E.2d 557, for his contention that hearsay evidence was improperly admitted. In Stewart the victim returned to a laundromat, gathered her clothes, drove to her house, washed, and checked her children before telling her story to her aunt. She also made a statement to a police officer some time later. The reviewing court’s finding that the victim had time to fabricate is inapplicable to the facts of the instant case.

However, the admission of Nakutis’ testimony as to what Mrs. Smith later told him in answer to his specific questions was error. (See People v. Harrison, 25 Ill.2d 407, 412, 185 N.E.2d 244.) The answers were not spontaneous nor could they be considered corroborative (People v. Fryman, 4 Ill.2d 224, 122 N.E.2d 573) since details of the offense were elicited. We do find, however, that the admission of this testimony was harmless error beyond a reasonable doubt. (Chapman v. California, 386 U.S. 18.) It was basicafiy a repetition of Mrs. Smith’s testimony on direct examination.

Defendant’s next contention is that he was not proven guilty beyond a reasonable doubt because the story of the complaining witness was improbable and that she and Frazier lacked credibility. Defendant argues that the report of the rape and armed robbery was invented to cover up the extra-marital affair between the complaining witness and Fred Frazier. If anything, the rape and armed robbery called attention to the affair. In any event defendant’s argument is mere conjecture and we are unable to find any reason to accept it. If the report of the rape and robbery was some sort of cover up or distraction, then it became a matter of the credibility of Mrs. Smith and Fred Frazier. This was a matter for the trial court sitting as the trier of fact. The determination of the trial court should not be disturbed unless palpably erroneous. People v. Arndt, 50 Ill.2d 390, 280 N.E.2d 230.

Finally, defendant argues that he cannot be convicted and sentenced for both rape and armed robbery because the conduct and force was the same for each offense. This argument is patently erroneous. This point was dealt with in People v. Harper, 50 Ill.2d 296, 302, 278 N.E.2d 771, where the defendant at knife point raped a woman and then robbed her. The court stated:

‘While it is true that the rape and robbery occurred in a series of acts committed at the same place and within a short time, it is equally time that they constituted separate acts involving different elements. As such, they were separate offenses for which concurrent sentences were both constitutionally and statutorily permissible. People v. Johnson (1970), 44 Ill.2d 463; People v. Raby (1968), 40 Ill.2d 392.”

Therefore it was not error for the trial court to sentence defendant to five to 15 years for armed robbery and a concurrent sentence of five to 15 years for rape.

The judgment is affirmed.

Affirmed.

ENGLISH and LORENZ, JJ., concur.


author: Mr. PRESIDING JUSTICE BURKE.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Fagin, Defendant-Appellant.
    (No. 55994;
    First District (1st Division)
    March 26, 1973.
    James J. Doherty, Public Defender, of Chicago, (Ian Levin and Stanley Sacks, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Frederick I. Chaimson, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. PRESIDING JUSTICE BURKE.


author: PER CURIAM.

text:
    The People of the State of Illinois, Respondent-Appellee, v. James D. Castro, Petitioner-Appellant.
    (No. 57272;
    First District (5th Division)
    March 30, 1973.
    James J. Doherty, Public Defender, of Chicago, (James B. Haddad, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and William D. Wolter, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Herman Mitchell, Petitioner-Appellant.
    (No. 58034;
    First District (5th Division)
    March 30, 1973.
    John D. Shullenberger, of Chicago, (David Rood, Senior Law Student, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Mark T. Zubor, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


author: Mr. JUSTICE EGAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Hunter, Defendant-Appellant.
    (No. 55999;
    First District (1st Division)
    April 2, 1973.
    Gerald W. Getty, Public Defender, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, for the People.
   Opinion by

Mr. JUSTICE EGAN.


text:
    Gamm Construction Company, Plaintiff and Counterdefendant-Appellant, v. Gilbert R. Berkson et al., Defendants and Counterplaintiffs-Appellees.
    (No. 56092;
    First District (1st Division)
    April 2, 1973.
    Stewart H. Diamond, of Chicago, for appellant.
    L. Louis Karton, of Chicago, for appellees.
   Opinion by

Mr. JUSTICE EGAN.


author: Mr. JUSTICE GOLDBERG

text:
    The City of Chicago, Counterdefendant-Appellee, v. Charles Loitz et al., Counterplaintiffs-Appellants.
    (No. 56462;
    First District (1st Division)
    April 2, 1973.

      Jerome H. Torshen, Ltd., of Chicago, (Jerome H. Torshen and Robert F. Berrey, of counsel,) for appellants.
    Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Richard F. Friedman, Assistant Corporation Counsel, of counsel,) for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

This record brings before us an appeal by Charles Loitz, Murray Loitz and Freída Loitz (counterplaintiffs) from an order granting the motion of City of Chicago (plaintiff and counter defendant) to dismiss their second amended counterclaim.

We will first state the substance of the second amended counterclaim, the well-pleaded facts of which are admitted by the motion to dismiss. Acorn Auto Driving School, Inc. v. Board of Education, 27 Ill.2d 93, 96, 187 N.E.2d 722.

Counterplaintiffs own real estate in the City of Chicago upon which they operated a gasoline station. On July 11, 1966, the City Council of Chicago adopted an ordinance for realignment and reconstruction of certain streets in the area of counterplaintiffs’ property. The Commissioner of Public Works was authorized to acquire four parcels of property to accomplish this, including that of counterplaintiffs. Three of these parcels were actually acquired by the City or condemnation proceedings were filed against them.

On December 23, 1966, the Commissioner of Public Works wrote a letter to counterplaintiffs advising that the City had directed acquisition of their real estate. An offer of $70,000 for the property was made. The letter also stated that unless counterplaintiffs replied within ten days the Commissioner would assume that the offer had been rejected and that condemnation proceedings would be instituted.

Promptly upon receipt of this offer, counterplaintiffs entered into negotiations with the City. On or about March 7, 1967, the City made an offer to purchase the property for $82,000. On March 7, 1967, legal counsel for counterplaintiffs wrote to the City Bureau of Engineering and accepted the offer of $82,000 for the premises, including equipment and fixtures attached thereto. At or about the time of these negotiations, counterplaintiffs were in the process of dealing with their gasoline supplier in an effort to obtain funds to remodel their gasoline station. The steps being taken by the City in connection with its intention to acquire the property of counterplaintiffs by condemnation or purchase were matters of common knowledge among landowners, tenants, businessmen and realtors in the area. In view of the pendency of the sale, the gasoline supplier for counterplaintiffs cut off their supplies and refused to furnish funds. Subsequently the City abandoned its project and failed and refused to consummate the transaction with counterplaintiffs. These acts of the City caused the destruction of the business of counterplaintiffs, caused their property to become unoccupied and unsalable and resulted in destruction of the improvements on the property by vandals. Although not specifically alleged, it is agreed that condemnation proceedings were never filed by the City.

The second amended counterclaim further alleged that these acts constituted a taking of counterplaintiffs’ property, which was valued at $83,500, and that the City had failed and refused to give counterplaintiffs just compensation as required by section 13 of article II of the Constitution of Illinois and amendments V and XIV of the Constitution of the United States. The City filed a motion to dismiss the second amended counterclaim for failure to state a cause of action. This motion was granted by the trial court. A motion made by counterplaintiffs to reconsider this order was denied.

It is counterplaintiffs’ theory and contention that their property was actually taken by the City despite the fact that proceedings for condemnation were never filed. They urge that the City, by its actions, deprived them of their interests in the property, which is legally tantamount to a taking by the municipality. The City urges that a property owner has no cause of action for damage to property caused by preliminary activities prior to the filing of an action for condemnation. As an additional ground, the City urges that the second amended counterclaim was properly dismissed because of failure of counterplaintiffs to serve notice upon the City pursuant to the Local Governmental and Governmental Employees Tort Immunity Act. Ill. Rev. Stat. 1965, ch. 85, sec. 8—101—102—103.

We are thus presented with an issue of law as to whether the above allegations are sufficient to constitute the taking of property by the municipality without just compensation in violation of Illinois and Federal Constitutions. We have concluded and accordingly hold that the law of Illinois, in agreement with the weight of authority in other states and in the Federal courts, is that mere planning by a governmental body in anticipation of the taking of land for public use and preliminary steps taken to accomplish this, without the filing of proceedings and without physical taking or actual invasion of the real estate, is not actionable by the owner of the land as being in contravention of Illinois and Federal Constitutions. A recent annotation appearing in the American Law Reports sets forth this rule and lists in detail the citation of cases dealing with this question. Annotation of Hilltop Properties v. State, 233 Cal.App.2d 349, appearing in 37 A.L.R.3d 109, 132, 133, 134.

The law of Illinois is contained in two decisions of our Supreme Court. In Eckhoff v. Forest Preserve Dist., 377 Ill. 208, 36 N.E.2d 245, plaintiff sought to recover compensation for damages to land not taken on the theory that the District had engaged in needless and vexatious delay. Various notices of proposed taking of the property had been served from 1925 until proceedings were actually filed in 1938. Damages were claimed for alleged violation of the State and Federal constitutions. The Supreme Court affirmed denial of this claim using the following language (377 Ill. at page 214):

“It seems obvious that the taking or damaging of land by eminent domain is not accomplished by passing resolutions or ordinances, nor by negotiating with the owner for the purchase of it, or serving notices upon him that the land may be required for public purpose. The series of corporate actions by the appellee district, complained of, cannot be said to have had the same effect upon their land as the filing of a condemnation petition. Such could not, in any sense, be held to be the taking of land or damaging of land not taken. The fact that at some future time a municipal corporation, with power of eminent domain, may require the land of a private owner, is one of the conditions on which the owner holds land in this State. Entering into negotiations for the purchase, and filing of a petition to condemn, vests no interest in land.”

The same rule was followed in Chicago Housing Authority v. Lamar, 21 Ill.2d 362, 172 N.E.2d 790. The landowner there claimed that he was entitled to compensation for the taking of his property fixed as of the date that a verbal agreement for voluntary conveyance was entered into. As in the case at bar, the owner alleged that the premises had become vacant and subjected to vandalism after the agreement. The Supreme Court held (21 Ill.2d at page 365):

“It is a well-recognized proposition of law that land is not damaged by reason of preliminary procedure looking to its appropriation to a public use. (Eckhoff v. Forest Preserve District, 377 Ill. 208, 214; City of Chicago v. Lederer, 274 Ill. 584.)”

The court further expressly approved the basic theory of Eckhoff as above set forth. (See 21 Ill.2d at page 367.) It is true that Chicago Homing Authority v. Lamar is decided on the basis of Illinois law without mention of the United States Constitution. But, Eckhoff considered both constitutions. It should also be noted that amendment XIV of the United States Constitution provides simply that no person shall be deprived of his property without due process of law. Amendment V, closer to the case at bar, provides that private property shall not be taken for public use without just compensation. The organic law of Illinois seems to go even beyond these pronouncements. The Illinois Constitution of 1870, article II, section 13, provides that “private property shall not be taken or damaged for public use without just compensation.” The Illinois Constitution of 1970, article I, section 15, provides that “private property shall not be taken or damaged for public use without just compensation as provided by law.”

In rather similar situations, the United States Supreme Court has reached the same conclusion as the Supreme Court of Illinois. (See United States v. Sponenbarger, 308 U.S. 256, 84 L.Ed. 230, 60 S.Ct. 225 and Danforth v. United States, 308 U.S. 271, 84 L.Ed. 240, 60 S.Ct. 231.) The majority rule seems supported by logic and reason and by a broad general policy of assisting the growth and expansion of municipalities. As set forth in the annotation above cited (37 A.L.R.3d at page 139) the service of notices or the initiation of negotiations between the governmental agency and the landowner do not in themselves constitute a physical taking or the infliction of damage upon the property. These preliminary matters do not in any physical sense invade the property or infringe upon the possessory rights of the owner. In fact, practical considerations may compel abandonment of the proposed taking without damage to the property. In addition, as pointed out by the Supreme Court of Illinois, every landowner should be aware of the fact that his title and possession of tire land are always necessarily subject to the power of eminent domain which may be exercised by the sovereign. Eckhoff v. Forest Preserve Dist., 377 Ill. at page 214.

The cases cited and depended upon by plaintiffs are distinguishable. They are either from jurisdictions which adhere to the minority rule, such as In re Elmwood Park Project Section 1, Group B, 376 Mich. 311, 136 N.W.2d 896; from Federal courts in states which adhere to the minority rule such as Foster v. City of Detroit, 254 F. Supp. 655, arising in the Eastern District of Michigan; Sayre v. United States, 282 F. Supp. 175, arising in the Northern District of Ohio and Haczela v. City of Bridgeport, 299 F.Supp. 709, from the United States District Court in Connecticut; or they were decided by the United States Court of Claims, such as R. J. Widen Co. v. United States, 357 F.2d 988 and Drakes Bay Land Co. v. United States, 424 F.2d 574.

Counterplaintiffs also cite Kaufman and Broad Homes, Inc. v. City of Chicago, decided in the United States District Court for file Northern District of Illinois, Eastern Division, on September 24, 1970, and apparently unreported. The court there denied a motion to dismiss a complaint against the City on the ground that it failed to state a claim against the taking authority. There, however, unlike the case at bar, condemnation proceedings were actually commenced in the circuit court of Cook County although subsequently abandoned. The United States District Court held that this was an actionable taking. This was done upon the authority of decisions adhering to the minority rule by the United States District Court for Connecticut (Haczela v. City of Bridgeport, 29 F.Supp. 709), and the United States District Court for the Northern District of Ohio. (Sayre v. United States, 282 F.Supp. 175.) In addition, the courts of Illinois are not actually bound by decisions of Federal courts other than the United States Supreme Court. This is the only corut which has appellate jurisdiction over Federal questions arising in the courts of Illinois. Decisions of all United States courts other than the Supreme Court, therefore, have only advisory effect upon the decisions of this corut and require our “respectful consideration.” (People v. Battiste, 133 Ill.App.2d 62, 272 N.E.2d 808, citing United States ex rel. Lawrence v. Woods, 432 F.2d 1072.) We will follow the law as expressed by the Supreme Court of Illinois, the majority of state courts and the United States Supreme Court.

In view of the foregoing we need not consider the additional point raised by the City pertaining to the Tort Immunity Act.

The amended counterclaim failed to state a cause of action. It was properly dismissed.

Judgment affirmed.

BURKE, P. J., and EGAN, J., concur.


author: Mr. JUSTICE GOLDBERG.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald M. Norris, Defendant-Appellant.
    (No. 56730;
    First District (1st Division)
    April 2, 1973.
    Andrew M. Raucci, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James T. J. Keating, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE GOLDBERG.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gary L. Kellas, Defendant-Appellant.
    (No. 56753;
    First District (1st Division)
    April 2, 1973.
    Allan A. Ackerman and Robert J. Cooley, both of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and William K. Hedrick, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE EGAN.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Williams, Defendant-Appellant.
    (No. 57094;
    First District (1st Division)
    April 2, 1973.

      Rehearing denied April 11, 1973.

    Gerald W. Getty, Public Defender, of Chicago, (Harold A. Cowen and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Donald J. Storino, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE GOLDBERG.


text:
    Bernice R. Bennett, Admr. of the Estate of Wilbur Leon Hardin, Deceased, Plaintiff-Appellant, v. Edward Geeler et al., Defendants-Appellees.
    (No. 57127;
    First District (1st Division)
    April 2, 1973.
    William M. Doty and Edwin L. Johnson, both of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Vincent Bentivenga, Jr., and Henry A. Hauser, Assistant State’s Attorneys, of counsel,) for appellees.
   Opinion by

Mr. JUSTICE GOLDBERG.


text:
    Business Assets Corporation, Plaintiff-Appellant, v. Larry Kors, d/b/a Arrow Service, Defendant-Appellee.
    (No. 57358;
    First Distinct (1st Division)
    April 2, 1973.
    Schwartz, Cooper, Kolb & Gaynor Chartered, of Chicago, for appellant.
    Harry George, of Chicago, for appellee.
   Opinion by

Mr. JUSTICE EGAN.


text:
    The People of the State Illinois, Plaintiff-Appellee, v. Norman E. Harris (Cornell D. Green, Impleaded), Defendants-Appellants.
    (Nos. 56583, 57346 cons.;
    First District (2nd Division)
    April 3, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE CRAVEN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Merle Wayne Carlisle, Defendant-Appellant.
    (No. 12040;
    Fourth District
    April 18, 1973.
    John F. McNichols, of Defender Project, of Springfield, (Bruce L. Herr, of counsel,) for appellant.
    No appearance for the People.
   Opinion by

Mr. PRESIDING JUSTICE CRAVEN.


author: Mr. JUSTICE SIMKINS.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mark Damon Miller, Defendant-Appellant.
    (Nos. 11800-01 cons.;
    Fourth District
    April 18, 1973.
   Opinion by

Mr. JUSTICE SIMKINS.

Kenneth L. Gillis, of Defender Project, of Chicago, for appellant.

Robert J. Bier, State’s Attorney, of Quincy, (John A. Beyer, of Circuit Attorney Project, of counsel,) for the People.


author: Mr. JUSTICE SIMKINS

text:
    Richard Grissom, Plaintiff-Appellee, v. Buckley-Loda Community Unit School District No. 8, Defendant-Appellant.
    (No. 11986;
    Fourth District
    May 22, 1973.

      N. E. Hutson, of Monticello, for appellant.
    Allen & Korkowski & Associates, of Rantoul, for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

The basis for this case is plaintiffs three-count petition for writ of mandamus as amended which was filed May 10, 1972. Counts I and II prayed for identical relief to-wit: That a writ of mandamus be issued directing the defendant school district to reinstate plaintiff as a teacher at a salary of $14,568.88 “for the ensuing school year of 1971 to 1972.” Count III of the amended complaint alleged that defendant had refused to pay the plaintiff any salary for the school year 1971-72; that by reason of his wrongful discharge he was deprived of his salary which he would otherwise have earned and received subsequent to discharge until mandatory retirement, and was otherwise damaged in his teaching career, all to plaintiff’s damage in the sum of $174,826.56. The 1971-72 school year commenced August 30, 1971. On July 14, 1972, after the close of the 1971-72 school year, the trial judge entered a written judgment order finding tire issues in favor of the plaintiff on Count I of the complaint and ordered the issuance of a writ of mandámus directing the defendant “* * * to forthwith reinstate plaintiff * * * asa teacher * * * for the school year 1971-72 * * This order also recited that “* * * the amount of damages owing to plaintiff be reserved until hearing on the question of damages.” On July 31, 1972, the trial judge stated “Gentlemen, are you ready to proceed with the hearing this morning on the question of plaintiff’s damages?” to which counsel for both sides indicated that they were ready. At the conclusion of the hearing the court stated: “The Court finds that there is due and been had by the Defendant in mitigating damages, which as near as this Corut can determine from the evidence, is $1600. It is the Court’s opinion it was the Plaintiff”s duty to mitigate the said damages in the event he could secure similar employment. And any mitigation of damages which he did prove, to-wit, $1600, should be reduced from the finding of the Court as follows. The Court finds that the Plaintiff have and recover from the Defendant the sum of $15,422 less $1600 mitigation, or a sum of $13,822. The Court further denies the motion of Plaintiff for attorney fees. Now, if you will prepare a record accordingly.

MR. OPSAHL: Do you want a written Order submitted on that?

THE COURT: Please. If you will submit it?

MR. OPSAHL: Yes.”

At the hearing on damages the plaintiff introduced no evidence of damage other than the loss of the 1971-72 salary. On August 4, 1972, | there was filed a written judgment order assessing plaintiff's damages for the 1971- 72 school year at the sum of $13,822.00 dollars. The order was signed by the trial judge and recites that it was entered the 31st day of July, 1972, “and signed August 4, 1972, nunc pro tunc.” This language is in the handwriting of the trial judge.

This record also discloses that on July 31, 1972, the defendant filed notice of appeal from the order of the trial court entered July 14, 1972, and from the order awarding damages entered “on the 31st day of July, 1972.”

On September 5, 1972, the plaintiff filed notice of cross-appeal “from the ruling of the Trial Court admitting into evidence matters relative to mitigation of damages and the determination by the trial court that damages be mitigated in the amount of $1600.” On September 19, 1972, this court heard oral arguments in the case. On January 31, 1973, our opinion was filed. On February 20, 1973, the plaintiff-appellee cross-appellant filed a petition for rehearing and a motion to dismiss the appeal. He maintains that the judgment entered by the trial court “concluded the matter only as to Count I of plaintiff’s complaint and Count II and III are still matters that remain to be litigated.” He further argues that since the trial court made no finding under Supreme Court Rule 304, that the judgment of the court is not appealable and that this court has no juris- , diction of the appeal. I

We required oral argument on the petition for rehearing and the j motion to dismiss the appeal. The thrust of plaintiff’s position is that the trial court must have awarded damages under Count I of the complaint. The reasoning supporting this conclusion is not set forth in the motion to I dismiss and remained obscure during oral argument. We are unable to fathom how it can be contended that the issues in Count II “remain to be litigated” in view of the fact that the relief prayed for in Counts I and II was identical and relief was awarded under Count I. His argument that damages were awarded, not under Count III, which is the only count in the complaint which prayed for damages, but rather under Count I of the complaint which did not pray for damages is equally incomprehensible. If we were to adopt plaintiff’s position we would be required to hold judgment for damages was entered under Count I of the complaint which sought no damages, that he is entitled to another money judgment for damages, in the same case, but this time under Count III of the complaint. The plaintiff failed to introduce any evidence during the hearing on damages that he was damaged in his teaching career, and his claim in Count III that he was entitled to anticipatory damages measured by the salary which he would have earned under his teaching contract until mandatory retirement, but for his wrongful discharge, was obviated by the prior order of the court restoring him to his teaching position. The only damage proven was the loss of wages for the school year 1971 through 1972 as mitigated by his earnings during the time he was not teaching.

We are not willing to hold that counsel engaged in a full day’s hearing on the issue of damages and that the court then awarded those damages, as proven, under a count of the complaint which prayed for no damages. At the hearing in question the plaintiff had an opportunity to present whatever evidence he chose on the issue of damages, and having elected to introduce only evidence as to lost wages, he cannot be heard to say that he should have a second opportunity to adduce further evidence of damage and secure a second money judgment in the same case. We hold that the judgment of the trial court entered August ¡ 4, 1972, was a final and appealable order, and disposed of all remaining issues in the case.

In view of the confused state of this matter we have made a careful examination of the record, and conclude that this court has no jurisdiction to entertain defendant’s appeal or plaintiff’s cross-appeal but for reasons other than those assigned in plaintiff’s motion to dismiss the appeal.

Supreme Court Rule 272 (Ill. Rev. Stat. 1969, ch. 110A, par. 272) provides in pertinent part: “If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed.” Here, as demonstrated by the above portion of the record of the proceedings had on July 31, 1972, the trial judge did require a written judgment order to be prepared by plaintiff’s counsel and submitted for signature and filing. It was in fact prepared, submitted to the court and signed on August 4, 1972, and it was on that date that it became effective. The order of July 31, 1972, granting the writ of mandamus, since it did not dispose of all of the issues in the case, was not an appealable order at the time it was entered since no finding under Supreme Court Rule 304 was made. That judgment, as well as the judgment awarding damages became appealable on August 4, 1972, when all of the issues in the case were then disposed of.

The trial judge had no authority, on August 4, 1972, by the recital of the nunc pro tunc language, to enter the money judgment as of July 31, 1972. “A nunc pro tunc order is one presently made to show what was done earlier, and it takes effect from such prior date. It is a device to supply an omission and to enter of record an order actually made, hut omitted from the record. It may correct clerical misprisions, hut not supply omitted judicial action nor correct judicial errors. [Citations omitted.]” (Chapman, Mazza, Aiello Inc. v. Ace Lumber and Const. Co., 83 Ill.App.2d 320, 227 N.E.2d 562.) Nor can a court, under the guise of correcting its record, but upon it an order or judgment which never in fact had been made or entered. (In re Estate of Young, 346 Ill.App. 257, 105 N.E.2d 850; City of Chicago v. Evon, 339 Ill. App. 580, 91 N.E.2d 456.) Here the trial judge on August 4, 1972, was not supplying an omission, he was not entering an order actually made but omitted from the record, he was not correcting a clerical misprision. He was simply signing a written judgment order which he had earlier ordered to be prepared and presented, and which became final and effective on the date that he signed it. Therefore, defendant’s Notice of Appeal, filed on July 31, 1972, was filed on a date when no final appealable order existed and this court consequently lacks jurisdiction under Supreme Court Rule 301.

As to plaintiff’s cross-appeal, we have noted that final judgment was entered in this case on August 4, 1972, and the record shows that defendant’s notice of appeal was filed July 31, 1972. The record of the proceedings had on July 31, 1972, reveals that defendant’s Notice of Appeal was filed in open court in the presence of plaintiff’s attorney.

Under the provisions of Supreme Court Rule 303(a), plaintiff was then required to file his notice of cross-appeal within 30 days of the entry of the final judgment which event occurred on August 4, 1972. The record discloses that the plaintiff’s notice of cross-appeal was filed on September 5, 1972, 32 days after the entry of the judgment. The timely filing of the notice is jurisdictional under Rule 301 and this Court therefore lacks jurisdiction of the cross-appeal.

We feel it appropriate to observe that the payment of the clerk’s fees, and service of process by the Sheriff of Iroquois County appear to constitute the only adherence to orderly, comprehensible procedure which obtained in this case. Thereafter it devolved into a morass for which we can perceive no justification. On denial of the petition for rehearing, our original opinion is ordered withdrawn and the appeal and the cross-appeal are dismissed.

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


author: Mr. JUSTICE GUILD

text:
    Mina Lee et al., Plaintiffs-Appellants, v. Central National Bank & Trust Company of Rockford, Admr. of the Estate of Orin W. Cox, et al., Defendants-Appellees.
    (No. 71-254;
    Second District
    January 26, 1973.

      Rehearing denied April 10,1973.

      Certificate of importance filed April 10,1973.

    George E. Nichols and Luke R. Morin, both of Dixon, for appellants.
    Anthony R. Fabiano and Sam J. Cannariato, both of Rockford, for appellees.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The nieces and nephews of Olive P. Cox filed suit as legatees under the will of Olive P. Cox, formerly Olive P. Vogeler, alleging that an oral ante-nuptial agreement reduced to writing and executed after the marriage of Olive P. Vogeler and Orín W. Cox together with the will of Olive P. Cox executed prior to her marriage to Orín W. Cox, constituted an equitable assignment of her property to said legatees under the will.

Olive P. Cox, formerly Olive P. Vogeler, was formerly married to Bert O. Vogeler. On August 16, 1949, she and her then husband executed their respective wills. Bert O. Vogeler died November 28, 1952. On June 16, 1982 Olive P. Vogeler married Orin W. Cox. There was a verbal agreement prior to their marriage whereby each of them disclaimed any interest in any property the other owned. This agreement was recognized in a written agreement which was executed after the marriage on October 23, 1964 in which Orin W. Cox disclaimed any interest and waived his right of inheritance in the property of Olive P. Cox, and that said property should descend by will or otherwise to the respective heirs of Olive P. Cox. On February 16, 1970, Olive P. Cox died. A petition was filed to admit the will of Olive P. Cox to probate which the court denied. On April 30, 1970, Orín W. Cox filed a petition for letters of administration and letters were issued to the defendant, Dixon National Bank. Three days later, on May 2, 1970, Orin W. Cox died at the age of 82 years. Two of the defendants herein, Jeffrey Hanes and Samuel Hanes, were heirs of Olive P. Cox. On the basis that the court might determine that the will of Olive P. Cox was of no force and effect, and that Orin W. Cox had no interest in the estate of Olive P. Cox, a guardian ad litem was appointed in the instant proceedings for Samuel Hanes, an incompetent, and Jeffrey Hanes, a minor. They have appeared in this court as cross-appellants, and contend that the only parties in interest in the estate of Olive P. Cox are her heirs at law.

Plaintiffs contend that the written agreement signed after the marriage is not barred by the Statute of Frauds (Ill. Rev. Stat. 1969, ch. 59, secs. 1, 2 and 3), and that the agreement with the will is an equitable assignment.

Phrasing the issue succinctly the question before this court is whether or not the “ante-nuptial agreement,” reduced to writing after the marriage of the parties, is void.

The trial court in a memorandum opinion stated that it was the intention of Olive P. Cox and Orin W. Cox to claim no interest in the property of the other. The court further went on to say that it was of the opinion that the equities of the case were with the plaintiffs. However, the trial court held “with reluctance” that the case of McAnnulty v. McAnnulty (1887), 120 Ill. 26,11 N.E. 397, was controlling.

Prior to 1965 the Legislature of Illinois had provided in Ill. Rev. Stat., ch. 3, sec. 46, that:

“# * * (1) marriage of tire testator revokes a will executed by the testator before the date of the marriage; * * *.”

In 1965 the Legislature changed this statute and provided in part:

“No will or any part thereof shall be revoked by any change in the circumstances, condition or marital status of the testator * * *.”

It is obvious that the Legislature intended to rectify inequitable situations such as the case before this court. The Legislature went on to provide that the new provision would be applicable to wills of decedents dying after December 31, 1965. The 1965 Act further provided in substance however, that a will revoked in any manner, in this case by the marriage prior to the effective date of the Act, would not be revived except by re-execution.

In the probate proceedings it was properly held that the amendatory act did not revive the will of Olive P. Cox which had been revoked by the prior existing statute. Stolte v. Stolte (1967), 37 Ill.2d 427, 226 N.E.2d 615.

While this case differs factually, this court too is bound by the Supreme Court decision in McAnnulty. It may be observed that the Supreme Court in that case, like the trial court in our case, recognized the shortcomings of the application of the Statute of Frauds to a situation similar to the one herein, when the court in prefacing its interpretation and application of the law stated: “Whatever may be the Court’s opinion as to the policy of a statute, it is its duty to carry out its provisions so as to effectuate the intention of the lawmakers. If found to operate with inconvenience, or to produce hardship, it is for the legislature to apply the corrective.”

In the instant case the “ante-nuptial” agreement executed in writing by Olive P. Cox and Orín W. Cox after their marriage, recognized the prior oral “ante-nuptial” agreement. In McAnnulty the purported written agreement was put in evidence and the court held that if it had been executed by the parties before the marriage, it would have been controlling. In that case it appeared that the verbal agreement prior, to marriage was allegedly reduced to writing after the marriage. A difference in McAnnulty was the observation of the court that there was serious doubt as to whether or not Mrs. McAnnulty did in fact sign the agreement. Evidence was presented that she was unable to read, write or sign her name, and that prior documents executed by her were executed by making an “X” mark between her Christian and surname, which is customarily done by those who cannot write. The court nonetheless held that a verbal agreement reduced to writing after the marriage was “obnoxious to the Statute of Frauds.”

We therefore find that the prior will of Olive Vogeler, executed prior to her marriage to Orín W. Cox, together with a verbal ante-nuptial agreement reduced to writing after the marriage, does not constitute an equitable assignment. The judgment of the trial court is affirmed.

Affirmed.

SEIDENFELD and ABRAHAMSON, JJ., concur.


author: Mr. PRESIDING JUSTICE GUILD

text:
    Illinois National Bank & Trust Co. of Rockford, Plaintiff-Appellee, v. The City of Rockford, Defendant-Appellant.
    (No. 72-48;
    Second District
    April 24, 1973.
    William E. Collins, Legal Director, and A. Curtis Washburn, Assistant City Attorney, both of Rockford, for appellant.
    Reno, Zahm, Folgate, Skolrood, Lindberg, & Powell, of Rockford, for appellee.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

The plaintiff brought this declaratory judgment suit against the city of Rockford praying that the zoning ordinance of the city of Rockford be declared null and void as applied to the property of the plaintiff.

The plaintiff’s property consists of thirteen undeveloped acres located at the northwest corner of the intersection of Riverside Blvd. and North Main Street in Rockford. The property has a frontage of 600 feet on Riverside Blvd. and 1350 feet on north Main Street. The present zoning for this corner is single family “A” residential and plaintiff seeks to have it rezoned to the Local Business district classification of the Rockford zoning ordinance, to allow the erection and use of a Woolco Sales and Service Facility (described as a retail department store) on the subject property.

The trial court found in substance that the zoning ordinance as applied to plaintiffs property was unconstitutional and void, and entered an order to that effect containing detailed limitations upon the construction of the proposed building on said premises together with the parking area, landscaping, and fencing. The city of Rockford has appealed.

The defendant has raised but one contention and that is that the court should not substitute its judgment for that of the municipal authority exercising its discretionary legislative power as to zoning classifications.

At the outset, we have two fundamental and in some ways overlapping legal concepts to be considered. The first is that a zoning classification is presumed to be valid and will be disturbed only if the evidence is clear and it is affirmatively shown that the zoning ordinance as applied to the subject property is arbitrary or unreasonable. (Hartung v. Village of Skokie (1961), 22 Ill.2d 485, 177 N.E.2d 328.) On the other hand, it has repeatedly been said that a reviewing court will not disturb a trial court’s finding and substitute its own opinion unless the holding of the trial court is manifestly against the weight of the evidence. Illinois National Bank & Trust Co. v. County of Winnebago (1960), 19 Ill.2d 487, 167 N.E.2d 401. Schulenburg v. Signatrol, Inc. (1967), 37 Ill.2d 352, 226 N.E.2d 624.

In the instant case, those two propositions confront us. The east side of North Main Street at this intersection is zoned and used commercially for local business. The local business extends along Riverside Blvd. to the east and from Main Street. The southeast quardant of this intersection extends to the east to encompass an area known as North Towne, a fairly large local business shopping center. It further appears that the east side of Main Street is rather uniformly developed for business.

In 1967 the city of Rockford adopted a general or comprehensive plan for the development of the zoning districts. In this plan the east side of North Main Street was designated as single family residential. The plan further encompassed the use indicated above of the southeast quadrant of this intersection as a shopping center.

The Plaintiff made application to the Zoning Board of Appeals of the city of Rockford for zoning re-classification of the area in question, which was denied.

The expert witness for the Plaintiff, Clyde W. Forrest, Jr., Associate Professor of Urban and Regional Planning of the University of Illinois, and an attorney, testified that the subject premises were wholly unsuited for residential development, and were in addition thereto, unsuited for multiple family use. He further testified that the subject premiess were in fact suitable for local business. The substance of his testimony was that a cluster type development at this intersection was proper, and that there was no reason to treat North Main Street as a dividing line between business and undeveloped property on the east side of North Main Street. It is specifically noted that there are no buildings, residential or otherwise, on the east side of Main Street in the vicinity of this intersection. On the other hand, the expert witness for the city of Rockford, Dean Clark, Executive Director of the City-County Planning Commission of Rockford, Winnebago County, with a degree in regional planning from the University of North Carolina, testified that the comprehensive plan of the city of Rockford encompassed the general thought that North Main Street would be a line of demarcation between business and residential, and that everything west of North Main Street would be generally residential. Mr. Clark further testified that prior applications for zoning variations on the west side of Main Street had been denied. The substance of Mr. Clark’s testimony was that the property in question should remain residential in nature.

In Krom v. City of Elmhurst (1956), 8 Ill.2d 104, 133 N.E.2d 1, the court stated at page 107:

“The question of whether a zoning ordinance is arbitrary, unreasonable and capricious in its application to a given parcel of land, or whether it is reasonable and bears a substantial relation to the public welfare, is subject to review by the courts and, of necessity, each case must be decided upon its own particular facts. Chief among the factors to be given consideration are the use and zoning of nearby property, the character of the neighborhood, the extent property values are diminished, and the relative gain to the public as compared to the hardship imposed upon the owner. Since there is a presumption of validity in favor of a zoning ordinance adopted pursuant to a legislative grant, the one assailing its validity has the burden of proof that the ordinance is invalid or -unreasonable and confiscatory as to his property. If it appears from all the facts that there is room for a difference of opinion concerning the reasonableness of a classification, the legislative judgment of the city council must be conclusive. For further exposition of these established principles see: [citations].”

The court went on to hold that the residential zoning ordinance of the city of Elmhurst as applied to the property in question was unconstitutional and void.

In Padgett v. City of Oakbrook Terrace (1967), 89 Ill.App.2d 244, 231 N.E.2d 466, the plaintiff sought to rezone property located west of route 83 across from the Oakbrook Shopping center. He contended that the zoning ordinance of the village of Oakbrook Terrace was void and unconstitutional as applied to his premises. In holding the zoning constitutional as it applied to petitioner’s property we stated at page 248:

“* * * As we have often noted, and as we have said with reference to the same Route 83 at a different location [citation], zoning must begin and end somewhere. A highway, such as Route 83, may serve as a proper demarcation between residential and business uses. In addition, along the west side of this highway and between it and the adjacent utility lines, is an area in which there are trees. Such screen further tends to serve as a buffer.”

There is no question but that a main traveled thoroughfare may be a proper line of demarcation. In Padgett the premises of the petitioner were located in a developed single family residential area across a wide divided thoroughfare. In the case before us it appears that the land on the west side of Main Street, both north and south of Riverside Blvd. is not developed as residential, but is vacant and unimproved. As further stated in Padgett, supra:

“* * * To be valid, a zoning classification must bear a substantial relation to the public health, safety, comfort, morals or general welfare. [Citations.] To overcome the presumption of validity, however, plaintiffs must establish by clear and convincing evidence that the ordinance is unreasonable and unrelated to public health, safety or welfare.” 89 Ill.App.2d at 247.

In the case before us we cannot find that the holding of the trial court herein is manifestly against the weight of the evidence. We will not substitute therefore our judgment for that of the trial court. While it is true that the zoning ordinance is presumed valid, we do not find that the residential zoning classification of this undeveloped thirteen acre parcel of land located at a busy intersection is reasonable nor has it any relation to the public health, safety or welfare. We therefore affirm the judgment of the trial court.

Affirmed.

SEIDENFELD and ABRAHAMSON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George Lee Brown, Defendant-Appellant.
    (No. 72-87;
    Second District
    April 24, 1973.
    Paul Bradley, of Defender Project, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, (James W. Jerz, of counsel,) for the People.
   Mr. PRESIDING JUSTICE GUILD

delivered the opinion of the court:

In a jury trial the defendant was convicted of voluntary manslaughter for killing the deceased, Edra Lou Scott, his common law wife, during the early morning hours of July 3, 1971, and was sentenced to 3-10 years in the penitentiary.

The family consisted of the decedent, her three children and the defendant. Prior to the shooting on July 3, 1971, the defendant was the sole support of the household. On July 2, 1971, the defendant took the decedent, her daughter, and son Daryle shopping. After shopping the decedent and the defendant went to the home of Edna Shelton, the decedent’s sister, where they drank beer and vodka. During this time Minnie Pearl Spears came to Mrs. Shelton’s home and showed her caesarean operation scar to the decedent and her sister, and offered to exhibit it to the defendant who said he did not wish to see it. After Miss Spears left, Mrs. Scott argued with the defendant and accused him of having an affair with Miss Spears. After drinking some more, the parties went to another home to inquire about a security guard’s job at the Zion Benton hospital. Die decedent, Mrs. Scott, refused to allow the defendant to take the job and her reason was she did not want him in contact with all those women. Die parties apparently laughed at the decedent who became angry with the defendant for his participation in the laughter toward her. Mrs. Shelton, Mrs. Scott, and the defendant left at about 9:00 P.M., returned to the home of the parties where the decedent and the defendant continued their arguments as to her jealousy and suspicion of the defendant carrying on additional affairs at their home. At about 3:30 A.M., after Mrs. Shelton left, the decedent and defendant started arguing and defendant testified that decedent shouted she was going to kill defendant. Defendant testified the decedent pulled a knife from her purse, he disarmed her and she went to the kitchen and obtained another knife which he took from her without any physical harm being inflicted on defendant. The argument awakened Karla Scott, the twelve year old daughter of the deceased, who came into her mother’s bedroom and saw the defendant and her mother fighting. Defendant stated decedent got the revolver and in the struggle that ensued, she was shot. However, the daughter testified that after the parties were separated from fighting, defendant went to the bed, got a gun from under the mattress and shot the decedent. Defendant was charged with both voluntary manslaughter and involuntary manslaughter.

Defendant was arrested on July 3, 1971 and incarcerated. A preliminary hearing was not had but defendant was indicted on July 12, 1971, nine days later.

The first contention of the defendant is that the indictment was void for failure to give the defendant a preliminary hearing. The 1970 Constitution took effect three days before the instant offense. Article 1, Section 7 of the Illinois Constitution (1970) provides:

“No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause.”

While not raised by defense counsel, the first question we consider is whether the delay of 9-10 days between the time of apprehension and the indictment by the Grand Jury is in contravention of the 1970 constitutional provision. This question is ordinarily presented where a confession is elicited during the detention. That is not the case before us. In People v. Price (1962), 24 Ill.2d 46 at 56, 179 N.E.2d 685, the Supreme court stated:

“However, this court has held that mere illegal detention in the absence of other coercive circumstances does not constitute a denial of due process, particularly where the accused is neither illiterate nor uninformed as to police practices, and has had previous criminal experience. [Citation.]”

In People v. Bernatowicz (1966), 35 Ill.2d 192, 220 N.E.2d 765, the defendant contended that a delay of nine days from the time of incarceration to the return of the indictment constituted cruel and unusual punishment by informally extending the defendant’s sentence. The Supreme Court found no merit to that contention. We therefore hold that the incarceration of the defendant for a period of 9-10 days before he was indicted does not constitute denial of due process.

The next question confronting us raised by defense counsel is that the defendant was entitled to a preliminary hearing. Prior to the adoption of the 1970 Constitution, the courts of Illinois uniformly held that an accused was not entitled to a preliminary hearing as a matter of right and could be indicted directly. Since the adoption of the 1970 Constitution, the Supreme Court of Illinois has expressly ruled on the question of whether or not the accused is so entitled under the new Constitution. In People v. Hendrix, No. 44688, April 2, 1973, the Supreme Court specifically ruled on this question. In Hendrix there is some confusion as to the actual date of arrest of the accused but he was brought before the Circuit Court on August 18, 1971, and a preliminary hearing was ordered. It appears however, that the State’s attorney took the case directly to the grand jury and the defendant was indicted the next day on August 19th. The defendant filed a motion to dismiss the indictment on the ground that he had been originally charged by a criminal complaint and that he was entitled to a preliminary hearing. The Supreme court in quoting Sec. 7 of Article I of the 1970 Constitution stated that in order to prosecute the defendant he had to be indicted. The court then held that no constitutional right of defendant was violated by failure to have a prompt preliminary hearing. Summarizing the holding of the court in Hendrix it would appear that the substance of the court’s holding was that it was not necessary to afford an accused a preliminary hearing, and that he could under the 1970 Constitution be indicted directly by the grand jury. Likewise, in People v. Kent, Docket No. 44864, September Term, 1972, the court stated that the 1970 constitutional reference (see above) to a right to a preliminary hearing was new. The court then went on to examine the record of proceedings of the Constitutional convention and concluded that the history of the evolution of this constitutional provision negated any thought that the defendant could not be subsequently indicted, even after no probable cause was found in the preliminary hearing proceedings. We therefore conclude a defendant under the 1970 Constitution may be indicted directly by the grand jury without the necessity of a preliminary hearing.

This court, in People v. Spera (1973), 10 Ill.App.3d 305, 293 NE.2d 656, also held under the 1970 Constitutional provisions, Art. 1, Sec. 7, that a defendant could be indicted directly without a preliminary hearing.

The defendant contends that the evidence was not sufficient to prove him guilty beyond a reasonable doubt of voluntary manslaughter. The testimony corroborates the eye witness account of the shooting. The State called an expert witness, Miss Komar, who testified she examined the blouse decedent was wearing and the gun used in the shooting, and it appeared there was no powder residue on the blouse near the bullet hole. The only thing that was not done was to perform a chemical test to determine what the substance was around the buffet hole. In Miss Komar’s opinion the smudge was not powder residue from the bullet being fired close to the body. From her tests it appeared decedent was shot at a range greater than four feet from the body, indicating little or no powder residue around the bullet hole. It further appeared from the position of the body and the angle of the shot entering the body, decedent was shot from a distance. The eye witness’s testimony at the trial varies from the statement she gave after the shooting, but her account that it was the defendant who shot her mother never wavered.

Defendant contends the twelve year old daughter of the decedent, Karla Scott, was incompetent to testify. When she was called she gave the preliminary information as to her name, age, date of birth, name of school, and was asked whether she knew what she did when she took the oath. She replied that she did. Thereupon, the defendant’s attorney objected, and the court outside the presence the jury asked the defendant’s attorney if there were any question about her ability to understand the oath. The defendant’s attorney said “No.” Thereupon, counsel proceeded with the testimony of the twelve year old witness.

In People v. Matthews (1959), 17 Ill.2d 502, 162 N.E.2d 381, defendant was found guilty of taking indecent liberties with a six year old child who testified at the trial. The court stated at page 506:

“* * * Moreover, the defendant has the duty to raise an objection to the competency of a child as a witness at the time of the trial, and the question cannot be raised for the first time on appeal. (People v. Mueller, 2 Ill.2d 311.) The record fails to reveal any move to exclude the testimony of this child during the trial. We cannot now consider a question as to her competency.”

Defendant has cited People v. Sims (1969), 113 Ill.App.2d 58, 251 N.E.2d 795. Sims is factually distinguishable from the instant case, as no real effort was made to ascertain the competency of the minor witness and the defendant objected to the testimony which was not done in the case before us.

The other cases cited by defendant are also distinguishable but indicate the judge must be satisfied that the witness is sufficiently mature to testify.

In People v. Ballinger (1967), 36 Ill.2d 620, 225 N.E.2d 10, the court stated at 621-622:

“* s * The weU-established rule is that it is not age but the degree of inteUigence of a child which determines the question of his competency to testify, and if the witness is sufficiently mature to receive correct impressions by his senses, to recollect and narrate inteUigently and to appreciate the moral duty to teU the truth, the witness is competent. [Citation.] The competency of such a witness is to be determined by the trial judge and, while his decision is reviewable, it is only where there has been an abuse of discretion or a manifest misapprehension of some legal principle that the decision wiU be reversed. [Citations.]”

It would appear from the record that the inquiry as to witness’ competency, though brief, was held by the judge and the defendant waived any objection to the preliminary inquiry when he did not object. From the cross examination and testimony of the witness it would appear that she did understand the oath and was able to testify adequately before the judge and jury. We do not find an abuse of the trial judge’s discretion to permit her to testify.

The last contention of the defendant is that the trial court committed prejudicial error by the submission of IPI jury instructions, criminal, 7.03 and 7.07. Defendant insists that these instructions are improper as they do not include the phrase “without lawful justification” which is one of the elements found in the definition of both voluntary and involuntary manslaughter. Ill. Rev. Stat. 1971, Ch. 38, Sec. 9—2 (a) and 9—3 (a).

The State cites People v. Harvey, 53 Ill.2d 585, where the Supreme court of Illinois in interpreting varied opinions of the Appellate court determined that an indictment was sufficient where they are couched in statutory terms and sufficient to inform the defendant of the charge. The question before us does not deal with the indictment. It concerns the question as to whether or not “without lawful justification” found in the indictment should be included in the instructions. We believe not. As the State points out, the phrase “without lawful justification” undoubtedly refers to those situations involving self defense in one form or another.

In further support of the allegation of defendant that the evidence did not prove him guilty beyond a reasonable doubt defendant has raised the alternative theory that either the shooting was accidental or that the defendant acted in self defense. The argument of self defense is intertwined with defendant’s contention relative to the instructions as discussed above. The issue of self defense has been raised for the first time in this appeal. The defendant produced no evidence of self defense at the trial and made no objection to the instructions at the conference on instructions. The whole theory of defendant’s defense at the trial was that the decedent either shot herself or was killed because of an accidental discharge of the pistol in question. We have repeatedly held that a new theory of defense not raised at the trial level may not be raised upon appeal.

It has been oft stated by the courts of Illinois that the reviewing court will not substitute its judgment for that of the jury in the absence of convincing evidence that the verdict is not based upon the facts presented. This principle was well stated in People v. Keane (1970), 127 Ill.App.2d 383, 262 N.E.2d 364, where the court stated at page 392:

“It is within the province of a jury to determine the guilt or innocence of a defendant and its finding of guilty will be disturbed only where the evidence is so unsatisfactory as to leave a reasonable doubt as to the defendant’s guilt. * * * In the instant case the evidence demonstrates that defendant was proven guilty beyond a reasonable doubt.”

We feel that the evidence herein demonstrates that the defendant was found guilty beyond a reasonable doubt. In People v. Hampton 1969, 44 Ill.2d 41 at 45, 257 N.E.2d 190, the court held:

“This court has consistently held that it is the function of the trier of the facts to determine the credibility of the witnesses and its finding of guilty will be disturbed only where the evidence is so unsatisfactory as to leave a reasonable doubt as to the defendant’s guilt. [Citation.] The testimony of a single witness, if it is positive and the witness credible is sufficient to convict even though it is contradicted by the accused.”

For the reasons herein set forth the judgment of the trial court is affirmed.

Affirmed.

SEIDENFELD and T. MORAN, JJ., concur.


author: Mr. PRESIDING JUSTICE GUILD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bruno Koziol, Defendant-Appellant.
    (No. 72-144;
    Second District
    April 24, 1973.
    Paul Bradley, of Defender Project, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, (James W. Jerz, of counsel,) for the People.
   Opinion by

Mr. PRESIDING JUSTICE GUILD.


author: Mr. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roy A. Nogle, Defendant-Appellant.
    (No. 72-54;
    Second District
    April 25, 1973.
    Paul Bradley and Ralph Ruebner, both of Defender Project, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, (James W. Jerz, of counsel,) for the People.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

This appeal comes from the circuit court of Lake County. On September 7, 1971 defendant was indicted for burglary and theft over $150 (an automobile). Represented by appointed counsel defendant, at his arraignment a week later, entered a plea of not guilty. Pursuant to a negotiated plea agreement and contemplating a dismissal of the indictment for theft, defendant on October 4 withdrew his not guilty plea and entered a plea of guilty to burglary. After extensive interrogation and admonishment by the court the guilty plea was accepted as to the burglary indictment and the theft indictment was dismissed. After the hearing on aggravation and mitigation on October 20 the court denied defendant’s petition for probation and sentenced him to a term of 8 to 30 years. A week later, at a hearing on defendant’s petition for reconsideration, the court reduced the sentence to a term of 4 to 30 years.

Defendant appeals contending that the court failed to meet the requirement of substantial compliance with its obligation to determine whether there was adequate factual basis for the plea of guilty as provided by Illinois Supreme Court Rule 402(c). Ill. Rev. Stat. 1971, ch. 110A, par. 402(c).

After the court interrogated and admonished the defendant carefully as to his rights and the consequences of the guilty plea, the court inquired into the circumstances of the offense and was informed that defendant was caught in the building, having gained entry through the bathroom window after breaking open the bottom pane. The following colloquy then occurred:

“DEFENDANT: I was drunk at the time. It was stated by the police officer.
THE COURT: Rut not to the extent that it would constitute a defense to this proceedings?
DEFENDANT: No, sir.”

The court then accepted the plea of guilty to burglary and the indictment for theft was dismissed.

At the hearing on aggravation and mitigation the defendant was interrogated by his attorney concerning his drinking on the night of the burglary and his prior treatment for alcoholism. On cross-examination by the State he testified with particularity as to the approximate size of the bathroom window, that he did not cut himself getting through it, as to the manner of his obtaining entry into the property on which the building was located, what he was wearing, the type of machine in which he was hiding when apprehended, the direction that the machine was facing and its distance from other objects on the premises. The trial court was therefore in substantial compliance with Supreme Court Rule 402(c).

Subsequent to oral argument in this court defendant filed a motion for modification of his sentence pursuant to the applicable provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1972, ch. 38, sec. 1001—1— 1, et seq.), which became effective January 1, 1973. We took that motion and objections thereto with the case.

Section 1008 — 2—4 of that Code provides in substance that if the offense being prosecuted has not reached a final adjudication, the sentences under tire Act apply if they are less than under the prior law. “Final adjudication” includes pending appeals. People v. McCloskey, 2 Ill.App.3d 892, 900; People v. Chupich, 53 Ill.2d 572; People v. Gargano, 10 Ill.App.3d 957.

Section 1005 — 8—1(c)(3) of that Code provides that minimum sentences imposed for burglary (a Class 2 felony) shaU be the statutory minimum unless the sentencing judge, having regard to various factors, sets a higher minimum. Here the four-year minimum sentence imposed by the trial judge demonstrated his determination that a minimum sentence higher than the statutory minimum was necessary. It is obvious to us that he would have reached the same determination if the sentence had been imposed under the Code of Corrections. In view of the fact that the maximum sentence authorized under the Code for burglary is 20 years, the maximum shall accordingly be reduced.

We therefore affirm the judgment of conviction and modify the sentence to a minimum of 4 years and a maximum of 20 years in the penitentiary.

Judgment affirmed and sentence modified.

GUILD, P. J., and T. MORAN, J., concur.


text:
    Irene Ann Peesel, Plaintiff-Appellee, v. Otto Paul Peesel, Defendant-Appellant.
    (No. 72-56;
    Second District
    April 25, 1973.
    Cohn & Flynn, and John P. Carlin, both of Chicago, for appellant.
    Donovan, Dichtl, Atten, Mountcastle & Roberts, of Wheaton, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

Plaintiff filed an application under the Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1971, ch. 77, par. 88—105) in the circuit court of Du Page County to register a California divorce decree. On October 7 the court entered an order duly registering that judgment and reserving the matters of child support, alimony, division of marital property, attorneys’ fees and costs for determination at a later hearing. On November 30, 1971 the court ordered the defendant to pay $30 per week as child support payments and reserved the questions of alimony, division of marital property, attorneys’ fees and costs. While some of the “questions” reserved were continued to December 13, 1971, no order was entered on that date and the case was stricken from the call.

Defendant filed his appeal on January 3, 1972 from the orders of October 7 and November 30, 1971, and from the order of December 13, 1971 (when none was entered).

One of plaintiff’s contentions is that this appeal should be stricken from the docket because it was filed too late. We are, however, confronted with Supreme Court Rule 304. (50 Ill.2d R. 304.) It is apparent that multiple claims for relief are involved in this action, the trial court having reserved most of them for later determination.

Supreme Court Rule 304 provides in pertinent part as follows:

“If * * * multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the * * * claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. * * * In the absence of such a finding, any judgment that adjudicates fewer than all of the claims * * * is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.”

The trial corut has not made any express finding here that there was no just reason for delaying appeal, and there are still pending and reserved before the court other claims for relief. In view of Supreme Cotut Rule 304 we must dismiss the appeal. It is therefore dismissed on our own motion. See McNulty v. Ryan, 116 Ill.App.2d 202.

Appeal dismissed.

GUILD, P. J., and T. MORAN, J., concur.