text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wilton J. Bergeron, Defendant-Appellant.
    (No. 56857;
    First District (3rd Division)
    March 15, 1973.

      Kenneth L. Gillis, of Gillis & Rimland, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Mark T. Zubor, Assistant State’s Atttorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court:

The defendant, Wilton Bergeron, was tried by a jury and convicted of the murder of Michael Elderedge. He was sentenced to the penitentiary for not less than 40 nor more than 80 years. His first contention is that he was not proven guilty beyond a reasonable doubt.

In July 1969 ten young people held a drinking party in a motel room in Niles, Illinois. The participants ranged in age from 23, the age of the defendant, to 15, that of the deceased. The description by the State and defense witnesses of the occurrences at the party differed in some respect; however, the dominant role played by Bergeron throughout the evening is clear.

During the course of the party Bergeron and a friend, Nicholas Davis (who was also indicted for the murder but who testified for the State) began throwing their knives into the furniture, the walls and the door of the room. Bergeron’s knife kept bouncing back from the door and striking Debra Pruitt, who was attending the party with her husband, Robert. She desired to move but Bergeron ordered her to stay where she was.

Shortly thereafter Bergeron became angry with the deceased. According to Bergeron, Elderedge continually annoyed him by commenting upon his long hair and the earring he wore; when Elderedge asked whether he was a homosexual, Bergeron “slugged” him. Witnesses for the State testified that Bergeron struck Elderedge because he refused to drink a can full of gin which Bergeron attempted to force upon him. There was testimony that Bergeron’s blow knocked Elderedge unconscious, that he fell to the floor and lay there for some time. Subsequently, Bergeron ordered Davis to take Elderedge into the washroom and straighten him out. Robert Pruitt intervened; he asked Bergeron not to pick on Elderedge since he was young, was drinking, and didn’t know what he was doing. Bergeron told Pruitt to sit down and and shut up; he then told Davis to talk with Elderedge.

The Pruitts and others wanted to leave the party but Bergeron stepped to the door, pointed his knife at them and refused to let them go. Later he relented and the Pruitts departed accompanied by two youths, Arthur Kai and David Polz.

Bergeron’s attention then turned to Michael Hack, another 15-year-old boy, who had been drinking beer and had fallen asleep on the bed. Bergeron pulled him up by the hair, asked him what he was doing, struck him in the head and tossed him back on the bed.

Bergeron testified that Elderedge began to annoy him once again; when Elderedge proposed the commission of a homosexual act Bergeron slapped him and he fell to the floor. According to the defense, Elderedge picked up a black-handled knife Davis had been throwing and, while still seated on the floor, lunged at Bergeron. Bergeron attempted to kick the knife away but instead kicked Elderedge, who fell over. As Elderedge arose Bergeron picked up his own knife, tried unsuccessfully to make Elderedge drop his, and then stabbed him. Elderedge fell to the floor and Bergeron stabbed him several more times.

The State’s witnesses related a different version of the stabbing. They stated that although Elderedge’s remarks may have annoyed Bergeron, his attack did not arise from any threatening action on Elderedge’s part. Bergeron grabbed Elderedge who was unarmed, and hit, kicked and finally stabbed him repeatedly. Elderedge’s attempt to defend himself was futile. Bergeron even threatened those who tried to restrain him from stabbing Elderedge.

After the stabbing, Bergeron, Davis, and two other men, Timothy Malley and Justino Santiago, left the motel in a car. Bergeron’s knife, broken in pieces, was left at the motel. At a filling station Malley and Santiago got out, walked away and attempted to hitch a ride. A police car pulled up; Malley and Santiago spoke to the officers and were returned, handcuffed, to the filling station, where Bergeron and Davis were arrested. In the police wagon, Bergeron asked Davis for his knife. A subsequent search revealed that Bergeron had the black-handled knife hidden in his shoe.

The defendant argues that inconsistencies in the testimony of the State’s witnesses created a reasonable doubt of his guilt. It is clear from the testimony that a great deal of drinking took place during the evening. It would be surprising under the circumstances if the accounts given by the witnesses did not contain inconsistencies. Such discrepancies do not destroy the credibility of the testimony of the eyewitnesses, but only go to the weight to be given to it. People v. Willis (1970), 126 Ill.App.2d 348, 261 N.E.2d 723.

The positive testimony of one credible witness is sufficient to sustain a conviction. (People v. Green (1969), 118 Ill.App.2d 36, 254 N.E.2d 663; People v. Davis (1966), 70 Ill.App.2d 419, 218 N.E.2d 3.) The State produced three witnesses who saw Bergeron stab Elderedge, and their testimony showed that Bergeron acted without serious provocation or threat to his safety. On the other hand, the credibility of Justino Santiago, the sole witness who corroborated Bergeron’s testimony was severely shaken. A statement signed by him did not mention Elderedge’s alleged references to Bergeron as a homosexual. It conceded, moreover, that he himself was threatened with injury by Bergeron when he tried to restrain him from stabbing Elderedge. The evidence established Bergeron’s guilt beyond a reasonable doubt.

Next, the defendant contends that his conviction should be reversed because of numerous trial errors. First among these is the asserted use by the State of perjured testimony by a coroner’s pathologist concerning the absence of wounds on Elderedge’s hands. It is argued that if there were such wounds Bergeron’s testimony that he swung his knife at Elderedge’s hands in an attempt to force him to drop his knife, would be corroborated. (Conversely, it could be argued that such wounds would corroborate the witnesses who described Elderedge’s attempts to fend off Bergeron’s slashes.) On direct examination no inquiry was made as to the presence of these wounds. On cross-examination the pathologist testified that there were no cuts on Elderedge’s fingers or hands.

The State furnished a photograph of the deceased which indicated a possible cut on one of his hands. At the conclusion of its case the State, in answer to a defense motion for the production of evidence, said that its police reports did not mention hand injuries but upon inquiry a detective had pointed out a supplementary report which stated that two officers of the sheriff’s police force had observed wounds on Elderedge’s hands. One of the officers was called as a witness by the defense. His testimony contradicted, in part, the pathologist’s testimony. He said that he examined Elderedge’s body at the morgue and noticed five wounds in the chest area, some cuts on the inside of the forearm and one on the hand.

The prosecution must disclose to an accused all evidence favorable to him. (Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed. 215; People v. Moses (1957), 11 Ill.2d 84, 142 N.E.2d 1.) It is arguable whether the evidence of the hand wounds was more favorable to the accused than the State. Nevertheless, the defendant does not charge that the State concealed favorable evidence; his complaint is that the State used perjured testimony. Perjury is committed when a person “under oath e * * in a proceeding 000 where by law such oath * * * is required * * 9 makes a false statement, material to the issue or point in question, which he does not believe to be true.” (Ill. Rev. Stat. 1969, ch. 38, par. 32(2)(a).) The defendant did not establish that the pathologist’s statements were knowingly false when made. Moreover, the pathologist gave his opinion at the behest of the defendant; his testimony, true or false, was elicited by the defense. The State is not responsible for answers made by its witnesses to questions asked by an attorney for the accused. People v. Burage (1961), 23 Ill.2d 280, 178 N.E.2d 389.

Second, Bergeron charges that the State employed illegal deception regarding an agreement with his accomplice, Nicholas Davis, and unfairly restricted the cross-examination of this witness. On direct examination Davis testified that no promise had been made to him by an assistant State’s Attorney concerning special treatment in his pending case. He stated that he chose to testify for the State of his own free will. On cross-examination he was asked if anyone else had informed him that the murder charge against him would be dropped if he testified for the State. The Mai judge sustained the prosecutor’s objections to the pertinent questions. On the following day the prosecutor confessed error and Davis was recalled to the stand. He testified that although he had never talked to an assistant State’s Attorney, his own attorney informed him that the State would drop the murder charge and he would be free. When asked about his previous testimony he explained that when he made the statement, that he expected to be tried for murder, he thought the Mai would take place. His attorney, however, later testified that Davis was told prior to his taking the witness stand that he would not be Med.

It was error to sustain the State’s objections to questions which might have revealed Davis’ knowledge about an agreement with the State. Showing a witness’ interest, motive or bias is a proper means of impeachment, and the widest latitude in cross-examination is permitted for this purpose. (People v. Jackson (1969), 116 Ill.App.2d 304, 253 N.E.2d 527.) This is particularly true when the witness is an accomplice. (People v. Chaffin (1969), 115 Ill.App.2d 1, 254 N.E.2d 72.) However, the error was remedied by permitting Davis to be recalled and the questions answered the foEowing day. Only one witness testified between the time he left the stand and the time he was recaEed. The jury was informed of Davis’ expectation of release and it had the opportunity of considering this factor in judging his credibility. The defendant was nowise harmed by the initial error.

During the cross-examination of Robert Pruitt, who testified for the State, the defense produced the black-handled knife which was thrown by Davis during the party and found by the police in the possession of the defendant, and requested that it be marked as an exhibit. The prosecutor objected on the ground that a sufficient foundation had not been laid. The objection was sustained. A defendant is entitled to all reasonable opportunities to present evidence which might tend to create a doubt as to his guilt. (People v. Cole (1964), 30 Ill.2d 375, 196 N.E.2d 691.) The question before the court was not whether the knife could be admitted into evidence, but only whether it could be marked as an exhibit so that Pruitt could be questioned about it. For this limited purpose a foundation was not required. The court’s ruling, however, did not prejudice the defendant since the questioning of Pruitt disclosed that he was unable to recall any identifying characteristics of the knives used at the party, and the knife was subsequently admitted into evidence as an exhibit of the State.

The defendant’s counsel sets forth a group of questions he asked during the trial to which the judge sustained objections. The defendant claims to have been seriously prejudiced because answers were permitted to somewhat similar questions propounded by the prosecution. The purpose of review in a criminal case is not to determine whether the record is perfect, but rather to decide whether the defendant has had a fair trial under the law and to determine whether his conviction is based upon evidence establishing his guilt beyond all reasonable doubt. (People v. Conrad (1967), 81 Ill.App.2d 34, 252 N.E.2d 713; People v. Haygood (1965), 60 Ill.App.2d 70, 208 N.E.2d 373.) The record does not disclose any error in the court’s rulings which was sufficiently detrimental to the defendant to necessitate a new trial.

The defendant contends that error was committed by the prosecution displaying bloody clothing before the jury. Following the completion of the State’s case, the defendant’s counsel moved for a mistrial; he charged that during the trial the State permitted a cardboard box containing the bloody clothing of the deceased to remain open under the counsel table in the view of the jury. Only one article from the box, the deceased’s pants, was introduced into evidence. The record does not substantiate the contention that the jurors could see into the box and observe the other clothing. Obviously, the trial judge determined that no prejudice had occurred, for he denied the defendant’s motion. When the defendant first noticed the presence of the allegedly prejudicial box of clothing he made no objection. Rather, he allowed this condition to continue for the five days of trial. Under the circumstances it cannot be said that the trial court erred in denying the motion for a mistrial.

The defendant complains that the court erred in refusing his instruction No. 1 (I.P.I. No. 27.01) and in giving the State’s instruction No. 15 (I.P.I. No. 25.05), both of which dealt with the propositions the State had to prove to sustain the charge of murder. The defense instruction was substantially identical to that offered by the State, except that it contained the additional requirement that in order for the defendant to be convicted it must be established that he “did not believe that circumstances existed which justified the use of the force which he used.” The defendant contended that he stabbed Elderedge in self-defense, hence the issue of whether or not his belief that the force he used was justified, was proper for the jury’s consideration. That issue was set forth in the State’s instruction No. 16 (I.P.I. No. 24.06) which stated:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend him against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.”

Particular instructions need not contain all the law on a given subject, if the instructions as a whole fully and fairly cover the law. (People v. Braverman (1930), 340 Ill. 525, 173 N.E. 55; People v. Jackson (1969), 116 Ill.App.2d 304, 253 N.E.2d 527.) The State’s instruction No. 16 apprised the jury of the law governing the justifiable use of force, and when read with the State’s instruction No. 15 adequately set out the law of the case. Therefore, the defense instruction No. 1 was properly refused.

It is asserted that serious error was committed because of the prosecutor’s remarks to the jury in closing argument. The chief of these was his reference to the defendant as an “ex-con.” It is contended that this was an inflammatory expression which diverted the attention of the jury from the true issues in the case. Bergeron chose to testify in his own behalf and his prior criminal record had been received in evidence, and the jury could legitimately be reminded of it since it bore upon his credibility and the weight to be accorded his testimony. Although the expression “ex-con” does not carry a favorable connotation, neither did it incorrectly state the evidence so as to unduly injure the defendant.

We have considered the defendant’s further assignments of error concerning the prosecutor’s remarks and find nothing that could be deemed prejudicial to him. The statements to which the defendant objects rarely exceeded the drawing of legitimate inferences from the facts and did not transgress the bounds of proper argument.

The judgment is affirmed.

Affirmed.

McNAMARA and McGLOON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Walter Shackleford, Defendant-Appellant.
    (No. 57285;
    First District (3rd Division)
    March 15, 1973.
    James J. Doherty, Public Defender, of Chicago, (Bernard L. Schwartz and Robert M. Gray, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


author: Mr. JUSTICE ENGLISH.

text:
    Wilton House, Inc., Plaintiff-Appellee, v. The City of Chicago et al., Defendants-Appellants.
    (No. 55289;
    First District (5th Division)
    March 16, 1973.
    Richard L. Curry, Corporation Counsel, of Chicago, (Marvin E. Aspen, William R. Quinlan, and Marsile J. Hughes, Assistant Corporation Counsel, of counsel,) for appellants.
    Maurice J. Nathanson, of Chicago, (Ronald S. Cope, of counsel,) for appellee.
   Opinion by

Mr. JUSTICE ENGLISH.


author: Mr. PRESIDING JUSTICE DRUCKER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Otha Riles et al., Defendants-Appellants.
    (Nos. 55949-55950 cons.;
    First District (5th Division)
    March 16, 1973.

      Gerald W. Getty, Public Defender, of Chicago, (Harold A. Cowen and James J. Doherty, Assistant Public Defenders, of counsel,) for appellants.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James R. Truschke, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court:

In a jury trial defendants were found guilty of attempt murder (Ill. Rev. Stat. 1969, ch. 38, par. 8 — 4) and three counts of aggravated battery. They each received sentences of five to ten years.

On appeal defendants first contend that they were not proven guilty beyond a reasonable doubt. They also allege that trial errors and prosecution misconduct deprived them of a fair trial.

On March 18, 1970, at about 11:45 A.M., Field Cole was shot while standing in the outdoor passageway of a public housing project at 4352 South State Sheet in Chicago. A few minutes prior to the shooting, Cole was on the twelfth floor in the passageway talking to a girl who lived in an apartment on that floor. He then joined a group of people further down the hallway. At this time two persons approached the group. Cole noticed them when they were about 20 feet away. He recognized defendant Riles who had threatened him earlier that day. The lighting was “bright.” As they approached Cole, Riles tapped Marshall on the shoulder as a signal to Marshall. Marshall then pulled a handgun from his pocket and began firing at Cole. He was hit twice. One shot hit him in the buttock and passed through. The other struck him in the upper part of his back, eventually resulting in the collapse of his left lung.

At trial the prosecution presented the victim Cole and three additional occurrence witnesses, each of whom had been within 15 to 20 feet of the defendants. All four of the witnesses had seen defendant Riles on previous occasions. Two of the four witnesses had also seen Marshall on previous occasions. All of the witnesses made in-court identifications of defendants Riles and Marshall. Testimony was also heard from a physician who treated the victim Cole concerning his permanent disfigurement.

There was also testimony concerning possible gang membership of defendants. Field Cole, on direct examination, testified that Riles was a member of the Imperial Rangers which was “connected with the Blackstone Rangers.” Earl Shearer, another prosecution witness who was standing near Cole at the time of the shooting, was asked by Marshall’s attorney what reason Marshall could have had for the shooting. In response Shearer testified that Marshall was a “Stone.”

Each defendant offered an alibi. Marshall testified that he was at home at the time of the shooting. William Westmoreland, the boyfriend of Marshall’s mother, testified that Marshall was at home when he (Westmoreland) arrived that evening and did not leave. Marshall’s mother testified to the same effect. However, Marshall testified that Westmoreland was already at home when he first arrived. Riles testified that he was at the home of a friend, Willie Nunn, at the time of the shooting and that both Mrs. Nunn and her husband were present also in the apartment. However, Willie Nunn testified that only his mother was present in the apartment.

Defendants’ first contention is that they were not proven guilty beyond a reasonable doubt because the evidence did not prove that they were the offenders. Defendants emphasize minor conflicts in the testimony of certain prosecution witnesses in their description of defendants’ clothing and their opportunity to observe the defendants at the time of the shooting. The alleged conflicts in the testimony of witnesses and their opportunity to observe are issues of credibility for the trier of fact to determine, and where the evidence is merely conflicting a reviewing court will not substitute its judgment for that of the trier of fact. (People v. Clark, 30 Ill.2d 216, 219, 195 N.E.2d 631.) It is also argued tiiat the identifications of defendant Marshall were based on a statement by a Helen Bradley who was not called as a witness but who told the other witnesses that the name of the man who did the shooting was Marshall. Further, defendants argue that Marshall’s appearance together with Riles at the preliminary hearing was the convincing factor in Marshall’s identification. We find these arguments to be completely without merit and mere conjecture. Four of the State’s witnesses had seen Riles, and two of them had seen Marshall, prior to the occurrence. The record amply supports the identification of both defendants. Defendants also urge that their alibi testimony raised a reasonable doubt as to their guilt. The State’s witnesses made positive identification of the defendants based on their observations of them under a bright light and from close proximity. The credibility and weight to be given defendants’ alibi witnesses was a matter for the trier of fact “whose determination will not be disturbed unless palpably erroneous.” (People v. Ostrand, 35 Ill.2d 520, 221 N.E.2d 499.) We find no basis for disturbing these findings.

Defendants also contend that errors of the trial court deprived them of a fair trial. Specifically, they allege the following points in support of their argument: (A) the court erred in permitting hearsay evidence as to the identifications; (B) the court permitted incompetent testimony to the effect that Marshall was a member of a street gang; (C) the court permitted the prosecutor to stress the fact that the defendants were arrested on warrants in such a way as to imply guilt; (D) the prosecutor was allowed to question them concerning their lack of employment; (E) the court failed to hold the State to its duty to prove innuendos prejudicial to the defendants; and (F) the court erred in failing to see to it that its order excluding the witnesses was complied with.

Point (A) refers to alleged hearsay testimony of four prosecution witnesses. However, it appears that the two defense lawyers objected on only one occasion, and the objection was sustained. Therefore, point (A) has not been properly preserved for review. As stated in People v. Griswold, 100 Ill.App.2d 436, 442, 241 N.E.2d 212:

“It is well settled that timely objections to hearsay statements must be made at the trial and cannot be raised for the first time at appellate level.”

Point (B) is improperly raised on appeal since the testimony complained of was elicited by defense counsel and not the prosecution. Points (C) and (F) were also waived since neither of the two defense lawyers made objection at trial.

With respect to point (D) wherein defendants complain of the cross-examination as to their unemployment, the court overruled an ■objection to a question directed at Riles: “Where did you work last before March, 1970?” The answer was: “I can’t remember.” The only other objection was sustained. During the cross-examination of Marshall .the prosecutor asked: ‘What was the last time you worked?” An objection was overruled. Marshall answered: “I don’t know what month, but it was in this year.” There was no prejudicial error in the cross-examinations.

In point (E) it is claimed that the court failed to hold the State to its duty to prove innuendos prejudicial to the defendants, citing People v. Nuccio, 43 Ill.2d 375, 253 N.E.2d 353. The alleged innuendos consist of the testimony regarding the defendants’ unemployment and their gang membership. In the instant case there were no innuendos. There was direct testimony as to unemployment and gang membership.

The final issue presented by defendants is that prosecution misconduct deprived them of a fair trial. They first contend that the prosecutor falsely promised in his opening statement to prove that the crime was connected with defendants’ gang membership. We disagree. We note that Riles’ counsel in his opening statement said: “I expect the evidence will show that there may be gangs involved in connection with this incident.” At trial the State did produce some testimony as to defendants’ gang membership, and defense counsel brought out gang affiliation in cross-examination of State’s witness Earl Shearer.

Defendants next urge that the prosecutor’s final arguments were designed to inflame the jury against defendants by attributing to them unproven gang membership and trouble in high rise projects. We note that no objections were made by either of the two defense attorneys. Therefore, we need not consider these arguments since they have not been properly preserved for review. (People v. Velez, 72 Ill.App.2d 324, 336, 219 N.E.2d 675.) Defendants finally complain of the prosecutor’s argument that the defendants had failed to produce certain witnesses and had failed to deny the crime when arrested; that these arguments had the effect of misleading the jury as to the burden of proof and the right to remain silent. Similarly, these points have not been preserved for review due to failure to object.

Viewing the record as a whole, we believe that the remarks of the prosecutor did not constitute prejudicial error and that the same verdict would have obtained in their absence. See People v. Trice, 127 Ill.App.2d 310, 262 N.E.2d 276.

Although defendants were found guilty of attempt murder and three charges of aggravated battery, only one sentence of five to ten years was imposed. To clarify the record we find that this sentence applies only to the attempt murder.

The judgment is affirmed.

Affirmed.

ENGLISH and LORENZ, JJ., concur.

       The three counts of aggravated battery were based on the following: (1) great bodily harm (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 4); (2) permanent disfigurement (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 4); (3) battery with the use of a deadly weapon (Ill. Rev, Stat. 1969, ch. 38, par. 12 — 4(b—1)).


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Allen Johnson, Defendant-Appellant.
    (No. 56332;
    First District (5th Division)
    March 16, 1973.
    Jerome Feldman and Richard Allan Halprin, both of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James R. Carlson, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


text:
    Wick Building System Inc., Budger Homes Division, Plaintiff-Appellee, v. Ephraim Dohner et al., Defendants-Appellants.
    (No. 56476;
    First District (5th Division)
    March 16, 1973.
    Kessler, Greenhouse & Brusso, of Chicago, (Charles N. Brusso and Hyman J. Addison, of counsel,) for appellants.
    Stuart M. Weis, of Chicago, for appellee.
   Opinion by

Mr. JUSTICE ENGLISH.


text:
    Oscar Dixon, Plaintiff-Appellant, v. William E. Cahill et al., Defendants-Appellees.
    (No. 56499;
    First District (5th Division)
    March 16, 1973.

      Elmer Gertz, of Chicago, (Wayne B. Giampietro, of counsel,) for appellant.

      Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Edmund Hatfield, Assistant Corporation Counsel, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiff appeals from the dismissal of his complaint for mandamus and an accounting asking that he be given a copy of the seniority list for truck drivers by the Chicago Civil Service Commission, that a suspension be deleted from his employment record and that he be awarded back pay for a two and one-half month layoff and for periods of time when he was allegedly denied the opportunity to work overtime. The defendants filed a motion to “Strike and Dismiss” the complaint. After a hearing on the motion at which arguments of counsel were heard, the court concluded that plaintiff had shown no clear legal right to the production of the seniority list and that the other relief sought was barred by the doctrine of laches.

On appeal plaintiff contends that the complaint did show a clear legal right to the relief sought. He has failed to address the issue of laches in his brief filed in this court. The defendants did brief the issue hut plaintiff filed no reply brief. During oral argument counsel for plaintiff contended that the doctrine of laches was improperly invoked because it was a factual issue and therefore should not have been decided on a motion to dismiss.

Plaintiff’s complaint, filed on May 3, 1971, alleged that after passing civil service examination No. 6965 for truck drivers on October 13, 1965, plaintiff was assigned to the Central Office of the Bureau of Sanitation of the City of Chicago as a street sweeper; that on November 24, 1969, he was transferred over protest to the Bureau of Equipment in violation of the Rules of the Civil Service Commission since there were other employees in the Bureau of Sanitation with less seniority than the plaintiff; that as a result of the transfer he lost the opportunity to work overtime in the Bureau of Sanitation at the Central Office; that on December 21, 1969, and again on January 11, 1970, plaintiff requested a copy of the “revised” list of the results of examination No. 6965 from the Commission but was refused such on both occasions; that on February 2, 1970, he was laid off from the Bureau of Equipment in violation of Rule IX of the Commission and was given a suspension for 29 days without a hearing although he requested one; that he was reassigned to work on April 15, 1970, in the Bureau of Sanitation at the Central Office; that on November 17 he was again transferred from the Central Office to an office at 103rd Street and Doty as a garbage truck driver; that this was in violation of his seniority rights and once again deprived him of the opportunity to work overtime at the Central Office; that on March 29, 1971, he was transferred back to the Central Office of the Bureau of Sanitation where he is still employed. A further claim was made that on several occasions he was denied a copy of the Civil Service Commission Rules upon request; it is not mentioned when the alleged requests were made. (At the hearing plaintiff acknowledged that he had a copy of the Rules; Ms counsel was unaware of this fact.)

The defendants filed a motion for a Bill of Particulars to which plaintiff responded that on December 21, 1969, he sent a letter to the Civil Service Commission requesting a copy of the “revised” list of persons who took examination No. 6965 for truck drivers in October 1965 (the letter stated that plaintiff had a copy of the “original” list); in response he received a letter from the Secretary of the Commission stating that the Commission did not have a copy of the “revised” list. The Bill of Particulars further stated that when plaintiff was laid off on February 2, 1970, he asked Ms employer to lay off someone with less seniority; he was informed that he had no semority rights.

The defendants’ motion to “Strike and Dismiss” the complaint stated that plamtiff had shown no clear right to the relief sought; that plaintiff’s intra-departmental transfers were in compliance with the Rules of the Civil Service Commission; that his claim as to the layoff and suspension was barred by laches; and that the complaint was fatally defective for failing to join the head of the Department of the Bureau of Streets and Sanitation as a party to the action. As noted earlier, the motion was granted on the grounds that plaintiff had shown no clear legal right to the production of the seniority list and that the other relief sought was barred by laches.

Opinion

Plaintiff complains of three financial injuries, a suspension and the related “refusal” of the Commission to supply him with the seniority list for truck drivers. The financial injuries are first, the loss of overtime work due to the alleged illegal transfer from the Bureau of Sanitation to the Bureau of Eqmpment on November 24, 1969; second, the loss of pay due to the layoff from the Bureau of Eqmpment from February 2, 1970, to April 15, 1970 (when he was reassigned to the Bureau of Samtation, Central Office); and third, the loss of overtime work due to the alleged illegal transfer from the Central Office of the Bureau of Sanitation to its office at 103rd and Doty on November 17, 1970.

We believe that plaintiff is barred from any remedy as to the first two alleged financial injuries by the doctrine of laches. Laches is the neglect to assert a right or claim which, taken together with the lapse of time and circumstances causing prejudice to the opposite party, will bar a complaint in equity. Schoenbrod v. Rosenthal, 36 Ill.App.2d 112, 183 N.E.2d 188.

Delay in prosecuting a cause of action is one of the elements of laches and its importance is relative to the action involved. As stated in Kadon v. Board of Fire and Police Commrs., 45 Ill.App.2d 425, 430, 195 N.E.2d 751:

"[I]n civil service cases, where prolonged delay may easily prejudice governmental bodies, impair orderly procedures and work to the disadvantage of third parties, time is an essential factor.”

Kadon went on to note that in civil service discharge cases the general rule is that an action must be brought within six months of the allegedly illegal discharge unless there is a reasonable explanation for the delay. See People ex rel. Cifaldi v. Wilson, 38 Ill.App.2d 302, 187 N.E.2d 353; People ex rel. Ballinger v. O’Connor, 13 Ill.App.2d 317, 142 N.E.2d 144.

In the instant case, from the face of the complaint, it appears that the first transfer complained of occurred more than 17 months prior to the filing of the complaint. The layoff and suspension complained of occurred about 15 months prior to the filing, and, with respect to the layoff, 14 months after plaintiff had a statutory right to a hearing regarding its propriety since it then exceeded 30 days. No reasonable explanation is given for the delay.

Contrary to plaintiff's assertion during oral argument, the defense of laches may be considered on a motion to dismiss a complaint if its applicability appears from the face of the complaint or by affidavits submitted with the motion. Holland v. Richards, 4 Ill.2d 570, 574, 123 N.E.2d 731; Schoenbrod at 122; Ill. Rev. Stat. 1969, ch. 110, par. 48(1) (i).

In reaching our aforementioned conclusion we are mindful that the six month rule does not apply as strictly in cases such as this one where there was no lengthy layoff or permanent discharge, (see Kadon at 430, 431; People ex rel. Heavy v. Fitzgerald, 10 Ill.App.3d 24.) since the city would not be required to pay twice for the same work done over a substantial period of time. (See People ex rel. Sullivan v. Smith, 133 Ill.App.2d 218, 272 N.E.2d 755.) But the prejudice to the governmental body by extensive delays in the filing of legal actions, in its ability to function in an orderly manner, including its duty to comply with the established law, may be seen from a review of the facts here. Plaintiffs first alleged illegal transfer occurred more than 17 months before the complaint for mandamus was filed; the second transfer occurred about one year later. If plaintiff had sought a reasonably prompt review of the Commissions actions as to the first transfer, and it was found to have been illegal, the Commission would have been in a position to avoid liability for the subsequent transfer since the claim as to both transfers was based on the same theory, i.e., they violated plaintiff’s seniority rights.

We further note that in cases where the six month rule has been held inapplicable (Kadon and Heavy) the delay in filing was caused by actions of the defendants. In Kadon a police officer was denied the right to a promotion when the Village Board used an improper promotional list as a basis for mating its promotions. The plaintiff did not file the action for several years after the initial illegal act but he was led to believe by the Board members that the proper promotional list would be used when a promotional opportunity arose. When the improper list was used as a basis for the promotion, plaintiff promptly filed his action. In Heavy plaintiff was suspended on May 8, 1970, because criminal charges were pending against him. He was told by his employers that he would be rehired once the criminal charge was cleared up. On May 6, 1971, plaintiff was cleared of the charge and sought reinstatement. The defendants sought to bar his action by the doctrine of laches since plaintiff could have brought suit 30 days after his initial suspension under Ill. Rev. Stat. 1969, ch. 24, par. 10 — 1—18, supra, note 2. The court held that plaintiff justifiably relied on his employer’s representations as to reinstatement and that the delay in bringing the action was therefore reasonable and not barred by laches.

In the instant case plaintiff’s delay in filing suit was not prompted by acts or statements of the defendants. The record shows that plaintiff felt he was being mistreated at the time of his first transfer and when he was laid off. He requested a “revised” list for those who had taken examination No. 6965 and was advised that the Commission had no copy of the “revised” list. Thereafter he took no action and alleged no facts justifying this delay. We believe that the trial court properly ruled that plaintiff was barred from recovering back pay due to the first two injuries alleged — loss of overtime due to the first transfer and loss of pay during the layoff. The request for deletion of the suspension in February 1970 would similarly be barred by laches. See People ex rel. Cronin v. Cahill, 118 Ill.App.2d 18, 254 N.E.2d 161.

As to the aHeged illegal transfer of November 17, 1970, (five and one-half months prior to filing) any injury incurred thereby would not be barred by laches and thus we address the merits of plaintiffs claim that he was illegally deprived of overtime work by this transfer. Rule VIII of the Chicago Civil Service Commission Rules governs and provides in relevant part:

“Section 1. Transfers allowed. Transfers of officers or employees may be made from one position to another position in the same class within a department by the head of such department. Notice of such transfers shall be given to the Commission * * *.
Section 2. Transfers not Allowed. No transfer shall be made to avoid a layoff, and employing officers shall so certify to the Commission.”

Plaintiffs claim as to illegality is that there were other men at the Bureau of Sanitation’s Central Office with less seniority than himself at the time of transfer; that they should have been transferred rather than himself.

We find nothing in the above rule nor in any other Commission Rule which relates transfers from one position in a department to another position of like classification within the same Department to one’s seniority. The only prohibition as to transfers is that they not be made to avoid layoffs. Plaintiff does not allege that his transfer was a “layoff” since he was still employed in the Bureau of Sanitation after the transfer but at another office. Furthermore, even if a transfer which had the effect of depriving one of working overtime could be labeled a “layoff,” Rule VIII, Section 2, obviously prohibits only those transfers made for the purpose (i.e., with the intent) of avoiding a layoff. There is no allegation in the complaint that the transfer of November 17, 1970, was made for the purpose of depriving plaintiff of overtime work nor any factual statements supporting such an allegation. Therefore we believe that plaintiff has shown no clear legal right to the relief sought.

In view of our determination, we find no reason to consider plaintiff’s request for the seniority list.

The judgment is affirmed.

Affirmed.

ENGLISH and LORENZ, JJ., concur.

       Both Bureaus are divisions within the Department of Streets and Sanitation.

       Ill. Rev. Stat. 1969, ch. 24, par. 10 — 1—18, provides in relevant part:
      “Except as hereinafter provided in this section, no officer or employee in the classified civil service of any municipality * * *, may be removed or discharged, or suspended for a period of more than 30 days, except for cause upon written charges and after an opportunity to be heard in his own defense. 6 *

       In fact, Rule I, Section 2(e), which defines the word “Class” as it is used in the Rules, provides:
      “[A class is] a group of positions with duties and responsibilities sufficiently alike to require of new employees the same experience, abilities, * * °; to justify common treatment in selection; and to permit interchange of employees ‘without material loss of efficiency after a brief training period; * # (Emphasis supplied.)
      The definition indicates that the facilitation of interchange of similarly classified personnel is one of the objects of the Rules.

       The type of layoff to which Section 2 of the Rule apparently applies is one where an employee is transferred from job A to job B within a department because of an impending layoff as to job A. Plaintiff’s claim is based on a transfer from A to B causing lost overtime wages due to the greater amount of work available at A.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Herman Louis Cochran, Defendant-Appellant.
    (No. 57105;
    First District (3rd Division)
    March 15, 1973.

      Rehearing denied April 12, 1973.

    James J. Doherty, Public Defender, of Chicago, (Lee T. Hettinger, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and James R. Carlson, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.


author: Mr. JUSTICE SCOTT Mr. JUSTICE DIXON

text:
    The People ex rel. William J. Scott, Attorney General et al., Plaintiffs-Appellees, v. Charles M. Janson et al., Defendants-Appellants.
    (No. 71-154;
    Third District
    March 9, 1973.

      Rehearing denied April 25, 1973.

      DIXON, J., dissenting.
    John E. Cassidy, Sr., of Peoria, for appeUants.
    Robert S. Calkins, State’s Attorney, and Prescott Bloom, both of Peoria, for appellees.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from the circuit court of Peoria County. The original proceedings were instituted on October 16, 1970, when the plaintiffs, the Attorney General of the State of Ilhnois and the State’s Attorney of Peoria County, filed a complaint against the defendant, Charles M. Janson, and others which averred that the defendant was in possession of and operator of certain property being used commerciaUy for the purpose of dumping garbage and other refuse. The complaint prayed that a temporary injunction issue without notice and that the defendant be required to pay the sum of $10,000 and the further sum of $1,000 per day for each day he operated the dumping area in violation of the temporary injunction sought. The complaint then asked that a hearing be held and that the temporary injunction issued be made permanent.

All parties to the appeal agree that the complaint was couched in terms of the Environmental Protection Act of 1970 (ch. 111%, sec. 1001— 1051, Ill. Rev. Stat.), hereinafter referred to as the Act. The complaint states that the complainants are acting under its provision and specifically states that it seeks relief under the Act’s penalty provisions, being Sections 42 and 43 of Chapter 111%, Illinois Revised Statutes. The complaint further recited the defendant’s aUeged misconduct as being in violation of Section 21 of the Act and relies upon the Act’s definition of the terms “garbage”, “open dumping”, “refuse” and “sanitary landfill” as they are defined in Section 3, subparagraphs (e), (h), (k) and (1). An affidavit in support of the complaint was filed by a W. Keith Weeber, who was the regional engineer of the Illinois Environmental Protection Agency, hereinafter referred to as the Agency, which had been created under the Environmental Protection Act of 1970. The complaint in seeking a temporary injunction in aH respects relied upon the procedure as delineated in the Act.

Pursuant to the prayer of the complaint a temporary injunction was issued without notice on the day of its filing. The defendant was ordered to cease and desist from dumping except under supervision of the Environmental Protection Agency.

On October 22, 1970, a hearing was held on a petition to dismiss the temporary injunction after which the trial court found there was no circumstance of extreme emergency creating danger to public health on the defendants property and the temporary injunction was dismissed. A subsequent motion by the defendant to dismiss the complaint was denied. A hearing on the complaint and an answer filed was set for a non-jury trial for February 16, 1971; however, on that date the parties entered into a stipulation that the trial be indefinitely continued and that the operation of the dump be suspended until an earthen wall be designed and constructed under the supervision of W. Keith Weeber of the Agency. The stipulation provided for certain specifications and other procedures to be followed by the defendant and that operations would be permitted upon written authority from Weeber. The stipulation stated that it was the intention of the parties that upon completion of the plan of restoration as provided in the regulations of the Agency, the premises would be returned to the defendant. It is to be noted that the stipulation further provided that should the defendant fail to operate a new site in accordance with the landfill requirements of the agency, immediate monetary penalties could be imposed upon the defendant by the court and that a written certification of noncompliance of the payment of a monetary sum sufficient to restore the premises to a sanitary condition by Weeber, would serve as a final finding of fact binding upon the parties and the defendant could thereafter be punished for contempt, without a hearing and without notice.

Subsequently a petition for penalties was filed by the plaintiffs. The defendant answered the petition and filed a motion to dismiss it. This motion was denied and after an evidentiary hearing the court imposed a $5,000 fine on the defendant and ordered the issuance of a temporary injunction prohibiting all dumping until Weeber certified to the court that the plan for restoration had been completed or that the defendant show the court proof of compliance whereupon the injunction would be dissolved. During the evidentiary hearing which preceded the imposition of the fine and the issuance of the injunction the plaintiffs called eight witnesses and the defendant as an adverse witness. Of the nine testifying at the behest of the plaintiffs, five of the witnesses were either employees of the Environmental Protection Agency or the Bureau of Pollution Control. The testimony of witnesses for the plaintiff and the defendant during the hearing was quite conflicting and it is evident that considerable misunderstanding existed as to what type of material could be dumped at the site during the restoration period and that further Weeber was dilatory in filing the restoration plan with the court as required by the stipulation. This dilatoriness on the part of Weeber is evident from the following coHoquy which ensued during the hearing:

“The Court: Mr. Weeber why did you not submit a plan to the court as you were ordered to # * *. Is there another plan on file other than this one?
The Witness: No Sir, your honor.
The Court: Then I can ask him. Why did you not file a plan, with this court as you were ordered to do.
The Witness: I could not get clearance from my control office to do so.
The Court: Did you understand anyone but you were to prepare and submit your plan to the court.
The Witness: Not at the time of our agreement in your chambers.
The Court: And you did not do what you understood it was your duty to do.
The Witness: I did not.
The Court: I’m not trying to put you on the spot. Is that a fair question?
The Witness: Yes.
The Court: You didn’t.
The Witness: I did not.
The Court: Why didn’t you?
The Witness: Because I wanted to continue in my job.”

Further testimony clearly established that Weeber was having difficulties with his supervisor in obtaining a plan of restoration for the defendant’s property and that ultimately he was transferred to other assignments in the Environmental Protection Agency.

The defendant upon failure to pay the fine of $5,000 was later cited into court for a proceedings to discover assets. In those proceedings the defendant failed to produce certain books and records and he stated that he refused to do so until he was represented by counsel and that his present counsel was out of the country. The court rejected this explanation and directed that he be confined to the county jail. The defendant was incarcerated until released by an order of this court.

We have recited both the procedural and factual aspects of this case in considerable detail because we befieve that a close scrutiny of the same is necessary to determine the paramount issue presented by this appeal which is whether the circuit court had jurisdiction of the subject matter of the case. If the court had jurisdiction then its subsequent acts were valid, if not they were null and void.

That our circuit court has the power to abate nuisances and enforce its orders relating to such abatement is unquestioned. Our courts have long possessed the authority to issue injunctions in order to abate acts and situations which are offensive to society or which deprive one of his right to enjoy the benefits of his property. Should the court’s commands contained in a writ of injunction be disobeyed, then the court can enforce its orders and decrees through contempt proceedings.

In 1970 our legislature recognized that as the result of many factors our nation was being harmed by the pollution of the air, our waterways and our land. In order to combat this threat the legislature enacted some comprehensive legislation which is known as the “Environmental Protection Act.” This act stated:

“It is the purpose of this act * * * to establish a uniform state wide program supplemented by private remedies, to restore, protect, and enhance the quality of the environment, and to assure that adverse effects upon the environment are fully considered and borne by those who cause them.” Ill. Rev. Stat. Ch. 111%, Sec. 1002 (2b).

The Act is complete, detailed and fashioned to protect the public health and comfort from pollution of air, water, land and also provides for the regulation of noise. It specifies acts or omissions that constitute violations and creates three administrative agencies, to-wit, the Environmental Protection Agency, which is charged with investigation and administration, the Pollution Control Board, charged with enforcement, and the Institution for Environmental Quality, which is concerned with research.

The act contemplates that the agency shall investigate alleged violations and then if deemed necessary institute action against the alleged violator. (Ill. Rev. Stat, ch. 111%, sec. 1030, 1031.) The Board was granted broad powers. It may rule on permits, enter cease and desist orders, act as a tribunal, compel the attendance of witnesses, hear witnesses and rule on the admissibility of evidence, and assess substantial fines for the punishment of violators. Ill. Rev. Stat., ch. 111%, secs. 1032, 1033 and 1042.

Directing our attention to Chapter 111%, Section 1043, Illinois Revised Statutes, we find that the Act provides as follows:

“In circumstances of extreme emergency creating conditions of immediate danger to the public health, the States Attorney or Attorney General may institute a civil action for an immediate injunction to halt any discharges or other activity causing the danger. The court may issue an ex parte order and shall schedule a hearing on the matter not later than 3 working days from the date of the injunction”

In the instant case the complaint prayed for the immediate issuance of an injunction, without notice, in an ex parte proceedings. This; injunction was issued, but at a subsequent hearing the trial court found that there were no circumstances present of extreme emergency creating conditions of immediate danger to the public health and the temporary injunction was then dissolved. Up to this point it is clear that the circuit court of Peoria County had jurisdiction of the subject matter; however, in view of the allegations of the complaint and the further remedies sought, we are of the opinion that upon the dissolution of the temporary injunction the circuit court divested itself of jurisdiction. We so hold because it is readily apparent from an examination of the record that the plaintiffs were attempting to avail themselves of all the machinery of the Agency regarding investigation, enforcement and penalties in hearings before the circuit corut of Peoria County, when in fact such machinery and procedures are specifically made available only in an administrative hearing as provided for in the Environmental Protection Act. When a statute authorizes prescribed procedures and the court acts contrary to the authority thus conferred it has exceeded its jurisdiction. See United Mine Workers of America Union Hospital v. United Mine Workers of America District No. 50, 1 Ill.App.3d 822, 275 N.E.2d 231; People v. Niehaus, 356 Ill. 104, 190 N.E. 349.

It is a well settled proposition that jurisdiction of the subject matter means the power of that particular corut to hear the type of case that is then before it. (Baker v. Brown, 372 Ill. 336, 23 N.E.2d 710; Rabbitt v. Frank C. Weber & Co., 297 Ill. 491, 130 N.E. 787.) In the instant case the complaint which instituted the action specifically referred to violations of the Environmental Protection Act and requested that the Act’s enforcement provisions be activated. When the injunction issued without hearing or notice pursuant to the allegations in this complaint was dissolved, the court refused to grant the defendant’s motion to dismiss the complaint. When the case was subsequently called for trial it was stipulated by the parties and with the approval of the court that the trial be indefinitely continued and that authority be delegated to a Keith Weeber, an employee of the Environmental Protection Agency, to design a restoration plan and manage the restoration of the dump. The stipulation further provided that the findings of Weeber would be accepted by the court without litigation and that enforcement orders if necessary would be entered. It is argued by the plaintiffs that a stípulation is in the nature of a contract between litigants and such contracts are looked upon with favor by the courts. With this argument we have no quarrel, however, it is well settled that while a court may acquire jurisdiction of the person by consent, jurisdiction of the subject matter cannot be conferred by consent or stipulation. (Meyer v. Meyer, 328 Ill. App. 408, 66 N.E.2d 457.) In Werner v. Illinois Cent. R. Co., 379 Ill. 559, 42 N.E.2d 82, the court held that:

“Jurisdiction could not be conferred by the consent of the parties and was not waived by defendant’s appearance and participation in the trial. It is a question that may be raised at any time, even on appeal.”

Also our Supreme Court in the case of Toman v. Park Castles Apartment Bldg. Corp., 375 Ill. 293, 31 N.E.2d 299, stated:

“It is a familiar rule that when a court has no jurisdiction of the subject matter, it cannot be conferred by consent, and when lack of jurisdiction appears the court should decline to proceed further in the cause. * * * Whether the question of jurisdiction was raised in the lower court is immaterial. There can be no waiver of jurisdiction of the subject matter where the trial court lacked jurisdiction to enter the order appealed from.”

There is no escaping the conclusion that the plaintiffs in the instant case were charging violations of the Environmental Control Act. They were desirous of using the mechanics of the Act in an effort to abate certain violations and when the court attempted to do so, it encountered difficulty in enforcing its own orders in that Weeber, an official of the Environmental Protection Agency, could not obtain permission from his superior to file a restoration plan as ordered by the court. Lastly, the plaintiffs sought to have imposed upon the defendant the penalties prescribed in the Act. The plaintiffs asked the trial court for a hearing and relief as is afforded by the Environmental Control Act, but the statute does not provide for such in the circuit court.

It should be noted that the role of the circuit court is tightly restricted by the terms of the Act. The court may grant injunctive relief only when there exists an “extreme emergency with immediate danger to public health.” (Ill. Rev. Stat, ch. 111%, sec. 1043.) Injunctive relief is also provided to a person adversely affected by a prior ruling of the anti-pollution board, however, no such action for relief may be brought until 30 days after a denial of relief by the Board. Ill. Rev. Stat., ch. 111%, sec. 1045.

The plaintiffs in the instant case never petitioned the board for action against the defendant, but filed with the court a proceedings based upon procedure and relief granted by statute to an administrative agency. The results stemming from this action demonstrate the chaos which results when a party attempts to pervert and transfer the powers vested exclusively in an agency to a court of law. Such a practice is not permitted in other situations, i.e., a utility rate case or workmans compensation matter, nor can it be permitted here.

The plaintiffs argue that Chapter 14, Sections 11 and 12, Illinois Revised Statutes, is sufficient statutory authorization to sustain the validity of the procedure taken in the instant case. The statutory provisions which the plaintiffs urge us to consider are as follows:

“AIR, LAND AND WATER POLLUTION
AN ACT in relation to the prevention and abatement of air, land and water pollution.
P.A. 76-205 eff. July 1, 1969. Amended by P.A. 76-2434, § 2, eff. July 1, 1970.
Be it enacted by the People of the State of Illinois, represented in the General Assembly:
11. Definitions.) § 1. The following terms as used in this Act shall, unless the context otherwise requires, have the following meanings:
(a) Air pollution means air pollution as defined in the Environmental Protection Act, enacted by the 76th General Assembly.
(b) Water pollution means water pollution as defined in the Environmental Protection Act, enacted by tire 76th General Assembly.
(c) Land Pollution means land pollution and refuse disposal as set out in the Environmental Protection Act enacted by the 76th General Assembly. Amended by P. A. 76-2434, § 1, eff. July 1, 1970.
12. Prevention of air, land and water pollution — Mandamus or injunction — Power of Attorney General.) § 2. The Attorney General has the power and authority, notwithstanding and regardless of any proceeding instituted or to be instituted by or before the Environmental Protection Agency, Pollution Control Board or any other administrative agency, to prevent air, land or water pollution within this State by commencing an action or proceeding in the circuit court of any county in which such pollution has been, or is about to be, caused or has occurred, in order to have such pollution stopped or prevented either by mandamus or injunction. The court shall specify a time, not exceeding 21 days after the service of the copy of the petition of mandamus or injunction for answer, and in the meantime the party shall be restrained from continuing such pollution pending hearing before the court. In case of default, or after answer, the court shall immediately inquire into the facts and circumstances of the case and enter an appropriate order in respect to the matters complained of. An appeal may be taken from the final judgment in the same manner and with the same effect as appeals are taken from judgments of the circuit court in other actions for mandamus or injunction. Amended by P. A. 76-2434, § 1, eff. July 1, 1970.”

We do not hold the above statutory provisions meaningless, but we do deem them inapplicable in the case now before us because the plaintiffs in their complaint specifically requested that the procedure and relief granted by the Environmental Protection Act be invoked. Their complaint, which was never dismissed, is replete with references to various provisions of the Environmental Protection Act. No such procedure or penalties as prayed for by the plaintiffs can be found in the provisions set forth in Chapter 14, Sections 11 and 12, Illinois Revised Statutes, which relate to the power and authority of the Attorney General.

This court recently decided the case of Ford v. Environmental Protection Agency and Pollution Control Board of the State of Illinois, 9 Ill.App.3d 711, 292 N.E.2d 540. In speaking of the Environmental Control Act it was stated:

“There is no provision in the Act which, in the alternative, permits an enforcement action of the type pending before us to be commenced in the circuit court, where a jury trial would be authorized."

While this language was used in determining the right to a jury trial we nevertheless are of the opinion that its clear import is that enforcement provisions and sanctions such as were sought in the instant case require that a hearing be had before, and a determination made by the Pollution Control Board and not the circuit court.

Having determined that the circuit court of Peoria County did not possess the requisite jurisdiction to hear this case once the ex parte injunction had been dissolved we can only hold that the subsequent actions and orders of the court are void. Therefore the order fining the defendant in the sum of $5,000 and subsequent orders holding him in contempt is void and this cause is reversed.

STOUDER, J., concurs.

Mr. JUSTICE DIXON

dissenting:

I cannot agree that the Circuit Court did not have jurisdiction to hear this case. Here we have a complaint for injunction, to abate a public nuisance, brought by the Attorney General in the name of the People of the State of Illinois and the majority holding is that the Circuit Court has no jurisdiction of the subject matter.

The complaint basically alleges: that the Environmental Protection Act prohibits dumping of garbage except at a facility which meets the requirements of the Act; that the defendant has possession of property in Peoria County used for dumping; that he has permitted the operation of dumping and open burning as prohibited by the Act; that an injunction be made permanent, defendant be penalized as provided in the Act and that a mandatory injunction be ordered requiring defendant to comply with sanitary landfill requirements of the law.

The Environmental Protection Act provides for alternate ways of enforcement. Under Title VIII an administrative procedure is created. The complaint did not in any manner attempt to invoice this administrative procedure.

Title XII, Section 42 provides an alternate remedy. The applicable portion reads:

“Any person who violates any provision of this Act * * * shall be liable to a penalty * * * and such person may he enjoined from continuing such violation as hereinafter provided # # The State’s Attorney of the County in which the violation occurred, or the Attorney General shall bring such actions in the name of the People of the State of Illinois.”

The majority state, “There is no escaping the conclusion that the plaintiffs were charging violations of the Environmental Control Act.” Of course they were. Under Title II, Air Pollution, certain acts are declared to be a public nuisance and are prohibited. Among them are, “Cause to allow open burning of refuse”. Sec. 9(c).

Under Title V, Land Pollution and Refuse Disposal, certain acts are also declared to be a public nuisance and are prohibited. Among them are, “Cause or allow the open dumping of garbage.” Sec. 21a.

The General Assembly has power to declare certain conditions to be nuisances even though they were not so regarded at common law. (People v. Jones, 329 Ill.App. 503.) The general rule was that relief against a public nuisance could be secured only by a public prosecution (Swain v. Chicago B. & Q. R. Co., 160 Ill.App. 533.) Chancery has jurisdiction to abate a public nuisance. In City of Chicago v. Fritz, 36 Ill.App.2d 457, an injunction restraining use of land for purpose of dumping or burning garbage was upheld, the court holding such to be a common law public nuisance.

The Attorney General has both statutory and common law powers to maintain actions on his own initiative. In addition to Sec. 42, previously discussed, the Attorney General has power to sue under his own Statute (Ill. Rev. Stat. 1971, ch. 14, sec. 12) which refers to the Environmental Protection Act for its general definitions of “pollution” but which does not in any way adopt or incorporate the detailed regulations of the Board. He also has common-law power to maintain all actions necessary to protect the welfare of the public. Fergus v. Russel, 270 Ill. 304.

Section 45a of the Act also declares that, “No existing civil or criminal remedy for any wrongful action shall be excluded or impaired by this Act.”

       Chapter 111%, sec. 1001 et seq.


author: Mr. JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Andrew Kovacivich, Defendant-Appellant.
    (No. 71-108;
    Third District
    March 28, 1973.

      John L. Barton, of Marseilles, for appellant.
    Rafael E. Toruno, Assistant State’s Attorney, of Joliet, for the People.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

Andrew Kovacivich, hereinafter referred to as the defendant, was prosecuted in the circuit court of Will County for the crime of burglary.

After trial by jury he was found guilty and sentenced to a term of not less than 8 nor more than 15 years in the penitentiary. This appeal stems from the judgment of guilty and sentence imposed thereon by the Will County circuit court.

The defendant in this appeal presents two issues for review, the first of which is whether he was denied a fair trial when the State and his court appointed counsel introduced evidence that he was involved in burglaries other than the one for which he was being prosecuted.

During the course of the defendant’s trial the State called as witnesses a Toney Wright, an accomplice; Wright’s wife, also an accomplice; and Wright’s brother and his wife, who also became involved in the burglary for which the defendant was being tried. Toney Wright, a codefendant and accomplice, testified that he acted as a lookout while the defendant broke into the Sugar Creek Pharmacy. Wright’s wife testified that she knew the burglary was planned, had aided in its commission and had shared in the proceeds from the crime. The brother and sister-in-law of Wright testified that they knew about the burglary of the pharmacy and had purchased some of the stolen goods.

The co-defendant Wright pleaded guilty to the charge of burglarizing the Sugar Creek Pharmacy and was granted probation. His wife, brother and sister-in-law were never prosecuted for their participation or involvement in the crime.

In examining the record we find that counsel for the defendant in his opening statement to the jury made it known that his client had been involved in another Rial for burglary but had been acquitted. During the trial of the instant case the State elicited testimony from the co-defendant Wright that he and the defendant had committed several burglaries other than the one of the Sugar Creek Pharmacy and specificaHy identified the burglarized establishments, viz., an Aurora liquor store and a sporting goods store. On cross examination defendant’s counsel amplified this area of inquiry by further eliciting testimony from tire witness Wright that he and the defendant had burglarized a warehouse, a place called Bowl-Rite, and that they had “cased” several other places for prospective burglaries.

The testimony of the witness Wright was that he and the defendant had in the various burglaries followed a set modus operandi in that they gained entry into buildings by breaking a hole through a wall, thereby avoiding burglary alarm systems, and that they were always concerned about leaving fingerprints and therefore used gloves.

Directing our attention to the defendant’s contention that reversible error was committed when evidence of his involvement in other crimes was produced during the course of his trial, we are first confronted with a situation where reference to such involvement was initially made by his attorney in his opening statement. Defendant’s counsel persisted in delving into this subject of other crimes involving the defendant, when he cross examined State witnesses. It is true that the State on direct examination of their witnesses also brought forth testimony as to the defendant’s participation in other crimes but such testimony was not objected to by the defendant’s counsel. Not only are we of the opinion that the defendant is estopped from complaining about testimony concerning a subject matter which his counsel first introduced to the jury, but in addition our reviewing courts have held that the unobjected testimony of State witnesses which had the effect of disclosing to the jury that the defendant had committed a robbery other than the one for which he was on trial was properly received and any error was waived because of failure to object. See People v. Cook, 132 Ill.App.2d 597, 270 N.E.2d 144.

The record further discloses that the defendant failed to preserve for review the question as to error stemming from testimony as to his involvement in other crimes since he failed to include the same in his post trial motions. It is well settled that nonjurisdictional errors not raised in defendant’s written motion for new trial are waived. See People v. Irwin, 32 Ill.2d 441, 207 N.E.2d 76; People v. Greer, 30 Ill.2d 415, 197 N.E.2d 22; People v. Gratton, 28 Ill.2d 450, 192 N.E.2d 903.

Even though the defendant had properly preserved his contention of error stemming from testimony which showed his participation in other crimes, we cannot agree with him that such testimony was inadmissible. Evidence as to other crimes is admissible if relevant for any other purpose than to show the propensity of the defendant to commit a crime. (People v. Cole, 29 Ill.2d 501, 194 N.E.2d 269; People v. Palmer, 47 Ill.2d 289, 265 N.E.2d 627.) Although evidence of other crimes is generally inadmissible this same evidence is proper when it tends to prove design, motive, or knowledge on part of the defendant. (People v. Yonder, 44 Ill.2d 376, 256 N.E.2d 321.) An examination of the testimony in the instant case regarding the defendant’s involvement in other crimes clearly establishes a method of operation which served not only to identify the defendant but also established a common design or purpose as far as his unlawful acts were concerned. Such testimony established that the defendant’s modus operandi was to gain entry into buildings by punching a hole through a wall. In committing burglaries he wore gloves. Following this pattern of operation he avoided activating burglary alarms and the leaving of "tell tale” fingerprints. This method of operation was followed in the burglary of the Sugar Creek Pharmacy and we conclude that the evidence adduced during the trial of the defendant regarding his participation in other crimes was relevant and admissible.

The second and final contention of the defendant is that the provisions of the recently enacted Code of Connections are applicable to his case and that pursuant to such provisions his sentence should be reduced. Our Supreme Court in People v. Chupich (1973), 53 Ill.2d 572, established that a case has not been finally adjudicated until the last direct appeal has been decided or when the time for filing such an appeal has expired. The Illinois Code of Corrections (Chapter 38, Section 1008 — 2—4) provides that if the offense being prosecuted has not reached “a final adjudication” then for the purpose of sentencing, the sentences under the Code of Corrections shall apply if they are less than what they were under the prior law. The new Code classifies the crime of burglary as a class 2 felony and in Chapter 38, Section 1005 — 8— 1(c)(3) provides as follows:

“(3) [F]or a class 2 felony, the minimum term shall be 1 year unless the court, having regard to the nature and circumstances of the offense and the history and character of defendant, sets a higher minimum term, which shall not be greater than one third of the maximum term set in that case by the court.”

The sentence received by the defendant in this case, being for a term of not less than 8 nor more than 15 years in the penitentiary, fails to meet the ratio requirement of the Criminal Code of Corrections and we are of the opinion that this case should be remanded to the trial court for the purpose of resentencing in accordance with the provision of the code.

We therefore affirm the judgment of conviction entered by the circuit court of Will County but remand this cause to the trial court for the purpose of resentencing.

Affirmed and remanded.

ALLOY, P. J., and DIXON, J., concur.


text:
    George F. Shady, Plaintiff-Appellee, v. Marie M. Shady, Defendant-Appellant.
    (No. 72-180;
    Third District
    March 28, 1973.

      Rehearing denied April 25, 1973.

      DIXON, J., dissenting.
    John C. Parkhurst, of Peoria, for appellant.
    Elmo E. Koos, of Peoria, for appellee.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Tazewell County denying a motion to vacate and dissolve an injunction order previously issued by that court.

The events leading up to this appeal are as follows. On September 2, 1971, Marie M. Shady, hereinafter referred to as the wife, filed a sworn complaint for divorce against George F. Shady, hereinafter referred to as the husband. The suit was filed in Clark County in the State of Nevada and the wife alleged that she had for six weeks been a bona fide resident of that county and state and her husband was personally served with a summons and a copy of the complaint.

On September 3, 1971, the wife moved to dismiss a divorce suit pending against her husband in Tazewell County, Illinois. The court on that date granted her motion and entered an order dismissing the action.

On September 28, 1971, the husband filed a sworn complaint for injunction in Tazewell County in which it was alleged that his wife was in fact a resident of Tazewell County and that her sworn allegation as to being a resident and domiciliary of Clark County, Nevada, was false. On the same date the circuit court of Tazewell County entered a restraining order, restraining his wife from proceeding further in the Nevada divorce action. The restraining order contained a finding that the wife’s Illinois divorce action had been dismissed without notice to her husband and that she was not a bona fide resident of Nevada, but was a resident of Tazewell County, Illinois.

Also on September 28, 1971, the husband moved to vacate the order which had dismissed the Illinois action for divorce, on the grounds that he had received no notice of his wife’s motion to dismiss the suit. The husband’s motion to vacate was supported by affidavit but it does not aver that he failed to receive notice of the motion, only that he received no notice of the hearing on the motion. The record discloses that a copy of the wife’s motion to dismiss the Illinois divorce action was mailed to the husband’s attorney on September 2, 1971. On October 7, 1971, a response was filed by the wife to her husband’s motion to vacate the order of dismissal and the substance of this response is that no hearing is required on a voluntary dismissal. No hearing was held nor has a ruling been entered by the trial court on the motion to vacate the dismissal order.

A hearing was held by the trial court on October 7, 1971, to determine whether a temporary injunction should issue. At this hearing the wife filed a special appearance, and objected to the jurisdiction of the THinnis court over her person and over the subject matter of the complaint for injunction. During this hearing it was represented to the court by the husband’s attorney that he had telephoned the wife’s Nevada attorney and advised him of the temporary restraining order which had been issued in Illinois and that further he had forwarded by mail to the Nevada attorney a copy of the injunction writ. It was admitted by the husband’s attorney that there had been no service of process in Nevada on his wife in regard to the injunction suit. During the hearing the attorney for the wife stood on a special and limited appearance and objected to the jurisdiction of the Illinois court as to the person of the wife who was then in Nevada, and as to the finding of her place of residency by the court.

At the conclusion of the hearing the trial court determined that it did have jurisdiction and granted a temporary injunction in tire same language as the restraining order. The temporary injunction was to be in effect until November 10, 1971, at which time the court would determine whether the temporary injunction should be made permanent. It should be noted that the record fails to show the issuance of any writ of temporary injunction or the service of any process on the wife in Nevada..

On November 9, 1971, the attorney for the wife again entered a special and limited appearance for her and repeated her objection to the Illinois court claiming jurisdiction over her person and the subject matter of the action, to wit, the finding as to her place of residence. At this time there was filed a certified copy of the decree of divorce which had been granted to the wife on October 11, 1971, by the Nevada court. The decree contained a finding that she was a bona fide resident of Nevada and had been domiciled there for more than six weeks prior to her commencement of the divorce action.

The husband on December 6,1971, filed a petition to show cause why the wife should not be held in contempt of court for violating the order granting a temporary injunction. The court entered an order directing the wife to show cause on December 22, 1971, why she should not be held in contempt of court. After an agreed continuance the wife for the first time made a general appearance before the court on January 11, 1972, and filed a motion to vacate the order granting a temporary injunction on the grounds that the corut lacked jurisdiction to issue the same. After continuances this motion to vacate was heard on June 19, 1972. At this hearing a transcript of the testimony heard by the Nevada court regarding the question of the wife’s residence was filed. After argument by counsel the court denied the motion to vacate its order directing the issuance of a temporary injunction and further set a date for a hearing on the rule to show cause. An order incorporating these rulings was entered on June 19, 1972, and this appeal stems from that order.

On July 13, 1972, the wife filed her notice of interlocutory appeal. Subsequently on July 19, 1972, an order was entered by the trial court approving a supersedeas bond and staying the enforcement of the rule to show cause pending appeal.

We have gone into considerable detail setting forth in a chronological order the sequence of the pleadings filed and the acts of the parties to this cause because we believe a clear understanding of the same is essential in order to determine the primary issue presented by this appeal, which is whether the trial court had any jurisdiction over the wife against whom it issued a temporary injunction order.

In determining this issue we at the outset recognize the well-settled rule of law that there is no question as to the right to restrain a person over whom the court has jurisdiction from bringing a suit in a foreign state. (Emphasis supplied.) (Harris v. Pullman, 84 Ill. 20, 25 Am.Rep. 416). The courts do not in such cases pretend to direct or control the foreign court, but the decree acts solely upon the party. Royal League v. Kavanagh, 233 Ill. 175, 84 N.E. 178.

In the case of Kahn v. Kahn, 325 Ill.App. 137, 59 N.E.2d 874, where the reviewing court found both the plaintiff and defendant residents of Illinois and enjoined the latter from instituting a Nevada divorce action, it was stated:

“It is the general rule that, where a party is within the jurisdiction of the court, he may, on proper showing, be enjoined from prosecuting an action in a court of another state. The question, however, as to when this jurisdiction may be exercised is often one of great delicacy, owing to the fact that it may frequently lead to a conflict on jurisdiction. Hence the power is used sparingly, and the applicant must show good equitable grounds, or the injunction will not issue. The jurisdiction rests on the authority vested in courts of equity over persons within the limits of their own jurisdiction to restrain them from doing inequitable acts to the wrong and injury of others, and on the power of the state to compel its own citizens to respect its laws even beyond its territorial limits * * (Emphasis supplied.)

We would be belaboring the point if we continued to cite and quote from other cases concerning the right of an Illinois court to enjoin an individual from prosecuting an action in a foreign jurisdiction. There is ample authority that an Illinois court can so enjoin but one requisite must be present and that is that the court issuing the injunction must have jurisdiction of the party sought to be enjoined. In the instant case the wife testified before the Nevada forum on October 11 that she had resided in Nevada for two and a half months, having arrived there on the preceding July 20th; that it was her intention to make Nevada her permanent home, that she had obtained a Nevada driver’s license, that her passport had been reissued to her with a Nevada address on it, that she had leased an apartment for six months, and that she had deposited a sum of money on the purchase of a beauty salon in Las Vegas, Nevada. Two supporting witnesses offered testimony which bolstered the wife’s contention that she was a bona -fide resident of the State of Nevada.

We can only interpret such evidence as presenting a prima facie case supporting the wife’s contention that she was a bona fide resident of Nevada; however, we are not called upon in this case to make a determination of that issue and will not do so. Nor are we concerned with the proposition that the wife was in fact “forum shopping” since we recently stated in the case of Scott v. Scott, 131 Ill.App.2d 863, 268 N.E. 2d 458, that:

“* * * [W]e are aware of no equitable principle which can be invoked to restrain a party from selecting any domicile such party may choose. The fact that the creation of a bona fide domicile in another jurisdiction may be the basis for application of that jurisdiction’s marital and divorce laws does not thereby render such action fraudulent or inequitable.”

We do concern ourselves with the question as to whether in spite of the wife’s acts in Nevada whereby she attempted to establish residence there, was she nevertheless within the jurisdiction of the Tazewell County circuit court so as to be subject to a temporary injunction issued by that court. We believe not. The only possible argument that the Tazewell County circuit court had jurisdiction of the wife would have to be based upon the fact that when she filed her suit for divorce in Nevada she also was the plaintiff in a pending divorce action in Tazewell County. The following day after notice to her husband’s attorney, her attorney moved for a voluntary dismissal of the Illinois suit. This motion was granted and the suit was dismissed. It should be noted that no counter-claim had been filed by the husband and we are of the opinion that she complied with Practice Act provisions pertaining to a voluntary dismissal of an action by a plaintiff. (Ch. 110, Sec. 52(1), Ill. Rev. Stat.) The husband complains that neither he nor his attorney was notified as to when a hearing would be had on his wife’s motion to dismiss the suit. We find no merit in this complaint since the right to dismiss does not require a hearing. In the case of Galeener v. Hessel, 292 Ill.App. 523, 11 N.E.2d 997, the reviewing court held that:

“Under Section 52 of the Civil Practice Act it would appear that a plaintiff has a right to dismissal at any time between the bringing of the suit and the entry upon the trial, upon giving notice to the defendant and the payment of costs * * *. If the defendant upon a motion to vacate the order of dismissal can show that his rights have been prejudiced, or that he has been deprived of some substantial rights concerning his defenses, not available in another suit or that might be endangered by the dismissal, then the cause should be reinstated, but the mere failure to give notice to defendant without prejudice being shown is not fatal.”

In the instant case the husband did move to vacate the order of dismissal but no action was taken by the trial court on this motion, and an examination of his motion and the affidavit supporting it fails to set forth any allegations that would indicate that he was prejudiced by the court's action.

In the cases of Kahn v. Kahn, 325 Ill.App. 137, 59 N.E.2d 874, and Russell v. Russell, 329 Ill.App. 580, 70 N.E.2d 70, the trial court properly issued an injunction restraining a party from prosecuting an action in a foreign jurisdiction, but in both of these cases there was no question but what the court had jurisdiction of the parties; however, such is not the situation in the instant case. The husband asserted that his wife was a resident of Illinois while at the same time he showed the court that she was residing in Nevada and claiming to be a bona fide resident of that state. No service of process regarding Illinois actions was ever served on the wife. There was no divorce action pending in Illinois and the wife entered her limited and special appearance in the Tazewell County circuit court objecting to its asserted jurisdiction over her person. We fail to see how the trial court obtained jurisdiction over tire person of the wife and are of the opinion that it did not.

The brief of the plaintiff sets forth a number of contentions as to why the order of the trial court denying the wife’s motion to vacate the order directing the issuance of the temporary injunction should be sustained. However, his brief fails to address itself to the fundamental question as to how the court ever obtained jurisdiction over the wife. The question of jurisdiction or lack of jurisdiction is dispositive of this appeal and having determined that the trial court lacked jurisdiction no useful purpose would be served by setting forth and considering the contentions raised by the husband with the exception of his argument that the wife’s appeal should be dismissed because notice of appeal was not filed within 30 days after the order for temporary injunction. The record clearly discloses that the wife complied with the provisions of Supreme Court Rule 307(b) (Ch. 110A, Sec. 307(b), Ill. Rev. Stat.), and that the husband’s argument is without merit. Further a judgment, order or decree entered by a court which lacks jurisdiction of the parties or subject matter, or which lacks the inherent power to make or enter the particular order involved is void, and may be attacked at any time and in any court, either directly or collaterally. Barnard v. Michael, 392 Ill. 130, 63 N.E.2d 858.

For the reasons set forth the order of the circuit court of Tazewell County denying the wife’s motion to vacate its order directing the issuance of a temporary injunction is reversed, and further the said court is directed to vacate its order directing the issuance of a temporary injunction over the person of Marie M. Shady, the wife.

Reversed and remanded with directions.

STOUDER, J., concurs.

Mr. JUSTICE DIXON

dissenting:

I cannot agree that the trial court did not have jurisdiction of the person of the defendant. I cannot agree that the order of dismissal on Sept. 3 was properly obtained. Notice of motion has been defined as a means of bringing a motion on for hearing. A formal notice that a motion described therein will be made before the court at the time and place stated in the notice. Rallantines Law Dictionary, 867. Appellant concedes that he gave no such notice relying on the dictum from Galeener v. Hessel, 292 Ill.App. 523. The facts of that case were that plaintiff filed a lawsuit and 5 days later dismissed it. The defendant had not yet entered an appearance. The case simply held that since Sec. 52 of the Civil Practice Act requires notice “to each party who has appeared or his attorney” no notice was required since the defendant had not yet appeared.

Even so, Sec. (5) of the Civil Practice Act provides, “The court * * * may on motion filed within 30 days after entry thereof set aside any final order * *

Well within 30 days the husband filed his motion to set aside the order of dismissal which motion is still pending. The effect of a motion filed pursuant to subsection 5 prevents the order from becoming final until the motion is disposed of. (Corwin v. Rheims, 390 Ill. 205.) Further, “It is well settled that a judgment of the trial court does not become final until the passage of 30 days”. McDowell v. Jarnagin, 56 Ill.App.2d 395.

The instant case was commenced Sept. 28, at that time the order of dismissal was not final, the wife was a party to a divorce suit still pending in the Circuit Court of Tazewell County, Illinois, and for that reason the trial corut had jurisdiction over her person.