author: MR. JUSTICE DEMPSEY

text:
    Leonard W. Koplin, Plaintiff-Appellant, v. Thomas, Haab & Botts, Defendant-Appellee.
    Gen. No. 50,636.
    First District, Third Division.
    July 21, 1966.
    Rehearing denied September 12, 1966.

      Raynor & Mitchell and Arthur Abraham, of Chicago, for appellant.
    Arvey, Hodes & Mantynband, of Chicago, for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

This is an appeal by the plaintiff from an order granting the defendant’s motion to quash service of process.

Three New York brokers, Saul Lerner Co., Inc., Filer, Schmidt & Co. and Thomas, Haab & Botts, were personally served with summons in New York City, under sections 16 and 17 of the Civil Practice Act. (Ill Rev Stats, c 110, pars 16, 17 (1961).) They were made defendants in a qui tarn action for damages brought under Ill Rev Stats, ch 38, § 330 (1959) and ch 38, § 28-8 (1961). The complaint charged that during the years 1959 through 1962 the defendants were dealers in “put and call” options; that these were gambling transactions which violated the laws of Illinois prohibiting gambling in securities (Ill Rev Stats, c 38, § 328 (1959) and c 38, § 28-1 (a) (4) (1961)); that the defendants transacted business in Illinois by selling such option contracts to various individuals, firms and corporations in Cook County and elsewhere in Illinois and that these purchasers lost and paid large sums of money to the defendants. It was alleged that the purchasers were entitled to sue the defendants for the amount of their losses but none of them did so, and that the plaintiff, a resident of this State, had the right, therefore, under the statutes to initiate a civil action on behalf of Cook County and himself for triple the amount of the losses.

Each defendant filed a special appearance to quash the service of summons on the ground that it was not amenable to extraterritorial service of process within the meaning of section 17 of the Civil Practice Act. The motions were granted, but the order was subsequently vacated as to Thomas, Haab & Botts, the defendant in the present case. The orders as to the other defendants were affirmed on appeal. (Koplin v. Saul Lerner Co., Inc., 52 Ill App2d 97, 201 NE2d 763 (1964).) While the Lerner case was pending on appeal Thomas, Haab & Botts moved to strike the complaint; its motion was denied. Two years later (after this court’s decision in Koplin v. Lerner) the defendant renewed its motion to quash the service of summons. It is from the granting of this motion that the plaintiff appeals.

Before we reach the principal issues which are: (1) whether the defendant submitted itself to the jurisdiction of the courts of Illinois by transacting business within Illinois and (2) whether section 17, if construed to authorize jurisdiction over the defendant, would violate the due process clause of the Fourteenth Amendment to the Constitution of the United States, we are faced with the plaintiff’s contention that the defendant’s objection to the assertion of personal jurisdiction was waived by the defendant’s motion to strike the complaint. The plaintiff cites a line of cases which hold that an appearance by a defendant for any purpose other than to question the jurisdiction of the court is a general appearance, even if the defendant also challenges the court’s jurisdiction, and quotes from Koplin v. Saul Lerner, supra:

“The complaint was couched in such general terms that it was vulnerable to a motion to strike. No such motion was made, however, and none could have been made by the defendants without jeopardizing their special appearances. Ill Rev Stats, ch 110, see 20(1) (1963). A motion to strike would have admitted that the case was properly in court; the defendants could not ask the court to exercise jurisdiction over the case and at the same time deny that jurisdiction existed. Jones v. Jones, 40 Ill App2d 217, 189 NE2d 33.”

Neither the cited cases nor the quoted language supports the contention; both assume a situation wherein a defendant has coupled a jurisdictional objection with an invitation to the court to exercise its jurisdiction. In the instant case the court ruled adversely to the defendant’s motion to quash prior to the defendant’s requesting the court to strike the complaint; hence, the defendant comes squarely within the provision of the Civil Practice Act that:

“Error in ruling against the defendant on the objection [that the court lacks personal jurisdiction over the defendant] is waived by the defendant’s taking part in further proceedings in the case, unless the objection is on the ground that the defendant is not amenable to process issued by a court of this State.” Ill Rev Stats, ch 110, § 20(3) (1961).

Because the motion to strike came after the motion to quash service was denied, the defendant preserved its jurisdictional objection and it had the right to renew this objection. SHA, c 110, § 20, Joint Committee Comments. And the motion judge had the right to review the order vacating the first order to quash if in his judgment the vacating order was erroneous. Richichi v. City of Chicago, 49 Ill App2d 320, 199 NE2d 652 (1964).

The defendant’s actions alleged to constitute the transaction of business within Illinois are set forth in the complaint, the affidavits of the plaintiff in opposition to the motion to quash, and the accompanying exhibits. The plaintiff alleged that the defendant placed advertisements in two newspapers sold in Chicago, offering put and call options for sale; that the defendant sent agents into Illinois to conduct seminars and to educate the public about option contracts and thereby promoted sales; that many persons, firms and corporations in Chicago and in Illinois accepted the defendant’s offers and bought the options by telephoning or mailing acceptances either directly to the defendant or through brokers. The plaintiff submitted as an exhibit the defendant’s 1960 application for registration as a dealer in securities. The application, which was filed with the Illinois Secretary of State, included the defendant’s consent to be bound by service of process on the Secretary in suits arising out of sales of securities in violation of the Securities Law of 1953 (Ill Rev Stats, c 121½, § 137.1-137.15). The plaintiff also submitted letters from the defendant to the Secretary of State which certified that the defendant had made sales of option contracts to persons and firms in Illinois. The letters detailed the dates of the transactions, the names and addresses of the purchasers, and the terms of the option contracts.

In its special appearance and motion to quash, the defendant denied that it had transacted business in Illinois within the meaning of section 17(1) (a) or that it could be subjected to the jurisdiction of Illinois courts without a violation of due process. It alleged that it was a partnership composed of two individuals, neither of whom was a citizen or resident of Illinois; that the defendant’s only place of business was in New York and that all of its business was transacted there; that none of its partners or employees had accepted an offer or made a sale in Illinois; that Illinois residents either directly or through brokers might have communicated with the defendant in New York, but that sales were made in New York and the option contracts were delivered there to the purchasers’ brokers. The defendant admitted placing advertisements in Illinois newspapers but denied that they were offers to sell, admitted sending agents to Chicago to conduct seminars but denied that sales of put and call options were made at the seminars.

The first question is one of statutory construction: does section 17(1) (a) provide for jurisdiction on the facts of this case? Jurisdiction under section 17 has not been restricted to those cases alone where its language literally describes the activities of the defendant. See Currie, The Growth of the Long Arm: Eight Years of Extended Jurisdiction in Illinois, 1963 Ill L Forum 533. As the Supreme Court observed in Nelson v. Miller, 11 Ill2d 378, 143 NE2d 673 (1957), section 17 reflects the legislative intention to exert judicial jurisdiction over nonresident defendants to the extent permitted by the due process clause. Hence, the courts in construing section 17 have upheld jurisdiction if the defendant has voluntarily established certain minimum contacts with the State, if the State has an interest in providing the plaintiff a forum for litigation, and if the assertion of jurisdiction is not fundamentally unfair.

The complaint in the Koplin v. Lerner case alleged that the two defendants, Saul Lerner Co., Inc., and Filer,, Schmidt & Co., had advertised options in newspapers circulated in Chicago and that representatives of the two defendants had been in Illinois promoting their business. An affidavit filed by the plaintiff stated that a subsidiary of the Lerner company had registered in Illinois as a dealer in securities and that Filer, Schmidt had likewise registered as a dealer in securities and had filed a consent to the service of process. Each defendant denied that it had transacted any business in Illinois within the meaning of section 17 (1) (a). The Lerner company stated in an affidavit that it had no knowledge of any direct sale to any Illinois resident and that all its sales were made in New York. Filer, Schmidt stated that it conducted its business in New York and that its contracts were executed, paid for, delivered and performed in New York. In an affidavit it stated that occasional inquiries were received from Illinois brokers and that 12 residents in Illinois had maintained accounts at some time during the period covered by the complaint, but that all contracts were made in New York. In response to a request from the Secretary of State for a list of the persons in Illinois to whom it sold options, Filer, Schmidt replied that it had hoped to do business with individuals but had done none, that its business was with stock exchange firms who did not divulge the names or locations of their customers.

In the Lerner case we stated:

“The complaint, the affidavits and the exhibits were entirely deficient in showing business transactions in Illinois — even an isolated transaction — upon which the cause of action was purportedly based. From the complaint it is apparent that the plaintiff merely suspected that the defendants sold put and call options in Illinois — for no such sale was known to the plaintiff. . . . Registration with the Secretary of State did not bring the defendants within section 17, nor did it vest jurisdiction in Illinois. The registrations by both defendants and the formation of the subsidiary company by Lerner indicate plans and preparations for doing business in Illinois; the advertisements indicate the desire and hope for doing business, but none of these denote that business was done. A willingness to do business and solicitation of business do not constitute the doing of business.
". . . .
“In the present case the plaintiff has not supplied one instance of either defendant entering into a business relationship with any Illinois resident.”

Herein lies the distinction between the Lerner and Filer, Schmidt case and the instant one. Exhibits presented by the plaintiff (the defendant’s reports to the Secretary of State) disclosed the defendant’s regular and continuous sale of option contracts to residents of Illinois: during the period from March 1961 to April 1962 the defendant made 90 sales of option contracts to approximately 50 separate persons and firms in Illinois. The defendant here, as the defendants in the Lerner case, not only made plans and preparations for doing business in Illinois by registering as a dealer in securities, and not only placed advertisements in newspapers which solicited business and conducted seminars to stimulate business but in addition thereto, unlike the defendants in the Lerner case, knowingly did business with Illinois residents.

Although the defendant did not maintain an office in Illinois and did not carry on its activities through agents in this State and although the sales, as a matter of commercial law, may have taken place in New York, the purchases were made and paid for by residents of Illinois who may or could have accepted delivery of the contracts in Illinois, and these knowing sales to Illinois residents by the defendant coupled with its registration with the Secretary of State and its advertisements and seminars constitute contacts in the State which were more than minimal and which, in our opinion, involved the transaction of business. The State has an interest in supplying an effective means of redress for its residents against nonresidents who have allegedly violated its gambling statute, and the plaintiff’s suit will aid in effectuating the prohibitions of the statute. The State has additional interests in providing a forum for the suit: the law creating the cause of action is that of Illinois; part of any judgment recovered might be for the use of a county in Illinois. Nor is it unfair to call the defendant into Illinois to answer the complaint. Although evidence such as the defendant’s records would be in New York, the far greater number of witnesses would be Illinois residents; and the defendant’s burden of defending in Illinois would be less than the plaintiff’s burden of suing in New York. "The defendant’s consent to be bound by process served on the Secretary of State negatives any contention that the possibility of a suit in Illinois comes as a surprise to the defendant. That a put or call option may not be a “security” within the purview of the defendant’s consent to substitute service of process does not detract from the quality or nature of its contacts with Illinois; nor does it make suit in Illinois unfair, for the defendant’s reports to the Secretary of State show that it was selling a large number of option contracts to many Illinois residents and so could reasonably anticipate that litigation might arise from the sales. We hold that the defendant engaged in conduct which invoked the benefits and protection of the laws of Illinois and that its contacts with this State were sufficient under section 17(1) (a) to give the courts of Illinois jurisdiction over it.

The defendant contends that section 17 (3) of the Civil Practice Act bars extraterritorial service of process on the facts of this case. Section 17 (3) provides:

“Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.” Ill Rev Stats, c 110, § 17(3) (1961).

It is the defendant’s theory that the only factual difference between the present case and the Koplin v. Lerner case is that Thomas, Haab & Botts reported to the Secretary of State that it had made sales to specified customers in Illinois, and since the complaint, even considered together with the accompanying exhibits, does not allege that the plaintiff’s cause of action “arose” from any of these specified sales, they cannot be the jurisdictional basis for his suit; thus, the present case is legally identical with the Lerner case.

The defendant’s construction of section 17(3) would, in effect, limit the exercise of jurisdiction under section 17 to cases where a jurisdictional act of the defendant is the act of which the plaintiff complains. This disregards the purpose of subsection (3). Its purpose is to insure that there is a close relationship between a nonresident defendant’s jurisdictional activities and the cause of action against which he must defend. SHA, c 110, § 17, Historical and Practice Notes. In the instant case the statutory phrase “arising from” requires only that the plaintiff’s claim be one which lies in the wake of the commercial activities by which the defendant submitted to the jurisdiction of Illinois courts. These activities were the reported sales of put and call options; the cause of action arose from the consequences arising from these sales which allegedly violated the gambling statute; thus, the requirement of section 17 (3) was fulfilled.

The defendant next contends that the case of Grobark v. Addo Mach. Co., Inc., 16 Ill2d 426, 158 NE2d 73 (1959), and the cases following it (Saletko v. Willys Motors, Inc., 36 Ill App2d 7, 183 NE2d 569 (1962); Kropp Forge Co. v. Jawitz, 37 Ill App2d 475, 186 NE2d 76 (1962)) have construed section 17 (1) (a) as requiring the performance of jurisdictional acts by the defendant or its agents while physically present in Illinois, and that none of the asserted jurisdictional acts in the present case (even the defendant’s coming into the jurisdiction to conduct its seminars) is sufficient under that test. It is true that Grobark does indicate that the physical presence of a defendant in Illinois is necessary for jurisdiction and that the Saletko and Kropp Forge cases follow Grobark and state that the performance of jurisdictional acts by the defendant or his agent, while physically present in Illinois, is essential for the jurisdiction of our State courts. However, in International Shoe Co. v. Washington, 326 US 310 (1945) (the decision that established new concepts for State jurisdiction over nonresidents) and in McGee v. International Life Ins. Co., 355 US 220 (1957) the requirement of physical presence was not imposed. And two years after the Grobark case our Supreme Court decided Gray v. American Radiator & Standard Sanitary Corp., 22 Ill2d 432, 176 NE2d 761 (1961). Gray was a personal injury suit against a nonresident defendant who made a safety valve in Ohio and sold it outside Illinois to an independent company. The valve was attached to a water heater, which was later sold to an Illinois resident; an Illinois plaintiff was injured by an explosion allegedly caused by the defendant’s negligence in Ohio. Neither the defendant nor its agent liad entered Illinois. The court construed section 17 to authorize jurisdiction over the defendant. Although jurisdiction in Gray was asserted because of the “commission of a tortious act within this State,” (section 17(1) (b)), rather than the “transaction of any business within this State,” there is nothing in the language of either subsection which indicates that the physical presence of the defendant is unnecessary under the former but required under the latter provision. To employ different tests for subsections (a) and (b) is not to implement the intended effect of section 17-, for when jurisdiction is based on a contract rather than on a tort the interest of the State is not less, nor is the burden on the defendant more. To paraphrase the court in Gray, adopting the criteria urged by the defendant would tend to promote litigation over extraneous issues concerning the elements of the business transaction and the territorial incidence of each, whereas the test should be concerned more with those substantial elements of convenience and justice presumably contemplated by the legislature. We believe there is no substantial reason for differentiating personal injury actions from business transactions insofar as the physical presence of the defendant is concerned, and that physical presence in the State is a factor but should not be the controlling factor in determining jurisdiction. We will follow Gray in holding that jurisdiction over a nonresident defendant pursuant to section 17 does not depend upon the defendant or its agent having participated in a substantial transaction of business while physically present in Illinois.

Essentially the same factors which enter into the determination that section 17 authorizes the exercise of jurisdiction are involved in deciding whether the exercise of jurisdiction is constitutionally valid. Perhaps the basic factor is the quantum of the defendant’s contact with the forum State. In deciding whether the activities of the defendant have a substantial connection with the forum State, the relevant inquiry is whether the defendant engaged in some act or conduct by which the defendant may be said to have invoked the benefits and protection of the law of the forum State. Hanson v. Denckla, 357 US 235 (1958). As the court in Gray noted, to the extent that a nonresident defendant’s business is affected by transactions occurring here it enjoys benefits from the laws of this State; and the fact that the defendant may have generally dealt with Illinois’ residents through a broker and so derived an indirect benefit from our laws does not make it any less essential to the conduct of its business. Moreover, the defendant affirmatively and voluntarily sought the benefit of our laws by initiating and soliciting the sales here and by doing the various acts heretofore enumerated.

The doctrine of Pennoyer v. Neff, 95 US 714 (1877), that the foundation of jurisdiction is physical power, has yielded to a more flexible rule based on “forthright and realistic considerations of fairness in the determination of what constitutes jurisdiction to determine personal rights.” Nelson v. Miller, 11 Ill2d 378, 143 NE2d 673. The Grobark case although extensively criticized (see, e. g. Ganz, “Doing Business in Illinois,” Vol I, No. 4, Illinois Continuing Legal Education (1963)) represents an extension of the restricted concept of jurisdiction, for the court there implied that service upon a defendant outside the forum State -would be proper if the defendant had performed substantial acts within the forum State. The Gray case is a further extension, for there it was recognized that the constitutional validity of jurisdiction is to be tested by the totality of the defendant’s contacts with the forum State, and does not depend on any one type of contact. Under the expanded concept of due process delineated by Gray, we hold that contacts with this State prerequisite to a constitutional exercise of jurisdiction have been made.

The order quashing the service of process upon the defendant is reversed.

Reversed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    People of the State of Illinois, Defendant in Error, v. Clifford Allen, Plaintiff in Error.
    Gen. No. 50,697.
    First District, Third Division.
    July 21, 1966.

      Joe A. Sutherland, of Chicago, for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Albert J. Armonda, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a judgment of guilty based upon an indictment charging the commission of the offense of armed robbery. The defendant was found guilty after a jury trial. The defendant was sentenced from two to eight years in the penitentiary.

The defendant raises two points, (1) the indictment is insufficient to meet the constitutional or statutory requirements for validity, and (2) that because of the prejudicial remarks of the Assistant State’s Attorneys in their closing arguments the convictions should be reversed.

The defendant sued out a writ of error in the Supreme Court of Illinois and the case was transferred to this court. By its order of transfer the Supreme Court said the following:

“The defendant claims that the indictment was insufficient to comply with statutory and constitutional requirements. It does not appear that the alleged constitutional defect was raised in the trial court and the charge now made is insufficient to give us jurisdiction. It is also alleged that certain remarks of the prosecutor deprived the defendant of a fair trial. In our opinion this claim presents only a question of whether error was committed and not a substantial constitutional question. On the Court’s own motion the cause is transferred to the Appellate Court for the First District.”

The indictment charged the defendant with the commission of the offense of robbery in that he, by the use of force and while armed with a dangerous weapon, took $12 in United States Currency from the person and presence of Elgin Richard Dickerson. The indictment described the offense as having taken place in County of Cook and State of Illinois. These charges were filed under the old Criminal Code, Illinois Revised Statutes 1961, chap 38, §716.

In People v. Burns, 403 Ill 407, 408, 86 NE2d 197, the court said:

“The place of the commission of the offense of robbing a natural person need not be precisely laid or proved where the place of the commission of the offense is not an element thereof. The gist of armed robbery is the force or intimidation used in taking another’s property against his will. (Citing cases.) Under the charge laid, all the People needed to do was to prove Burns robbed Hopkins within the bounds of Cook County. The indictment is sufficient when it is specific enough to notify Burns of the charge he had to meet and enable him to prepare his defense.”

See also People v. Starr, 50 Ill App2d 399, 200 NE2d 118.

The record discloses that the defendant proceeded to trial being fully aware of the exact nature of the charges against him.

The defendant relies on the case of People v. Williams, 30 Ill2d 125, 196 NE2d 483, which held that an indictment charging defendants with attempting to break and enter a factory building, without giving a street address or more specific location in the county, was insufficient. In the Williams case, supra, the place of commission of the offense was an element thereof. In an armed robbery case the location is not an element as set forth in the Burns case, supra. Furthermore, our Supreme Court in the case of People v. Blanchett, 33 Ill2d 527, 212 NE2d 97, has overruled People v. Williams, supra.

We now come to the second point raised by the defendant. Defendant argues that during the closing arguments the State’s Attorneys persistently insinuated that the defendant was a professional subway thief. The evidence regarding this offense was the following:

Elgin Dickerson, the complaining witness, left work about 1:00 a. m. on August 18, 1962, at the Sherman House hotel. He took a northbound El at State and Lake Streets to Wilson Avenue. He later took a south bound El from Wilson Avenue to go home at about 1:45 a. m. He was seated in the rear of the second car in the last seat on the left hand side next to the window. Dickerson had fallen asleep and was awakened after the El left the Clark and Division station. Upon awakening he noticed that a man sitting next to him on his right had his right hand inside Dickerson’s coat. Dickerson grabbed the man’s hand and told him to get his hand out of his pocket. As the man’s hand came out of Dickerson’s pocket he had a $10 bill and two $1 bills. Dickerson stood up and told the man to give him his money. The man said it was not Dickerson’s money, that it was his money. Dickerson reached for the money and a fellow sitting opposite across from Dickerson got up, reached over and pushed Dickerson back. Dickerson pushed the second man back and said “Give me my money.” The first man drew a blue, short revolver and Dickerson sat down. The man was standing right beside Dickerson and Dickerson had turned to his right and was facing the man. The lighting conditions on the train were good. The man was wearing brown trousers, a blue shirt, a light green jacket and a hat with a small brim. He had a gold tooth and a gap between his teeth. Dickerson observed both men about two to two and a half minutes. Both men backed up to the door and got off the El at the Chicago Avenue stop. Dickerson later pointed out Clifford Allen as the man who had the gun. He testified that he had seen Allen about a week before the occurrence, on a subway train about 2:00 o’clock in the morning. On that occasion Dickerson was sitting on the subway when the defendant sat down beside him and asked Dickerson for a cigarette.

Robert McElroy, a C. T. A. police officer, testified that on August 27, 1962, he and his partner, Edgar Gillespie, arrested the defendant on a northbound subway train in the vicinity of the Harrison and State subway station about 2:00 a. m. The defendant had on a black shirt, grayish jacket, brown pants and a gray fedora hat. He had wide-spaced teeth that sort of protruded and a gold capped tooth. The defendant was then arrested and charged with attempted theft, and on September 12, 1962, was discharged as to that offense. McElroy had Dickerson sign the complaint against the defendant before the other case was heard on September 12,1962.

The defendant contends that the arguments made by the Assistant State’s Attorneys were so prejudicial as to require reversal. One of the Assistants in closing argument said:

“When the Officers arrested him he said he was unemployed. You heard from the stand at least four different times, or three different times, that he was on the El at 2:00 o’clock or 2:30 early in the morning. I submit to you, he was working, he was not unemployed, he was working those Els.”

Another Assistant State’s Attorney said the following:

“The defendant tells you he was arrested on the 20th on some other matter by two colored CTA men, and then these two CTA men arrested him on the 27th, when they observed him sitting next to somebody else and trying to steal from somebody else.”

Again, one of the Assistants in closing argument made the following statement:

“Apparently, the procedure or modus operand! is to sit next to people who are sleepy or tired and pick their pocket without their even knowing it. He doesn’t need a gun to do this, it is only when he is caught or somebody wakes up he pulls it out, as he did with Mr. Dickerson.”

The foregoing arguments to the jury were not objected to.

In People v. Winters, 29 Ill2d 74, 193 NE2d 809, the defendant urged error based upon the argument made by the State’s Attorney. On page 80 the court said:

“No objections to the argument were made at the trial of the cause where defendant was represented by counsel of his own choosing, nor was complaint made regarding it in the motion for a new trial. Under such circumstances, the alleged error is not reviewable.”

In the instant case none of the foregoing statements were objected to by the defendant during the trial. The State’s arguments were based upon the following bits of evidence:

Dickerson testified that on August 11, 1962, the defendant briefly sat near him on a late night subway.

On August 18, 1962, Dickerson was robbed at gun point by the defendant as he sat near him on the late night subway.

On August 20, 1962, the defendant admitted that he was arrested by two “colored” CTA officers on the subway.

On August 27, 1962, Officers McElroy and Gillespie arrested the defendant as he seated himself next to a sleeping passenger on the subway and began to “go through his pockets.”

It is indisputable that the State may comment on facts in evidence and may draw reasonable inferences from the facts. People v. Gleitsmann, 384 Ill 303, 51 NE2d 261.

It is also contended by the defendant that a statement was made by one of the Assistant State’s Attorneys to the following effect:

He (meaning defendant) is a 28 or 29-year-old man who rides the El at 1:00 and 2:00 o’clock in the morning going to some cocktail lounge on State Street and who is in my opinion, and I submit to you, a thief, not a poor little kid with no clothes who only has the Public Defender.

The defendant contends that an Assistant State’s Attorney in his remarks to the jury cannot state his own opinion of the guilt of the defendant. Citing People v. Anderson, 406 Ill 585, 94 NE2d 429; People v. Lettrich, 413 Ill 172, 108 NE2d 488; People v. Black, 317 Ill 603, 148 NE 281.

While the Assistant used the words “in my opinion” we do not under the facts of this case consider that any more was being done than arguing the evidence which clearly showed that the defendant was a thief. The argument complained of came only after the facts had been explained to the jury.

In People v. Williams, 26 Ill2d 190, 186 NE2d 353, the prosecutor concluded his final summation in the following language: “. . . then coupling all that with statements made by defendant, I think that when you go back there, you will reach the same conclusion that we have reached, and that is that Eddie Williams is guilty of the charge of murder.” In that case like the present case no objections were made to remarks at the trial but the defendant contended that they were in violation of the rule which prohibits a State’s Attorney from expressing his personal opinion of guilt and require reversal. The court on page 193 said,

“It is, however, proper for a prosecutor to argue or express his opinion that the accused is guilty, where he states, or it is apparent, as was true in this case, that such opinion is based solely on the evidence. People v. Lawson, 331 Ill 380, 394; People v. Black, 317 Ill 603; 15 ILP, Criminal Law, sec 586.”

A characterization of the defendant, where reasonable and accurate, is permissible under Illinois law. In People v. Dear, 286 Ill 142, 121 NE 615, the defendant was characterized as a “murderer” in a murder case. In People v. Boneau, 327 Ill 194, 158 NE 431, the defendant was characterized as a “fence for thieves,” in a prosecution for receiving stolen property. In People v. Halteman, 10 Ill2d 74, 139 NE2d 286, the defendant was characterized as a “moron” in an indecent liberties case.

In all of the foregoing cases the courts held that arguments and statements based on facts appearing in the proof or on legitimate inferences deducible therefrom do not transcend the bounds of legitimate argument. To express an opinion, as was done in this case, which was based upon facts in the record, could not have inflamed the jury after having heard the testimony in this case.

Much of the evidence as to other occurrences was brought out by the defendant himself while on the witness stand, and none of such testimony, whether brought out by the defendant or the State, was objected to. None of the argument here complained of was objected to by the defendant during the trial. The cases cited by the defendant, are, in our opinion, not controlling in this case.

Judgment affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


text:
    John Ahlstrom, a Minor, by Fred Ahlstrom, His Father and Next Friend, Plaintiff-Appellant, v. City of Chicago, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 50,708.
    First District, Third Division.
    July 21, 1966.
    Rehearing denied September 12, 1966.

      Milroy R. Blowitz, of Chicago (Leon C. Wexler, of counsel), for appellant.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Marsile J. Hughes, Assistant Corporation Counsel, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from an order dismissing this case for want of prosecution, and from the order denying the plaintiff’s motion to reinstate the case.

On June 11, 1963, the case was called for trial by the assignment judge of the circuit court. At 3:45 p. m. on that day the case was assigned to Judge Pavlik for trial. Jack Levin, an attorney associated with Nat P. Ozmon, who was to be the trial attorney in this case, proceeded to the courtroom of Judge Pavlik and advised him that Nat P. Ozmon was engaged before Judge Napoli and was at that time in the process of giving a closing argument. He advised the judge that Mr. Ozmon would complete the oral argument that afternoon and the judge set the case for 10:00 a. m. on June 12, 1963, being the next day. The affidavits of Nat P. Ozmon and Jack M. Levin state that prior to the assignment of this case to Judge Pavlik the assignment judge assigned the case of Gordon v. City of Chicago to Judge Paschen for trial. The affidavits do not indicate how long prior the Gordon case had been assigned to Judge Paschen for trial, but in the argument on the motion Mr. Ozmon stated that the Gordon case had been assigned the same day. Nat P. Ozmon was the attorney prepared to try both cases. Judge Paschen set the case of Gordon v. City of Chicago to begin trial at 10:00 a. m. on June 12, 1963, being the same hour and day on which this case was set before Judge Pavlik for trial. The next morning, June 12, 1963, Mr. Ozmon went to Judge Paschen’s courtroom at 10:00 a. m., feeling, according to his affidavit, that the case of Gordon v. City of Chicago could be disposed of in a short time by settlement. After leaving Judge Paschen’s courtroom he arrived in the courtroom of Judge Pavlik at approximately 10:40 a. m., and was there shown a signed draft order to the effect that the instant case had been dismissed for want of prosecution.

The affidavit of Jack Levin showed that from 9:30 a. m. to 11:00 a. m. he was occupied before the assignment judge. Charles R. Winkler, another attorney associated with Mr. Ozmon, was before Judge Hermes from 9:30 a. m. to 11:00 a. m. The affidavits of Nat P. Ozmon and Jack M. Levin do not state on what day Jack Levin was occupied before the assignment judge, nor on what day Charles R. Winkler, another attorney, was before Judge Hermes. However, the affidavits showed that Milroy R. Blowitz, a partner of Mr. Ozmon, was ill, and not present in the office on the morning of June 12, 1963, and further alleges there were no other attorneys available from the office of Nat P. Ozmon. Mr. Ozmon further set forth in his affidavit that his delay until approximately 10:40 a. m. on the morning of June 12, 1963, was unforeseen and inadvertent. The affidavit also showed that the plaintiff is a minor and has sustained substantial injuries.

On the same day a notice of a motion to reinstate was served upon the defendant and was presented to Judge Pavlik at 2:00 o’clock. The record discloses that after this case was dismissed by Judge Pavlik another case had been assigned to him and was also dismissed for want of prosecution prior to 10:40 a. m. on June 12, 1963. A third case was assigned to Judge Pavlik on June 12, 1963, and had already been set for trial at 10:00 o’clock on June 13, 1963. Judge Pavlik, during the argument on the motion, advised the plaintiff that he had been ready to proceed with trial of this case on June 11, 1963, at 3:45 p. m., when the case was first assigned to him, and upon being apprised of Mr. Ozmon’s engagement before Judge Napoli in a closing argument which would be concluded the same afternoon, he held the instant case for trial on June 12, 1963, at 10:00 o’clock. Judge Pavlik during the course of the argument also advised the attorney for the plaintiff that all reasons for not going to trial immediately are resolved by the assignment judge; that a case assigned for trial is for the purpose of proceeding with the trial. The plaintiff then requested Judge Pavlik to reserve his ruling until plaintiff produced an authority Leong v. Railroad Transfer Service, 302 F2d 555, the citation of which he did not have with him. Mr. Ozmon then requested that a draft order be entered but the trial judge said that would not be necessary. The following then transpired:

“Mr. Ozmon: Could we set this for — Say, Friday morning and I will see you get the case before, but, set for 9:30 Friday morning ?
“The Court: Yes and we can dispose of it promptly.
“Mr. Ozmon: Is that all right with you, Counsel?
“Mr. Brandt: Fine.
“The Court: Okay.”

This concluded the hearing on June 12,1963.

The record does not disclose any proceeding between June 12, 1963, and June 16, 1965, more than two years later, when the plaintiff called up his motion to vacate the dismissal order filed on June 12, 1963. When additional argument was heard on the motion the plaintiff asked and obtained leave to file an additional affidavit in support of his motion. The additional affidavit was that of Milroy R. Blowitz, which stated that he was a partner in the law firm of Blowitz and Ozmon, the firm representing the plaintiff at the time of the dismissal of this case on June 12, 1963; that this case was prepared for trial and to his knowledge was ready for trial with subpoenas prepared for the various witnesses and the plaintiff instructed to be in his office at 9:00 a. m. on June 12, 1963, and on information he stated that the plaintiff was in his office as instructed. Attached to Mr. Blowitz’s affidavit was a copy of a letter dated July 18, 1963, addressed to Judge Pavlik regarding this case, notifying the judge that there had been no ruling on the pending motion. This was sent as a reminder that the motion was still pending.

The plaintiff contends: (1) It is an abuse of discretion to hold a matter under advisement for two years and then refuse to reinstate it; (2) the desire to eliminate the court backlog is to promote justice, and (3) the non-negligent plaintiff should not be denied his day in court.

The plaintiff argues that the motion to reinstate the case was filed the same day. Approximately one month after the court took the matter under advisement the plaintiff’s attorney sent a letter to the court asking it to remember that this matter was pending and no ruling had yet been made. He also argues that if the action of the court to which application is made is unjust and oppressive and has resulted in a substantial injury to the appellant such action should be reversed on review. Goldman v. City of Chicago, 54 Ill App2d 437, 203 NE2d 703. However, in the Goldman case, supra, the opinion shows a disagreement as to what happened to the case when it was called for trial. The plaintiff there contended that because of the engagement of defendant’s counsel there was an agreement among the parties and the court that the case be put on the dormant calendar, thereby entitling plaintiff to personal notice before it could be restored to the trial call. The assignment judge stated that his record showed that the case had been put on the hold call, in which event there would be no necessity for notice. The court there stated that, where there is a genuine dispute as to whether the case had been placed on the hold call or on the dormant calendar, the proper exercise of discretion requires the court to avoid punctilious enforcement of the hold call procedure. In the case before us there was no misunderstanding as to when this case was set for trial. The plaintiff understood it was set for 10:00 a. m. on the morning of June 12, 1963, and, in the plaintiff’s attorney’s affidavit, the attorney stated that his failure to respond at 10:00 a. m. in this case was unavoidable, since it was absolutely necessary that he attempt to handle the case before Judge Paschen as well as the case before Judge Pavlik. He further stated in his affidavit he felt the case of Gordon v. City of Chicago, which was pending before Judge Paschen, could be disposed of within a short period of time without the necessity of a trial. This is not the equivalent of inadvertence, or mistake. He knew at the time he went to Judge Paschen’s court that Judge Pavlik was waiting to proceed in this case. He apparently made no effort to advise Judge Pavlik that he had determined to go to another courtroom knowing that this case was to proceed to trial at 10:00 a. m. It is unclear to us how the two cases could have been sent out by the assignment judge for trial by the same attorney on the same day, and since the record is silent on this point, we assume that Mr. Ozmon’s associate, who appeared before the assignment judge made no objection. We can also safely assume that the plaintiff was represented before the assignment judge, or the case would have been dismissed for want of prosecution in that court.

The plaintiff’s contention that it was an abuse of discretion to hold the case under advisement for two years and then refuse to reinstate it, is, in our opinion, without foundation. At the hearing held by the court on June 12, 1963, the attorney for the plaintiff offered to give the court the citation of a case which he could not recall. There is nothing in the record to indicate that the plaintiff’s attorney at any time during the more than two-year period which intervened gave the court the citation of the authority he had in mind. The citation of the case which he promised to send to the court was Leong v. Railroad Transfer Service, Inc., 302 F2d 555. In that case both attorneys were absent from court on the day the case was called for trial, and the court refused to listen to the reason why the attorneys for both sides were absent from the courtroom. In the case before us the City’s representative was in court at 10:00 a. m. on June 12, 1963. There was no misunderstanding on the part of either side as to the time set for trial, and in the concurring opinion of Judge Schnackenberg in the Leong case, supra, the following pertinent language appears:

“It is conceded that, on a regular trial call, the court announced that this case was held for trial. Every trial lawyer knows what that language means. He is alerted to be ready to proceed immediately when the case is called for trial. ... If a lawyer, who is told by the court that his case is held for trial, is permitted to remain away from court until persons connected therewith notify him that his presence is required, an unwholesome system, involving favoritism and interfering with the proper discharge of their public duties by the employees involved, will be created.”

Furthermore, in the Leong case, supra, one of the controlling factors was that it would be unconscionable that plaintiff’s cause of action for serious personal injuries, for which a new suit would have been barred by the statute of limitations, should be dismissed without her personal fault. This same compelling reason is not present in the instant case, and during oral arguments this court was told that because of the minority of the plaintiff the time has not elapsed within which to bring a new action.

The plaintiff argues that the desire to eliminate the court backlog is to promote justice. Of course that is true, but we cannot see how the backlog can be eliminated if each attorney representing a plaintiff were to keep the trial judge waiting for forty minutes while he took care of some other matter. It appears to us to be inexcusable and a direct discourtesy to the court for an attorney not to communicate in some manner to the court that he will be unable to attend. While the affidavits filed here show that he appeared in another courtroom they do not show any effort in any manner to communicate that fact to the trial judge who was waiting and ready to proceed in this case. The first affidavit filed by the attorneys for the plaintiff in support of the motion to vacate the order of dismissal and reinstate the case, states that Charles R. Winkler was before Judge Hermes from 9:30 a. m. to 11:00 a. m. The affidavit fails to show for what purpose Mr. Winkler was before Judge Hermes, or that he was engaged before Judge Hermes. The affidavit further states that “there were no other attorneys available from the office of your affiant, Nat P. Ozmon.” We do not understand what is meant by “no other attorneys available.” If there.were other attorneys in the office, the affidavit does not indicate why they were not available. We cannot see how the conduct of the plaintiff’s attorney in this case would tend to eliminate the court backlog or promote justice.

Plaintiff also argues that the nonnegligent plaintiff should not be denied his day in court, and in support of that argument cites the case of Parks v. The City of Chicago, 50 Ill App2d 100, 199 NE2d 830. That case can be of no comfort to the plaintiff, because in that case the trial court’s order denying a reinstatement was affirmed.

In Nordstrom v. City of Chicago, 119 Ill App 465, the plaintiff on his own motion moved to vacate a dismissal of his suit for want of prosecution on the ground of his attorney’s negligence. The court denied Nordstrom’s motion and said at page 466: “The suit was dismissed at plaintiff’s costs upon regular call, and it was discretionary with the trial court whether to reinstate or not.”

In Stewart v. Chicago & A. R. Co., 207 Ill App 549, the court sustained the dismissal of a suit because the plaintiff was not ready for trial. On page 552 the court said: “When the court so exercises its discretion in the matter, its action will not be interfered with by a reviewing court, unless there has been a clear abuse of its discretion.”

Neither the plaintiff nor the plaintiff’s attorney appeared for trial at the appointed hour. If the plaintiff was in the attorney’s office at 9:00 a. m. on that morning, as appears upon information in the affidavit of Mr. Blowitz, and no one else was available, there is no reason why the plaintiff or his father could not have been in court at the appointed hour. We advert again to the case of Parks v. City of Chicago, 50 Ill App2d 100, 199 NE2d 830 (abstract opinion). The court said the following :

“Litigants and their attorneys owe a duty to the court to be ready to proceed with trials in their cases when reached on the trial calendar. This is particularly true today with the great number of pending cases and because of the efforts being made, both by the assignment judge and the trial judges, to cut down the backlog of pending cases. If the plaintiff’s attorney in this case was unable to locate his client prior to trial, it became his duty to apprise the court of that fact immediately instead of waiting until the day the case was set for trial.
“If the plaintiff could rely on his affidavit and the affidavit of his attorney in this case, he would be entitled to a vacation of a dismissal order merely because of his failure to appear in court, or by staying away from court on the day the case was called.
“We are of the opinion that the assignment judge did not abuse his discretion when he entered the dismissal order, or when he refused thereafter to vacate said order.”

We conclude that there was a duty owing to the court to be ready to proceed with the trial of the case on June 12, 1963, at 10:00 a. m. Having failed in that duty, and having failed to appear, or, in the alternative to inform the court in some manner that the attorney had elected to go to another courtroom, but to expect the court, without any information, to wait for forty minutes for the arrival of the plaintiff’s lawyer shows utter disrespect to the court. The court in this case properly exercised its discretion and the judgment is affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William O. Wolfe, Defendant-Appellant.
    Gen. No. 49,897.
    First District, Second Division.
    July 22, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall Hartman, Marshall A. Patner, Frederick F. Cohn, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a conviction for the unlawful sale of narcotics, after a jury trial, with sentence in the Illinois State Penitentiary for a term of ten (10) years to life.

The indictment reads as follows:

The Grand Jurors chosen, selected, and sworn, in and for the County of Cook, in the State of Illinois, in the name and by the authority of the People of the State of Illinois, upon their oaths present that on the 16th day of September 1963 at and within said County, William 0. Wolfe, committed the offense of sale of a narcotic drug in that he knowingly sold to Leon Robinson otherwise known as Bill Jones for lawful money of the United States of America, otherwise than as authorized in the Uniform Narcotic Drug Act of said State of Illinois then in force and effect, a quantity, (the exact quantity of which is unknown to said Grand Jurors,) of a certain narcotic drug, to wit, opium, that is to say, heroin.

Prior to the trial, defense counsel filed a motion to suppress evidence. The only witness to appear at the . hearing was Detective Arnold, one of the arresting officers. Defense counsel made several efforts during the hearing to obtain an informer’s identity but the court refused to order the name of the informer disclosed and further refused to order the informer to testify at the hearing to suppress. The motion to suppress was denied.

During the trial, Detective Arnold made statements, which were inconsistent with his testimony at the hearing on the motion to suppress. At the hearing, he testified that he saw the money change hands but at the trial he stated he could not see what, if anything, was exchanged. He also stated at the hearing that the informer did not beckon to defendant to come out of a restaurant, but stated at the trial that the informer tapped on the window of the restaurant as a signal for defendant to come out. He further stated at the hearing that defendant came out of the alley, but at the trial testified that defendant came out of the restaurant, not out of the alley. He also stated at the hearing, that he signalled Officer Jackson to make the arrest by tipping his hat while seated in a car, but testified at the trial that he signalled Officer Jackson by waving his hand outside the car window. He also stated at the hearing that he drove south after he saw defendant stoop down and pick up something, but at the trial testified that he drove past defendant and parked the car, before he saw defendant bend over and pick up something. Finally, he stated at the hearing that Officer Jones was standing on 47th Street midway between South Park and Forrestville just before the arrest, but at the trial testified that Officer Jones was standing on the northwest corner of 47th Street and South Park.

At the trial, three officers claimed they witnessed the transaction between the informer and defendant. One of the officers stated that he saw the passing of the money and another object. Another officer said he saw the hands of the informer and defendant meet. The third officer did not see any exchange.

The informer was produced at the trial. On direct examination, the informer testified that he received a package of narcotics from defendant for eight dollars; that he then signalled the officers; and that they made the arrest and found the previously identified money in defendant’s possession. On cross-examination, he testified that defendant had sold heroin at a time prior to the incident charged in the indictment. This answer was allowed to stand over defense objection.

Defendant took the stand and stated that he did not sell any narcotics to the informer. He admitted ownership, but testified that he gave the package to the informer for safekeeping.

The People, in rebuttal, introduced the record of defendant’s prior plea of guilty to burglary and larceny to impeach defendant’s testimony.

The jury returned a verdict of guilty. The hearing in mitigation and aggravation consisted of a recital of defendant’s criminal record and an argument by defense counsel for mercy from the court. The court sentenced defendant to a term of ten years to life. This is an appeal from that conviction and sentence.

Defendant’s theory of the case is (1) that the indictment contained fatal defects in that (a) the indictment did not name the place of the offense other than that it occurred in Cook County, (b) the indictment did not state the statute alleged to have been violated and (c) said defects were not waived by defendant; (2) that defendant did not receive a fair hearing on the motion to suppress evidence in that (a) defense counsel was not permitted to examine the informer at the hearing on the motion to suppress and (b) the only witness to testify proved himself not to be a credible witness and (3) that defendant was prejudiced at the trial (a) by testimony that defendant had sold narcotics prior to the offense for which he was being tried and (b) by use of a guilty plea to impeach defendant’s testimony.

We find no merit in part (a) of defendant’s first contention. The case at bar falls directly within the purview of the Supreme Court’s opinions in People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1965) and People v. Petropoulos, 34 Ill2d 179, 214 NE2d 765 (1966).

In support of part (b) of his first contention, defendant points out that the Code of Criminal Procedure chapter 38, section 116-2, Ill Rev Stats (1963) chapter 38, paragraph 116-2, states that the indictment shall cite the statutory provision alleged to have been violated. Defendant points out that the indictment in the instant case did not cite the statutory provision but only charged defendant with violation of the Uniform Drug Act and that this was inadequate in that the Uniform Drug Act consists of numerous sections (49 in all). We find no merit in defendant’s contention. There is only one section in the Uniform Drug Act pertaining to narcotics violations and this can be found in chapter 38, section 22-3 of the Criminal Code. The indictment adequately informed defendant that he was being charged with the sale of a narcotic drug.

Thus, it is unnecessary to discuss whether or not thq¡ alleged defects in the indictment were preserved for review.

Defendant’s second contention is that he did not receive a fair hearing on the motion to suppress evidence. Defendant points out that a search and seizure of contraband, after an arrest without a warrant, is valid only if the officer has reasonable grounds to believe the suspect had committed an offense prior to arrest. Defendant contends that probable cause for the arrest did not exist, (a) in that the informer who was a participant in the crime was not disclosed or permitted to testify at the hearing and (b) in that the only witness allowed to testify, proved himself not to be a credible witness because of subsequent inconsistencies in his testimony at the trial.

In People v. Rovario, 373 US 53 (1957) the court ruled that the name of an informer, who participates in a crime, must be disclosed. Subsequently, in People v. Mack, 12 Ill2d 151, 145 NE2d 609 (1957), the court held that the name of the informer did not necessarily have to be disclosed at the trial if said informer was not a participant in the crime. This rule was extended to pretrial hearings in People v. Durr, 28 Ill2d 308, 192 NE2d 379 (1963). In People v. Beattie, 31 Ill2d 257, 201 NE2d 396 (1964), however, the court held that it was error for the court to strike testimony relating to information given by an undisclosed informer at a pretrial hearing on a motion to suppress evidence, where the informer did not participate in the offense, was not present at the time of the arrest or did not possess information relevant to the defense. We are compelled to hold that an informer who participates in a crime, as is the situation in the case at bar, must be disclosed at a pretrial hearing on a motion to suppress, if other evidence does not establish probable cause, and failure to allow such a disclosure is error.

The only witness to testify at the hearing on the motion to suppress was Detective Arnold. The testimony of Detective Arnold at the hearing contained many inconsistencies when compared with his testimony at the trial. Thus, the failure to produce the informer at the pretrial hearing, together with the inconsistencies of the People’s only witness, severely damaged defendant’s case as to the probable cause in the hearing on the motion to suppress.

The People rely on People v. Smith, 70 Ill App 2d 289, 217 NE2d 546 (1966) in support of their position that if an informer later testifies at the trial, this will cure any error that took place by the failure of said informer to testify at the pretrial hearing, in that the informer is subject to cross-examination by defendant. We disagree that the Smith case, supra, supports this contention. In the Smith case, supra, the informer testified under an alias at the trial and the court ruled that there was no need to divulge the name of the informer, if in fact, the defendant had an opportunity to cross-examine the informer. In the case at bar, the defendant had no opportunity to cross-examine the informer at the hearing on the motion to suppress. The motion to suppress was denied and the evidence sought to be suppressed was utilized at the trial. The only opportunity defendant had to suppress this evidence was at the hearing on the motion to suppress. Therefore, the lack of an opportunity for defendant to cross-examine the informer was prejudicial to defendant.

Finally, we find that defendant’s third contention is without merit. The use of prior convictions, even though based on a plea of guilty, is proper in order to impeach a defendant’s testimony.

Defendant’s allegation that prejudicial error was committed, in that other crimes than the one stated in the indictment were introduced, is invalid. A review of the cross-examination of the informer immediately preceding the testimony that defendant had committed other crimes reveals that the informer testified that “I did not look into the package. I did not know what was in the package.” Defense counsel then asked, “It could have been baking powder; it could have been anything that would fit into that package, could it not?” The informer then made the following alleged prejudicial answer: “He sold a lot of bags previous that morning; so I know it couldn’t be baking powder.” The defense counsel by phrasing the question in the manner above, invited the response made by the witness. We find no error on the part of the trial court in refusing to strike the answer given by the witness.

In accordance with the procedure adopted by the court in People v. Beattie, supra, we will remand the cause to the trial court with directions to conduct a new preliminary hearing on the motion to suppress. If, after hearing all relevant evidence, the trial court suppresses the evidence a new trial must be granted. If, however, the motion to suppress is denied, the trial court shall enter a new final judgment of conviction.

We are aware of the result reached in the decision of People v. Catavdella, 31 Ill2d 382, 202 NE2d 1 (1964), where because of errors that took place during a hearing on a motion to suppress, the case was reversed without remand. The reason for the outright reversal, was due to the fact that the only evidence of defendant’s guilt, was the evidence which was discovered in the back seat of the car at the time of the arrest and which was later suppressed. The facts are different in the case at bar. There is other evidence available, which the State may use.

The judgment is reversed and cause remanded with directions to proceed in a manner not inconsistent with these views.

Judgment reversed and cause remanded with directions.

BRYANT, P. J. and BURKE, J., concur.


author: MR. JUSTICE BURKE

text:
    Peter Kanelos and A. Spiegel, d/b/a Credit Finance Company, Assignee of Peter Kanelos, Plaintiffs-Appellees, v. John Tzamalis, Defendant-Appellant.
    Gen. No. M-50,454.
    First District, Second Division.
    July 22, 1966.

      Thomas O. Flack and Charles V. Hogren, of Chicago, for appellant.
    John D. Vosnos, of Chicago, for appellees.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This appeal is taken from an order entered on November 30, 1864, denying defendant’s petition to vacate a judgment by confession entered on November 28, 1962.

On April 30, 1962, defendant purchased a restaurant business from Peter Kanelos and Virginia Behensky, located at 728 South State Street in Chicago, known as The Little Star Restaurant. The contract of sale called for a purchase price of $5,000, of which $2,000 was paid at the time of the sale, the balance to be paid over a 6-month period, either in cash or by defendant retiring debts which accrued against the sellers of the business prior to the sale, or by a combination of both methods. Defendant also signed a judgment note evidencing the $3,000 indebtedness, made payable to “the order of Virginia Behensky & Peter Kanelos.” The note was in the usual form with a warrant of attorney to confess judgment, including attorney’s fees, interest and costs, and a waiver and release of all errors which might arise in a proceeding to confess judgment.

On November 26, 1962, Peter Kanelos filed his statement of claim to confess judgment upon the note for the full amount, attorney’s fees, interest and costs. The statement recited that “Co-Plaintiff, Virginia Behensky declines to join this confession of judgment,” but Virginia Behensky was not made a party to the action.

Execution on the judgment was issued December 6, 1962, and defendant was personally served on December 7th, On February 4, 1963, defendant filed a petition to open the judgment and for leave to plead, alleging that he was diligent in presenting the petition and that he had a good and meritorious defense on the merits, namely, that he had retired debts of over $3,000 which had accrued against the owner of the business prior to the date of sale and was therefore entitled to a credit against the balance due in accordance with the terms of his contract. Hearing on the petition was continued from time to time until July 15, 1963, on which date the petition was stricken. The judgment by confession was subsequently assigned to A. Spiegel, d/b/a Credit Finance Company, appellee herein.

On July 17, 1964, defendant filed a petition to vacate the judgment by confession, alleging that the note upon which the judgment was confessed was payable jointly to Peter Kanelos and Virginia Behensky and that the judgment was void because it was entered on the complaint of and in favor of only one of the joint payees. The petition was denied and defendant appeals.

Defendant maintains that the judgment is void for the reason that all joint obligees on a note are necessary parties to an action to enforce the note and must join as plaintiffs or be joined as defendants. We agree.

At the outset it should be noted that during oral argument counsel for the appellee suggested that this court, sua sponte, dismiss this appeal on the ground that appellant did not file excerpts of the record. Despite this failure, we have decided to pass on the points urged for reversal because appellee did not make this suggestion until oral argument. Had it been made sooner appellant would have had the opportunity to request leave to supply the excerpts. This court has searched the record and found all matters necessary to a proper determination of this cause.

Any material departure from the authority granted by an obligor under the warrant of attorney in a judgment note will require vacation of the judgment obtained thereunder. Wells v. Durst Chevrolet Co., 341 Ill 108, 111, 173 NE 92. While a waiver of error clause contained in a warrant of attorney effects a waiver of all formal errors which may arise in a proceeding to confess judgment, errors of a material or substantive nature, such as those which pertain to the court’s jurisdiction or to the power under the warrant to confess judgment, are neither released nor waived by virtue of the clause. First Nat. Bank of New Paris, Ohio v. Royer, 273 Ill App 158, 160, 161; see also 49 CJS Judgments § 169.

At common law obligees on a note were required to enforce the note jointly, neither obligee having a right to bring suit thereon individually. Connolly v. Cottle, Beecher’s Breese 364 (Ill); Archer v. Bogue, 3 Scam 526 (Ill). Passage of the Negotiable Instruments Act in 1907 permitted negotiable instruments to be made payable to one or more payees jointly, to one of two payees in the alternative or to one or some of several payees. See Paluszewski v. Tomczak, 273 Ill App 245, 248, 249. While the Negotiable Instruments Act in force at the time the note in question was executed allowed bills and notes to be made payable to one of two alternate payees and negotiated or enforced by either it does not appear that the Act intended to alter the common law as to the necessity of joining joint payees. Ill Rev Stats 1961, chap 98, Pars 50-79; Paluszewski v. Tomczak, 273 Ill App 245. It is significant that the Uniform Commercial Code enacted subsequent to the making of the note in the instant case provides that an instrument payable to two or more persons, not in the alternative, may be enforced only by all of them. Ill Rev Stats 1963, chap 26, Par 3-116. The right to confess judgment on the note in question had to be exercised jointly by Peter Kanelos and Virginia Behensky, both of whom are necessary parties to the action. It appears from the complaint that Virginia Behensky declined to become a party plaintiff to the confession of judgment action. Peter Kanelos, the other payee, did not join her as a party defendant as permitted by section 23 of the Civil Practice Act, Ill Rev Stats 1965, chap 110, Par 23.

The warrant of attorney contained in the note herein authorized any attorney of any court of record to confess judgment in favor of “the payee or the holder” of the note. Since Peter Kanelos and Virginia Behensky are joint payees, the phrase “the payee or the holder” refers to both payees jointly. The contention of appellee that judgment on the note could be procured to be confessed by either or both of the named payees, relying on Nash v. Clark, 310 Ill App 437, 34 NE2d 876, cannot be sustained. The Nash case deals with joint and several obligors whereas the instant case involves joint obligees.

Appellee maintains that the sole question on this appeal concerns the trial court’s jurisdiction over the person of the defendant in the confession action. We agree that the trial court had jurisdiction of the subject matter and the parties and that defendant entered a general appearance. The issue presented is whether the power in the warrant of attorney authorized an attorney selected by Kanelos, in his cognovit, to confess judgment against defendant without making the other payee (who refused to join as a plaintiff) a party defendant. We hold that the power to confess judgment against one of the two payees was not given. The fact that defendant’s actions subsequent to the entry of the judgment constituted a general appearance is immaterial.

Appellee calls attention to section 26 of the Civil Practice Act (Ill Rev Stats 1965, chap 110, Par 26), that no suit shall be dismissed for misjoinder or nonjoinder of necessary parties. The relief requested here is not that the suit be dismissed, but that the judgment by confession be vacated. The holding of this court in no way prejudices the right of plaintiff-assignee to prosecute any claim he may have. The plaintiff will have the right to make Virginia Behensky a party defendant and the case may then proceed as a normal common law action.

The order denying defendant’s motion to vacate the judgment is reversed and the cause is remanded with directions to vacate the judgment and for further proceedings not inconsistent with these views.

Order reversed and cause remanded with directions.

BRYANT, P. J. and LYONS, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edwardell Noble, Defendant-Appellant.
    Gen. No. 51,077.
    First District, Second Division.
    July 22, 1966.
    Edwardell Noble, pro se, appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago, for appellee.
   ON MOTION FOR LEAVE TO WITHDRAW AS ATTORNEY

MR. JUSTICE BURKE

delivered the opinion on motion for leave to withdraw as attorney.

The court having considered the Motion by the Public Defender, Gerald W. Getty, for Leave to Withdraw as Attorney for Defendant-Appellant, Edwardell Noble, and the affidavits of two Assistant Public Defenders who investigated possible ground for review on the common-law record and the transcript of proceedings, and the court having examined the common-law record and the transcript of proceedings and found:

The prosecuting witness, Paul Parenteau, testified that on the night of September 14, 1965, he was drinking in a tavern on West Leland Avenue in Chicago. Codefendant Charles Porter imposed upon Parenteau to shoot a game of dice but Parenteau declined. After further prompting the two men went outside and rolled dice in a nearby hallway. Porter was losing and asked to borrow money from Parenteau. Parenteau declined and offered to buy Porter a drink instead. They returned to the tavern and Parenteau bought drinks and left shortly thereafter. As he left the tavern he was accosted by four men in a nearby alley. The men knocked him to the ground, spread-eagled him on his back and proceeded to beat and rob him of his wristwatch, keys and some $80. While the robbery was in progress, a police car entered the alley and the four men ran. The three codefendants, Noble, Porter and Perry, were apprehended within a few minutes in the immediate area of the incident and Parenteau, at the scene, identified all three as the assailants.

Chicago Police Officer Matthew Barker testified that he and his partner, Officer Leroy Wandtke, were cruising in their squad car when they saw four men beating and apparently robbing a fifth man in an alley. They first witnessed the incident from about 100 feet away, and were some 50 feet away when the four men ran. The victim, Parenteau, had bruise marks about his face and head. The three defendants were apprehended within a few minutes within 70 feet of the place where the incident occurred and all three were immediately identified by Parenteau as the assailants. The three defendants were taken to the police station and searched. A wristwatch and keys belonging to Parenteau were found on Perry and $41 was found on Porter.

Defendant Porter testified that he and another man were shooting dice on the night in question and that Parenteau walked up to them and asked where he could locate a woman. Porter told him he did not know and Parenteau left and went to a tavern. Porter left the game a short while later and went to the same tavern where he had a few drinks with Parenteau. After some discussion the two men left the tavern to shoot dice. Defendant Noble was also in the game. Defendant Perry came on the scene later and watched the game but did not join. Parenteau was losing and prevailed upon Porter to loan him $5 with Parenteau’s watch as security. He was losing again and prevailed upon Perry for a loan of $20. The police arrived and everyone ran. Porter denied being engaged in a fight or robbing Parenteau.

Defendant Perry testified that he came upon the dice game while it was in progress but did not join. Parenteau was losing and asked Perry for a loan of $20, for which he gave his keys as security. Perry denied that he ever had Parenteau’s watch in his possession. (Officers Barker and Wandtke testified that both the keys and the watch were found on Perry.) The police arrived and everyone ran. Perry denied both the fight and the robbery.

Defendant Noble testified that he engaged in a dice game with Parenteau, Porter and another person. Perry was there but was not playing. Parenteau was losing and prevailed upon Perry for a loan of $20. Noble heard the word “collateral” used in the discussion between Perry and Parenteau. Noble denied a fight took place and denied the robbery. He stated that the only physical contact which occurred between the players was when they began to run and collide with each other when the police arrived.

Officer Wandtke testified that the keys and the wristwatch were found on Perry at the police station and that at that time Perry accused him of planting both the keys and the watch on Perry. The Officer further testified that at the police station all the defendants denied ever having seen Parenteau before.

The State introduced properly authenticated copies of the defendants’ felony records expressly for the purpose of impeaching their credibility.

Defendants were sentenced to one to four years in the penitentiary.

We conclude that the Motion of the Public Defender, Gerald W. Getty, for Leave to Withdraw as Attorney for Defendant-Appellant, Edwardell Noble, is well sustained by the record. The Public Defender is accordingly given Leave to Withdraw as Attorney for Defendant-Appellant, without prejudice to the right of Defendant-Appellant to proceed pro se. The filing of an abstract by Defendant-Appellant is waived and he may within sixty (60) days from August 1, 1966, file a brief.

Motion allowed.

BRYANT, P. J. and LYONS, J., concur.


author: MR. PRESIDING JUSTICE BRYANT

text:
    Arthur L. Lonergan, et al., Appellees, v. Crucible Steel Company of America, Wheeling Steel Corporation, Hunt Foods and Industries, Inc., and R. A. Aishton, Appellants.
    Gen. No. 51,330.
    First District, Second Division.
    July 22, 1966.

      W. McNeil Kennedy, Roy S. Kullby, Robert P. Howington, Jr., and Pope, Ballard, Uriell, Kennedy, Shepard & Fowle, of Chicago (William H. Knoell, of Pittsburgh, Pennsylvania, of counsel), for appellants, Crucible Steel Company of America and R. A. Aishton.
    Albert E. Jenner, Jr., Charles J. O’Laughlin, Richard P. Glovka, and Raymond, Mayer, Jenner & Block, of Chicago (William D. Randolph, of Fullerton, California, of counsel), for appellants, Wheeling Steel Corporation and Hunt Foods and Industries, Inc.
    Max Wildman, John W. Kearns, Jr., Bernard F. Stewart, Kirkland, Ellis, Hodson, Chaffetz & Masters, and Kaplan & Kaplan, all of Chicago, and Feuerstein & Underweiser, of New York City, for appellees.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This interlocutory appeal comes from an order entered in the Circuit Court of Cook County April 26, 1966, granting a temporary injunction directing the defendants to adjourn the annual stockholders meeting scheduled for the following day until August 29, 1966. The order states that this adjournment “will permit sufficient time to correct the allegedly misleading solicitation material transmitted by management and the correction of other charged violations . . .”

The complaint alleged that each of the four plaintiffs, all Illinois residents, are shareholders in the Crucible Steel Company of America, hereinafter called Crucible, and that they have been shareholders at the times of all the transactions complained of. When this suit was filed, these four plaintiffs owned a total of 104,400 shares of Crucible common stock out of approximately 3,879,180 shares outstanding. The plaintiffs allege that they bring this action, “on behalf of themselves and representatively and derivatively be on behalf of themselves and all of the stockholders of Crucible similarly situated.”

The complaint names as defendants, Crucible, Wheeling Steel Corporation, hereinafter known as Wheeling, Hunt Foods and Industries, Inc., hereinafter known as Hunt, and 46 individuals, officers or directors of the above-mentioned corporations or past directors of Crucible. Of the defendants only the three corporations and R A. Aishton are before the court.

The complaint alleges the existence of a conspiracy to turn over the control of Crucible from the elected directors to a group of so-called outsiders for the purpose of “perpetuating themselves in office as directors and officers of Crucible for their own personal gain and profit and at the expense of Crucible and its other stockholders.” It is further alleged that, “ [d] efendants Hunt and Wheeling and their officers and directors, and in particular, defendant Simon, were extremely desirous of accomplishing their selfish objective of causing a merger between defendant Wheeling and defendant Crucible whereby Wheeling would obtain control of Crucible. Defendants Hunt and Wheeling, as well as their officers and directors, and in particular, defendant Simon, realized that Wheeling was in serious business difficulties and had been operating at a substantial economic loss and that defendant Crucible with its tremendous assets and business capacity would be a very desirable company for defendant Wheeling to merge with to the detriment of Crucible.” Excessive compensation to various individual defendants is also alleged in the complaint. The defendants who appeared, answered and the plaintiffs replied.

It seems to be uncontested that trading in the shares of Crucible on the New York Stock Exchange became unusually active early in January 1966. On January 4, it led all stocks traded with 247,700 shares being purchased and sold; trading was stopped by the middle of the afternoon. Joel Hunter, president of Crucible, became worried about this sudden activity in the stock of his corporation and feared an attempt was being made to take over Crucible. What in fact was the cause of this unusual spurt in trading and who actually were the purchasers has never been determined. In any event, by the end of that week, over 900,000 shares had been traded, which was more than half the total number of shares traded the previous year. Hunter contacted certain members of the board of Crucible to determine what would be the best course of action, and then contacted a Mr. Stinson, head of another steel company, to determine whether a merger between their two companies would be possible. Mr. Stinson chose not to consider the matter.

The evidence presented at the hearing below reveals that James H. Higgins, a member of the Crucible board, suggested that an attempt to contact Norton Simon might prove useful. Mr. Simon is a director of Hunt, and apparently has a reputation in financial circles as a gentleman of great business acumen. Hunt is a large operating company with investments in such diversified areas as the food, paint, glass, can and cottonseed crushing businesses as well as the steel, railroad, printing, publishing and dental supply fields. Simon suggested that Hunter discuss the matter with Robert Morris, president of Wheeling Steel, a company in which Hunt had a large investment.

Hunter accordingly went to Wheeling, West Virginia, where he discussed Crucible’s situation with Morris. A merger between the two companies was mentioned, but as far as the evidence shows, it never got past the most elementary discussion stages. Mr. Simon kept abreast of the Hunter-Morris conversations by telephone and it was eventually decided that Hunter and Morris should meet with Simon and members of Hunt’s finance committee the following day.

In short, an agreement was finally reached whereby Hunt agreed to take a position in Crucible shares and in fact did invest a very large amount in these securities.

It apparently is not disputed that Simon suggested the formation of a finance committee for Crucible and also suggested that he be chairman of the committee. It is also undisputed that Simon and three of his associates were elected to the board of Crucible to fill vacancies which occurred when elected board members resigned to make way for them. These arrangements between the Hunt board and the Crucible board are claimed to be improper by the plaintiffs.

The plaintiffs also question whether adequate disclosure of these affairs was made to the shareholders of Crucible. The claim is made that the proxy solicitation material was not complete. Both the management proxy statement and the Rubin group proxy statement were filed with the Securities and Exchange Commission. No evidence was introduced to show that the Securities and Exchange Commission found anything misleading about any of the material.

The plaintiffs also allege, apparently to show a motive for the actions by the Crucible board, the fact that the corporation had been badly mismanaged for several years. As was made apparent by their briefs and their oral arguments before this court, one of the major points of contention concerns the conduct of Crucible’s operations abroad. Apparently the question concerns the wisdom of beginning the operation in the first place, and also the manner in which the books were kept. We do not know where these books are, but we assume they are not in Illinois.

As we stated at the outset, a temporary injunction was granted by the Circuit Court directing that the shareholders meeting be postponed from April 27, 1966, to August 29, 1966, so that allegedly misleading solicitation material transmitted by management might be corrected, “and to permit solicitation by the plaintiffs of proxies already obtained by management and others held in so called street name.”

The complaint also asks in addition to other relief that the defendants be forever barred from voting their shares in the election of directors, that the defendants be forever barred from acquiring, either directly or indirectly, Crucible shares, that the defendants be prohibited from voting any proxies they have or may hereafter acquire, and that the defendants Simon, Clumek, Morris and Rich be enjoined from acting either directly or indirectly as members of the board of directors of Crucible or any committee of directors of Crucible.

The complaint finally asks that Crucible recover from all the defendants the amount of 100 million dollars compensatory damages and 100 million dollars punitive damages.

The defendants have argued in the Circuit Court and here that Illinois courts should not take jurisdiction over this matter. No claim is made that the Circuit Court does not have jurisdiction over the three corporate defendants and the one individual defendant before it, but it has been urged that jurisdiction should not be exercised because the courts of one state will not normally interfere with the internal affairs of foreign corporations. The plaintiffs, of course, urge that the Illinois courts should take this matter for a decision on the merits. Both sides cite Babcock v. Farwell, 245 Ill 14, 91 NE 683 (1910) in support of their propositions. That case dealt with a suit by a stockholder to have a contract between the corporation and certain defendants declared unconscionable and void. The substance of the acts lay in the allegations of fraud, and the plaintiff sought an accounting. The corporation was organized in England for the purpose of running a cattle ranch in Texas. The defendants were residents of Illinois and the corporation’s main land office was in Chicago. The court stated as the general rule the proposition that the courts of one state will not determine controversies relating to the internal affairs of a foreign corporation. The court went on to say, however, that the rule had certain limitations, since the problem was not merely a question of jurisdiction, but of whether the particular court in which relief is being sought is the most appropriate forum to make the necessary adjudication. The opinion then gives several examples of cases where the courts have refused to take jurisdiction. In distinguishing the case before it from the preceding examples, the court said, “But here the relief sought substantially amounts to requiring resident directors of the corporation to restore to it such sums of money as upon an accounting they shall be found to have unlawfully diverted and retained from it. The corporation and all persons necessary to a decree adjusting the rights involved in the controversy have appeared in the cause. Such decree as may be rendered will be personal and may be enforced in the ordinary manner.” Babcock v. Farwell, 245 Ill 14, 34, 35, 91 NE 683, 690.

In more recent years, the courts have made the rule somewhat more general by saying that where the corporation is foreign only in the sense that it was incorporated in another jurisdiction, the courts of the state of its domicile will take jurisdiction even where the suit deals with that corporation’s internal affairs. Continental-Midwest Corp. v. Hotel Sherman, Inc., 13 Ill App2d 188, 141 NE2d 400 (1957), Fletcher, Cyclopedia of the Law of Private Corporations § 8427.

Crucible is a New Jersey Corporation with its principal place of business in Pittsburgh. Less than one percent of its assets, less than one percent of its employees and about three percent of its sales are in this state. None of its officers or directors resides here. It is by any test, a corporation foreign to this jurisdiction.

It remains for us to determine whether this suit would require the determination of matters concerning the internal affairs of this corporation. The plaintiffs have asked that certain defendants be prohibited from voting their shares, or proxies which they hold. They also ask that certain defendants be stopped from serving on the board of directors of Crucible. In addition, they seek a determination that the organization of the finance committee be held improper. The charge is also made that excessive salaries were paid to certain officers or directors of Crucible.

Among the examples given in the Babcock opinion, supra, of cases where a court should refuse to exercise jurisdiction is one where a suit is brought to restore a stockholder to his right to vote at annual meetings. It seems to us that if such an action as this would constitute interference in the internal affairs of a foreign corporation, then an action to restrain certain individuals from voting shares at the annual meeting should likewise be held to be interference in internal affairs.

Where the claim is made that directors of a corporation acted improperly in carrying out their duties, the courts have held that such determination deals with the internal affairs of a corporation. Sprague v. Universal Voting Mach. Co., 134 Ill App 379 (1907), Fletcher, supra, § 8429. It seems clear to us that the charge brought against the board of Crucible that it acted improperly in setting up the finance committee, that it acted improperly in trying to protect the corporation from what it believed to be raiders, that it voted certain salaries which the plaintiffs claim are excessive and that it mismanaged the corporation, all deal with the question of whether or not these men abused the powers given them as directors.

Moreover, where it appears that a determination of the conflict between the parties will require an examination of the books and records of the corporation, a court may refuse to take jurisdiction where these books and records are kept in another state. Lubin v. Equitable Life Assur. Society, 326 Ill App 358, 61 NE2d 753 (1945). Here, there have been claims made that the corporation did not keep proper records on its operations in Italy. It also seems that this problem was a substantial cause in the bringing of this action. The books and records of Crucible are not in Illinois. We would be justified on this ground alone in the holding that the Illinois courts should not take jurisdiction of this suit. We hold, therefore, that the relief sought by the plaintiffs would require the courts of this state to make determinations concerning the internal affairs of Crucible.

Since we have concluded that the Illinois courts should not take jurisdiction of this question, it follows that our courts should not interfere in this matter by granting an injunction. We have no Illinois cases directly on this point. Milvy v. Austin, 89 NYS2d 27 (1949) dealt with a suit brought by a shareholder to compel the directors of a Delaware corporation to declare a dividend. There it was held that the New York courts would not take jurisdiction over the action since it would involve the internal affairs of a foreign corporation, and held, therefore, that it would be improper under such circumstances for the New York courts to grant an injunction bearing on the action.

In addition, we note that other courts have refused to enjoin shareholder meetings of a foreign corporation or to enjoin the voting of shares on the grounds that such an injunction in itself would be interference with the internal affairs of a foreign corporation. In Sterling, Grace & Co. v. Seeman Bros., Inc., 29 Misc2d 561, 215 NYS2d 559 (1961), an action was brought by shareholders in the courts of New York to enjoin a meeting of a New Jersey corporation at which shareholder approval of a proposed merger with a New York corporation was to be sought. The court there refused to take the case under the doctrine of forum non conveniens, and also stated that the fact that the plaintiffs were residents of New York and that money judgments were being sought in addition to equitable relief did not take the case out of that doctrine. See also Fletcher, supra, § 2072.

While we do not hold that the enjoining of the shareholder meetings of foreign corporations is always improper, yet in this case, where all but one of the individual defendants is outside the jurisdiction of this court, where none of the acts complained of occurred in this state, and where the corporation’s principal place of business is elsewhere, the granting of an injunction such as was granted here is improper.

Fletcher, supra, § 8429 directs the reader’s attention to an article, Internal Regulation of Foreign Corporations, 29 Col L Rev 968 (1929) where the writer proposes five tests to be used in determining whether a court should refuse to take jurisdiction because the courts of the domicile can better take charge of the controversy. They are: (1) the type of relief demanded, (2) the amount of business done within the forum, (3) the amount of corporate property within the forum, (4) the residence or presence of the directors or officers of the corporation within the jurisdiction, and (5) the presence of the corporate books and records within the jurisdiction.

The type of relief demanded here would require the courts to go into practically every facet of the conduct of the business of Crucible. The amount of business done in Illinois is not substantial when compared with Crucible’s total sales; the same may be said of the corporate property here. None of the corporate officers or directors resides or is present in Illinois. The corporate books and records are not here. Under this test too, the Illinois courts should refuse to take jurisdiction over this case.

The order is reversed.

Order reversed.

LYONS and BURKE, JJ., concur.


author: PRESIDING JUSTICE BRYANT.

text:
    The People of the State of Illinois, Appellee, v. Sylvester Hubbard, Jr., Appellant.
    Gen. No. 50,775.
    First District, Second Division.
    July 22, 1966.
    Rehearing denied September 12, 1966.

      Vernon T. Squires, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joel M. Flaum, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE BRYANT.

Not to be published in full.