author: TRAPP, J.

text:
    August Hoerdt, as Trustee, and Ross S. Welch as Successor Trustee Under Trust Agreement Dated February 25, 1942, and Known as Trust No. 102, Plaintiffs-Appellants, v. City of Evanston, a Municipal Corporation, Buell Dutton and Wayne Anderson, Defendants-Appellees.
    Gen. No. 52,166.
    First District.
    August 5, 1968.
    Rehearing denied October 28,1968.

      Ross S. Welch, of Chicago, for appellant.
    Jack M. Siegel, Corporation Counsel of City of Evanston, for appellee.
   TRAPP, J.

Plaintiffs appeal from the order of the trial court which dismissed an action for a declaratory judgment, entering judgment in favor of the defendants, and against the plaintiffs. The complaint prayed that defendants be directed to issue a building permit, that the mandatory zoning ordinance of the City of Evanston be held inapplicable to plaintiffs’ property, and that said City be restrained from enforcing such ordinance as to plaintiffs’ premises.

It is alleged that plaintiffs, as trustees, acquired title to a parcel described as the East 20 feet of Lot 14 in Block 37 in a specified subdivision of blocks in 1949. The parcel has a frontage on Central Street in Evanston of approximately 20 feet and an approximate depth of 155 feet. It is further alleged that such parcel is unimproved “and is not used for any purpose whatsoever,” and that such parcel adjoins Lots 12 and 13 upon which is built an apartment building with 30 apartment units acquired by the plaintiff trustees in 1942.

The answer denies that the described 20-foot parcel is unused and alleges that it was, in fact, used as accessory to the apartment building. There is a denial that the parcel was acquired by the trustees separately from the apartment building in 1949. Nothing in the pleading or the record clarifies such issue as the stipulation in the record only states that “it appears” that title to the respective parcels was acquired on the respective dates.

An issue is whether or not the two described parcels are separate in development of title and unrelated in use, and continued to be so disparate at the time of disposition in the trial court.

Plaintiffs allege that the City of Evanston first adopted an off-street parking ordinance applicable to the apartment building, then zoned commercial, in 1952. It is argued that such apartment building, at that time, became a nonconforming use.

It is alleged that on March 15, 1963, plaintiffs applied for a building permit to construct a two-story office and apartment building; that objections were made to the plans submitted, but the revised plans and application were denied in 1963 because of inadequate off-street parking provisions. Plaintiffs then filed for a variation before the Zoning Board of Appeals. Such application was denied in October, 1963, because of the nonconforming provisions for parking on the 20-foot parcel, and because of accessory use of such parcel with the apartment building.

It is alleged that, thereafter in April, 1965, plaintiffs again submitted plans for a generally similar building on the 20-foot parcel with an application for a building permit, but that such was refused “in spite of the circumstances that such plans conformed in all respects with the zoning ordinances.”

The complaint alleges that in June, 1964, the zoning ordinance of Evanston was amended to provide:

“Where two or more adjoining lots shown in a plat properly recorded with the office of County Recorder have been held in common ownership at any time subsequent to the effective date of this ordinance and use of such adjoining lots as a single parcel would meet the requirements of this ordinance, the ownership of said lots shall not be separated nor shall any of the lots be used in any way to conflict with the regulations of this ordinance. No building permits shall be issued for the use of any lot or portion of lot sold, transferred or conveyed in violation of the provisions of this section.”

It is the apparent theory of the argument and the pleadings that plaintiffs acquired a right to a building permit upon the 20-foot parcel at the time of the application in 1963, but that the ordinance as amended in 1964 was employed to “tack” or attach the 20-foot parcel to the apartment building for zoning purposes as an “after the fact” amendment with the result that (1) the 20-foot parcel is taken without just compensation or due process when the public welfare did not require such restriction on plaintiffs’ use of the land, and (2) the plaintiffs are injured in that a right in a nonconforming use of the apartment building was lessened, or reduced in scope.

Defendants’ answer alleges multiple affirmative defenses including: that an ordinance adopted in 1940, which required parking spaces on the premises or adjoining property, was effective to control both the apartment building and the parcel when plaintiffs acquired such property in 1942 and 1949; that an ordinance adopted in 1960 provided:

“Parking spaces accessory to buildings and uses which exist on the effective date of this ordinance shall not be reduced to less than the number required under this Section X for buildings hereafter erected,”

and that the 20-foot parcel had been used since purchase as an accessory use including off-street parking to the apartment building on Lots 12 and 13.

Such answer further alleges that the zoning ordinance as amended in 1963 provided in § 42-108 that no building permit should issue unless an approved recorded plat of the area was submitted with the application for the permit, and that no such instrument had been submitted. A plat identified as Plaintiffs’ Exhibit No. 6, contained in the supplemental abstract, shows neither approval nor recording on its face, and there is nothing in the record upon the issue.

As a further affirmative defense, it is alleged that under an ordinance effective in 1960 the apartment building on Lots 12 and 13 became nonconforming in the required lot area for such number of dwelling units, and as to the area for each dwelling unit. Defendants deny that the plaintiffs acquired a right to build on the 20-foot parcel prior to the amendment of 1964, relating to “common ownership.”

The reply filed by plaintiffs admits that the 20-foot parcel is used for drying laundry and the parking of automobiles, albeit characterized as occasional and random; it denies that § 42-108 of the ordinance (requiring an approved recorded plat to be on file before a building permit is issued) is germane, as the conveyance of the 20-foot parcel did not involve a subdivision. There is no reply to the affirmative defenses relating to the amendment of 1960 prohibiting the reduction of accessory parking spaces, and no reply to the allegations of the answer as to the nonconforming use of the apartment as to area.

This appeal is considered in the light of the nature of proceedings for declaratory judgment. The award or denial of relief, even where the controversy or some part of it will be settled, is discretionary with the court. Chapter 110, § 57.1 and Comment to Subsection (1), Smith-Hurd Annotated Statutes. State Farm Mut. Automobile Ins. Co. v. Morris, 29 Ill App2d 451, 173 NE2d 590. That opinion holds that dismissal of the action is an appropriate judicial method of declining to grant relief; that procedure in declaratory judgment provides cumulative and additional remedies, but it neither provides a substitute for existing remedies nor creates new substantive rights. Interlake Iron Corp. v. Dravo Corp., 68 Ill App2d 167, 215 NE2d 137. The court’s discretion is as to whether to enter or to decline to enter judgment. State Farm Mut. Automobile Ins. Co. v. Morris, supra, and the issue upon appeal is whether there was such an abuse of discretion by the trial court as to require a reviewing court to intervene. Interlake Iron Corp. v. Dravo Corp., supra.

Nothing in the record discloses what was passed upon by the trial court in the disposition of the several affirmative defenses. From the record presented we conclude that the trial court could very well have determined that the apartment building was nonconforming as to off-street parking under the ordinance of 1940; that the ordinance of 1960, prohibiting the reduction of accessory parking space, was applicable and authorized denial of a building permit. Again, the court could have determined that there had been a failure to comply with the requirement of filing an approved reported plat as precedent to a building permit. Since such issues have not been brought into a focus in this record, extended examination of the application of the several ordinances would become a tedious toure de force. From our examination it appears that there would be no abuse of discretion in finding one or more of such ordinances controlling.

The argument that the “common ownership” amendment of 1964 was used as an “after the fact” ordinance to deny the building permit is not supported in the record. The issue presented in the trial court arises upon the application of April, 1965, for a building permit on the 20-foot parcel. This record shows nothing as to the reason that such permit was refused. The allegation that there was compliance “in all respects” with the zoning ordinances is a conclusion which does not permit judgment by this court. It is argued that issues on such denial were framed in a mandamus proceeding which was dismissed, but our record is barren. Whether the trial court considered them cannot be ascertained.

Even if we assume that such permit was denied solely because of the “common ownership” amendment of 1964, it cannot logically be said that there was use of an “after the fact” ordinance to deny a permit sought in 1965.

Plaintiffs’ thesis that the alleged use of the “common ownership” ordinance results in a taking of the 20-foot parcel without compensation or due process fails to come within the rule in this State, i. e., a party does not acquire a right to use premises free and clear of subsequent changes in zoning provisions unless the evidence shows a substantial change in position made in good faith through expenditures, or obligations incurred in reliance upon the probability that the required building permit would be issued. Opinions establishing such standard are collected in People ex rel. Nat. Bank v. Cook County, 56 Ill App2d 436, 206 NE2d 441.

Plaintiffs’ evidence directed to this issue is not impressive. The record discloses no more than an assertion that the purchase of the 20-foot parcel in 1949 was for building purposes. Plaintiff trustees testified that there had been no request for a permit from 1949 until 1963. The purpose to build lay aborning for some 14 years. The fact that the tax authorities assessed the 20-foot parcel separately from the apartment building is scant evidence of actual or intended use. Payment of taxes is an incident to the ownership of real estate which we will not accept as evidence of a change in position in reliance upon an existing zoning ordinance.

The only expenditure of record which might qualify is the sum of $200 for plans for construction on the 20-foot parcel, dated on May 27, 1963. The further expenditure of $225 for plans of a similar nature was made as of December 20,1965, after the petition for zoning variation on the 20-foot parcel had been denied, and after the passage of the ordinance of 1964, which is attacked. There is great doubt that it can properly be said that the latter payment was made in reliance upon a right to build on the parcel.

The evidence in this case relevant to incurring detriment in good faith reliance upon existing ordinances is in no way comparable in degree to such evidence in the authorities cited, and relied upon by plaintiffs. In each it is noted that prompt, if not immediate action, was taken to develop the property acquired.

In Western Theological Seminary v. Evanston, 325 Ill 511, 156 NE 778, which plaintiffs quote at length, the Seminary had purchased or leased large amounts of land, meanwhile selling the property formerly held by it for school purposes. The land at issue there was worth $150,000 and there were preparations to erect a building at a cost of $750,000. After such steps were taken there was an attempt to amend the ordinance in a manner that would exclude the Seminary. It was held to be unreasonable and arbitrary to exclude the Seminary after the funds had been invested. In Cos Corp. v. City of Evanston, 27 Ill2d 570,190 NE2d 364, land costing $47,000 and other property costing $189,000 was procured, with further expenditures in architect fees and expenses. Such was held to be a substantial change. Similar factors controlled the result in Fifteen Fifty State St. v. Chicago, 15 Ill2d 408, 155 NE2d 97; Nott v. Wolff, 18 Ill2d 362, 163 NE2d 809; People ex rel. v. Morton Grove, 16 Ill2d 183, 157 NE2d 33; People ex rel. Nat. Bank of Austin v. Cook County, 56 Ill App2d 436, 206 NE2d 441, and Sgro v. Howarth, 54 Ill App2d 1, 203 NE2d 173.

This division sitting in its own district held that there was no substantial change in position in spending $325 for a plat plan, $400 in office help and $200 for telephone calls. Naumovich v. Howarth, 92 Ill App2d 134, 234 NE2d 185. See also People ex rel. Nat. Bank of Austin v. Cook County, 56 Ill App2d 436, 206 NE2d 441.

The Supreme Court has stated that each case actually must be decided upon its own merits and that the burden is on the party attacking the ordinance to establish the invalidity thereof. County of Lake v. MacNeal, 24 Ill2d 253,181 NE2d 85.

Plaintiffs argue that the enforcement of the ordinance as to the 20-foot parcel will deprive them of a vested right to continue the nonconforming use established as to the apartment building. No facts in the record demonstrate such result. In the cases cited by plaintiffs the use of the immediate property to which the nonconforming use was attached was affected. There is reliance primarily upon Village of Skokie v. Almendinger, 5 Ill App2d 522, 126 NE2d 421. The primary issue there decided is that title is not essential to determining the existence of a nonconforming use of land. In the aspect that the case holds that there was an unreasonable taking of a nonconforming use, the land to which said nonconforming use attached was directly affected in that its use was substantially destroyed. Here, there is no evidence that the use of the apartment building will be altered or reduced. See also People v. Ferris, 18 Ill App2d 346, 152 NE2d 183. The issues decided in the cited Douglas v. Village of Melrose Park, 389 Ill 98, 58 NE2d 864, and Brown v. Gerhardt, 5 Ill2d 106, 125 NE2d 53, were whether or not there had been abandonment of nonconforming uses.

Plaintiffs argue that enforcement of the ordinance is arbitrary, unreasonable and without necessity in public welfare or safety from testimony that there are areas of off-street parking at distances from one-half block to three blocks from the real estate in question. Such facilities include a parking area for the Athletic Department of Northwestern University, and an area adjacent to a railroad. They are not only relatively remote in distance, but no right to the use of such areas by tenants of plaintiffs is established. The ordinance of 1960 in effect at the time of the application for the first building permit required ownership or contractual arrangement for a use of parking spaces to be secured and continuously maintained for the life of the building. The testimony is, at best, vague and speculative. If the reasonableness of the ordinance is fairly debatable, the courts will not intervene. County of Lake v. MacNeal, 24 Ill2d 253,181 NE2d 85.

The trial court refused to admit plaintiffs’ proffered testimony, apparently purporting to be of an expert quality, to the effect that persons using the apartment units did not own, or use, many automobiles. Such testimony is not of a stature to overcome, in this Court, the legislative judgment expressed in the several ordinances pleaded.

Finding no abuse of discretion in the court below, its judgment is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: MORAN, J.

license: Public Domain

text:
    Roosevelt Federal Savings and Loan Association of St. Louis, a Corporation of the United States of America, Plaintiff-Appellee, v. Sugar Hollow Apartments, Inc., a Delaware Corporation, Defendant-Appellee, Russel J. Lesperance and Virginia K. Lesperance, Defendants-Appellants, Mortgage Associates, Inc., A. J. Cargnino Construction Co., Inc., Wellers, Inc., Cape Paint and Glass, Inc., and Unknown Owners, Defendants-Appellees.
    Gen. No. 67-111.
    Fifth District.
    August 22, 1968.
    Rehearing denied October 22,1968.

      C. Robert Hall, of Carbondale, for appellants.
    Bill F. Green, of Carbondale, and Earl S. Hendricks, Jr., of Murphysboro, for appellees.
   MORAN, J.

Defendants, Russel J. Lesperance and Virginia K. Lesperance, appeal from decrees of foreclosure of two mortgages and security agreements on two separate dormitories for housing of students at Southern Illinois University at Carbondale and the furnishings in each. In its decrees of foreclosure of each mortgage and security agreement, the trial court ordered issuance of deeds upon the sale and approval of the sale of the mortgaged properties and adjudged defendant, Russel J. Lesperance, not to be a judgment or decree creditor of the mortgagor, Sugar Hollow Apartments, Inc. Appellants allege error in this last holding of the trial court and urge that Russel J. Lesperance is a judgment creditor of the mortgagor and pursuant to chapter 77, sections 18a and 20, Ill Rev Stats, 1967, has a statutory right to redeem the foreclosed properties.

On March 3, 1967, appellee, Roosevelt Federal Savings & Loan Association, filed its complaints for foreclosure of two mortgages and two security agreements given as security for two notes in the principal sum of $306,000 each. Except for the legal description of the property described in the mortgages (two dormitories for the housing of students at Southern Illinois University), both cases are identical and were consolidated for the purpose of trial and appeal. In each case, Roosevelt Federal Savings and Loan Association, of St. Louis, is the mortgagee and Sugar Hollow Apartments, Inc., is the mortgagor. Each note was cosigned by the mortgagor, Sugar Hollow Apartments, Inc., and by defendants Russel J. Lesperance and Virginia K. Lesperance, individually. Russel is president of Sugar Hollow Apartments, Inc., and. he and his wife, Virginia, are the owners of all the stock of the corporation. The mortgagor waived its right of redemption in each mortgage.

The corporation caused to be built on land owned by it, three student dormitories which are involved in this litigation. Dormitory No. 3 is located at 506-510 South Hall Street, Carbondale, Illinois. Dormitory No. 4 is located at 502 South Hall on Lots 17, 18 and 19 in Bayless Field Addition to the City of Carbondale. Dormitory No. 5 is located at 503 South Graham Street, on Lots 28, 29 and 30 in Bayless Field Addition to the City of Carbondale.

Title to Dormitory No. 3 is held by the First National Bank of Murphysboro, Illinois, in an Illinois Land Trust designated Trust No. 86. Prior to certain assignments which will be discussed subsequently, the beneficial interest in the land trust was owned exclusively by Sugar Hollow Apartments, Inc. Russel Lesperance, individually, owned no interest in the land trust.

Although the fee title to Dormitory No. 4 and Dormitory No. 5 was held by Sugar Hollow Apartments, Inc., the property was mortgaged to plaintiff-appellee, Roosevelt Federal Savings and Loan Association to secure the two notes, each for $306,000, signed by the corporation and Russel Lesperance, individually.

On or about December 23, 1965, A. J. Cargnino Construction Company, Inc., entered into a contract with Sugar Hollow Apartments, Inc., to construct Dormitories No. 4 and No. 5. Dormitory No. 3 had previously been completed and transferred to the Illinois Land Trust.

Before construction was started on Dormitories Nos. 4 and 5, Russel Lesperance advised A. J. Cargnino and James Weller, President of Weller’s, Inc., another contractor working on the construction of the buildings, that there would be a shortage of funds to complete the dormitories. He requested that each contractor withhold $13,500 from their respective bills for construction on the dormitories. In lieu of payment, Russel Lesperance gave two personally signed notes for $13,500 each, to A. J. Cargnino Construction Company, Inc., and two additional personal notes in the individual amount of $13,500 to Weller’s, Inc., all four of which were to be paid upon completion of construction.

When the dormitories were completed in September, 1966, there were inadequate funds to pay all of the contractors, subcontractors, and materialmen, so Russel Lesperance exchanged the four notes signed by him individually for four new notes, each signed by Sugar Hollow Apartments, Inc., and by Russel J. Lesperance, individually, dated September 30, 1966. As security for these new notes, Sugar Hollow Apartments, Inc., executed a second mortgage on Dormitories No. 4 and No. 5 to A. J. Cargnino Construction Co., Inc., and Weller’s, Inc.

Sugar Hollow Apartments, Inc., and Russel and Virginia Lesperance then defaulted on their January 1, February 1 and March 1, 1967, installment payments to Roosevelt Federal Savings and Loan Association, who thereafter instituted foreclosure proceedings on the mortgage. After the foreclosure suits were filed, Cargnino, Weller and Russel Lesperance entered into an agreement on May 13, 1967, to replace two of the notes dated September 30, 1966, which were signed by Sugar Hollow Apartments, Inc., and Russel Lesperance, individually, for two new notes which the parties intentionally backdated to September 30, 1966, and which were signed only by Sugar Hollow Apartments, Inc. A. J. Cargnino and James Weller each transferred to Russel Lesperance one of the old notes for $13,500, and he in turn delivered to each of them a new note for the same amount signed solely by Sugar Hollow Apartments, Inc. Then, however, in consideration of an assignment to each contractor of 20% of the beneficial ownership of Land Trust No. 86 owned by Sugar Hollow Apartments, Inc., plus additional consideration, Cargnino and Weller surrendered the two new notes to Russel Lesperance, individually.

- About the same time, a similar transaction was conducted between appellant and Carl Jones, owner of Pioneer Wholesale Company, whereby 10% of the beneficial interest of the land trust was exchanged for a note held by Mr. Jones on an obligation from Sugar Hollow Apartments, Inc.

On May 15, 1967, Russel Lesperance secured judgments against Sugar Hollow Apartments, Inc., by confession on all three of the notes which had been assigned to him by A. J. Cargnino, James Weller and Carl Jones. Thereafter, defendants-appellants, Russel and Virginia Lesperance, set up an affirmative defense to the foreclosure suit based upon these judgments. Issue was joined in the trial court upon the question whether Russel Lesperance was a judgment creditor of Sugar Hollow Apartments, Inc. On July 12, 1967, the court entered its order foreclosing the mortgages and security agreements on Dormitories No. 4 and No. 5 and finding that the judgments alleged in the affirmative defenses were not valid judgments and held that Russel J. Lesperance was not a judgment or decree creditor of Sugar Hollow Apartments, Inc.

Both appellee and appellants agree that sections 18a and 20, chapter 77, Ill Rev Stats 1967, govern the issues on the instant appeal. These sections provide that a judgment creditor of a corporation which has waived its rights of redemption may redeem from a mortgage foreclosure sale within three months after the sale. Further, appellee concedes that it is proper for a mortgagor to confess a judgment for the sole purpose of permitting redemption by the creditor, when the judgment is based upon a bona fide indebtedness owing from the mortgagor. Hart v. Brown, 404 Ill 498, 89 NE2d 370; Nudelman v. Carlson, 375 Ill 577, 32 NE2d 142.

Appellants, however, contend that the judgments which were confessed against Sugar Hollow Apartments, Inc., in separate proceedings by a court having jurisdiction of the parties and subject matter and upon which defendant Russel Lesperance asserts his claim of being a judgment creditor, may not be collaterally attacked for insufficiencies, defects, or irregularities in the proceedings. Hart v. Brown, supra, is cited by the appellants for the foregoing proposition, but it is significant to note the language of the Supreme Court at 504-505 of 404 Ill, wherein they remarked: “The complaint before us does not properly raise any question with reference to any lack of consideration upon which the Brown judgment was based . . . . Appellant’s complaint does not allege sufficient facts upon which we can hold the judgment of the municipal court void for lack of jurisdiction.”

We believe the law is that a judgment or decree which is procured through fraud of either of the parties or by collusion of both of the parties for the purpose of defrauding some third party is open to attack whenever and wherever it may come in conflict with the rights or interests of third persons. Bernero v. Bernero, 363 Ill 328, 2 NE2d 317; Green v. Hutsonville Tp. High School Dist. No. 201, 356 Ill 216,190 NE 267; Wing v. Little, 267 Ill 20,107 NE 875.

Appellants next argue that the three notes upon which Russel Lesperance confessed judgment against Sugar Hollow Apartments were for a bona fide indebtedness of the corporation and therefore such judgments were without fraud. “There is little doubt that a judgment obtained where there is no debt for the purpose of making redemption is fraudulent and void.” Balaszek v. Blaszak, 405 Ill 36, 43, 89 NE2d 796, 800.

Appellants urge that although part of the consideration advanced to Cargnino, Weller and Jones for the surrender by them of notes made by Sugar Hollow Apartments, Inc., was property belonging to the corporation — namely, the beneficial interest in Land Trust No. 86, that nevertheless these parties never considered the three notes as paid when they signed them over to Russel J. Lesperance. In effect, appellants claim a bona fide debt of Sugar Hollow Apartments, Inc., still remained on the three notes delivered to Mr. Lesperance after the corporation assigned 50% of its beneficial interest in the land trust to Cargnino, Weller and Jones. We cannot agree. Since the major consideration for the alleged assignment of these three notes to the defendant, Russel Lesperance, was owned and furnished by the sole maker of the note, Sugar Hollow Apartments, Inc., the debt due from the mortgagor had been paid and there was, in fact, no consideration for the assignment. “Where one person is obligated to pay money to another, a payment made in any mode or with any medium satisfactory to the payee, if such payment is received as a satisfaction of the demand by the payee, is equivalent to and will be treated as payment in cash.” Weger v. Robinson Nash Motor Co., 340 Ill 81, 89,172 NE 7.

Contrary to appellants’ contention that the creditors of the corporation never considered the notes as paid when they signed them over to Mr. Lesperance, is the testimony of A. J. Cargnino. In response to cross-examination on the matter by counsel for appellants, Mr. Cargnino stated: “All I know is that we wanted to collect our $54,000 and he (Mr. Lesperance) was willing to give me twenty percent (referring to the beneficial interest in the land trust), plus some other considerations that we have an agreement for, and we signed it to him. Now what he wants to do with that note, that is up to him. I have no say so.” (Clarification added.)

Upon this evidence, in our opinion, the trial court properly found that the original notes of September 30, 1966, which were executed by the corporation and Russel Lesperance, individually, were paid by the corporation and there was no debt to support the alleged assignment of the three new notes (signed solely by the corporation) to Mr. Lesperance. Accordingly, the trial court correctly found that Russel J. Lesperance was not a judgment creditor of Sugar Hollow Apartments entitled to a right of redemption under chapter 77, sections 18a and 20, Ill Rev Stats 1967. Since the trial court heard the evidence, observed the witnesses and its judgment is amply supported by the evidence, we shall not disturb the decree. Willis v. Rich, 30 Ill2d 323,196 NE2d 676.

Appellee moves that this court enter a judgment for deficiency based on the trial court’s refusal to do so after the judicial sale of the properties and while this appeal was pending. This motion is denied because the order of the trial court denying the judgment for deficiency was entered after this matter was appealed and is therefore not a proper subject for us to consider on this appeal. Wolcott v. Village of Lombard, 387 Ill 621, 57 NE2d 531.

Since we have considered the merits of the appeal, it is not necessary to consider the two counts of appellee’s motion to dismiss the appeal.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: MR. JUSTICE ENGLISH

text:
    Joseph Ash, Assignee of the First Federal Savings and Loan Association of Chicago, a United States Corporation, Plaintiff-Appellee, v. Jerome Cinman and Phyllis Cinman, His Wife, et al., Defendants-Appellants.
    Gen. No. 51,649.
    First District, Fourth Division.
    August 28, 1968.
    John D. Vosnos, of Chicago, for Appellant.
    No appearance made for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

This appeal is taken from the trial court’s disposition of an ancillary petition filed in a foreclosure suit. After the foreclosure sale of the mortgaged property, Elsie Cinman, the owner of the equity of redemption, petitioned the court for an order directing the Clerk to pay to her that part of the sale price remaining in his custody after all prior obligations had been satisfied. The petition was denied, as was a subsequent motion to vacate the order denying the petition. Petitioner has appealed and no party has appeared in this court as appellee.

The setting in which this controversy arose is a complex one, and the parties who have been the chief actors have shown themselves to be extremely litigious. In addition to the foreclosure suit, there was a suit for specific performance (of a real estate contract) brought by Elsie Cinman against Leonard Solomon, which she won on appeal (Cinman v. Solomon, 28 Ill2d 540, 193 NE2d 16). Then, to prevent her threatened eviction by Solomon, Mrs. Cinman also brought an injunction suit against him.

We shall not attempt to outline all the facts, which are not only complicated, but somewhat mixed up in the record, and pertain in only small part to the issue before us. The order which we are called upon to review denied payment to Mrs. Cinman of the remainder of the foreclosure sale funds (except upon a condition discussed below), which money no one seems to deny was properly due to her, at least so far as the proceedings in this case are concerned. The record does not show that any answer was filed to the petition, although Solomon and his attorney were present and participated in the hearing on the petition. (In this suit Solomon had not appeared, and had, in fact, been defaulted.) A few weeks later a petition to vacate the order in question was filed and to that petition Solomon did file an appearance and answer. From none of this does it appear that Solomon had any standing to oppose either petition, as his interest in the real estate had been terminated by the Supreme Court decision implemented by delivery of a deed from him to Mrs. Cinman through escrow. Nor did he claim any part of the fund which was the subject of the petition or ask for any relief in specific regard thereto. He sought merely to block the payment of this money to Mrs. Cinman unless she would release him from all claims she might have against him, pursuant to an alleged oral settlement agreement, or an oral direction from the court in another suit, which direction was never incorporated in any order.

The facts alleged in Elsie Cinman’s petition were all matters of record. The facts concerning the alleged settlement agreement were only presented orally (apparently), yet without the introduction of any evidence, the court entered the following order:

This cause coming on to be heard on the petition of Elsie Cinman, and the Court having heard the argument of counsel, It is hereby ordered as follows: That the parties were before this Court in cause No. 64 CH 4968 (the injunction suit). That there was an agreed settlement in open court whereby the parties would deposit certain funds and a deed in an escrow and exchange mutual general releases to terminate all litigation between the parties, and the parties deposited all items required but Elsie Cinman and Samuel Cinman refused to deliver a release to Leonard V. Solomon, therefore, this Court hereby denies the Petition of Elsie Cinman until such time as Elsie Cinman delivers a general release to Leonard V. Solomon. (Emphasis added.)

Mrs. Cinman and her husband, Samuel, deny that they ever agreed to a settlement. If such an agreement had been entered into by the parties, it was apparently not a part of this litigation, but was a settlement reached while they were present in open court at a hearing in one of the other equity suits. The escrow referred to in the order was, in fact, created by the parties, with money and deed being eventually exchanged, but the escrow agreement contained no provision for releases, and they were not deposited or exchanged.

We can fully understand the feelings of the conscientious chancellor, who had seen in the then forthcoming escrow an opportunity to wind up this wearisome and vexatious litigation once and for all, and had undertaken to encourage the parties to settle their differences by the exchange of releases. Whether the parties did agree to a settlement, and, if so, whether, where, and how it would be enforceable, are questions we do not pass upon here. Neither the existence nor the validity and enforceability of such an agreement were presented as a proper part of this proceeding in regard to disposition of the foreclosure sale funds. The condition attached to the chancellor’s order may have been a highly practical solution to long and grievous problems, but it was an extra-legal one under the circumstances, and the order must therefore be reversed.

The cause is remanded with direction to allow the petition of Elsie Cinman and to direct the Clerk to pay to her the surplus funds from the foreclosure sale, after satisfying all prior obligations.

Reversed and remanded with directions.

McCORMICK, P. J. and DRUCKER, J., concur.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    Avenue State Bank of Oak Park, Illinois, as Trustee Under Trust Agreement Dated February 15, 1961, and Known as Trust No. 162, and R. Busa & Sons, Inc., an Illinois Corporation, Plaintiffs-Appellees, v. Village of Oak Park, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 51,465.
    First District, Fourth Division.
    September 11, 1968.
    Rehearing denied October 28,1968.

      Klein, Thorpe, Kasson & Jenkins, of Chicago (Arthur C. Thorpe, of counsel), for appellant.
    Maurice J. Nathanson, of Chicago (Marvin J. Glink, of counsel), for appellees.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken from a judgment of the Circuit Court of Cook County overruling the findings of a master in chancery and holding that the zoning ordinance of the Village of Oak Park is null and void in its application to their property.

Plaintiffs filed their complaint at law, and the amendment thereto, for a declaratory judgment, seeking a declaration that the Village of Oak Park Zoning Ordinance, as amended (and so far as it applies to their property), be declared null and void, alleging that said ordinance violates the Constitution of the United States and the Constitution of the State of Illinois.

The defendant filed its answer, alleging that the action of the Village Board in passing the zoning ordinance in question did not operate to deprive plaintiffs of their property without due process of law, but rather constituted a valid exercise of its legislative power in that such power was exercised reasonably and equitably with the intent to promote and protect the public health, safety, comfort and general welfare. The matter was referred to a master in chancery before whom the following evidence was presented.

Plaintiff R. Busa & Sons, Inc., an Illinois corporation, is the owner in fee simple of Parcel 2 of the subject real estate located at 325 Oak Park Avenue, Oak Park, Illinois, having acquired title in 1958. Plaintiff Avenue State Bank of Oak Park, as trustee, holds the fee simple title to Parcel 1 of the subject real estate located at 319 Oak Park Avenue, Oak Park, Illinois, having acquired title in 1963. Plaintiff R. Busa & Sons, Inc. is the owner of the beneficial interest in the subject land trust. Now in existence (as it was when plaintiffs purchased the property) is the Village of Oak Park Zoning Ordinance, as amended, which classified plaintiffs’ property as a “D” district, restricting its use to single and two-family dwellings. Mr. Busa, a building contractor with over 42 years of experience, testified that he purchased Parcel 2 under the mistaken belief that it was zoned for multiple' units because the land was improved with what he thought was a rooming house. However, Richard Massell, a witness for the defendant, testified that Mr. Busa attended a meeting of the Zoning Commission on July 8, 1959, at which time a member of the commission asked him whether or not he had knowledge of the zoning of the property which he purchased on Oak Park Avenue prior to the time he purchased it, and Mr. Busa answered that he had. Mr. Busa knew of the zoning restrictions when he purchased Parcel 1.

Plaintiffs propose to build on their property a 3-story, 30-unit condominium apartment building of a total height of 29 feet. Facing another street to the south of plaintiffs’ property and directly adjacent to it is a multiple-family “F” district in which there are apartment buildings with heights of over 40 feet. Bordering on the east of the subject property, with the exception of the First Methodist Church building, is an area of single and two-family dwellings zoned “A” and “D” respectively, extending for over a mile. The area immediately to the north of the property, with few exceptions, is also developed with single-family and duplex residences, as is the area to the west. The subject property is contiguous to these residential areas to the north and west. There is not even an alley which would separate the single and two-family dwellings directly abutting plaintiffs’ property from the proposed apartment building which would undoubtedly be constructed should plaintiffs’ prayer for relief be granted.

George Kranenberg, a witness for plaintiffs, in addition to establishing his extensive background and experience in the field of zoning and planning, testified that in his opinion the highest and best use of the subject property would be a 30-unit apartment building. He proposed that the property be rezoned to an “E” multiple-family district which would permit construction of apartment buildings having a lesser density of use than those in the “F” zone. He suggested that such a reclassification would provide a transitionary zone between the higher density of use existing in the buildings in the “F” zone to the south of plaintiffs’ property and the single and two-family dwellings to the north. The witness admitted, however, on cross-examination, that in his opinion, since there were no multiple-family dwellings to the north of the property, any reclassification of the property to an “E” multiple-family district would have a detrimental effect upon the single and two-family dwellings in that area.

Harold Enright, a real estate appraiser and broker, also testified that in his opinion the highest and best use ,of plaintiffs’ property would be the construction of apartment buildings. He stated that the Village of Oak Park had not yet approached the absorption point for apartments and that he felt both parcels were suitable for the construction of “F” multiple-apartment buildings. He suggested, however, that the northern half of the property be reclassified for less dense “E” multiple dwellings so as to act as a buffer area between the lesser and higher densities of the “D” and “F” zones to the north and south respectively. He further testified that the two-family dwelling immediately adjacent to the north of the subject property and the dwellings to the west would be adversely affected by his proposed reclassification. Beyond that he could see no further damage to property values. Mr. Enright appraised the present value of Parcel 1 at $24,000, and Parcel 2 at $45,825, but stated that if the property were reclassified and improved as proposed by plaintiffs, Parcel 1 would then be worth $48,-000 and Parcel 2, $91,000.

Fred Allen, another of plaintiffs’ witnesses, appraised the property at a somewhat higher value. In his opinion, the property would be worth about $150,000 when reclassified for multiple-family use. At any rate, defendant concedes in its brief that there will be an increase in value to plaintiffs’ property if it is rezoned for any multiple-family use.

Defendant, contrary to the evidence presented by plaintiffs, offered the testimony of several experts as proof that the highest and best use of the property would be the construction of single or two-family dwellings in accordance with the present zoning classifications.

Richard Massell, Director of Building and Zoning for the Village of Oak Park, testified that the highest and best use of plaintiffs’ property was for two-family dwellings. He based his opinion on the fact that there were no multiple dwellings — other than two-family dwellings— in the immediate vicinity to the north, east and west of the subject property; that any reclassification for multiple-family use would therefore be inconsistent with the existing character of the neighborhood; and finally, that there was not even an alley separating the back of plaintiffs’ property from the back of the single-family homes abutting it on the west. (Note: in fact, the homes abutting plaintiffs’ property on the west are two-family dwellings.) In addition, Mr. Massell testified that at present there are areas in Oak Park which are zoned for multiple-family dwellings which have not yet been developed.

Carl Gardner, employed as a zoning consultant, testified that the subject property was presently zoned for its highest and best use, and based his opinion on the following criteria:

1) The area to the north of plaintiffs’ property is developed with attractive and well-maintained single and two-family dwellings;

2) Any reclassification for multiple-dwelling use would constitute an intrusion into this residential area and would have a disruptive and detrimental effect on it; and

3) To grant a reclassification would destroy the basic tenets of the planning and zoning efforts of the Village because there are numerous instances where “F” multiple districts adjoin “A,” “B,” “C” or “D” single and two-family areas.

Over 27 surrounding property owners testified or filed affidavits by stipulation of counsel that they have made substantial investments in both the purchase of their properties and in subsequent improvements in reliance upon the then existing zoning classifications. These single and two-family homeowners are unanimously opposed to any change in the present zoning classifications. No property owners, other than the plaintiffs, testified in favor of changing the zoning so that the property may be used for multiple-family dwellings.

Mr. Stevenson, a real estate broker and appraiser, testified that five houses on Grove Avenue which backed up to the west side of the subject property, and the property adjoining on the north would suffer a ten percent loss in value, and that these homes were valued at between $20,-000 and $30,000. He further indicated that there would be a tendency for the whole neighborhood to the north to deteriorate, as those owning older homes would tend to let them run down, assuming that the area would all eventually be zoned for mutiple-family use.

At the close of the evidence the master in chancery found that the property directly to the west would be adversely affected by the proposed use requested by plaintiffs ; that the property to the north would be adversely affected by the proposed use; and especially the adjoining property to the north and northwest; and that the property to the east would be adversely affected to a minor degree. Subsequently, however, the master sustained in part certain objections to his original report to the effect that if the subject property were developed and utilized as proposed, the effect on the neighboring properties would be minimal or nonexistent. Notwithstanding, he still concluded that the Zoning Ordinance of the Village of Oak Park, in its application to plaintiffs’ property, is not unreasonable or arbitrary, nor does it unduly restrict the use of that property, but rather bears a reasonable relationship to the protection of the public health and welfare, and was a valid exercise of the police power granted to the Village of Oak Park.

The trial court, after fully considering the record of the evidence presented before the master in chancery, overruled his recommendations and found that “the limitations placed upon plaintiffs’ real estate, as aforesaid, by the existing zoning ordinance of the defendant, Village of Oak Park, bears no reasonable relation to the public health, safety, comfort, morals and general welfare, and the enforcement thereof unreasonably limits plaintiffs’ use of said property, as proposed, without correspondingly benefiting the public and said limitations are therefore, as applied to plaintiffs’ property, . . . violative of the provisions of the Constitutions of the United States and State of Illinois.” The court then entered an order declaring that the plaintiffs be allowed to improve their property with a 3-story building containing no more than 30 dwelling units, but limited the plaintiffs’ right to improve their real estate as aforesaid. From the order the defendant has taken the instant appeal.

In this court the defendant proceeds on the theory that the plaintiffs failed to overcome the presumption of the validity of the Oak Park Zoning Ordinance as applied to their property, and that the court should have sustained the master’s report to this effect. It must be emphasized at the outset that this court is not a zoning commission. Section 11-13-1, chapter 24 of Illinois Revised Statutes (1965), authorizes municipalities to formulate comprehensive zoning and use plans for their corporate areas. Zoning ordinances are based upon the police power of the State to enact laws for the safety, health, morals and general welfare of the people. A municipality cannot, however, in exercising its legislative discretion arbitrarily deprive a citizen of his property under the guise of protecting the public interest. The owners of real property have the constitutional right to use their property in any manner they desire, providing that such use does not interfere with the welfare of the people generally. A municipality is not the final arbiter of what constitutes the best use of particular property within the corporate area. Its decision is subject to review by the courts. If on review the zoning ordinance is found to be without substantial relation to the public health and welfare it must be declared void as violative of the Constitutions of the United States and of the State of Illinois. Kennedy v. City of Evanston, 348 Ill 426,181 NE 312.

However, in the recent case of Bennett v. City of Chicago, 24 Ill2d 270, 181 NE2d 96, the Supreme Court said at page 273:

“A presumption exists in favor of the validity of a zoning ordinance and the one who attacks such ordinance has the burden of overcoming the presumption by proving with clear and convincing evidence that, as applied to him, it is arbitrary and unreasonable and is without substantial relation to the public health, morals, safety and welfare. [Citing cases.] ” [Emphasis supplied.]

See also LaSalle Nat. Bank v. Village of Palatine, 92 Ill App2d 327, 236 NE2d 1.

As this court pointed out in Jans v. City of Evanston, 52 Ill App2d 61, at page 68, 201 NE2d 663:

“. . . a party challenging the validity of a zoning ordinance has the burden of showing by evidence that is clear and convincing that the city has abused its legislative discretion in classifying property in a certain manner. Such proof must establish not merely that the property could reasonably be classified otherwise, nor indeed that the court would classify it otherwise; rather, it must show that the legislative decision as to the property is ‘clearly unreasonable’ (Exchange Nat. Bank of Chicago v. Cook County, 25 Ill2d 434, 441, 185 NE2d 250) and a ‘clear abuse of discretion’ (Trendel v. County of Cook, 27 Ill2d 155, 161,188 NE2d 668).”

In other words, if the best that can be said for plaintiffs’ evidence is that it raises a reasonable difference of opinion as to whether the ordinance bears a substantial relation to the public health and welfare, under such circumstances the judgment of the municipal zoning authorities must prevail. LaSalle Nat. Bank v. City of Palatine, 92 Ill App2d 327, 236 NE2d 1; Gedmin v. City of Chicago, 88 Ill App2d 294, 232 NE2d 573; Chicago & N. W. Ry. Co. v. City of Des Plaines, 97 Ill App2d 201, 240 NE2d 280.

Among the factors to be considered in determining whether a zoning ordinance is unreasonable and arbitrary and without substantial relation to the public health, safety, morals and welfare are: the character of the neighborhood, the use and zoning of nearby property, the suitability of the property for the zoned purpose, the public gain as compared with the hardship, if any, imposed on the property owner; the effect of the present zoning on the value of the property, and the effect of the proposed zoning on the surrounding property. Chicago & N. W. Ry. Co. v. City of Des Plaines, supra.

We find that there is no need to reiterate the evidence presented in detail in this opinion. Suffice it to say that it contained substantial conflicts, although all the witnesses agreed that any reclassification for multiple occupancy would have at least some degree of detriment to the surrounding residential properties. Certainly, the testimony in this case falls short of showing by clear and convincing evidence that the judgment of the Village of Oak Park zoning authorities was arbitrary and unreasonable when they decided that the highest and best use of the subject property was for single and two-family dwellings. At best, all that plaintiffs accomplished was to raise a reasonable difference of opinion as to whether the ordinance bore a substantial relationship to the public welfare, which, as stated previously, is not sufficient to overcome the presumption of its validity. The mere fact that the property might be worth more to the plaintiffs if developed for multiple occupancy causes a situation which occurs in nearly every case of a zoning restriction and does not afford a reason for a court to substitute its judgment for that of the zoning authorities. Jans v. City of Evanston, supra.

While plaintiffs are not precluded from attacking the validity of the zoning ordinance as it applies to their property, there are a number of factors which strongly militate against granting them the relief they pray for. In the first place, plaintiffs purchased their property at a price commensurate with its existing zoning, and now seek — according to their own evaluations — to double their investment, to the detriment of the surrounding property owners, without first having demonstrated why they would be unable to recoup their investment from the development of the property in a manner consistent with the present zoning requirements.

Secondly, plaintiffs purchased Parcel 1 of the subject real estate with full knowledge of its two-family zoning classification. Although there is conflicting evidence presented as to whether Parcel 2 was purchased with actual knowledge of the existing zoning restrictions, we are faced with the inescapable fact that plaintiffs did acquire title to the property subsequent to the enactment of the zoning ordinance in question, and hence with record notice of the restrictions thereby imposed. Weber v. Village of Skokie, 92 Ill App2d 355, 235 NE2d 406.

Moreover, it is difficult for this court to believe that a building contractor with over 42 years of experience would purchase property without first carefully inquiring as to its zoning. Although one may purchase property in the face of a preexisting classification and still attack the validity of the zoning ordinance in an attempt to reap the benefits of its removal, certainly such a person does not occupy a favorable position. Any financial disadvantage that may result to the plaintiffs from a denial of their complaint is a self-created one. Chicago Title & Trust Co. v. Village of Wilmette, 27 Ill 2d 116, 188 NE2d 33; LaSalle Nat. Bank v. Western Springs, 30 Ill2d 340, 196 NE2d 680; Weber v. Village of Skokie, supra. As the Supreme Court pointed out in American Nat. Bank & Trust Co. of Chicago v. Chicago, 30 Ill2d 251, 254,195 NE2d 627:

“. . . Valenti, is a building contractor and realtor of more than 20 years experience, who has built and sold many homes in this area. He purchased the four lots, secured the vacation of the alley, purchased the alley portion and joined the five parcels into an odd-shaped tract, all with full knowledge of the single-family zoning classification. While a purchaser is not precluded from challenging a preexisting zoning classification, his purchase in the face of the zoning restrictions, is a factor to be considered. (Vedovell v. City of Northlake, 22 Ill2d 611.) As we have said where a purchase was made with full knowledge of the existing residential classification, ‘. . . (I)t is not unreasonable to suppose that the price paid was commensurate with that purpose. Under these circumstances, it can hardly be found that the ordinance has diminished the value of plaintiff’s property or is confiscatory.’ Elmhurst Nat. Bank v. City of Chicago, 22 Ill2d 396, 402-403.
“Under the circumstances here prevailing, the hardship, if any, upon plaintiff by virtue of the zoning classification does not justify a holding that the zoning ordinance is unreasonable, invalid and unconstitutional as applied to plaintiff’s property; and the decree of the circuit court of Cook County so holding is reversed.”

The very nature of zoning and planning requires that neighborhoods of varying degrees of density adjoin each other, but that, in and of itself, affords no justification for the constant erosion of zoning boundaries. It is axiomatic that zoning lines must begin and end somewhere.

This court is not unmindful of the rule that the judgment of the trial court will not be disturbed unless it is contrary to the manifest weight of the evidence. However, we reassert the position taken by the Supreme Court in Standard State Bank v. Village of Oak Lawn, 29 Ill2d 465, 194 NE2d 201, where the court said at page 471:

“Plaintiff urges that the findings of the trial court cannot be disturbed unless contrary to the manifest weight of the evidence. We agree that this is the rule. It is, however, clear to us that the evidence, when viewed most favorably to plaintiff, falls far short of overcoming the presumptive validity of the ordinance. At best, it accommodates a legitimate difference of opinion as to the reasonableness of the ordinance, and, under such circumstances, the legislative judgment must prevail.”

The judgment of the Circuit Court is reversed.

Reversed.

DRUCKER and ENGLISH, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    Helen Szot Murukas, Plaintiff-Appellant, v. James Murukas, Individually and as Administrator of the Estate of Peter Murukas, Deceased, et al., Defendants. On Petition of John J. Enright, for Allowance of Attorneys’ Fees. John J. Enright, Petitioner-Appellee, v. Helen Szot Murukas and James Murukas, Administrator of the Estate of Peter Murukas, Deceased, Respondents-Appellants.
    Gen. No. 52,713.
    First District, Fourth Division.
    September 11, 1968.

      Anagnost & Anagnost, of Chicago (Catherine Cook Anagnost, Gerald M. Chapman, and Edmond Mosley, of counsel), for appellants.
    Peterson, Lowry, Rail, Barber & Ross, of Chicago (Owen Rail, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Respondents appeal from a judgment directing Helen Szot Murukas to pay petitioner $3,919.42 as attorney fees and also directing James Murukas, as Administrator of the Estate of Peter Murukas, to pay to petitioner one-third of any and all sums thereafter payable or distributable to Helen Szot Murukas from said estate. On appeal they argue that the court lacked power to impose a lien on future distributions from the estate on behalf of the attorney, Enright, and that the court erred in its construction of the contract.

On August 29, 1967, John J. Enright filed his petition in case No. 63 S 24501 of the Circuit Court of Cook County entitled Helen Szot Murukas v. James Murukas, et al., requesting attorney fees in accordance with the following written contract:

I hereby employ John J. Enright, as my attorney, to represent me in the settlement, adjustment or prosecution of my claim against the Estate of Peter Murukas, Deceased, 63 P 2501, Docket 652, Page 340, now pending in the Probate Court of Cook County, Illinois, and agree to pay the said John J. Enright, as compensation for his services, and I hereby assign to him One-third per cent of any sum obtained or recovered therefrom by suit, settlement or otherwise.
I further agree to reimburse the said John J. Enright for any and all advances, costs and expenses, if any, paid or incurred by the said John J. Enright for me in connection with the handling of the above entitled matter.
Dated at Chicago, Illinois this 2nd day of July, 1963.
/s/ Helen Szot Murukas HELEN SZOT MURUKAS

The petition further alleged that on October 25, 1965, a consent decree was entered in the original suit granting Helen Murukas, the plaintiff, forty percent of all assets owned by the deceased Peter Murukas and further provided:

This court hereby reserved jurisdiction herein of the parties hereto and of the subject matter hereof for the purpose of carrying out the intent and meaning of this order for the disbursements and distribution to HELEN SZOT MURUKAS of the property hereinabove described and for the payment of fees, court costs and other expenses due John J. Enright, attorney, out of the share of HELEN SZOT MURUKAS, and for such other, further and additional orders as may be necessary to carry out and enforce this order.

The petition also stated that Helen Murukas had received $11,758.26 from the estate and has refused to pay petitioner his one-third share thereof.

In her answer respondent Helen Murukus admitted the execution of the agreement, but claimed it was for “one-third percent” and not for one-third of the recovered amount. She also alleged that the court had no jurisdiction to enter any order for attorney fees in an ancillary action and also requested that petitioner repay her the sum of $10,480.20 theretofore paid by her to the petitioner. (This sum represented one-third of $31,758.26 collected by her minus one-third of one percent and court costs.)

The trial judge ordered the payment of $3,919.42 to petitioner and also ordered one-third of future distributions to Helen Murukas to be paid to petitioner. From these orders respondents appealed.

Respondents first contend that the court lacked power to impose a lien on the future distributions of the estate. They argue that ordering the administrator to pay a percentage of all disbursements to Enright establishes a lien on the property, that there are only two kinds of liens which a court may impose on property not in the possession of the attorney to secure to him his fees and that neither is applicable here. The first is the statutory attorney’s lien and the second is the equitable lien. Respondents concede that an attorney

can acquire an equitable lien by an agreement with his client assigning to him a portion of a specific fund. See Lewis v. Braun, 356 Ill 467, 191 NE 56. They urge, however, that the court had no power to impose such a lien in the instant case since to do so the court must have jurisdiction of the fund to which the agreement applies. They argue that “since all the proceeds constituting the subject matter of this action were subject to the jurisdiction of the Probate Court in the Estate of Peter Murukas” the chancery court had no jurisdiction. The question of the separate jurisdictions of the different branches of the Circuit Court was discussed in People ex rel. Dahm v. Corcoran, 39 Ill2d 233, 234 NE2d 794. There the court referred to a prior opinion in that case which had held that the case was beyond the jurisdiction of the Probate Court. After remandment and trial the Supreme Court in Corcoran, supra, stated:

When that opinion was handed down a separate tribunal was necessary because the probate court was then a separate court of limited jurisdiction, established under section 20 of article VI of the constitution of 1870, and had no general equitable jurisdiction. See, e. g., Hoffmann v. Hoffmann, 384 Ill 315, 321-322; In re Estate of Mortenson, 248 Ill 520.
On January 1, 1964, after the cause had been remanded, the new article VI of the constitution became effective. That new judicial article abolished probate courts and all other courts of limited jurisdiction, and transferred matters pending in those courts to a court with “unlimited original jurisdiction of all justiciable matters.” (Ill Const, art VI, sec 9; sched par 5.) The barriers to the jurisdiction of the probate court that existed when this court’s decision was rendered have thus been removed by constitutional amendment.

In conclusion, the court stated, in rejecting the contention that Judge Corcoran was without jurisdiction:

The respondent is sitting as a judge of the circuit court, which has jurisdiction of all justiciable matters.

Since the Circuit Court (Probate Division) retained jurisdiction under the consent decree of October 25, 1965, to determine petitioner’s attorney’s fees, we find that the Circuit Court (Chancery Division) had jurisdiction to make this determination.

Respondents next contend that the court erred in construing “one-third percent” to mean one-third of any recovery since the words were not ambiguous and should therefore be strictly construed. We believe the principle enunciated in Knorr v. White Bros. Trucking Co., 79 Ill App2d 471, 224 NE2d 299, is more appropriate here. In that case plaintiff had a truck leasing agreement with defendant providing for “75% of the revenue less trailer rental, if applicable.” Over a period of time defendant deducted “unloading charges” without objection. The trial court held that under the contract these charges were not deductible. The Appellate Court reversed, stating:

There is no dispute as to the applicable rule of law that a contract is to be enforced according to the sense which the parties mutually understood it at the time it was made, with greater deference given to their clear intent rather than to any particular words which they may have used to express it. Stevens v. Fanning (supra) ; Keefer Coal Co. v. United Elec. Coal Cos., 291 Ill App 477, 485-486, 10 NE2d 210 (1937). In ascertaining the parties’ intention, regard will be had to the practical construction the parties have given it. Weger v. Robinson Nash Motor Co., 340 Ill 81, 91, 172 NE 7 (1930) ; M & J Diesel Locomotive Filter Corp. v. Nettleton, 56 Ill App2d 146, 151, 205 NE2d 659 (1965). No extrinsic aid to interpretation can be more valuable. Walters v. Walters, 409 Ill 298, 304, 99 NE2d 343 (1951).

In the instant case the trial court stated:

The Court has a right to look into the intent of the parties. Certainly it was not the intent of the parties that he was to receive only $39.50 for his work.

It is also undisputed that in 1966 petitioner received $10,586.09 (one-third of $31,758.26 minus costs) as fees under the contract. We therefore conclude that the court properly found that the parties intended by their contract to provide compensation of one-third of the moneys recovered by Helen Murukas.

Throughout their briefs respondents refer to the trial as a summary proceeding. A petition was filed and both respondents filed answers. The case was called for trial. An examination of the report of proceedings shows that the trial judge gave defendants every opportunity to cross-examine the petitioner and to call Helen Murukas; extensive arguments were heard. We find that defendants had a full and fair trial.

The judgment of the Circuit Court is affirmed.

Affirmed.

MCCORMICK, P. J. and ENGLISH, J., concur.

       Petitioner also claimed $3,000 for attorney’s fees for services performed in a partition suit and for which he had filed an attorney’s lien. This claim was withdrawn without prejudice.

       This claim was not directly passed upon by the trial judge and respondents’ notice of appeal ignores it.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. George Forrest, Defendant-Appellant.
    Gen. No. 51,803. (Abstract of Decision.)
    First District, Third Division.
    September 12,1968.
   Opinion by JUSTICE SULLIVAN. Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Frank Aureli, Defendant-Appellee.
    Gen. No. 52,221.
    First District, Third Division.
    September 12, 1968.
    Rehearing denied October 24,1968.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Eldridge R. Hersey, Assistant State’s Attorneys, of counsel), for appellant.
    Samuel V. P. Banks and Anna R Lavin, of Chicago, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an interlocutory appeal, pursuant to Supreme Court Rule 604, from an order of the trial court, quashing a search warrant and suppressing certain evidence seized pursuant to the warrant. The State contends that the affidavit on which the warrant was issued presented reasonable cause for its issuance and that the motions to quash the warrant and to suppress the evidence should have been denied. The facts follow.

Duncan J. Everette, a special agent for the Federal Bureau of Investigation and referred to herein as the affiant, filed a complaint supported by affidavit seeking a search warrant for the premises described as 6949 West Grand Avenue in Chicago, Illinois. The complaint alleged that records of race horse bets, scratch sheets, miscellaneous gambling paraphernalia and other evidence of the offense of gambling could be found and seized at that address. Everette’s affidavit averred that he received information from two informers, each of whom had supplied reliable information concerning other gambling matters, and that they told of calling the Chicago telephone number 889-7272 on five different days and placing bets with the man who answered. The affidavit further alleged that the informers furnished the information separately and without knowledge of each other’s identity as an informer. He (Everette) then determined from telephone company records that the telephone number in question was that of Sam Golden of the Grand Avenue address; that he proceeded to place the building at that address under surveillance and that he personally observed the defendant entering the premises on July 15th and July 19th and again observed him in the vicinity of the building on July 25, 1966. The affidavit further recited that police records showed that the defendant had been charged with gambling and bookmaking on six different occasions. On the foregoing facts the warrant issued and the search was carried out.

The issue presented on this appeal is whether the hearsay statements contained in the affidavit are supported by sufficient underlying circumstances to merit recognition by the court as reasonable and reliable information. The court is not confined to rules of evidence such as would apply in the trial of a case nor does the law require that the affidavit allege facts sufficient to sustain a conviction. Moreover, courts are disposed to greater leniency with respect to the admission of evidence seized pursuant to a warrant than with respect to evidence seized pursuant to an arrest. United States v. Ventresca, 380 US 102 (1964).

An affidavit supporting a complaint for a search warrant is not deemed insufficient because it contains hearsay statements “so long as a substantial basis for crediting the hearsay is presented.” Aguilar v. Texas, 378 US 108 (1964); United States v. Ventresca, 380 US 102 (1964); Jones v. United States, 362 US 257 (1960). Thus probable cause for search may be based on information supplied by an informant if the reliability of the informant has been previously established, People v. Durr, 28 Ill2d 308, 192 NE2d 379, or independently corroborated, People v. McFadden, 32 Ill2d 101, 203 NE2d 888.

In the instant case the affiant stated that two informers, each unknown to the other and each of whom had in the past supplied reliable information regarding gambling matters, disclosed that they had placed bets through the telephone number identified with the premises and set forth in the complaint. The affiant also stated that he had observed the defendant in or around the premises in question on July 15, July 19 and July 25, 1966, and that he had discovered from police records that the defendant had been charged with gambling and bookmaking on six occasions.

The warrant must stand or fall on the facts set forth above. The other allegations in the affidavit which relate to the defendant’s itinerary to and from the Grand Avenue address are of no value since the source of the information is not specified and the allegations are prefaced only with the statement that the defendant “was observed.”

Excluding the allegations referred to in the preceding paragraph, however, the facts presented by the affidavit are still sufficient to support the issuance of a search warrant. People v. Williams (alias Kid Rivera), 36 Ill2d 505, 224 NE2d 225; People v. William J. Williams, 27 Ill2d 542, 190 NE2d 303. In both Williams cases, search warrants were issued on the basis of the hearsay statements of reliable informers. The informers told of witnessing and participating in dice games and horse race betting and in each case the affiant stated that the informers had supplied reliable information in the past. Although not essential to the outcome of the cases, the court observed in one case that known gamblers were seen frequenting the suspect premises and in the other case the informer forwarded betting slips to the affiant. In each case the court upheld the validity of the search warrant.

The defendant contends that the two Williams cases are not controlling and he relies on United States v. Roth, 391 F2d 507 (7th Cir). In that case the informer did not advise the law enforcement authorities of his personal observations, but merely relayed information from another undisclosed source. The informer was therefore only a conduit for the information and the reliability of the primary source could not be ascertained. It also appeared that the personal observations of the affiant and the other agent were insufficient to corroborate the information. One agent had observed in a warehouse sought to be searched boxes bearing a well known trade name similar to that of the company whose goods were charged to have been stolen. The court held that the boxes could have contained any of a wide variety of products manufactured by that company and that they did not necessarily contain the stolen merchandise which was sought. That is quite different from the case before us.

Defendant also contends that the court could not consider his previous arrest record as tending to corroborate the informers’ statements and he cites United States v. Mirallegro, 387 F2d 895 (7th Cir). In that case there was no allegation that any person had observed the actual gambling transactions or had participated in them. The affidavit merely stated that the suspect customarily purchased a racing form and then proceeded to an apartment in an adjoining city and that he had been arrested for gambling in 1933 and in 1965. The court held (with one dissent) that the affidavit failed to establish probable cause for the issuance of the warrant.

The principal difference between the instant case and Mirallegro, supra, is that in Mirallegro neither the affiant nor any informer observed the commission of a crime or participated therein. In that case facts which were observed and set forth in the affidavit were not in the opinion of the court sufficient to support an inference that a crime was being committed.

In the instant case the affidavit identified the premises as the location at which telephone bets had been placed, and the conduct described, far from being innocent, was in itself criminal. It was then material, under People v. Williams, 36 Ill2d 505, 224 NE2d 225, to show that the suspect premises were frequented by known gamblers. Defendant was observed entering the building and was shown to have a substantial record of gambling charges.

The defendant also contends that the affiant Everette had no authority to investigate gambling offenses and that he appears in this case as a private citizen and a volunteer. That does not affect the credibility or accuracy of the affidavit he made. The affidavit was sufficient to establish probable cause for the issuance of the warrant, and the search was reasonable.

The order is reversed and the cause is remanded with directions to admit the evidence obtained by the search upon the trial of the defendant, and for such other and further proceedings as are not inconsistent with the views herein expressed.

Order reversed and cause remanded with directions.

DEMPSEY, P. J. and SULLIVAN, J., concur.


author: MR. JUSTICE DAVIS

text:
    Charles W. Klaren, Plaintiff-Appellee, v. Board of Fire and Police Commissioners of the Village of Westmont, an Illinois Corporation, Stephen S. Szymski, Chairman, Francis S. Maier, and Alex N. Bruno, Secretary, Defendants-Appellants.
    Gen. No. 68-31.
    Second Judicial District.
    September 13, 1968.

      Walter C. Wellman, of Lyons, and William A. Redmond, of Bensenville, for appellants.
    Hooper, Bowers, Calkins and Carney, of Downers Grove, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff filed an action for an administrative review of the decision of the Board of Fire and Police Commissioners of the Village of Westmont (the Board), which found that his status was “Sergeant of Police of the Village.” The Circuit Court adjudged that the finding and decision of the Board should be held for naught and ordered the Board “to enter in and upon its records a finding that the plaintiff ... is a ‘Captain of Police’ of the Westmont Police Department.” The Board appealed from this judgment.

On December 10, 1965, the plaintiff was requested to meet with the Board to discuss his status with the Westmont Police Department, and on January 5, 1966, the Board entered an order finding that the status of the plaintiff was to be designated as “Sergeant of Police of the Village.”

On January 8,1966, a copy of the finding was delivered to one of the attorneys for the plaintiff, and on February 1, the plaintiff filed a petition with the Board requesting a hearing on his status as a member of the Police Department and that the finding dated January 5, be set aside.

A hearing was held on the plaintiff’s petition on February 28, 1966. On March 9,1966, the Board made a finding that the evidence introduced at the hearing on February 28 was insufficient to warrant an order vacating the finding and order entered on January 5, and ordered that the petition to vacate such finding and order be denied; and that the status of the plaintiff as a Sergeant of Police of the Police Department of Westmont, as determined by the order entered January 5, 1966, be affirmed. The administrative review action and appeal followed.

The Board contends:

(1) that it was incumbent on the plaintiff to take an administrative review from the finding and order entered January 5,1966;

(2) that the finding of the Board that the plaintiff was a sergeant of police was neither manifestly against the weight of the evidence, nor arbitrary or capricious, and the Circuit Court had no right to set it aside;

(3) that the Circuit Court had no right to interfere with the discretion of the Board in determining the status of the plaintiff;

(4) that the evidence definitely showed that the plaintiff was not entitled to be blanketed in as a captain of police in that he had not served for more than one year as such prior to the time a board of fire and police commissioners was appointed ; and

(5) that the question involved is moot in that the plaintiff has taken a disability pension and is no longer a member of the police department.

In event we sustain the Board’s threshold procedural contention, we will not reach the other reasons assigned for reversal of the judgment below.

It is uncontroverted that the Board entered an order on January 5,1966, finding that the plaintiff held the status of sergeant of police. Notice and a copy of this order was served on one of the attorneys for the plaintiff on January 8,1966.

A petition to set aside this order was filed on February 1, and on February 5, a stipulation was entered into between the attorneys for the Board, the Village, and the plaintiff, that the appeal period under the Administrative Review Act would commence as of the date of the final order on said petition. A hearing was held on plaintiff’s petition on February 28,1966.

At this hearing, the plaintiff offered testimony and documentary exhibits pertinent to the controversy. The matter was argued by counsel for the plaintiff and the Board, and was taken under advisement. On March 9, 1966, the Board rendered its decision. The complaint for administrative review was filed on April 4 — more than thirty-five days after the order of January 5, was served on plaintiff’s attorney, but less than thirty-five days after the Board’s decision of March 9.

The plaintiff contends that the appeal period under the Administrative Review Act would commence as of March 9, 1966 — the date when the final order was entered on the petition filed February 1; and that the stipulation entered into by the attorneys for the plaintiff, the Village, and the Board (in the presence of the Board), estops the Board from raising the limitation defense at this late date.

However, it has long been the law that when a court has no jurisdiction of the subject matter, it cannot be conferred by consent; and that whether the question was raised in the lower court is immaterial because there can be no waiver of jurisdiction of the subject matter where the trial court lacked jurisdiction to enter the order appealed from. Toman v. Park Castles Apartment Bldg. Corp., 375 Ill 293, 302, 31 NE2d 299 (1941); Meyer v. Meyer, 328 Ill App 408, 419, 66 NE2d 457 (1946).

There is no presumption in favor of the jurisdiction of courts of limited and inferior jurisdiction. 14 ILP, Courts, § 22. By analogy, the same rationale would apply to the finding and order of an administrative agency.

In Pearce Hospital Foundation v. Illinois Public Aid Commission, 15 Ill2d 301, 154 NE2d 691 (1958), the court held that the action of the commission in entertaining the petitions for retroactive reinstatement subsequent to its final order of April 26,1957, did not have the effect of reopening the cause, or of detracting from the finality of its determination; and that the commission is a creature of statute and has no greater powers than those conferred upon it by the legislature. At page 307, the court stated:

“Accordingly, it has been consistently held that an administrative agency may allow a rehearing, or modify and alter its decisions, only where authorized to do so by statute. (See: People ex rel. Illinois Highway Transportation Co. v. Biggs, 402 Ill 401; Illini Coach Co. v. Illinois Greyhound Lines, Inc., 403 Ill 21.)”

At pages 304 and 305, the court pertinently outlined the relevant provisions of the Administrative Review Act (Ill Rev Stats 1967, c 110, pars 264-279, inch), in these words:

“Section 1 of the Administrative Review Act defines an administrative decision as follows: ‘ “Administrative decision” or “decision” means any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency.’ (Ill Rev Stats 1957, chap 110, par 264, emphasis supplied.) Section 2, in turn, provides that the act ‘shall apply to and govern every action to review judicially a final decision of any administrative agency,’ (par 265,) and it is the direction of section 4 that such judicial proceedings ‘shall be commenced by the filing of a complaint and the issuance of summons within thirty five days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.’ (Par 267, emphasis supplied.) In construing the latter direction we have held that a person seeking a judicial review of an administrative decision must act promptly and within the time prescribed by the statute. (People ex rel. Illinois Highway Transp. Co. v. Biggs, 402 Ill 401.) When the statutory definition and mandate are applied in the case at hand, it is manifest that appellees did not seek judicial review in apt time.”

The defendants in the case at bar do not contend that any rule or statute authorizes the Board to grant a rehearing in this case. Under this posture of the case, the language of the court in Oliver v. Civil Service Commission, 80 Ill App2d 329, 224 NE2d 671 (1967), at pages 333, 334 and 335 is pertinent:

“Judicial review of an administrative decision may not be had until the aggrieved party has exhausted his administrative remedies. The Administrative Review Act provides that if an agency provides a method for rehearing a case, either by an agency rule or by a statutory provision, then an agency decision is not an appealable ‘administrative decision’ until the aggrieved party requests rehearing and his petition is denied. The statute further provides that in the event an agency does not have a provision for rehearing, the final order becomes ripe for review when it is rendered by the agency. The parties to this suit stipulated that the Commission does not have any rule or regulation providing a means for the rehearing of its decisions and therefore under the applicable provisions of the Administrative Review Act the order of May 8, 1963, was an ‘administrative decision,’ and the period for review began to run as of that date.
“Plaintiff argues that the Commission has the inherent power to correct its orders, just as courts have continuing jurisdiction over their own decrees. On this basis he contends that the Commission could correct its order even though there was no specific provision in the rules or in the ordinance for rehearing. The law is clear however that regulatory agencies have no inherent powers. They are creatures of statute, vested only with those powers specifically conferred upon them by the legislature and accordingly they may modify their decisions only where authorized to do so by statute. Pearce Hospital Foundation v. Illinois Public Aid Commission, 15 Ill2d 301,154 NE2d 691.
“Plaintiff also contends that the Commission should be estopped from interposing the statute of limitations as a defense to this action because the Commission accepted the petition and entertained it until the 35-day period had run and then acted on it by denying the relief sought. Plaintiff asserts that the conduct of the Commission was inconsistent with the theory that it could not rehear the case and that since the Commission induced plaintiff to refrain from commencing his action for judicial review, it may not be allowed to raise the statute of limitations as a defense. This theory however is not supported by the facts.”

In the case at bar, the Board had no jurisdiction to hear the petition to set aside the finding and order of January 5, 1966. The parties litigant could not confer jurisdiction on the Board by consent, and the complaint to review said order should have been filed within thirty-five days from January 8, 1966 — the date when a copy of such finding and order was served on the plaintiff’s attorney. Such complaint was not filed until April 4, 1966, which was not within the thirty-five day limitation.

Accordingly, the judgment of the trial court is reversed, and the cause is remanded with directions to enter an order dismissing the complaint for administrative review in that it was not filed within thirty-five days from January 8,1966.

Reversed and remanded with directions.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Earl Clarence Jones, Defendant-Appellant.
    Gen. No. 51,713.
    First District, First Division.
    September 16, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Earl Clarence Jones, was charged in an indictment with having committed the crime of theft on August 12, 1964, “. . . in that he knowingly obtained unauthorized control over a semi-tractor and trailer and nine thousand one hundred sixteen pounds of automobile tires, of the value of more than one hundred fifty dollars ; the property of Saginaw Transfer Company, Inc., a corporation, intending to deprive said Saginaw Transfer Company, Inc., permanently of the use and benefit of said property, in violation of Chapter 38, Section 16-1 (a) of the Illinois Revised Statutes, 1963 . . . .” The defendant waived his right to a jury, and after a trial, he was found guilty by the trial judge of the offense charged. Judgment having been entered on said finding, the defendant was sentenced to the State Penitentiary for a term of from two to five years. He appeals from the finding of guilty and the judgment entered thereon, contending that the State failed to prove him guilty beyond a reasonable doubt.

Herbert Jornd, an employee of Saginaw Transfer Company, which is located at 2800 South Lock Street, testified that as he was driving a truck through the company yard shortly after midnight on August 12, 1964, he saw the defendant walk towards a 1964 Ford Diesel tractor-trailer owned by Saginaw and climb into the truck’s cab. Jornd said “hi” to the defendant, but received no response. Shortly thereafter, Jornd saw the truck in which the defendant had been sitting going down the street away from the Transfer Company. Jornd then told his supervisor, James Mitchell, about the disappearance of the tractor-trailer.

James Mitchell, assistant terminal manager for Saginaw, testified that after Jornd had informed him that the truck had been driven away, he called the police and went out on his own, “scouting” for the unit. He found the missing truck stopped at a viaduct at 2800 Loomis Street. At the time Mitchell arrived the defendant was attempting to back the truck away from the viaduct which was too low to allow the truck to pass under it. Mitchell asked the defendant what he was doing. The defendant replied that he had been on a bus when he saw the missing unit abandoned at the viaduct, and that he got off the bus to investigate; he further stated that he was in the process of attempting to return the unit to Saginaw when Mitchell arrived on the scene. Mitchell further testified that the viaduct at 2800 Loomis is about a half mile from the Transfer Company. Mitchell stated that it appeared to him that the defendant was under the influence of alcohol.

Detective Richard Kereta of the auto theft unit of the Chicago Police Department testified, that in response to a police radio call, he proceeded to the viaduct at 2800 Loomis to investigate the report that a trailer had been stolen from Saginaw. When he arrived the defendant and Mitchell were engaged in a “scuffle.” Kereta arrested the defendant, and then took him to police headquarters. At headquarters, the defendant repeated the explanation he had given to Mitchell for his activities concerning the truck. On cross-examination Kereta testified that at the time he arrested the defendant he had an opinion that the defendant had been drinking, but that he was not under the influence of alcoholic beverages. He explained that the defendant didn’t slur his words and he didn’t stumble; “I would say at that time that he’d just been drinking.”

Myrtle Jones, defendant’s wife, was called as a witness for the defense, and she testified that she was extremely ill on the night her husband was arrested. The defendant stayed with her for part of the evening; however, after several neighbors arrived to look after her, he told her he was going to get a few hours of work in, leaving the house at about midnight. Mrs. Jones further testified that she didn’t believe her husband had been drinking when he left for work.

The defendant took the stand in his own behalf and testified that he was employed by Saginaw as an inspector of tractors and trailers, and that his duties did not include driving trucks outside of the company yard. Defendant’s normal working hours were from 7:30 p. m. to 3:30 a. m. He further testified that at about 6:45 p. m. on August 11th he called his foreman at Saginaw and told him that he would be a little late because his wife was seriously ill and he might have to take her to the hospital. At about midnight he took a bus to work; he had never before reported for work so late in his shift. Defendant testified that as he walked through the gate at Saginaw he saw a man run from behind two parked trucks and climb into the cab of the aforementioned Ford truck. Defendant stated that he ran over to the truck to question the unidentified man; however, the latter refused to answer his questions, and proceeded to pull out of the yard into the street, with the defendant hanging onto the truck’s door. According to the defendant, when the unidentified man got to the viaduct at 2800 Loomis he jammed on the truck’s brakes, throwing the defendant from the vehicle onto the pavement. When the defendant got up he saw the unidentified man running away. The defendant then tried to back the truck away from the viaduct to return it to Saginaw; while he was attempting to do this, Mitchell arrived. The defendant denied that he had stolen the tractor-trailer from Saginaw.

The defendant contends that the State did not prove beyond a reasonable doubt that he possessed the felonious intent necessary to convict him of theft, arguing that (1) the State failed to show that he intended to permanently deprive Saginaw of the use of its truck; and (2) that at the time of the taking he was so intoxicated that he was incapable of forming the requisite intent to steal. As to defendant’s first point, we agree with him that to justify a conviction for theft the evidence must establish beyond a reasonable doubt that he intended “. . . to deprive the owner permanently of the use or benefit of the property . . . .” Ill Rev Stats 1965, c 38, § 16-1 (d) (1). However, we cannot agree with him that the evidence introduced only demonstrated that he “. . . was drunk and his riding in the truck was really nothing but a joy ride.”

In People v. Baker, 365 Ill 328, 6 NE2d 665, a case in which the defendant contended on appeal that the State had not proved the felonious intent necessary to constitute the crime of larceny, the Illinois Supreme Court, in affirming the conviction, stated: “Intent may seldom be proved by direct evidence for the reason that one may not know what is in the mind of another, but intent may be deduced from acts committed and circumstances in evidence.” At pp 332, 333. The question of intent is one to be determined by the trier of fact from an examination of the facts and circumstances introduced in evidence. People v. Price, 81 Ill App2d 111, 225 NE2d 453. In the instant case the trial judge was presented with conflicting versions as to how the defendant came into the possession of the missing vehicle. It was solely within his province, as trier of fact, however, to resolve these conflicts, for it was for him to determine the weight of the evidence and the credibility of the witnesses. People v. Morgan, 20 Ill2d 437, 170 NE2d 529. The trial judge could have found on the basis of the evidence introduced that the defendant arrived at the Saginaw yard at about midnight, and without reporting for work, proceeded to drive the Ford truck away from the company premises, an act which he was not authorized to perform. In addition, it was uncontradicted that the defendant was apprehended by a Saginaw employee while he was in sole control of the truck, attempting to back it away from a viaduct under which it would not pass. From these facts and circumstances the trial judge could properly have inferred that the defendant took the truck from the Saginaw premises with the intention of depriving Saginaw permanently of its use.

Although the defendant attempted to explain his possession of the truck, and claimed that he was attempting to return it when he was arrested, the trial judge was not obligated to believe his testimony; and his exclusive possession of the recently stolen Saginaw vehicle was, in and of itself, sufficient to prove him guilty of theft beyond a reasonable doubt. People v. Garrett, 49 Ill App2d 296, 200 NE2d 7. We will not override the finding of the felonious intent by the trier of fact in a situation where the defendant maintained the stolen property as his own until his apprehension, and where there is no fact or circumstance indicating that he intended to return the property to its rightful owner, except for his prompt apprehension and contradictory explanations. People v. Heaton, 415 Ill 43, 46, 112 NE2d 131.

Finally, defendant contends that his felonious intent was not established beyond a reasonable doubt because the evidence proved that he was too intoxicated to entertain said intent. In order for intoxication to constitute a valid defense the defendant must show that his inebriated condition was so great as to prevent him from forming the intent essential to the crime charged. People v. Reynolds, 27 Ill2d 523, 190 NE2d 301. Whether the foregoing situation is indeed the case is a question of fact to be determined by the trier of fact on the basis of the evidence introduced before him. People v. Cozzie, 397 Ill 620, 74 NE2d 685. We have examined the record and are satisfied that the defendant was not so intoxicated as to negate the existence of an intent to permanently deprive the owner of the truck of its property. See People v. Strader, 23 Ill2d 13, 177 NE2d 126. Although there was evidence to the effect that the defendant had been drinking, this evidence did not show that the defendant was so intoxicated as to prevent him from forming an intent to permanently deprive Saginaw of its truck. The judgment of the Criminal Division of the Circuit Court is, therefore, affirmed.

Affirmed.

ADESKO and MURPHY, JJ., concur.