text:
    Blanch Kirkham and Edith Robinett, Plaintiffs-Petitioners, v. Beatrice Paul Halford, Defendant-Respondent.
    Gen. No. 66-81.
    Fifth District.
    June 6, 1967.
    James E. Buchmiller, of Greenville, for plaintiff s-petitioners, Blanch Kirkham and Edith Robinett.

      Gordon Burroughs, of Burroughs, Simpson and Burroughs, of Edwardsville, and Emerson Baetz, of Alton, for appellee.
   EBERSPACHER, J.

Lena Paul died testate leaving surviving her, her daughters, Edith Robinett, Blanch Kirkham and Beatrice Halford. By her will she made a monetary bequest to a friend, a bequest of sterling silver and a devise of her home to her daughter Beatrice Halford, a gift of the residue and remainder to her three daughters in equal shares, and nominated her daughter Beatrice Halford as executor.

During the lifetime of Lena Paul, she had created various joint tenancy accounts in First Federal Savings and Loan Association of Edwardsville and Clover Leaf Home Building and Loan Association of Edwardsville which at the time of her death amounted to $18,000 in principal, and had purchased a certificate of deposit in the National Bank of Highland in the amount of $2,500. As to each account and the certificate of deposit, cards or agreements were signed by Lena Paul and her daughter Beatrice Halford, the agreements complying with the statutory provisions for the creation of joint tenancy in personal property with the right of survivorship. Ill Rev Stats c 76, § 2.

All of the funds concerned were contributed by Lena Paul, and Beatrice Halford had never made a claim on the accounts for principal or interest until after her mother’s death. The interest payments were made to Lena Paul during her lifetime, but there was uncontradicted testimony that Lena Paul, when she received interest payments referred to them as “our interest” and gave some of the interest money to Beatrice Halford. There was also uncontradicted testimony that Beatrice Halford and her husband had borrowed money from her mother for the purchase of their home, and secured the loan with a mortgage, during the time these joint accounts were in existence. Mrs. Paul had also made loans to the other two daughters during this period. After the death of Lena Paul, the executrix failed to inventory these joint tenancy accounts in the estate; the other two daughters, appellants herein, filed a petition asking for a citation to discover assets. Citation was issued against the financial institutions and Beatrice Halford, the executor and co-tenant. After hearing, the court found that a joint tenancy was created by the decedent and Beatrice Halford in the accounts and held against the petitioners on their petition for citation.

In In re Estate of Schneider, 6 Ill2d 180, 127 NE2d 445, the court held that parol evidence is admissible to go behind the terms of a joint bank account, and show the absence of donative interest on the part of the original owner. Subsequently in Frey v. Wubbena, 26 Ill2d 62,185 NE2d 850, rules were laid down which were designed to clarify and uphold survivorship rights in such familiar eases as joint bank accounts, joint savings and loan accounts, and certificates of corporate stock issued in the name of two or more persons as joint tenants with rights of survivorship, reaffirming the doctrine of Schneider, recognizing that courts may, in proper cases, look behind the form of the transaction to determine the rights of the parties between themselves. In Murgic v. Granite City Trust & Savings Bank, 46 Ill App2d 334, 197 NE2d 112, the Appellate Court held that the deposit agreement constituted prima facie evidence of donative intent on the part of the decedent, and that since there was some evidence tending to rebut the donative interest the burden shifted to the survivor who was then required to show by clear and convincing evidence that a gift was intended; that the survivor had failed to maintain that burden of proof and that decedent’s estate was entitled to the purported joint account. Reviewing the case, our Supreme Court in their opinion at 31 Ill2d 587, 202 NE2d 470, held that an instrument creating a joint account under the statutes presumably speaks the whole truth and that the one claiming adversely to the agreement, has the burden of establishing by clear and convincing evidence that a gift was not intended, and that the burden does not shift to the party claiming under the agreement. They found that the administrator had not proved by clear and convincing evidence that a gift was not intended.

In Dixon Nat. Bank v. Morris, 33 Ill2d 156, 210 NE2d 505, it was held on the facts that the mother’s executor had sustained the burden of establishing by clear and convincing evidence that a gift to the daughter had not been intended. Although it reaches a different result, on a different set of evidentiary facts, than was reached in Murgic, supra, it does not purport to change the principles laid down in that case. In the opinion, the Murgic case is quoted with approval at 33 Ill2d p 159, 210 NE2d p 506:

“In Murgic v. Granite City Trust and Savings Bank, 31 Ill2d 587, 202 NE2d 470, we said: ‘The legislative policy to treat the joint account as a useful technique for transferring intangibles dictates that the estate or other person claiming against the survivor should have the burden of disproving intent on the part of the decedent, and the degree of proof required to void the presumption should be clear and convincing. . . . We hold that an instrument creating a joint account under the statutes presumably speaks the whole truth; and, in order to go behind the terms of the agreement, the one claiming adversely thereto has the burden of establishing by clear and convincing evidence that a gift was not intended. This burden does not shift to the party claiming under the agreement.’ ”

The Supreme Court affirmed the holding of both the trial court and Appellate Court saying:

“In the present case the clear and convincing quality of the evidence that supports the judgments of the trial and appellate courts is apparent. Those judgments are based primarily upon the testimony of the appellant herself, which showed that the joint account was not established to effect a present gift to her, but rather for her mother’s convenience in the event that she needed money but was unable to go to the bank to get it. In this case there is no satisfactory evidence that the mother understood the characteristics of the account that she was opening.”

Both parties to this appeal rely on the holding in Dixon Nat. Bank v. Morris, supra; the appellee to sustain the trial court’s holding on the theory that appellants have failed to sustain their burden of proof; the appellants on the theory that the accounts were only for the convenience of the decedent, and that she did not understand the legal effect or significance of such accounts.

The testimony was conflicting and inconsistent as to the decedent’s business ability, her understanding and physical condition. When called under section 60 of the Practice Act, Beatrice Halford testified that she used the word “convenience”'in a conversation that occurred immediately upon the other two sisters learning of the existence of the joint accounts. She explained her use of the word referred to the convenience to either she or her mother getting the money out at any time without a loss of interest, since the greater part of the funds had previously been invested in joint certificates of deposit, and could not be withdrawn at any time without a loss of interest, and that the certificates of deposit had only yielded 2% while the savings and loan accounts drew 4%. She also testified that the joint accounts were created because her mother wanted her to have the money. An attorney called in to open the box in which the evidence of the joint tenancies was contained, in response to a question as to whether either of appellants inquired of Beatrice Halford why their mother had made the certificates in joint tenancy, testified: “There was a heated discussion about the joint tenancy and one of the sisters of Mrs. Halford said, ‘Well, why did she do it?’ and Mrs. Halford said ‘because she wanted me to have it.’ ” His representation of Mrs. Halford had been terminated before the filing of the petition for citation, and he had never represented her as executrix of her mother’s estate. He was of the opinion that the word “convenience” was not used and that during the argument, the gist of Mrs. Halford’s contention was “She wanted me to have it.”

Marie Bornheuser, a former neighbor of Mrs. Paul, was acquainted with the three daughters, as well as being a friend of Mrs. Paul. By the terms of the will she was to receive a monetary bequest. Her testimony was to the effect that decedent was a rugged individual who could handle almost any problem by herself, was “very sharp” and had a mind of her own. She further testified that at the time she had taken her to withdraw money from the bank at Highland, and place it in the savings and loan at Edwardsville, she talked to her about joint tenancies, advised her that she was making Mrs. Halford a joint tenant and asked her what she thought about giving one daughter more than the others; when she responded indifferently, Mrs. Paul said “Well, I have discussed it with two prominent business men and they think it is my business too.” She was not able to testify as to the exact time of this conversation, but thought it was when Mrs. Paul was 76 to 78 years of age. Mrs. Paul was 82 at the time of her death, which occurred in May 1964 and had made her will on October 31, 1961, which date is later than the creation of each of the accounts here involved.

The decision below necessarily involved the weighing and crediting of conflicting or at least inconsistent testimony. After having heard the witnesses and having observed their demeanor on the witness stand, unlike the trial court in Dixon Nat. Bank v. Morris, supra, the trial court found that a gift was intended; there was before the trier of the fact ample evidence to support such finding and there was a lack of clear and convincing evidence that the accounts were created solely for the convenience of the decedent, or that decedent did not understand the characteristics of the accounts. The conclusion of the trial court based upon substantial evidence, where the trial court has an opportunity to observe the conduct of witnesses, should not be disregarded merely because the reviewing court might disagree with it, or might, as triers of facts, have come to a different conclusion. Rector v. Robinson, 36 Ill App2d 272, 183 NE2d 22; Rude v. Seibert, 22 Ill App2d 477, 161 NE2d 39.

We therefore affirm the judgment of the Circuit Court of Madison County.

Judgment affirmed.

MORAN and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James H. Bohanon, Plaintiff-Appellee, v. Mildred Bohanon, Defendant-Appellant.
    Gen. No. 66-48.
    Third District.
    June 12, 1967.
    George C. Adams, of Chicago, for appellant; Eva L. Minor and Frank W. Curran, of Kankakee, for appellee.
   Opinion

PER CURIAM.

Not to be published in full.


author: ALLOY, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Norbert Terlikowski, Defendant-Appellant.
    Gen. No. 66-9.
    Third District.
    June 12, 1967.

      Robert Lawson, of Rock Island, for appellant.
    Richard Stengel, State’s Attorney, of Rock Island, for appellee.
   ALLOY, J.

Defendant Norbert Terlikowski appeals to this court from a judgment finding him guilty of armed robbery resulting in a sentence of not less than three nor more than ten years in the Illinois State Penitentiary. On appeal in this court he asserts that the court erred in denying his motion to dismiss for failure to afford him a speedy trial and also that the testimony as to his identification was doubtful and uncertain.

The record in this cause discloses that there had been an armed robbery of a Geifman’s food store in Rock Island in the morning of April 4, 1964, by three mén. One of the men had pointed a gun and directed the store manager to “do exactly what I tell you to do and nothing will happen.” All three of the men were wearing sports coats. Defendant Terlikowski was identified as the man who had the gun in a lineup with seven other men in Minneapolis. He was also identified by another witness in the store at the lineup in Minneapolis.

The lineup in Minneapolis resulted from a series of events originating when defendant Norbert Terlikowski was charged with burglary on January 30, 1964, by the State of Minnesota. He was incarcerated in Minnesota on April 23, 1964, on the burglary charge. Numerous continuances were had at the request of the defendant until finally a Preliminary Hearing was held and defendant was bound over to the District Court in Minnesota on May 5, 1964. A warrant was received from the State of Illinois prior to such time charging defendant with the crime of Armed Robbery. A Fugitive from Justice Complaint was issued by the Municipal Court of the City of Minneapolis and defendant was finally arrested as a fugitive from justice on April 23, 1964. The appearance on such complaint was continued until May 5, 1964, for the purpose of permitting defendant to file a writ of habeas corpus or to obtain a Governor’s Hearing. On the 25th day of May, 1964, when no application had been made by defendant for a Governor’s Hearing or a writ of habeas corpus, the matter was continued till the 25th day of June to enable Illinois authorities to perfect extradition.

On June 11, 1964, the Governor of the State of Illinois issued a Requisition Warrant and on June 15, 1964, the Governor of the State of Minnesota issued a Rendition Warrant. Defendant’s first appearance in the District Court was on the 24th day of June, 1964, and a continuance was requested to June 30, 1964. On the 30th day of June, 1964, defendant appeared in the District Court, and requested a hearing on bail as established on the burglary charge on the Governor’s Warrant. On the 10th day of July, 1964, a Governor’s Hearing was held which was continued at the mutual consent of counsel in an attempt to effect an agreement regarding disposition of the pending cases. It appears from the record that the State of Illinois was in continuous contact with the County Attorney’s office of the State of Minnesota in an effort to find out when the defendant could be picked up. The State of Hlinois was finally informed that defendant could be picked up on October 6, 1964, and by October 8, 1964, defendant was returned to Rock Island County, Illinois.

On appeal in this court, defendant asserts that since he was held in Minnesota on a charge in which bail was set at $30,000 and since bail on the Rock Island County charge and the Fugitive Warrant was set at $50,000, he was deprived of due process of law by being continuously imprisoned from April 23,1964, until the trial commenced on October 26, 1964. Under the provisions of Illinois Revised Statutes (1963 Ill Rev Stats, c 38 § 103-5) it is specifically provided that every person “in custody in this State” for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant. It is apparent from the language of that act that to come within the specific language of the statutory provisions, the defendant must have been confined in the State of Illinois. The record shows that he was always in custody of the State of Minnesota, until removed to Illinois. Defendant was actually out on bail on the burglary charges in the State of Minnesota until April 23, 1964. On that day he was arrested on a Fugitive Warrant from the State of Illinois. Thereafter, the bond of defendant on the Minnesota charge was raised to $30,000 and the bond on the Illinois warrant to $50,000. Defendant remained in custody of the Minnesota authorities by reason of action of Minnesota authorities.

Under the prior act which was applicable in the State of Illinois (1963 Ill Rev Stats, c 38 § 748) and which was repealed as of January 19, 1964, the 120-day period referred to commenced to run from the date of confinement in Illinois and not from the date of arrest outside the State (People v. Hayes, 23 Ill2d 527, 529, 179 NE2d 660). It is also apparent from the record that there is no showing that the delay in being brought to trial in the State of Illinois did not result from defendant’s acts. As indicated in People v. Jones, 33 Ill2d 357, 361, 211 NE2d 261 it is incumbent upon defendant to show in an application for discharge, under the four-month rule, that he was committed, gave no bail and was not tried within four months thereafter and that the delay did not happen on his application. Without specifically considering the 120-day rule, on the basis of the record before us, which shows efforts on part of the State of Illinois to obtain custody of defendant, defendant’s constitutional rights were not violated. As indicated by our Supreme Court in People v. Moriarity, 33 Ill2d 606, 611, 213 NE2d 516, the Illinois authorities moved to secure custody of defendant once his whereabouts became known. It cannot be said on the record in this case that the delay in trial was so arbitrary or oppressive as to deprive defendant of his right to a speedy trial.

On the other issue raised by defendant, it is clear from the record that the store manager, Mr. Binning, positively identified defendant who had pointed a gun at him, in very close proximity to such witness. He was also positively identified by another person who was in the store as the man who had the gun. Such witness refused to identify any of the other defendants who were being tried but remembered defendant Terlikowski very clearly. The circumstance that Binning was confused as to defendant’s weight thinking that he might have been a much heavier man would not discredit his identification since he was .-very positive of the identification on trial of the cause. The other witness also clearly identified the defendant and the evidence of only one witness would be sufficient to positively identify defendant (People v. Lamphear, 6 Ill2d 346, 356, 128 NE2d 892).

We had previously considered another case involving another defendant who was convicted as a fellow defendant in People v. Derengowski, 67 Ill App2d 66, 213 NE2d 618. In that case we pointed out that positive identification by one witness who has ample opportunity for observation would be enough to support a conviction. The identification of defendant Terlikowski was more positive than that of the other two defendants. Even though there were inconsistencies in the testimony of one witness as to the estimate of weight of defendant, between 160 to 220 pounds, such estimate is not sufficient to cast real doubt that the accused was properly identified, and such inconsistency would not preclude conviction on the ground of insufficiency of identification evidence, particularly in view of the positive identification by two witnesses.

Since we find no reversible error in the record, the judgment and sentence of the Circuit Court of Rock Island County will be affirmed.

Affirmed.

STOUDER, P. J. and CORYN, J., concur.


text:
    The People of the State of Illinois, on the Relation of Robert C. Collins, Petitioner-Appellee, v. Loren S. Young, Whiteside County Superintendent of Schools, Defendant-Appellee, and John Torrens, Lee County Superintendent of Schools, Defendant-Appellant.
    Gen. No. 66-79.
    Third District.
    June 12, 1967.
    Rehearing denied July 10, 1967.

      Henry S. Dixon, State’s Attorney of Lee County, Dixon, Devine, Ray & Morin, of Dixon, for appellant.
    Besse, Besse, Frye & Arnold, of Sterling, and L. E. Ellison, State’s Attorney of Whiteside County, of Morrison, for appellee.
   ALLOY, J.

This is an appeal from an order in a proceeding for a writ of mandamus. The petition alleged that a discrepancy existed in the defining of the boundaries between two school districts, concerning the location of certain lands as being in one or the other, and prayed that the defendants, county superintendents of schools, be commanded to define such boundaries and that the court aid them in determining in which district the disputed lands belong and direct the defendants to define the boundaries accordingly. The order entered in the Circuit Court of Whiteside County directed defendants to consider the territory as being in a designated school district, that is, the Woodlawn District. On appeal in this case, defendant John Torrens, Lee County Superintendent of Schools, contends that since the court itself defined the boundaries it exercised legislative power in violation of the Illinois Constitution; that the order erroneously commanded not the doing of a discretionary act, but the manner in which the act must be performed; that petitioner failed to show a legal right to relief in mandamus; and that the order is not supported by allegations or proofs.

Petitioner-appellee, Robert Collins, and other residents had filed a proceeding to detach certain property from Prairieville Elementary School District No. 200 and attach this property to Woodlawn Elementary School District No. 201. The Petitioners omitted a triangular tract of farmland in the south half of section 18 lying north of the Rock River. The petition was denied since detachment would have isolated this triangular piece. Petitioners thereafter filed a petition for writ of mandamus as against the Superintendents of Schools of both Lee and Whiteside Counties, the two counties involved, respectively. The petition for mandamus alleged that the map obtained from the Superintendents was on such a small scale that petitioners could not determine the trae boundary when the detachment action was filed; that petitioners had to refer to tax records to determine the proper boundaries. It was further alleged that the property had been taxed for 95 years in Woodlawn District; that in the map in Lee County the property was shown to be in the Prairieville District while in the map in Whiteside County the property was shown to be in the Woodlawn District. The petition then alleged that it was the duty of the Superintendent of Schools of the two counties involved under section 3-15.7 of the School Code (1965 Ill Rev Stats, c 122, § 3-15.7):

“to act jointly and define the boundaries of the school districts involved which lie in Lee and White-side Counties, in conformity with what appears to have been the intention of the Trustees of Schools when such boundaries were established.”

The petition alleged that the Superintendents had been requested to define the boundaries but had refused. It was then requested that a mandamus order issue to command the Superintendents, jointly, to define the boundaries; that the court should aid them in determining the intention of the Trustees when the boundaries were established; that the court should conclude from considering the records and the long acquiescence of the Lee County Clerk and the School Boards of Districts No. 200 and 201 that “all of the south half of Section 18 north of the Rock River belongs in the Woodlawn District No. 201.” They prayed that defendants should be directed to define the boundaries of the school districts in accordance with this conclusion.

At the hearing it was stipulated by the parties that the territory under consideration “has been considered by the property owners and the tax assessors as being a part of School District 201 as evidenced by the following facts: Since 1871 that land located in the South Half of Section 18 has always been assessed in School District 201, Counties of Whiteside and Lee, and its predecessor district or districts, and that none of the South Half of said Section 18 has ever been since 1871 assessed in School District No. 200, Counties of Whiteside and Lee, or its predecessor district, or districts. That since at least 1900, to date, no residents of the South Half of Section 18 have attended school in said Prairieville School District 200, but that in fact all of the residents of the South Half of said Section 18 have in fact insofar as they did attend school, attended Woodlawn School in said School District 201.”

The trial court entered an order which recited that the court had considered the stipulation and found, first, that a dispute existed as to the location of the school boundary line between Woodlawn and Prairieville and, secondly, that since 1871 the public officials of both counties have considered the territory was in Woodlawn District. The court by order then concluded that the territory in dispute should be considered by the two Superintendents as being territory located within the boundaries of Woodlawn District and not within Prairie-ville District.

Appellees in this court point out that long, universal acquiescence on the part of all parties concerned established a “de facto” boundary between the school districts; that the existence of such de facto boundary according to law removed all discretion from defendants in defining the boundary between the districts, thus making their definition of the boundaries a purely ministerial act and subject to mandamus. Appellees point out that the existence of a de facto boundary between the districts meant that there was a mistake in public records, and that by showing this mistake to exist, petitioners established. a clear right to relief in mandamus. Appellees assert that the order was based on findings of fact necessarily implied from the allegations and stipulations made by the parties in open court.

In the case of People v. City of LeRoy, 293 Ill 278, 127 NE 695, an attempted annexation to a city failed in 1904 and was in fact void. The subdivider, the city, and everyone involved treated the territory as if it had been annexed to the city. The residents of the territory voted in city elections and paid city taxes. In 1915 the authority of the city over this territory was questioned and in concluding that this territory was part of the City of LeRoy, the Illinois Supreme Court said, at page 284: “No benefit can result from cutting off from the city the territory in question after the many years of peaceful and satisfactory union, universally acquiesced in.” The court pointed out that ever since the ineffectual effort to annex, the city has exercised authority over the added territory and year after year levied and collected taxes, and that no voter or public official for more than ten years had deemed it his duty to call in question the city’s power.

In the case before us for approximately 95 years the Clerk of Lee County has, through the tax assessor and collector, caused taxes to be assessed, levied and collected in the territory in dispute, and the Clerk has given this tax money to the Woodlawn School District. The tax basis for both school districts and the rate levied thereon has been calculated, obviously; on the basis that the disputed territory was within the Woodlawn School District. No voter residing in the school district, nor any inhabitant from the territory, ever made any objection to this procedure. In fact, no resident of the area had ever attended a school in a district other than Woodlawn. It is clear that no benefit can result from cutting off from the Woodlawn School District this territory, after so many years of peaceful and satisfactory inclusion in such district, which was universally acquiesced in by all parties involved. The circumstance that boundaries may not have been originally located in a certain location would nevertheless yield to long acquiescence in boundaries by the parties concerned and such boundaries are treated as the true boundaries by the parties and the courts (People v. City of LeRoy, supra; Ginther v. Duginger, 6 Ill2d 474, 129 NE2d 147, 151).

It is apparent also that mandamus will lie to prevent a clear abuse of discretion or to control the exercise of discretion in a manner consistent with the applicable rule of law, as an exception to the general rule that mandamus may not be employed to compel public officers having discretionary power to act in a particular way. In Bransfield Co. v. Kingery, 283 Ill App 405, the petitioner sought mandamus to compel officials of the Department of Public Works to approve highway contracts awarded to the petitioner by the Board of County Commissioners of Cook County. It was argued there that the duty of the Department was discretionary and the rejected bidder had no remedy in mandamus. The court concluded that mandamus would lie and stated at page 411:

“We believe that mandamus will not lie to control the exercise of a discretion where there is room for an honest difference of opinion but that it will lie to prevent a clear abuse of discretion or to control a discretion exercised contrary to an applicable rule of law. Where there has been an unlawful denial of a clear duty on the part of a public official, the citizens to whom such right or duty is owing may secure its performance by writ of mandamus.”

The court in that case quoted from Illinois State Board of Dental Examiners v. People ex rel. Cooper, 123 Ill 227, 13 NE 201, where the court pointed out that if a discretionary power is exercised with manifest injustice, the courts are not precluded from commanding its due exercise.

In the case before us, what the trial court has done is to direct that the Superintendents fix the boundary in a particular manner which, on the record, was the only legal manner in which the boundary could be determined. This was an appropriate exercise of the mandamus power of the court where the clear result should be to include the triangular piece of disputed territory in the Woodlawn District.

Appellant had also contended in this court that the argument of the appellees with regard to the “de facto” character of the boundary was a new issue not presented to the trial court. While the exact phrase may not have appeared in any petition or motion before the trial judge, the basic concept was in fact presented to the trial judge and his conclusion followed the same line of reasoning. Whether we call it a “de facto boundary” or “boundary by acquiescence,” the result is the same.

If the trial court had simply directed the Superintendents to fix the boundary and they had come in with a decision finding the territory to be in Prairieville, the trial judge would have had authority to issue a writ of mandamus to compel them to exercise their discretion in accordance with the applicable law and to place the property in the Woodlawn District. This is in effect what the court has done in the cause before us and we agree that the order of the trial court was proper and should be affirmed.

Affirmed.

STOUDER, P. J. and CORYN, J., concur.


author: MR. PRESIDING JUSTICE DAVIS

text:
    Chapman, Mazza, Aiello, Inc., an Illinois Corporation (Vernal Frette, Assignee and Petitioner), Petitioner-Appellant, v. Ace Lumber and Construction Co., Inc., an Illinois Corporation, Ace-Bilt Homes, Inc., an Illinois Corporation, National Brick Company, an Illinois Corporation, Material Service Division of General Dynamics Corporation, a Delaware Corporation and “Unknown Owners,” Defendants, and Beverly Bank, Not Individually, But as Trustee Under Trust No. 8-0160, Defendant-Appellee.
    Gen. No. 66-94.
    Second District.
    June 13, 1967.

      Goldsmith, Dyer, Thelin and Schiller, of Aurora, for appellant.
    Corrigan and Mackay, of Wheaton, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an action brought by Chapman, Mazza, Aiello, Inc., to foreclose a mechanic’s lien on real estate legally vested in the Beverly Bank, as Trustee.

On January 11, 1965, the circuit court entered a decree awarding a lien under the Mechanics’ Lien Act. (Ill Rev Stats 1965, c 82, pars 1-39 incl.) The decree found that the plaintiff had entered into several contracts, in the fall of 1963 and winter of 1964, to furnish concrete and masonry labor and materials to be incorporated in an apartment building being constructed on the premises in question; and that as a result of work done and the subsequent compliance with the provisions of the Mechanics’ Lien Act, the plaintiff had a valid lien in the amount of $28,866.74.

The decree ordered that the specified sum due be paid to the plaintiff within five days and, upon failure of such payment, that the premises be sold in accordance with the law to satisfy said lien. It also detailed the procedures under which the Master in Chancery was to conduct the sale and directed that he deliver to the purchasers at such sale a Certificate of Sale, which, among other things, was to set forth “the time when such purchaser or purchasers will be entitled to a deed for said premises, if the same shall not be redeemed according to law.”

The decree further provided that “if the premises so sold shall not have been redeemed within the time allowed by the laws of the State of Illinois,” the Master should execute and deliver a deed to the holder of the Certificate of Sale, and that all defendants and any persons claiming under them, thereafter would be barred from any claim to the premises “which shall not have been redeemed according to law.”

The Master’s sale under the decree was held on February 11, 1965, and the premises were bid in by the plaintiff for the full amount due, plus costs. The Order Approving the Report of Sale was entered on March 22, 1965. The Certificate of Sale issued by the Master provided:

“And I do Further Certify, That the said Chapman, Mazza, Aiello, Inc. legal representatives or assigns, will be entitled to a deed of said premises on the 11th day of February A. D. 1966, unless the same shall be redeemed according to law.”

Section 16 of the Judgments Act (Ill Rev Stats 1965, c 77, par 16) provides for the issuance of a certificate of sale when real estate is sold by virtue of the enforcement of a mechanic’s lien and sets forth the contents of such certificate, including “the time when the purchaser will be entitled to a deed, unless the premises shall be redeemed, as provided in this Act.”

Section 18 of the Act (Ill Rev Stats 1965, c 77, par 18) relating to the redemption period from a judicial sale of real estate, states in part:

“Any defendant . . . may . . . except as in Section 18e of this Act provided, within 12 months from the sale, redeem the real estate so sold . . . .”

And, section 18e of the Act (Ill Rev Stats 1965, c 77, par 18e) provides in part:

“In any suit ... to foreclose any other lien upon real estate arising or created on or after the effective date of this amendatory Act . . . the court shall order, adjudge and decree in the decree foreclosing the lien, the date when the owner of the equity of redemption, or if more than one, when the last of the owners thereof, shall have been served with summons or by publication as required by law, or shall have submitted to the jurisdiction of the court, and any defendant . . . may . . . within 12 months from the date so adjudicated in the decree, or within 6 months after the foreclosure sale, whichever is later, redeem the real estate so sold .... The adjudication of such date in the decree of foreclosure shall have the effect of establishing the date for the commencement of the period of redemption under this section and shall be binding on all persons and for all purposes.” (Emphasis ours.)

Section 18e reduces the time within which one may redeem from the foreclosure of a lien upon real estate. The mechanic’s lien in this case arose subsequent to August 7, 1961 — the date of the Amendatory Act — and, thus, the provisions of section 18e are applicable to this suit. Contrary to the mandate of the statute, the final decree did not contain the express adjudication of the date when the owner of the equity of redemption was served with process or submitted to the jurisdiction of the court.

The Beverly Bank was served with summons on July 11, 1964, although this fact was not noted or adjudicated in the decree. Under the applicable statute, the last day for redemption should have been August 11, 1965, six months after the foreclosure sale of February 11, 1965.

On September 14, 1965, the Beverly Bank filed a petition reciting that the foreclosure decree and subsequent sale and order confirming the sale were all made and entered without notice to it, although it had appeared and answered in the case; that the final decree failed to state the date of service of summons upon the last owners of the equity of redemption as required by the statute; that it had been thereby prejudiced; and that the foreclosure decree and Certificate of Sale and Decree confirming the Report of Sale should be set aside.

No order appears to have been entered on this petition, and on February 1, 1966, the Beverly Bank filed a petition to redeem, tendering the amount necessary therefor. The court, on the same date, entered an order declaring that the Bank had the right to redeem. Both the petition and order recited that the Certificate of Sale provided that the purchaser would be entitled to a deed on February 11, 1966, unless the premises were redeemed according to law. Obviously, it was the position of the court that the Bank had the right to redeem until that date.

On February 3, 1966, Vernal Frette, alleging that she was the assignee of the Certificate of Sale by virtue of an assignment dated January 10, 1966, petitioned the court to amend the final decree so as to expressly provide that the Beverly Bank was the owner of the equity of redemption; that it had entered its appearance on August 14, 1966; and that the period of redemption would expire 12 months from that date, or 6 months from the foreclosure sale, whichever was the later. The petitioner also claimed to be entitled to a deed immediately by reason of the provisions of section 18e of the Judgments Act.

Vernal Frette thereafter, on February 14, 1966, filed a motion to vacate the order permitting redemption. The Beverly Bank filed a countermotion or petition praying that the decree and all subsequent actions taken in furtherance thereof be vacated and set aside or that, in the alternative, the redemption by it be held proper.

The court entered an order vacating the final decree of January 11, 1965, and all subsequent actions based thereon. Vernal Frette appealed to this court from the last mentioned order contending that the trial court was without jurisdiction, because of the lapse of time, to enter the order vacating the decree; and that it should have amended the decree nunc pro tunc to include the date of service of summons on the Beverly Bank and should have directed the issuance of a deed. The Beverly Bank contends that the failure to incorporate the date when it was served with summons, as required by statute, rendered the decree, and all subsequent proceedings thereon, void as in excess of the court’s jurisdiction; and that the decree was, therefore, subject to attack subsequent to 30 days from the date of its entry. In the alternative, it argues that any amendment to the decree should be prospective only in its operation from the date it is made, and that the redemption would not then be late.

A final decree, ordinarily, may not be attacked subsequent to 30 days after its entry. Brockmeyer v. Duncan, 18 Ill2d 502, 505, 165 NE2d 294 (1960); Oskvarek v. Richter, 32 Ill App2d 438, 442, 178 NE2d 209 (1961). After 30 days, a final judgment or decree may be attacked in a very limited manner and only under certain prescribed circumstances. In the absence of a timely appeal, a final decree may be attacked under section 72 of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 72). This section amalgamated into a single petition the variety of post-judgment and decree remedies formerly available in legal, equitable and statutory civil cases. The cases construing the section have accorded it a broader perspective than that given to various forms of post-judgment relief available at the common law. Brockmeyer v. Duncan, supra; Ellman v. De Ruiter, 412 Ill 285, 106 NE2d 350 (1952); Mieszkowski v. Norville, 61 Ill App2d 289, 297, 298, 209 NE2d 358 (1965); Wilson v. Wilson, 56 Ill App2d 187, 193, 205 NE2d 636 (1965).

In addition to the conditions under which relief may be obtained under section 72, a void judgment may be attacked at any time in any court, directly or collaterally. Cherin v. R. & C. Co., 11 Ill2d 447, 453, 143 NE2d 235 (1957); Barnard v. Michael, 392 Ill 130, 135, 63 NE2d 858 (1945); DePhillips v. DePhillips, 63 Ill App2d 19, 25, 211 NE2d 147 (1965). Section 72 of the Civil Practice Act specifically reaffirms, in subparagraph (7) thereof, that nothing contained in that section affects any existing right to relief from a void decree.

The petition of the Beverly Bank, on which the order was entered vacating the decree and all subsequent proceedings, was filed more than 30 days after the entry of the final decree. We are of the opinion, however, that the court had jurisdiction to entertain the petition and to vacate its prior decree under the rule of law last mentioned: namely, the power of a court to set aside its void decrees at any time.

The decree foreclosing the mechanic’s lien was defective in that it failed to specifically order, adjudge and decree the date on which the owner of the equity of redemption was served with process or submitted to the jurisdiction of the court. This defect was sufficient, in our opinion, to render the decree void, in part.

The right of redemption is a statutory right. It is the statute — not the decree — which gives this right. Illinois Nat. Bank of Springfield v. Gwinn, 390 Ill 345, 353, 61 NE2d 249 (1945). It is apparent that the putative right of redemption contemplated by the decree in this case was not that granted by section 18e. This section, by its terms, establishes the date for the commencement of the redemption period from the foreclosure of mechanics’ liens created after its effective date. There are certain exceptions not important here.

The legislature required that the date of service of process on the owner of the equity of redemption, or the date that such owner submitted to the jurisdiction of the court, be set forth and adjudicated in the decree. The language of the statute is mandatory: it is obligatory upon the court to incorporate and adjudge that date in its decree.

Absent such an adjudication, the redemption period cannot start to run. The statute gives the right to redeem “within 12 months from the date so adjudicated in. the decree, or within 6 months after the foreclosure sale, whichever is later.” (Emphasis ours.) The statute makes “the adjudication of such date” the essential requisite to the establishment of the date for the commencement of the period of redemption. In the case at bar, there was not even a finding of such date in the decree. Even if such had been the circumstance, our courts have frequently held that when a statute calls for the decree to adjudicate the required date the mere finding of such date in the decree is not sufficient. See: Chechik v. Koletsky, 305 Ill 518, 519, 137 NE 419 (1922); Weberpals v. Jenny, 300 Ill 145, 150, 151, 133 NE 62 (1921); Central Republic Bank & Trust Co. v. Bent, 281 Ill App 365, 371, 372 (1935).

The wisdom of the legislature in this respect becomes very apparent in the case before us. Section 18e has the effect of shortening the period of redemption from all sales to which it is applicable. Thus, it is important that any person, who possesses the right of redemption, should not lose that right by mistake or misinterpretation.

Under section 18, the Beverly Bank would have had a right to redeem at any time within 12 months from the date of sale, or until February 11, 1966, but under section 18e, this right would have terminated on August 11, 1965. We believe that the legislative purpose inherent in section 18e was to apprise any owner or owners having a right of redemption of the time within which such right must be exercised; and we also believe that such purpose could be adequately accomplished through the adjudication of such date in the decree.

The prudence of requiring such adjudication in the decree to establish the date for the commencement of the running of the redemption period is apparent for another reason found in this case. Even if all parties were aware that section 18e was applicable, they might disagree as to the redemption period, either through misapprehension with reference to ownership of the equity of redemption, or through misunderstanding relative to the date which would be established for the commencement of the period of redemption, dependent upon the procedure whereby the court acquired jurisdiction of such owner or owners.

The statute states that the court shall adjudicate “the date when the owner of the equity of redemption, or if more than one, when the last of the owners thereof, shall have been served with summons or by publication as required by law, or shall have submitted to the jurisdiction of the Court . . . .” In this case, the Beverly Bank was served with summons on July 11, 1964, and entered its appearance in the case on August 5, 1964. From the pleadings filed in the court below, it appears that Vernal Frette would treat the date of the entry of appearance as the crucial date for the purposes of the redemption statute even though the defendant Bank was served with summons.

We interpret the statute differently, and believe that the date when the Bank submitted to the jurisdiction of the court by the entry of appearance would have significance only if summons had not been previously served upon it. Also, Vernal Frette, in her petitions, recited August 14, 1964, as the date of the entry of appearance, rather than August 5, 1964, when, from the information before us, the entry of appearance appears to have been filed.

We mention this only to further suggest the legislative sagacity in requiring an adjudication of the relevant date as a prerequisite to the commencement of the redemption period. It is abundantly clear that the statute requires that the date be adjudicated, and that absent the adjudication, the redemption period does not commence to run. We must give effect to this legislative intent. Droste v. Kerner, 34 Ill2d 495, 503, 217 NE2d 73 (1966).

The trial court did not adjudge the date when the owner of the equity of redemption was served with process as required under section 18e. The decree, foreclosing the lien and referring to the redemption permitted by law, purported to decree a right to redeem under section 18 of the Judgments Act, rather than section 18e. The Certificate of Sale issued by the Master, a copy of which was recorded, purported to establish 12 months from the date of sale as the period in which to redeem. It provided that the purchasers would be entitled to a deed thereunder on February 11, 1966 — 12 months from the date of sale — if the premises were not redeemed. The Report of Sale of the Master recites that he issued the Certificate of Sale as directed by the decree. The order of the court approving the Report finds that the Master proceeded in accordance with all of the terms of the decree.

The decree thus purported to direct a sale and redemption which the statute did not authorize. The decree cannot transcend the statute, since it is the statute which grants the right of redemption. The part of the decree which purported to grant a right of redemption beyond that conferred by the statute was an act beyond the jurisdiction of the court and was totally void.

Jurisdiction, in a given case, refers not only to the power of the court to hear and determine a particular matter, but also to its power to render the particular judgment in question. Where the court, after acquiring jurisidiction of the parties and the subject matter, enters a decree which transcends the statute conferring jurisdiction on it, such decree exceeds the jurisdiction of the court in this respect and is void. It may be attacked, directly or collaterally, even though more than 30 days has elapsed from the date of its entry. The People ex rel. Castle v. Spivey, 10 Ill2d 586, 591, 592, 141 NE2d 321 (1957); Ward v. Sampson, 395 Ill 353, 361, 70 NE2d 324 (1946); Thayer v. Village of Downers Grove, 369 Ill 334, 339, 16 NE2d 717 (1938); Woodward v. Ruel, 355 Ill 163, 173, 174, 188 NE 911 (1934); DePhillips v. DePhillips, supra, 25.

In this case, the court had jurisdiction of the parties and of the subject matter. Had it possessed the inherent power to render the particular decree in question, its decree would have been immune from collateral attack, no matter how erroneous it may have been. However, the right of redemption is created solely by statute and the court had no authority to transcend its limits and to decree a redemption other than that conferred by the statute. The decree in this regard was not only erroneous, it was void.

Armstrong v. Obucino, 300 Ill 140, 133 NE 58 (1921) also involved a mechanic’s lien suit. The question before the court was whether the sale made contrary to the provisions of the statute, but in conformity with the directions of the decree under which it was made, was null and void, and, therefore, subject to collateral attack, or whether it was merely erroneous and subject only to a direct attack.

The decree provided for the sale of the premises unless the plaintiff paid the amount due within five days, and provided that the sale was to be made subject to redemption according to the statute existing prior to July 1, 1917. That statute provided for the sale of the premises on due notice after decree, and for the delivery of a deed if the premises were not redeemed within 15 months from the date of sale. In 1917, the legislature amended this statute and provided that the amendments should apply to all liens arising after July 1, 1917. The amendatory sections provided for the sale of the premises after the period of redemption expired, namely: after 15 months from the first certificate of levy.

The lien before the court arose subsequent to July 1, 1917, and the provisions of the decree relative to the sale of the premises and redemption should have conformed to the statute, as amended. The court held that the decree of the trial court was not merely erroneous, in ordering a sale and redemption under an inapplicable statute, but was void. At pages 142 and 143 it stated:

“The statement has very frequently been made that where a court has jurisdiction of the parties and the subject matter, its decree, however erroneous, can only be attacked on appeal or error; but the rule is subject to an exception equally well settled, — that a decree may be void because the court has exceeded its jurisdiction. The bill prayed for the enforcement of the lien by a sale beyond and contrary to the powers given by the statute for enforcing mechanics’ liens, and it does not not follow that because the court had acquired jurisdiction of the parties and the subject matter it could make such a decree as was prayed for. Courts are limited in the extent and character of their judgments, and if they transcend their lawful powers their judgments and decrees are void and may be collaterally impeached wherever rights claimed under them are brought in question. The doctrine that where a court has once acquired jurisdiction it has a right to decide every question which arises in the cause, and its judgment or decree, however erroneous, cannot be collaterally assailed, is only correct when the court proceeds according to the established modes governing the class to which the case belongs and does not transcend in the extent and character of its judgment or decree the law or statute which is applicable to it. (Windsor v. McVeigh, 93 US 274; United States v. Walker, 109 id. 258; Rogers v. Dill, 6 Hill, 415; Folger v. Columbian Ins. Co., 99 Mass 267; Fithian v. Monks, 43 Mo 502; Seamster v. Blackstock, 83 Va 233; Anthony v. Kasey, id. 338; Charles v. White, 214 Mo 187.) Where a court, after acquiring jurisdiction, has assumed to enter a decree for a sale which goes beyond the limits of the jurisdiction and transgresses the law the decree is void, and the sale based thereon is likewise an absolute nullity. (16 RCL 7.) ”

Vernal Frette contends that Armstrong, which contained express language in the decree contrary to the statute, is distinguishable from the case at bar where there was no precise language in the decree ordering a right of redemption contrary to that set forth in the statute. However; in the case before us, the very absence in the decree of the language required by section 18e is evidence that the court was not following the relevant statute and was proceeding contrary to the mandate of the statute. The Certificate of Sale, which provided a redemption period of 12 months from the date of sale and the approval thereof by the court, leaves no doubt that the court was decreeing a right to redeem under section 18, a power it did not possess. The decree was directly contrary to the appropriate statute and transcended the extent of the authority given the court thereunder. Armstrong v. Obucino, supra, 145.

However, the fact that the decree of the court is void, with reference to its provisions for the sale and redemption of the pertinent property, does not render the entire decree void. Where parts of a decree are clearly separable, only that part which is in excess of the authority granted to the court is void; and the remainder is valid. People v. Sbarbaro, 386 Ill 581, 591, 592, 54 NE2d 559 (1944); Kimbrough v. Parker, 344 Ill App 483, 488, 101 NE2d 617 (1951); 49 CJS, Judgments, § 450.

In Sbarbaro, the court on page 591, quoting from Belford v. Woodward, 158 Ill 122, 41 NE 1097 (1895), stated:

“When two matters adjudicated upon by a judgment are shown upon the face of the judgment record to be easily and naturally separable, and one of them to be within the jurisdiction of the court, and the other to be beyond its jurisdiction, the judgment may be held to be valid as to the former matter, and void as to the latter. In such case, the judgment will be sustained so far as it adjudges what the court has the power to adjudge as being within the issue, and will be void so far as it attempts to adjudicate upon what is beyond its power as being outside of the issue.”

The foreclosure decree contained two distinct and separable parts. The first part adjudged the rights of the parties as between themselves: namely, that the plaintiff was entitled to a lien against the premises in a specific amount and that the defendants, Beverly Bank, as Trustee, and Ace-Bilt Homes, Inc., and each of them, were liable for payment of the sum found due. The second part of the decree related to the execution of the decree: it provided for the sale of the premises in the event the judgment was not paid; the manner of making the sale; the redemption rights thereunder and the right to a deed under such sale. Thus, the decree would be executed in accordance with the adjudicated rights and liabilities of the parties. In this sense, a foreclosure decree has been likened to an equitable execution providing the manner in which it shall be enforced. Sterling Nat. Bank v. Martin, 213 Ill App 566, 569 (1919). Our courts have long treated the two parts of a foreclosure decree as distinct and separate, with that part relating to the sale and redemption under such a decree being recognized as merely the manner of enforcing the rights fixed by the remainder of the decree. Totten v. Totten, 299 Ill 43, 47, 132 NE 277 (1921); Dillenburg v. Hellgren, 291 Ill App 448, 452, 10 NE2d 44 (1937).

Thus, we hold that only that part of the decree relating to the manner of executing the rights adjudicated by the decree is void; and that part finding and adjudicating the amounts due the plaintiff, the respective rights of the parties relative to the sum found due, the persons obligated to pay such sum and the existence of a lien against the premises for said sum is, and remains, a valid decree.

Vernal Frette also contends that the trial court should have granted her petition to amend the foreclosure decree, nunc pro tunc, to adjudicate the date required by the statute. Had this been done, the amendment would have related back to the original date the decree was entered — February 11, 1965 — and would have cured the defect contained in the decree. However, any attempted redemption after August 11, 1965, would have been too late. Such an order would not have been appropriate here.

A nunc pro tunc order is one presently made to show what was done earlier, and it takes effect from such prior date. It is a device to supply an omission and to enter of record an order actually made, but omitted from the record. It may correct clerical misprisions, but not supply omitted judicial action nor correct judicial errors. Channel v. Merrifield, 206 Ill 278, 282, 69 NE 32 (1903); Barnett v. Werner, 13 Ill App 2d 494, 497, 498, 142 NE2d 830 (1957); Ill Rev Stats 1965, c 7, par 2; 23 ILP, Judgments, § 93; 49 CJS, Judgments, §§ 117, 118, 237.

Obviously, the omission in the decree in this case was not one of form. Had the trial court amended this decree, nunc pro tunc, by adding thereto the date when the owner or owners of the equity of redemption were served with process or submitted to the jurisdiction of the court, such amendment would have substantially changed what was done rather than cause the court proceedings to speak the truth as to what was done at the time of the entry of the decree. As pointed out in Sinnock v. Marney, 250 Ill App 266, 270, 271 (1928), such an amendment is appropriate where neither party will be prejudiced by the subsequent change. Had such an amendment been permitted in this case, the right to redeem, supposedly granted by the decree, would have been lost to the Beverly Bank. The court erred in decreeing a redemption, which exceeded its statutory jurisdiction, and the nunc pro tunc amendment would only have compounded this error.

For the reasons stated herein the order vacating the decree of January 11, 1965, is affirmed insofar as it relates to that part of the decree pertaining to the sale of the real estate and the right of redemption; and the order is further affirmed insofar as it vacates and sets aside the sale had under the decree, the Certificate of Sale and the decree confirming the Master’s Report of Sale; and the order is reversed insofar as it vacates that portion of the decree not relating to its execution.

The cause is, therefore, remanded for the entry of a supplemental decree which shall adjudicate the date when the owner or owners of the equity of redemption of the premises were served with process and shall authorize a sale and redemption thereof pursuant to section 18e of the Judgments Act, and shall provide such further proceedings as are then necessary to execute said decree.

Affirmed in part; reversed in part, and remanded.

MORAN and ABRAHAMSON, JJ., concur.


author: JUDGE ABRAHAMSON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Dean J. Deakyne, Defendant-Appellant.
    Gen. No. 66-116M.
    Second District.
    June 13, 1967.

      Lee, Gieren & Phelan, and William H. Le Vitus, of Chicago, for appellant.
    Bruno W. Stanczak, State’s Attorney, of Waukegan, and William G. Rosing, Assistant State’s Attorney, for appellee.
   JUDGE ABRAHAMSON

delivered the opinion of the court.

A complaint was filed in the Circuit Court of the Nineteenth Judicial Circuit, Lake County, charging the defendant, and appellant herein, Dean J. Deakyne, with a violation of section 22.01 of the Uniform Act Regulating Traffic (Ill Rev Stats, c 95%, § 119.1 (1965)). Deakyne entered a plea of not guilty, waived his right to a trial by jury, and the matter proceeded to trial on May 31, 1966. At the conclusion of the evidence, the court found the defendant guilty as charged.

Defendant filed a motion in arrest of judgment and a petition for probation. The motion attacked the sufficiency of the complaint on the grounds that the complaint failed to charge the defendant with an offense and failed to set forth any facts either in the language of the statute or otherwise that would adequately inform the defendant of the nature and elements of the offense of which he was accused in violation of section 111-3 (a) (3) of the Criminal Code (Ill Rev Stats 1965, c 38, par 111-3 (a)).

On June 23, 1966, the court entered an order that denied both the motion and petition and sentenced the defendant to 15 days in the Lake County jail and imposed a fine of $100 and $5 costs. It is from that portion of the order that denied the motion in arrest of judgment that this appeal is prosecuted.

The form of complaint used in this case was the Illinois Uniform Traffic Ticket and Complaint adopted by the Department of Public Safety Division of State Highway Police in 1964. The complaint charged that “on the 9th day of April, 1966, at 4:07 A. M.” the defendant did unlawfully operate a 1965 2-door Pontiac, license number PF 2372 (1966) on Half Day at Skokie Highway in Deerfield Township and Lake County in that he was “Eluding a Police Officer” in violation of section 22.01 of the Uniform Act Regulating Traffic.

Section 111-3 (a) of the Criminal Code provides as follows:

“Form of Charge.
“(a) A charge shall be in writing and allege the commission of an offense by:
“ (1) Stating the name of the offense;
“(2) Citing the statutory provision alleged to have been violated;
“ (3) Setting forth the nature and elements of the offense charged;
“(4) Stating the date and county of the offense as definitely as can be done; and “(5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty.”

It is obvious that the complaint against Deakyne contained the elements enumerated in subparagraphs (1), (2), (4), and (5). The defendant would have us conclude, however, that the statement “Eluding a Police Officer” is not sufficient to satisfy the requirements of sub-paragraph (3).

The purpose of the section is to assure that an accused is adequately informed as to the precise charge brought against him so that he will be able to prepare his defense and to protect himself from subsequent prosecution for the same offense. People v. Laczny, 63 Ill App2d 324, 330, 331, 211 NE2d 438; People v. White, 24 Ill App2d 324, 330, 164 NE2d 823.

The defendant cites a recent Supreme Court case, People v. Griffin, 36 Ill2d 430, 434, 223 NE2d 158, which holds that a verified complaint that charged the defendant with the offense of Reckless Driving in that he drove his vehicle with a willful and wanton disregard for the safety of persons and property in violation of the statute was insufficient because it did not state the "nature and elements” of the crime. That case, and the earlier case of People v. Green, 368 Ill 242, 13 NE2d 278, approved and cited therein, concerns itself with the problem that the charge of Reckless Driving did not tell the defendant what specific acts he was charged with. The court pointed out that the charge of reckless driving against the defendant might include a multitude of different acts: running through a succession of red lights; driving at an excessive rate of speed; driving on the wrong side of the road, etc. It would be essential in such charge that the defendant be advised as to the particular acts that comprised the offense to assure his constitutional privilege against double jeopardy.

The same problem does not exist in the charge of "Eluding a Police Officer” which, although brief, is nonetheless designated with sufficient precision to apprise the accused of the particular act that is the basis of the charge.

Section 119.1 of chapter 951/2 of the Illinois Revised Statutes, (§ 22.01 of the UART) provides that a person must "willfully” fail or refuse to heed the police officer to be guilty of the offense of “Fleeing or attempting to elude police officer.” The defendant argues that the complaint against him was, therefore, fatally defective in that it did not charge him with the “willfulness” necessary to support the conviction. Presumably, he would require that, at the least, the complaint should have recited that he had “willfully eluded a police officer.” However, the act of “eluding” anything includes, by definition, the element of willfulness that is necessary to prove the offense. It cannot be said that a person “eludes” another unless it involves a voluntary effort to avoid or escape that other person. Therefore, the addition of the word “willfully” would have been redundant and its inclusion was not essential as urged by the defendant.

We conclude that the complaint was sufficient to advise the defendant of the precise offense of which he was accused and that, therefore, his motion in arrest of judgment was properly denied.

We are also not convinced that the Criminal Code has application to the Illinois Uniform Traffic Ticket and Complaint. The Supreme Court, on February 15, 1964, adopted an “Amended Rule relating to procedure in traffic cases, quasi-criminal cases and certain misdemeanors. . . .” prepared by the Conference of Chief Circuit Judges. (Ill Rev Stats, c 110, Procedures in Traffic Cases immediately following 101.72.) Paragraph (c) of that Rule expressly provides for the use of that form of complaint and it would not be unreasonable to conclude that the Criminal Code has no application. People v. Harding, 34 Ill2d 475, 216 NE2d 147.

For the reasons cited, the judgment of the trial court will be affirmed.

Judgment affirmed.

DAVIS, P. J. and MORAN, J., concur.


author: CORYN, J.

text:
    Albert E. Arnold, Plaintiff-Appellee, v. H. W. Carpenter, d/b/a H. W. Carpenter Co., Defendant-Appellant.
    Gen. No. 66-50.
    Third District.
    June 14, 1967.

      Davis, Morgan & Witherall, of Peoria, for appellant.
    Mathis, Sloan & Littler, of Peoria, for appellee.
   CORYN, J.

This is an appeal by H. W. Carpenter, d/b/a H. W. Carpenter Co., defendant, from a judgment of the Circuit Court of Tazewell County entered on a jury verdict in the amount of $5,028.22 in favor of Albert E. Arnold, plaintiff, on his suit for breach of an oral employment contract. Defendant raises three issues on appeal, that is, (1) that the verdict is contrary to the manifest weight of the evidence, (2) that plaintiff failed to prove damages, and (3) that the court erred in refusing defendant’s instructions 3 and 5.

Plaintiff’s complaint alleged, inter alia, that in May, 1955, he and defendant entered an oral contract of employment whereby plaintiff was to run defendant’s parts and service department for a starting salary of $75 per week, with a $5 increase in salary every six months and a yearly bonus equal to 15 percent of the net annual profit from the operation of the parts and service department. Plaintiff also alleged that he terminated his employment with defendant in April 1964, and that there was owing to him at that time by defendant substantial sums because of defendant’s failure to fully pay him the 15 percent bonus during each of the years of his employment, plus $300 accrued vacation pay. Defendant’s answer admitted that plaintiff was employed by him from May 1955 to April 1964, but denied that defendant ever agreed to give plaintiff a $5 raise in salary every six months, or an annual bonus of 15 percent of the net profits from the parts and service department.

The evidence regarding the terms of the oral contract of employment necessarily came from the testimony of the litigants, was conflicting, and generally adhered to the allegations of each party’s pleadings. However, it appears to be undisputed that the following weekly pay increases were made:

June 1955 $75.00
December 1955 80.00
June 1956 85.00
December 1956 90.00
June 1957 95.00
December 1957 100.00
June 1958 105.00
January 1961 125.00
July 1962 130.00
May 1963 150.00

The record also discloses that the following additional payments were made to plaintiff by defendant during the period of employment:

December 1955 $100.00
December 1956 Interest free loan December 1957 100.00
March 1959 557.08
March 1960 1071.21
March 1961 248,59
June 1962 500.00
March 1964 600.00

The nature of these additional payments is disputed, the plaintiff claiming, generally, that these payments were, in the years made, partial or full payment of the 15 percent bonus, and the defendant claiming that they were Christmas gifts or gratuitous bonuses. There is evidence indicating that a factor of 15 percent was applied by defendant in computing said payments of $557.-08, $1,071.21, and $248.59 to plaintiff. Plaintiff testified, in effect, that he was shorted on his 15 percent bonus in those years when even dollar or no additional payments were made. Much other conflicting evidence, which we will not detail herein, was presented.

Defendant, relying upon Peaslee v. Glass, 61 Ill 94 (1871), argues that the verdict here for plaintiff is based solely upon plaintiff’s own testimony as to the terms of the employment contract, and cannot be allowed to stand in view of “defendant’s counterbalancing and equally credible testimony.” That this is not the law in Illinois, or even the meaning of Peaslee v. Glass, supra, was pointed out in Sears, Roebuck & Co. v Mears Slayton Lumber Co., 226 Ill App 287 (1922), where the court of review concluded that it would not be justified in setting aside a verdict as being contrary to the manifest weight of the evidence merely because a verdict for plaintiff is supported by one credible witness who is directly contradicted by an equally credible witness for defendant. It is for the jury to determine the credibility of witnesses and to attach the weight to be given their testimony. A verdict based on conflicting evidence, and approved by the trial judge, as here, will not be disturbed on appeal unless palpably erroneous, that is, unless an opposite conclusion is clearly evident. Brayfield v. Johnson, 62 Ill App2d 59, 210 NE2d 28 (Fifth District, 1965). We are satisfied, from our examination of this record, that the verdict, insofar as it finds for the plaintiff on the issue of the existence and terms of the oral contract, is founded in the evidence. The jury heard and observed the litigants while testifying and saw fit, reasonably we think, to believe plaintiff.

Defendant further argues that even if the evidence established the 15 percent bonus arrangement, that the . plaintiff failed to prove the elements measuring recovery, that is, the net profit of the parts and service department for the years in question. As a corollary to this point, defendant argues that the court erred in permitting Victor Barber, a Certified Public Accountant, to testify for plaintiff.

The record discloses that plaintiff obtained a pretrial order permitting Barber to examine defendant’s books and business records. Upon trial Barber testified that his firm audited defendant’s books for two days, and explained that defendant’s method of cost accounting by which no profit was shown in the parts and service department appeared to result from an approximate 50-50 allocation of the total operating expenses of defendant’s business between the sales department and the parts and service department. Without objection, Barber testified that he had been retained by plaintiff to ascertain whether defendant’s accounting methods were “equitable.” Barber then testified that by applying a different method of cost accounting to defendant’s records, that is, by allocating expenses to the parts department on the basis of the percentage of gross volume of business done annually by the parts and service department to the total gross volume of business done annually by both departments of defendant’s business, the parts and service department would show an annual net profit, as follows: He testified that in his opinion this method of cost accounting was reasonable in this case. To this total of $68,373, Barber added $14,002.32, which he claimed was an understatement in value of inventory for the year 1963, for a total net profit for this period in said department of $82,375.32. Fifteen percent of this total amounts to $12,356.30.

1959 $7,878.13
1960 11,716.15
1961 10,270.29
1962 310.83
1963 38,197.60
Total $68,373.00

Defendant testified that all advertising costs, clerical salaries, costs of office supplies and maintenance, depreciation, dues and subscriptions, insurance, interest on borrowed money, taxes, licenses, telephone, rent and utilities were allocated 50-50 between the departments while 90 percent of postage was allocated to service plus 100 percent of salaries in the parts and service department and all other “direct expenses” of that department. By this method of accounting, defendant showed, for the parts and service department, a net profit for one year, and losses for all others as follows:

1956 ($7,128.29)
1957 ( 7,532.54)
1958 ( 864.62)
1959 858.48
1960 ( 1,584.57)
1961 ( 5,803.88)
1962 (25,123.18)
1963 ( 6,884.76)

Defendant’s evidence also included a detailed list of the expenses incurred by the entire business for the years 1956 thru 1963.

The evidence regarding the gross volume of business done by the parts and service department for the years in question was not disputed. Also, the aggregate itemization and amounts of the expenses for both departments was undisputed. The real conflict was the determination of the proper method of allocating expenses between the two departments, and consequently, the resultant net income per year for each department. Cost accounting is a subject which the ordinary juror would not be acquainted with, and testimony from a person of skill and experience in this field, as Barber was, would be helpful to the jury. Barber had firsthand knowledge of defendant’s records by reason of pretrial discovery, and these records being undisputed, it was proper for Barber to give his opinion on whether the parts and service department made a net profit for the years in question. Cleary, Handbook of Illinois Evidence (Second Edition, 1963), §§ 11.3 and 11.9. Defendant also was permitted to testify on this topic. We conclude, therefore, that the amount of the jury’s verdict was supported by the evidence.

Lastly, defendant argues that it was error to refuse to give defendant’s instructions 3 and 5. The trial court gave defendant’s instruction 4, IPI 20.01, modified, which outlined the issues made by the pleadings. Defendant’s instruction 5, not an IPI instruction, was properly refused because it reiterated, in different language, part of defendant’s instruction 4. Defendant’s instruction 3, also not an IPI instruction, attempted to interject into the trial reference to an implied contract. We think this instruction was properly refused as the plaintiff’s claim was based on an alleged express oral contract, and was defended against on the theory that no such express oral contract had been made between the parties hereto.

For the reasons stated herein the judgment of the Circuit Court is affirmed.

Affirmed.

STOUDER, P. J. and ALLOY, J., concur.


text:
    Verga Mae Heap, Plaintiff-Appellant, v. University-Civil Service Merit Board, Defendant-Appellee.
    Gen. No. 66-85.
    Third District.
    June 14, 1967.
    Kleiman, Cornfield & Feldman, of Chicago, and Berry, Leighty & Simshauser, of Macomb, for appellant.
    Williams & Hartzell, of Carthage, and Webber, Balbach, Thies & Follmer, of Urbana, for appellee.
   CORYN, J.

Plaintiff, Verga Mae Heap, on January 22, 1965, was suspended from her job at Western Illinois University on charges of unauthorized absences, refusal to perform assigned work, failure to follow work schedules, insolence, carelessness, and loafing. She requested and was granted a hearing on these charges by the University Civil Service Merit Board, defendant. The Merit Board appointed a three-man hearing board to make findings of fact on these charges against plaintiff. The hearing board conducted a hearing, taking testimony of witnesses, and in October of 1965 forwarded to the Merit Board a transcript of this evidence, together with its finding of fact, based upon a 2 to 1 decision of the hearing board, that plaintiff was not guilty of the charges against her. The Merit Board, after reviewing said transcript and findings, unanimously determined that plaintiff was guilty of these charges, and therefore ordered her discharge from said employment. Plaintiff then filed suit for administrative review in the Circuit Court of McDonough County, and that court upheld the determination of the Merit Board. Plaintiff then perfected this appeal, raising as the sole issue, the propriety of the action of the Merit Board in overruling the findings of fact of the hearing board. Plaintiff argues that chapter 24%, § 38bl4 of Ill Rev Stats vests in the hearing board the right to make findings of fact, and that the Merit Board has no right or power to make findings of fact different from those made by the hearing board, and that by doing so in this case, the Merit Board usurped the statutory power and function of the hearing board.

The University Civil Service System (c 24%, §§ 38bl through 38m, Ill Rev Stats) was created by the legislature for the expressed purpose of establishing a program of personnel administration for various nonacademic employees of the several state colleges and universities. It was provided that the University Civil Service System would be under the control of the University Civil Service Merit Board, which consists of five members, three of them being members of the Board of Trustees of the University of Illinois, one a member of the Board of Governors of State Colleges and Universities, and one a member of the Board of Trustees of Southern Illinois University. The Merit Board was specifically vested with power to classify the various jobs within its jurisdiction ; to prescribe the duties for each of these classes; to prescribe the rate of compensation, and work hours; to set up standards of examination for the various job classifications; to authorize recruitment of personnel for the various job classifications; to establish lists of persons who have passed said examinations; and to provide rules for employment, promotion, transfer, and removal.

In this case, the section of the statute in controversy is chapter 24%, § 38bl4, which provides as follows:

“After the completion of his probationary period, no employee shall be demoted, removed or discharged except for just cause, upon written charges, and after an opportunity to be heard in his own defense if he makes a written request for a hearing to the Merit Board within 15 days after the serving of written charges upon him. Upon the filing of such a request for a hearing, the Merit Board shall grant such hearing to be held within 45 days from the date of the service of the demotion, removal or discharge notice by a hearing board appointed by the Merit Board. The members of the hearing board shall be selected from among the members of a panel established by the Merit Board after consultation with the Advisory Committee provided in Section 36c. The hearing board shall make and render findings of facts on the charges and transmit to the Merit Board a transcript of the evidence along with its findings of fact. The findings of the hearing board when approved by the Merit Board shall be certified to the employer. If cause for demotion, removal or discharge is found, the employee shall be immediately separated from the service. If cause is not found, the employee shall forthwith be reassigned to perform the duties of a position in his classification without loss of compensation. In the course of the hearing, the Director of the Merit Board shall have power to administer oaths and to secure by subpoena the attendance and testimony of witnesses and the production of books and papers relevant to the inquiry.
“The provisions of the ‘Administrative Review Act/ approved May 6, 1945, and all amendments and modification thereof, and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final and administrative decisions of the Merit Board hereby created. The term ‘administrative decision’ is defined as in Section 1 of said ‘Administrative Review Act.’ ”

We are of the opinion that the meaning of § 38bl4 is evident from a study of its express language in light of the obvious purpose in the creation, by the legislature, of the University Civil Service System, and its controlling body, the University Civil Service Merit Board. The Merit Board, by statute, has been empowered to establish job classifications and procedures and standards for hiring and firing of thousands of nonacademic employees of the various state universities and colleges. Section 38bl4 recognizes, in our opinion, that the Merit Board would not have the time to itself conduct the requested hearing in the many cases where formal charges, requesting demotion, removal, or discharge, are filed against employees within the University Civil Service System. Consequently, § 38bl4 provides that the Merit Board, in such cases, shall appoint a hearing board to conduct the necessary inquiry, the function of the hearing board being to make and render findings of facts on the charges and transmit to the Merit Board a transcript of the evidence along with its findings of fact. Section 38bl4 provides that “judicial review of final administrative decisions of the Merit Board” shall be pursuant to the Administrative Review Act. Implied in these specific provisions of § 38bl4 is the legislative intent to assist the Merit Board by providing that it may appoint a hearing board to take evidence in demotion and discharge cases, but retaining in the Merit Board the decision making power to determine the merits of these cases. The hearing board is merely a fact finding arm of the Merit Board — an employee is not demoted or discharged until so ordered by the Merit Board — and judicial review is provided only from the decision of the Merit Board, not the findings of fact of the hearing board.

Accordingly, the judgment of the Circuit Court of Mc-Donough County is affirmed.

Affirmed.

STOUDER, P. J. and ALLOY, J., concur.