text:
    People of the State of Illinois, Plaintiff-Appellee, v. Billy Charles Jamison, Defendant-Appellant.
    Gen. No. 51,220.
    First District, Third Division.
    February 1, 1968.
    Rehearing denied February 9, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn 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 Oliver D. Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a conviction of burglary. Defendant was tried before the bench and was sentenced to one to three years in the penitentiary.

Jamison was indicted for burglary of “the store of Benjamin English, John Bellamy and Dennis Bell, co-partners, located at 701 South Pulaski Road, Chicago, Cook County, . . . .” During the trial Bellamy testified that he was engaged in the business of a clothing store at 701 South Pulaski and that his interest in the store was that of a partner. He did not name his copartners nor was any evidence presented as to who were the copartners.

The only point raised on appeal is that the names of Bell and English were not mentioned at the trial and, therefore, the State failed in its burden of proving beyond all reasonable doubt ownership as alleged in the indictment.

There are only two reasons for requiring the ownership of property to be stated in an indictment for burglary: (1) to show that the building allegedly broken into was not the property of the accused, inasmuch as one cannot commit burglary by breaking into one’s own building, and (2) to identify the offense so as to protect the accused from a second prosecution for the same offense. 13 Am Jur2d, Burglary, § 37.

The Illinois courts have carefully guarded the accused’s right to have the above requirement filled and to have the proof conform to the allegation. In People v. Cohen, 352 Ill 380, 382, 33 NE2d 593, the court said:

“It has been the settled law of this State since this court was first organized, that every material allegation in an indictment for a felony must be proved beyond a reasonable doubt before a defendant charged with such a crime can be legally convicted for the same.”

In People v. Mosby, 25 Ill2d 400, 185 NE2d 152, one witness testified that property belonging to herself and her husband was taken from their apartment. No mention of the husband’s name was made and the court would not presume it was the same as that in the indictment. The court said on page 402:

“This court had consistently held that the ownership or possession of the dwelling is an essential allegation of an indictment alleging burglary, which allegation must be proved as laid in order to safeguard the accused against double jeopardy. (People v. Walker, 7 Ill2d 158; People v. Pernalsky, 334 Ill 38; People v. Smith, 341 Ill 649.)”

It continued on page 403:

“Essential allegations of indictments must be proved without variance. (Citing cases.) An essential element of proof to sustain a conviction cannot be inferred but must be established. The fact that this proof might have been elicited by a single question ... is beside the point since it was not done.”

In People v. Walker, 7 Ill2d 158, 130 NE2d 182, the court said on page 161:

“Where, as here, the charge is burglary, the ownership of the building is an essential allegation and the proof must conform to the charge. (People v. Pernalsky, 334 Ill 38; People v. Zangain, 301 Ill 299.) The purpose served by alleging the name of the person or property injured is to enable the accused to plead either a former acquittal or conviction under the indictment in the event of a second prosecution for the same offense. (Aldrich v. People, 225 Ill 610; Willis v. People, 1 Scam 399.) Since the requirement is founded upon the protection of the right of the accused against double jeopardy, it is a substantial requirement designed to safeguard a constitutional right and not a mere technical rule. People v. O’Brien, 404 Ill 236; People v. Clavey, 355 Ill 358; People v. Struble, 275 Ill 162.”

In the case at bar one copartner of a store testified as to his own membership therein. No mention was made of the other two persons named in the indictment. While it may be that they indeed were the true partners of Bellamy, no such proof was made and no such conclusion can be had from a total lack of evidence. The State failed to prove an essential element of the crime as charged and, therefore, Jamison’s conviction cannot stand.

In the following cases the only issue considered by the court on appeal was failure of the State to prove ownership as alleged in the indictment: People v. O’Brien, 404 Ill 236, 88 NE2d 486; People v. Walker, 7 Ill2d 158, 130 NE2d 182; People v. Mosby, 25 Ill2d 400, 185 NE2d 152; People v. Cohen, 352 Ill 380, 185 NE 608; People v. Pernalsky, 334 Ill 38, 165 NE 190, and People v. Struble, 275 Ill 162, 113 NE 938. Those judgments were reversed and the causes remanded, and under that authority we reverse the judgment against Jamison and remand the cause for a new trial.

Reversed and remanded.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE DEMPSEY.

license: Public Domain

text:
    People of the State of Illinois, Appellee v. Henry Rizer, Appellant.
    Gen. No. 51,373. (Abstract of Decision.)
    First District, Third Division.
    February 1, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Brian L. Crowe 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 Eldridge Hersey, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by Not to be published in full.

PRESIDING JUSTICE DEMPSEY.


author: JUSTICE SCHWARTZ.

text:
    Joseph Metoyer, Plaintiff-Appellant, v. Noralie Metoyer, Defendant-Appellee.
    Gen. No. 51,795. (Abstract of Decision.)
    First District, Third Division.
    February 1, 1968.

      Robert Reiff, of Cicero (Francis X. Riley, of counsel), for appellant;
    Marshall Patner, Benjamin Bromberg, and Thomas Mack, of Chicago (Leslie R. Seeligson, of counsel), for appellee.
   Opinion by Not to be published in full.

JUSTICE SCHWARTZ.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    Thomas Boyle, Plaintiff-Appellant, v. The Retirement Board of the Sanitary District and Benefit Fund, Thomas A. O’Brien, et al., Defendants-Appellees.
    Gen. No. 51,863.
    First District, Third Division.
    February 1, 1968.

      Michael F. Sheehan, Jr., of Chicago, for appellant.
    George A. Lane and Andrew A. Farenga, of Chicago (Fred Herzog, of counsel), for appellees.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

Thomas Boyle, an employee of the Metropolitan Sanitary District of Greater Chicago, was a candidate for member of the Board of Trustees of the District’s Employees’ and Trustees’ Annuity and Benefit Fund (commonly referred to as the Retirement Board). He was defeated and contested the result because absentee ballots were cast and counted in the election. The trustees of the Retirement Board, who had jurisdiction over the election, heard his complaint and rejected his claim. He appealed to the Circuit Court under the Administrative Review Act and the court affirmed the decision of the trustees. He has again appealed and the primary question here is whether the adverse decision was contrary to law and to the manifest weight of the evidence.

The evidence at the hearing established that: It had been the practice for many years to mail absentee ballots to employees who were on vacation, who would not be at work or who otherwise would be unable to vote in person on the day of election. This procedure was followed in the election of October 19, 1965, in which Boyle was a candidate. Boyle knew that ballots were being mailed as usual, did not protest and replied in the negative when asked if there were persons to whom he wished absentee ballots mailed. Six days prior to the election, he requested the rules for conducting the election and the clerk of the Retirement Board gave him a copy of the rules, eight in number, which had been prepared for the election of October 19th. None of the eight rules pertained to absentee voting. Boyle was a poll watcher at the election; he did not protest the votes which were cast or counted; he agreed that the ballots could be destroyed and congratulated the victor. He was defeated by 25 votes. If the absentee ballots had not been counted he would have won the election because 108 of these ballots were cast for his opponent and 13 for him.

Boyle’s contention is that the absentee ballots were void because the written rules formulated for the election did not provide for absentee voting. Members of the Retirement Board are elected under the provisions of Article 13 of the Pension Code, chapter 108%, Illinois Revised Statutes 1965, and Boyle predicates his contention on section 13-181 of the Act. It is, in part, as follows:

“In each year, the board shall conduct a regular election, under rules adopted by it, at least 30 days prior to the expiration of the term of the employee member whose term next expires, for the election of a successor for a term of 3 years.”

Boyle construes this language to mean that the rules under which an election is conducted must be adopted at least 30 days prior to the election. He misreads the statute. It does not state that rules must be adopted at least 30 days prior to an election. It states that an election must be conducted at least 30 days prior to the end of the term next expiring. The statute provides that an election must be conducted under rules adopted by the board, but it does not say when these rules must be adopted.

Boyle argues that he should have been able to rely on the rules given him by the clerk of the Retirement Board. There is no evidence that these rules were intended to be all-inclusive or that by adopting particular rules for the election of October 19,1965, the board meant to exclude general rules that may have been adopted theretofore or traditional rules which had governed such elections in the past. Boyle was aware that it was customary for the ballots of absentee voters to be cast and counted and he was aware that they were to be cast and counted in the election at which he was a candidate. If he had an objection it should have been voiced before the election.

Section 13-181 also states:

“At any such election . . . any employee at the time any such election is held shall have the right to vote.”

By providing absentee ballots for employees who were ill, on vacation or whose hours of work made it impossible for them to cast their ballots at the five designated polling places, the board was observing the letter as well as the spirit of this statute. To have done otherwise would have disenfranchised the 121 employees who voted by absentee ballot.

. The decision of the trustees of the Retirement Board was in accordance with the law and the evidence and the order of the Circuit Court sustaining that decision is affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.


author: MR. JUSTICE SULLIVAN

text:
    Donald Peters et al., Plaintiffs-Appellees, v. South Chicago Community Hospital, et al., Defendants-Appellants, and Donald Peters, et al., Plaintiffs-Appellees, v. Norwegian-American Hospital, et al., Defendants-Appellants.
    Gen. Nos. 52,028, 52,029. (Consolidated.)
    First District, Third Division.
    February 1, 1968.
    Robert W. MacDonald, William B. Hanley, and Murray B. Woolley, of Chicago (MacDonald & Hanley and Elmer E. Abrahamson, of counsel), for appellants.
    Stuart Bernstein, Arthur J. Kowitt, and William A. Gordon, of Chicago (Mayer, Friedlich, Spiess, Tierney, Brown & Platt, of counsel), for amici curiae, the Chicago Hospital Council and the Illinois Hospital Association.
    Melvin L. Rosenbloom, of Chicago (Asher, Greenfield, Gubbins and Segall, of Chicago), for appellees.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from interlocutory orders taken under Supreme Court Rule 307. The trial court granted temporary injunctions on the pleadings. Plaintiffs are the officers of the Hospital Employees Labor Program (HELP), a voluntary unincorporated association commonly known as a labor union. They brought two separate class actions, on behalf of themselves and the members of the union, for injunctions against the defendant hospitals to restrain the latter from intimidating and/or coercing their respective employees in regard to union membership, and to compel the hospitals to meet with the union representatives for the purpose of negotiating and entering into a collective bargaining agreement. The defendants filed motions to dismiss the complaints.

The hospitals also filed petitions for declaratory judgment and injunction. They prayed for declarations that the plaintiffs have no right to strike or picket the hospitals and that defendants have no obligation to recognize or bargain collectively with plaintiffs and for orders restraining plaintiffs from striking or picketing the defendants. Plaintiffs filed motions to dismiss the hospitals’ petitions for declaratory judgment and injunction. The facts and prayers for relief in the complaints in the two cases are virtually identical and defendants filed identical motions to dismiss. The trial judge issued the same order in both cases, duplicate appeals were taken, and the cases were consolidated for hearing on appeal.

The matter was presented to the trial court on the motions to strike the complaints and petitions for declaratory judgment, and the only hearing held was oral argument on the questions of law presented thereby. No testimony of witnesses was taken. The court entered orders, the following parts of which were appealed from by defendants:

“WHEREFORE, IT IS ORDERED BY THE COURT:
“1. That a writ of temporary injunction he issued herein, by the Clerk and under seal of the Court, restraining, enjoining and requiring the parties and their agents, as follows:
“A. The parties shall meet forthwith for the purpose of selecting an impartial person or agency to supervise and conduct an election to determine whether a majority of the employees of defendant employed in the following capacities desire to be represented by plaintiffs for collective bargaining purposes and the parties shall participate in such an election:
“Licensed practical nurses, nurses aides, orderlies, ward clerical employees, assistant unit managers, laboratory attendants, medical and x-ray technicians, occupational, inhalation and physical therapists, pharmacy helpers and employees in the housekeeping, maintenance and food service departments.
“B. The parties have an equal right to communicate with the said employees of defendant to attempt to persuade them to join to support the Union or vote in favor of collective representation by plaintiffs or to refrain from so doing.
“C. The parties shall not intimidate or coerce said employees in any manner or by any means whatsoever in connection with their right to join or support the Union or to vote in favor of collective representation by plaintiffs or to refrain from so doing.
“E. All until the further order of this Court.
“4. Defendants’ motion to dismiss the Complaint be and the same is hereby denied.”

Pursuant to the hospitals’ petitions for declaratory judgment and injunction, the court also ordered that, pending further order of the court, plaintiffs “shall not engage in or authorize picketing or a strike of the hospital premises involved herein.” No appeal was taken from that part of the order by the defendant in either case, nor did plaintiffs cross-appeal.

The facts giving rise to this cause of action are set forth in the pleadings. HELP is a union formed and sponsored jointly by the General Service Employees Union, Local 73, Building Service Employees International Union, and Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. The individual plaintiffs are the president and secretary of HELP and are officers and representatives of the sponsoring locals. The defendants are hospitals chartered under the Illinois General Not-For-Profit Corporation Act.

The union alleged that the majority of the employees of each hospital have authorized the union to represent them in matters pertaining to employment. There is a conflict in the record regarding the number of employees of each hospital. This appears to be due to the singling out by the union certain job classifications to be in the bargaining unit and the inclusion of all nonsupervisory and nonadministrative employees by the hospitals. On December 14, 1966, the union sent letters to the hospitals requesting that the hospitals meet with the union to engage in collective bargaining with respect to all matters concerning the employment of the designated employees. The hospitals sent letters to the union advising the latter that it was the hospital policy not to recognize any form of unionism or employee representation. The union further alleged that the hospitals intimidated and coerced the employees to repudiate the union as their representative and threatened economic reprisals, but also granted unilateral substantial pay raises and other benefits to the employees.

The main issue presented here is whether a union has the right to demand or secure recognition by a not-for-profit hospital employer.

Defendants point out that there is no national labor law or Illinois labor law establishing union or employees’ rights to recognition by not-for-profit hospital employers. Section 2 of the National Labor Relations Act as amended in 1947, provides in part:

“ (2) The term ‘employer’ includes any person acting as an agent of an employer, directly or indirectly, but shall not include . . . any corporation or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual. . . .” (29 USCA § 152(2).)

Illinois has no state labor law and plaintiffs’ rights, if any, must be found in the common law.

Commonwealth v. Hunt, 45 Mass Ill (1842) was a landmark case that held that employees have the right to organize or join a labor union of their own choosing. However, it is the defendants’ position that such right does not include a corresponding obligation on the part of the employer to engage in collective bargaining nor does it impose any duty on the employer to recognize the union or negotiate with it.

In Fay v. Douds, 172 F2d 720, 724, Judge Learned Hand stated:

“The privilege of becoming an ‘exclusive bargaining’ agent is altogether distinct from the common-law right of workmen to combine; it is a creature of Congress to whose grant Congress was therefore free to attach such conditions as it saw fit.”

It is to be noted that Congress, in enacting a federal labor law saw fit to exempt not-for-profit hospitals. In New Bedford Loomfixers’ Union v. Alpert, 110 F Supp 723, the union claimed to have a property right to become an exclusive bargaining unit. The court rejected that claim and said on page 727: “But the right to be an exclusive bargaining representative stems solely from the provisions of the Act (National Labor Relations) and not from the Constitution or the common law.”

The plaintiffs refer us to NLRB v. Jones and Laughlin Steel Corp., 301 US 1, wherein the"United States Supreme Court, in discussing the constitutionality of the NLRA said on page 33:

“Thus, in its present application, the statute goes no further than to safeguard the right of employees to self-organization and to select representatives of their own choosing for collective bargaining or other mutual protection without restraint or coercion by their employer.
“That is a fundamental right. Employees have as clear a right to organize and select their representatives for lawful purposes as the respondent has to organize its business and select its own officers and agents.”

The court stressed the importance of the employees right to organize and made it clear that the federal statute merely guarded that right. However, the court did not say that the employees had the fundamental right to force the employer to engage in collective bargaining; rather it said that such might be one of the lawful purposes for which the employees gathered into the union groups. It can thus be stated that the employees’ right to form or join unions differs from a duty on employers to recognize that group or to enter into negotiations therewith.

Correlative to the defendants’ proposition that there is no existing constitutional or legislative grant of the right of employees to engage in collective bargaining is their contention that the courts may not fill that void by judicial legislation on the subject of employer-employee relationships.

Quinn v. Buchanan (Mo), 298 SW2d 413 (1957) was a Missouri case wherein the union was denied injunctive relief to require the employer, an intrastate meat processor, packer and wholesaler, to recognize and bargain with the union. The state constitution provided that “employees shall have the right to organize and to bargain collectively through representatives of their own choosing.” On a motion for rehearing or to modify, the court, per curiam, stated on page 420:

“Plaintiffs’ further argument concerning the right to compel an employer to bargain overlooks the fact that Sec 29, Art I of our Constitution, VAMS, does not purport to require collective bargaining by either employees or employers. The right it gives to employees is the right to organize for the purpose of collective bargaining through representatives of their own choosing. City of Springfield v. Clouse, 356 Mo 1239, 206 SW2d 539, 543. Whether or not employers and organized employees can bargain or reach an agreement depends upon the willingness of both just as in the case of bargaining for any kind of contract between other persons who have the right to make contracts. Perhaps modern industrial conditions make desirable more than that for best labor relations but that is a matter for the Legislature.”

In Quill v. Eisenhower, 5 Misc2d 431, 113 NYS2d 887 (1952), the court interpreted a similar state constitutional provision and, in denying the union the right to force the employer to negotiate, said on page 889:

“It is evident that the constitutional provision guaranteeing employees the right to organize and bargain collectively through representatives of their own choosing does not cast upon all employers a correlative obligation. The constitutional provision was shaped as a shield; the union seeks to use it as a sword. . . .
“The constitutional provision was intended to protect employees against legislation or acts which would prevent or interfere with their organization and choice of representatives for the purpose of bargaining collectively.”

Plaintiffs rely on Johnson v. Christ Hospital, 84 NJ Super 541, 202 A2d 874, a New Jersey case, wherein the court reached a conclusion, as to the meaning of that state’s constitutional guarantee of employees’ rights, contrary to that of Quill, and Quinn, supra. The Johnson court relied on the transcript of the Constitutional Convention and held that the court in the Quinn case misplaced its reliance on the Quill case since New York had a labor relations code that exempted certain employers from the duty of bargaining collectively with the representatives chosen by their employees. The Johnson court evidently felt that a constitutional amendment could not impose duties on those employers exempted by prior legislative action. However, the New York constitutional provision was worded in terms of all nongovernmental employees and had no words imposing a correlative duty on the employers. Furthermore, it should be noted that Illinois has no similar constitutional nor statutory provision setting forth the rights of employees, and, even in the Johnson case, the court realized that any rights of the employees had originated in the constitutional provision, not in the common law. If this were not true and the right were a fundamental or innate one, the prior labor code in New York could not have validly exempted certain employers.

Courts may not formulate labor rules or policies when the legislature has failed to do so. The consequences of such action would be far reaching indeed and would convert our courts into labor boards sitting to settle any dispute that arose between the employees’ representatives and the employer. In Nutter v. Pacific Elec. Ry. Co., 2 CCH Lab Cas, par 18,748, the court stated:

“. . . there is nothing there or elsewhere in the Labor Code to indicate that the Legislature intended to empower the court to issue a mandatory order directing an employer to bargain collectively with his employees or to bargain with any particular agent of such employees.
“The Legislature has not established any Board in this State with power to conduct hearings, to hold elections, or to make findings of fact, such as are provided for in the National Labor Relations Act, the Railway Labor Act, and the Labor Relations Acts of the States in which such statutes have been adopted, nor has it vested such powers in the courts.
“Courts at times have legislated to cure defects or to supply manifest omissions in statutes in order to give effect to the plain intent of the legislative body, where, in the absence of such judicial legislation, the statute would be without efficacy in the accomplishment of its contemplated purpose. In so doing courts should act with caution and deliberation.
“ ‘To hold that the court is vested with the power asserted by plaintiffs would not be interstitial legislation by the court supplying accidental omissions, but would be judicial legislation ab initio. It would be necessary for the court to constitute itself in essence a Labor Board and to formulize its own procedure for bringing the parties before the court for conducting a hearing in order to ascertain and declare their rights, and for the enforcement of the order of judgment.’ ”

The court in the instant case took upon itself the burden of legislating rights and duties of the parties in the field of labor relations. The absence of any statutory or common law duty on the part of the hospitals to engage in collective bargaining with the representatives chosen by their employees negates, as well, any requirement of their participation in negotiations regarding the employees’ desire to join a union, or any other question of representation. The court clearly exceeded the scope of judicial authority.

Defendants assert that, as a matter of public policy and public interest, the not-for-profit hospitals are exempt from the usual industrial union-management relationship. Because we have determined that the trial court overstepped its authority in ordering the hospitals to enter into negotiations with the union concerning the holding of an election to determine the employees’ desire for union representation and collective bargaining, we need not consider this point.

Those parts of the orders from which appeals have been taken as aforesaid are reversed and the causes are remanded with directions to proceed in a manner not inconsistent with the views expressed herein.

Reversed and remanded.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. JUSTICE DRUCKER

text:
    Lake Shore Management Co., as Agent, Plaintiff-Appellee, v. Alan L. Blum and Gloria Blum, Defendants-Appellants.
    Gen. Nos. 51,875, 52,195. (Consolidated.)
    First District, Fourth Division.
    February 7, 1968.
    Rehearing denied March 1, 1968.

      Louis P. Miller and Walter Soroka, of Chicago, for appellants.
    William W. Sher, Phillip E. Blecher, and Martin Tier-sky, of Chicago (Phillip E. Blecher and Martin Tiersky, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

These consolidated appeals are from two separate orders confirming a judgment by confession.

On December 23, 1965, plaintiff confessed judgment against defendants on a lease for rental due thereunder for the months of February to November 1965. A summons was issued to confirm the judgment, an appearance filed on January 10, 1966, and the hearing set for January 31, 1966. However, a judgment of confirmation was entered January 19, 1966, by default. The appeal in Case No. 52,195 is based on this order.

On January 31, 1966, defendants filed an answer and counterclaim and on April 21, 1966, the counterclaim was stricken. An amended answer was thereafter filed by defendants and on September 26, 1966, after a trial, the judgment by confession was confirmed. The appeal in Case No. 51,875 is based on this order and will be discussed first.

Defendants contend that the court erred in confirming the judgment because (1) plaintiff had no capacity to sue; (2) defects in the execution of the lease invalidated the warrant of attorney; (3) eviction terminated the lease and foreclosed plaintiff from confessing judgment.

This proceeding was brought in the name of “Lake Shore Management Co., as Agent,” pursuant to a warrant of attorney in a lease authorizing the “Lake Shore Management Co., as Agent,” to confess judgment. This was proper. The power to confess must be strictly construed. Wells v. Durst Chevrolet Co., 341 Ill 108, 173 NE 92. Defendants argue that the judgment is void, contending that an agent, not himself an attorney, may never bring suit on behalf of his principal whether or not the agent is represented by an attorney. Defendants rely on Remole Soil Service, Inc. v. Benson, 68 Ill App2d 234, 215 NE2d 678. There a corporation prosecuted a claim through one of its agents, not a licensed attorney. The court held that a corporation could not prosecute its own suit except through a licensed attorney. Defendants also rely on Leonard v. Walsh, 73 Ill App2d 45, 220 NE2d 57. There the complaint was signed: “B. J. Smith, agent for Dr. J. P. Leonard” and alleged a claim for $50 for medical services. The court said at page 47:

This record shows this proceeding to have been instituted on behalf of an individual plaintiff by one who is described as an agent and who is not an attorney. The decision of this Court in Remole Soil Service, Inc. v. Benson, filed April 12, 1966, 68 Ill App2d 234, 215 NE2d 678, requires a reversal of the judgment.
In this case, it is clear that one not licensed to practice law has instituted legal proceedings on behalf of another in a court of record. When this appears the suit should be dismissed, and if it has proceeded to judgment the judgment is void and will be reversed. 7 CJS Attorney and Client, par 16b.

The conclusion in Leonard is based upon cases which were cited in Corpus Juris Secundum and which were concerned with the absence from legal proceedings of those licensed to practice law. In one of them, Bennie v. Triangle Ranch Co., 73 Colo 586, 216 P 718, a corporation sought to institute suit through an employee, not a licensed attorney. The court in dismissing the case enunciated this policy at page 719:

. . . for the protection of citizens and litigants in the administration of justice, against the mistakes of the ignorant on the one hand and the machinations of unscrupulous persons on the other, ... we cannot allow an action to be commenced and prosecuted through the courts by one who is denied the authority and the privilege of an attorney and counselor at law.

Clearly the institution of suit by the manager of a building through a licensed attorney cannot offend against this policy. The law requires that all who represent others in courts of law be attorneys-at-law. A layman may appear only in his own behalf. We find neither cases nor principles to support defendants’ contention that an agent may not institute a suit as plaintiff on behalf of his principal when he employs an attorney-at-law to file the suit and represent him in court. Here the agent employing a licensed attorney sued in his capacity as agent, as authorized by the lease. The judgment is not void.

But defendants argue that plaintiff could not bring suit because his principal was undisclosed and not a party to the lease. When a third party has notice that the agent is acting on behalf of a principal but no notice of the principal’s identity, the principal is a partially disclosed principal. The agent of a partially disclosed principal is a party to the agreement and capable of bringing suit in his own right. Restatement of Agency 2nd, §§ 4 and 331. See also Hewitt v. Torson, 124 Ill App 375. Lake Shore Management Co. purported at all times to act on behalf of another party, never identified. It is therefore the agent of a partially disclosed principal and capable of bringing suit on its own right.

Defendants point out, however, that Lake Shore brought suit as agent and argue that even if it could sue in its own right, it cannot sue on behalf of another not a party to the lease. A third party who deals with the agent of a partially disclosed principal is liable to the principal unless he is excluded as a party by the form or terms of the agreement. Restatement of Agency 2nd, § 292. See also section 302. Defendants argue that this situation is controlled by Walsh v. Murphy, 167 Ill 228, 47 NE 354, where the court said that for a principal to be party to a sealed instrument both the seal and the instrument must purport on their face to be his. But this special rule governing what must appear on the face of sealed instruments cannot apply, since the seal no longer has independent legal validity. Thus plaintiff could have sued either in its own right or as agent.

Defendants point out that although the lease recites that plaintiff was acting as agent, it was signed merely “Lake Shore Management Co.” without a description of capacity. They contend that this defect vitiated the judgment since warrants of attorney are strictly construed. However, the capacity of a party may appear anywhere in the lease, it need not appear after the signature of the party described so long as the capacity is clear. See Restatement of Agency 2nd, § 157. Furthermore, having taken possession and paid rents, the lessees cannot question the validity of the execution of the lease. See McCormick v. Loomis, 165 Ill App 214.

Defendants next urge that their lease was terminated by reason of the service on them of a five-day notice on February 10, 1965. This notice stated that unless the February rent was paid by February 15 the lease would be terminated as of February 15. Defendants failed to pay the rent and were thereafter evicted. Plaintiff refers to paragraph 21 of the lease which provides:

The obligation of Lessee to pay the rent reserved hereby during the full term hereof, or during any extension hereof, or any holdover tenancy, shall not be deemed to be waived, released or terminated, nor shall the right and power to confess judgment given in paragraph 24 hereof be deemed to be waived or terminated, by the service of any five-day notice, demand for possession, notice that the tenancy hereby created will be terminated on the date therein named, the institution of any action of forcible detainer or ejectment or any judgment for possession that may be rendered in such action, or any other act or acts resulting in the termination of Lessee’s right to possession of the demised premises. . . .

A clause identical in substance to this paragraph was upheld in Broniewicz v. Wysocki, 306 Ill App 187, 190, 28 NE2d 283. In a recent opinion — Klein v. Ickovitz, 72 Ill App2d 59, 219 NE2d 73 — the court also held that where the lease contains a clause to the effect that lessee’s duty to pay rent survives his eviction in a forcible detainer proceeding, the lessor may proceed under the lease. We find no error in the confirmation of the judgment on September 26,1966 (Case No. 51,875).

Defendants’ appeal in Case No. 52,195 is based on the default order of confirmation of January 19, 1966, which was entered after the case was properly set for trial for January 31, 1966. It is conceded that this order confirming the judgment by confession was entered by mistake in Case No. 52,195 (Circuit Court No. 65 M 535261) and we will therefore reverse the order of January 19, 1966, and remand to the Circuit Court with directions to expunge it from the records. We need take no action on plaintiff’s motion to dismiss this appeal.

In case No. 51,875 the order of September 26,1966, confirming the judgment by confession will be affirmed.

Case No. 52,195 — Reversed with directions. Case No. 51,875 — Affirmed.

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

       Ill Rev Stats 1965, c 30, § 153b.
      The use of private seals on written contracts, deeds, mortgages or any other written instruments or documents heretofore required by law to be sealed, is hereby abolished, but the addition of a private seal to any such instrument or document shall not in any manner affect its force, validity or character, or in any way change the construction thereof.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    Consumers Digest, Inc., an Illinois Corporation, Plaintiff-Appellee, v. Consumer Magazine, Inc., an Illinois Corporation, and Louis Weber, Defendants-Appellants.
    Gen. No. 52,140.
    First District, Fourth Division.
    February 7, 1968.

      Benjamin H. Black and Theodore R. Sherwin, of Chicago (Black & Beermann, of counsel), for appellants.
    David P. List and Thomas H. Morsch, of Chicago (Leibman, Williams, Bennett, Baird and Minow (of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken from an order entered in the Circuit Court of Cook County on March 10, 1967, issuing a preliminary injunction against the defendants which enjoined the defendants during the pendency of the action from;

“a) directly or indirectly owning, managing, operating, joining, controlling, or participating in the ownership, management, operation or control of or being involved in any manner with any business, trade or occupation similar to, or in competition with, the business of the plaintiff ; and
“b) printing, publishing, distributing, selling or soliciting subscriptions or renewal subscriptions for any book, magazine, periodical, directory or catalog of the type heretofore distributed by defendants under the names and titles “Consumer Magazine” and “Consumer Magazine Price Guide.”

On July 12, 1966, Consumers Digest, Inc., as plaintiff, filed a complaint in three counts, asking for a temporary and permanent injunction and damages for alleged infringement of plaintiff’s rights in the name and title of Consumer Magazine Price Guide and Consumer Magazine; and upon alleged violation by the defendant, Louis Weber, of a restrictive covenant in the contract of sale of corporate shares.

On August 16,1966, the plaintiff moved for a summary judgment as to Count I, which count prayed for a temporary and permanent injunction restraining the defendants from publishing, advertising, selling or otherwise distributing any directories, magazines or other publications under the name or title “Consumers Magazine” or any other name or title imitating or confusingly similar to plaintiff’s name and title “Consumers Digest Price Buying Guide” or “Consumers Digest Magazine.”

Affidavits and exhibits were filed in support of plaintiff’s motion. After considering the affidavits, exhibits and all of the pleadings and briefs, the court denied plaintiff’s motion for summary judgment on December 16, 1966, finding “. . . that there is a genuine issue as to material facts and that the plaintiff is not entitled to a judgment or decree as a matter of law.”

On January 20, 1967, plaintiff filed its motion for a preliminary injunction. On February 14, 1967, defendants filed a motion asking the court to deny the issuance of a preliminary injunction. On March 10,1967, the court entered an order issuing the preliminary injunction prayed for.

The case grew out of the following facts appearing in the record. From 1960 to 1963, two brothers, Arthur Weber and defendant Louis Weber, were the owners of all the issued and outstanding stock of three related companies; Van Leer Corporation, Consumers Digest, Inc., and American Sales Company. Consumers Digest, Inc., the plaintiff in this suit, was formed in 1963. Defendant Weber worked for these three companies. During this period Van Leer Corporation published and distributed Consumers Digest Magazine and annual and semiannual issues of Consumers Digest Price Buying Directory.

Defendant Weber left the employ of plaintiff during December 1963, after which disputes arose between the defendant and his brother, Arthur Weber, culminating in a lawsuit. In settlement of this litigation and to settle other disputes, Louis Weber, his brother Arthur, and the three corporations entered into an agreement dated June 18, 1964, which provided for the sale of Louis Weber’s stock and interest in the corporations, and for Louis Weber’s specific covenant not to compete, in consideration of the sum of $190,000, which sum was paid to Louis Weber. His attorney was present at the time of the execution of the agreement.

On September 1, 1965, fifteen months after the execution of the agreement, defendant Louis Weber formed an Illinois corporation called Consumer Magazine, Inc., of which he is president and sole stockholder. The new corporation, which is also a defendant in the instant case, promptly began to solicit subscriptions to Consumer Magazine and a Consumer Magazine Price Buying Guide.

Plaintiff contends that the format of the price buying guide published by defendants and plaintiff’s annual and semiannual price buying directories are almost identical, and that defendants’ magazines contain exactly the same type of information and appeal to the same sort of reader, and that defendants’ promotional material is strikingly similar to plaintiff’s. Plaintiff further contends that the defendants used the same type of direct mail solicitation to obtain subscribers; that plaintiff presently has over 400,000 active subscribers throughout the United States, and some foreign countries; that plaintiff had 225,000 members a year ago; and that at the time of the hearing the defendants had over 40,000 subscribers. Since the restrictive contract was signed the plaintiff spent over $3,000,000 in soliciting subscriptions.

The covenant entered into between plaintiff and defendant Louis Weber provided as follows:

Louis Weber agrees that for a period of seven years from the date of the signing of this Agreement, he will not directly or indirectly own, manage, operate, join, control or participate in the ownership, management, operation or control of or be involved in any manner with any business anywhere in the United States in any business, trade or occupation similar to or in competition with the business of the Van Leer Corporation, Consumers Digest, Inc., or American Sales Company, nor will he disclose any information learned in his capacity as an officer, director or employee of said corporations to any unauthorized persons. The parties agree that this covenant is designed to protect the current business of the Van Leer Corporation, Consumers Digest, Inc., and American Sales Company and that it should be limited so as to apply only to the extent necessary to protect such business. In the event that any court of competent jurisdiction determines that the restrictions as herein set forth, are too broad so as to construe any unreasonable restrictions, the parties hereto authorize any judge sitting in such court to modify this covenant to provide that the restrictions herein contained shall apply and be enforceable to the maximum extent permitted by law for such restrictions, and, further, upon such determination, to enforce the covenant as so modified. Louis Weber hereby agrees that in the event the remedies at law for the breach of this covenant are inadequate, the corporations may seek and obtain injunctive relief from a court of equity for a breach or threatened breach of this covenant and for such purpose, Louis Weber hereby waives the requirements of any proof that such breach will cause irreparable injury to any of the corporations or that there is no adequate remedy at law. The aforesaid covenants and restrictions are subject to the discretion of the court to determine whether said covenants and restrictions have been breached.

The defendants here argue that the court was in error in granting a temporary injunction when prior to the application for temporary injunction, the court had denied plaintiff’s motion for a summary judgment on the ground that there was a genuine issue of material fact; that the court in allowing the temporary injunction had abused its discretion inasmuch as the plaintiff failed to move for such relief until the plaintiff’s motion for summary judgment had been denied; that there was an inexcusable delay in asking for temporary injunction; that the temporary injunction determined controverted rights; that the plaintiff is guilty of unclean hands; and that the restrictive covenant was void.

The defense contends that there was no direct competition inasmuch as Louis Weber testified that he had left the employ of plaintiff because he felt that the plaintiff and Van Leer Corporation were engaged in unethical and immoral acts at the time; that Van Leer Corporation, American Sales Company, and the plaintiff are really one company engaged in the sale of merchandise through the catalogs of plaintiff; that the main purpose of Consumers Digest was to sell to members its own merchandise under the name of American Sales Company, and that the American Sales Company belonged to Consumers Digest.

Louis Weber further testified that his Consumer Magazine reports on profits and savings in the purchase of goods, including the retail prices and low discount prices, and publishes a consumer magazine price buying guide. It further appeared in the record that the format of the price buying guide published by the defendant, Consumer Magazine, Inc., and the plaintiff’s annual and semiannual price buying directories are almost identical; that the defendants’ magazine, although somewhat larger in size than the plaintiff’s, contains exactly the same sort of information; that the defendants, like the plaintiff, solicit subscribers directly by the use of mailing lists, and the defendants’ promotional material is strikingly similar to plaintiff’s; and that plaintiff has received more than four or five hundred pieces of mail from the public indicating actual confusion between the two companies.

Louis Weber testified that in his opinion there was no competition. All of these conflicting contentions are, of course, questions of fact which must be determined on a full hearing.

The defendants argue in this court that there was an abuse of discretion in the court’s awarding a temporary injunction when the court had denied plaintiff’s motion for summary judgment for the reason that there was a genuine issue of material fact requiring a trial on the merits. In the argument on that point defendants set out that the granting of the injunction was inconsistent with the finding and order on the motion for summary judgment that there was a genuine issue as to material facts requiring trial on the merits; however, that argument is not in point because the purpose of a summary judgment and the purpose of a temporary injunction are very far apart.

The purpose of a temporary injunction is merely to preserve the last actual peaceable uncontested status which preceded the pending suit. House of Vision, Inc. v. Hiyane, 58 Ill App2d 431, 208 NE2d 390. A temporary injunction is merely provisional in its nature and does not conclude a right. People v. Standidge, 333 Ill 361, 164 NE 844.

The defendants argue that the awarding of the temporary injunction determined controverted rights and granted plaintiff all the relief which could be obtained in a final decree. That argument is not tenable, since it is well recognized that the purpose of a temporary injunction is to protect the plaintiff by maintaining the parties in the same position they were in prior to the time when this dispute arose. It has been repeatedly stated that the granting or refusing of a temporary injunction is a matter resting in the sound discretion of the court.

The defendants also argue that the fact that the original suit was filed on June 12, 1966, the motion for summary judgment denied December 16, 1966, and the motion for preliminary injunction filed January 20, 1967, indicates such laches on the part of plaintiff as should estop it from filing its motion for preliminary injunction. We do not think the fact that the plaintiff filed its motion for summary judgment before it filed its motion for preliminary injunction constitutes, under the facts and circumstances of the case, such laches as would result in an estoppel against the plaintiff.

The next objection made by the defendants is that the temporary injunction should not have been granted because it is alleged that the plaintiff comes into a court of equity with unclean hands. The defendants argue that because of the fact that the plaintiff in its publication, Consumers Digest, carries recommendations as to merchandise sold by American Sales Company and Consolidated Furniture Wholesalers and other companies owned by Arthur Weber, president and sole stockholder of plaintiff, it was a fraud upon the public and consequently, the court in its discretion should have denied the preliminary injunction. In support of this contention defendants cite American University v. Wood, 294 Ill 186, 128 NE 330. However, in that case the court does take the view that as a general rule it is required that the wrongdoing or fraud of the complainant, to bar him from relief on the ground that he comes with unclean hands, must be connected with the subject of the litigation and have some relation to the rights of the parties arising out of the transaction. The court held that the misrepresentations of the complainant in the conduct of its business affected the public, and it would seem strange if a court of conscience should be required to protect him in the commission of a fraud upon the public. That case is not applicable to the facts as disclosed by the record in the instant case.

In Stein v. Bieber, 342 Ill App 583, 98 NE2d 156, the court said at 590:

“It does not, however, extend to any misconduct, however gross, which is unconnected with the matter in litigation, and with which the opposite party has no concern. When a court of equity is appealed to for relief it will not go outside of the subject matter of the controversy and make its interference depend upon the character and conduct of the moving party, in no way affecting the equitable right which he asserts against the defendant or the relief which he demands. (Citing cases.) ”

In the instant case it would appear to this court that a determination that whether or not there is a fraud upon the public can be made only upon a full hearing. At the time the contract was entered into the defendant, Louis Weber, had for a considerable period of time been connected with the plaintiff in the various businesses to which he now so strenuously objects, and for his interest in which he was paid a substantial sum of money. All of these things were known to him at the time he voluntarily signed the restrictive covenant under consideration here, and he was advised by his lawyer at that time. It is necessary that upon a hearing it be determined if there is such fraud as would bring the conduct of the plaintiff within the rules laid down in the cases.

Upon a careful consideration of the record in this case it is apparent that the trial court did not by the granting of a temporary injunction determine any rights either of the defendants or of the plaintiff, which rights, if any, must be determined upon a full hearing. The trial court did not abuse its discretion, and properly awarded the preliminary injunction.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    June Macak, Plaintiff-Appellant, v. Continental Baking Company, a Corporation, Defendant-Appellee.
    Gen. No. 51,152.
    First District, Third Division.
    February 8, 1968.

      Herbert P. Veldenz and Bennett & Yangas, of Chicago Herbert P. Veldenz, Louis Yangas, and Vera E. Cuthbert, of counsel), for appellant.
    Hubbard, Hubbard, O’Brien & Hall, of Chicago (Alvin G. Hubbard, Reese Hubbard, and Frederick W. Temple, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiff sues to recover for injuries resulting from a collision between an automobile driven by her and a truck driven by defendant’s agent. The jury returned a verdict for the defendant, the court entered judgment thereon and the plaintiff appeals. Plaintiff charges that the court erred in certain of its rulings on instructions and evidence and in overruling the motion for new trial.

The accident occurred at about 4:00 p. m. on December 12, 1958, at the intersection of 57th Street and California Avenue in the City of Chicago. Frederick Sacchi, a delivery man for the defendant, was driving west on 57th Street, heading for the company garage. Plaintiff was driving north on California Avenue on her way to pick up her husband at his place of work. 57th Street is about 30 feet wide and has a stop sign for westbound traffic.

Sacchi testified that he began to apply his brakes about 100 feet from the stop sign; that at that time his truck was moving at a speed of nine to ten miles an hour, that “the truck was slowing down fine,” and that he was braking lightly so as not to skid. When he was about a car length from the stop sign, he saw the plaintiff’s car on California Avenue about two car lengths south of the intersection. He estimated that her car was going 20 to 25 miles an hour and said he had slowed down to five miles an hour. He further testified that at that point he hit a spot in the street and it “just seemed that I lost all my traction. ...” The truck slid into the intersection where it collided with the plaintiff’s car. Sacchi testified that at the point of collision the truck was going about two miles an hour and that it was stopped by the impact, but that plaintiff’s car skidded into a tree on California Avenue about one car length north of the intersection.

The investigating police officer who arrived at the scene of the accident an hour after it occurred testified that when he got there, California Avenue was slushy with snow which had been falling for two days; that 57th Street was covered with snow and was icy; that immediately east of the stop sign on 57th Street there was a patch of ice which extended eastward from 15 to 25 feet; and that the ice was as slick as glass and concealed by a light covering of snow.

Mrs. Macak testified that at the time she entered the intersection she was traveling about 15 miles an hour, that the truck was also traveling about 15 miles an hour and that California Avenue was clear. She stated that the impact of the collision threw her around inside her car and caused her to black out for a minute. She sat in the car about ten minutes and then transferred her groceries to a taxicab and went to a tavern at 52nd Street and Western Avenue where she called her daughter, the police and her husband. She returned to the scene of the accident where she talked with the truck driver and the police. From there her daughter drove her to Holy Cross Hospital where she was examined by an intern and released.

On appeal, plaintiff contends that the lower court erred in instructing the jury. Over plaintiff’s objection the court gave defendant’s Instruction No. 3 which set out the Illinois statute regarding general speed restrictions (Ill Rev Stats, c 95½, §§ 146-149 (1965)) and then instructed the jury on the effect to be given that statute, as follows:

“If you find from a preponderance of evidence that the plaintiff violated said statute and that she was negligent in so doing and that such negligence, if any, on the part of the plaintiff proximately caused the occurrence in question, then you may find in favor of the defendants.”

Plaintiff contends it was error to give that instruction when Illinois Pattern Jury Instructions contains an instruction on the same subject. The pattern instruction is as follows:

“If you decide that (a party) (the parties) violated the (statute) (ordinance) in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not (a party) (the parties) (was) (were) (contributorily) negligent before and at the time of the occurrence.” IPI No. 60.01.

Pattern jury instructions were devised to induce the use of instructions impartially prepared and free of argumentative language. Supreme Court Rule 25.1(a) requires the use of IPI instructions by both sides whenever the court determines that the jury should be instructed on the issue in question and an IPI instruction is applicable. (Ill Rev Stats, c 110, § 101.25-1 (a) (1965).) In the instant case the court determined that an instruction on violation of the statute was appropriate. IPI No. 60.01 gives an instruction on violation of the statute which is free from argument and which does not single out one party. Defendant’s Instruction No. 3 is written so as to apply only to the plaintiff and as such is partial to the defendant. The trial court should have given IPI No. 60.01 rather than the slanted, partial instruction which it gave. In a case of close liability, as this one is, it was reversible error to give this improper instruction. Accordingly, the cause must be remanded for new trial.

Our disposition of this contention makes it unnecessary for us to decide plaintiff’s other allegations of error.

The judgment is reversed and the cause is remanded for new trial and for such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded.

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


text:
    June Logan, Plaintiff-Appellant, v. Presbyterian-St. Luke’s Hospital, et al., Defendants-Appellees.
    Gen. No. 51,512.
    First District, Third Division.
    February 8, 1968.

      Edward M. Platt, of Chicago, for appellant.
    Mural J. Winstin, of Chicago, for appellee, Reuben S. Flacks.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiff-appellant, June Logan, filed a complaint in chancery against Presbyterian-St. Luke’s Hospital and Reuben S. Flacks, individually and as executor of the last will of Walter Pilkington. The hospital answered the complaint but Flacks moved to dismiss on the ground that, as to him, the cause of action was barred by prior orders and decrees entered in the Circuit Court case of Walter S. Pilkington v. Gladys Pilkington Andreason and Presbyterian-St. Luke’s Hospital (58 C 13645). The chancellor sustained the motion and found that there was no just reason for delaying appeal from his order.

The sole question presented in this appeal is whether or not the plaintiff’s action is effectively barred under the doctrine of res judicata or its corollary principle of collateral estoppel.

In November 1934 Eleanor Pilkington executed a will appointing Edward Jaeger as executor and as trustee of a trust created therein. The testamentary trust provided that her brother, Walter Pilkington, was to achieve the income from the trust for his life and at his death, after payment of a legacy to her niece, Gladys Pilkington Andreason, the corpus was to be distributed to the Presbyterian (now Presbyterian-St. Luke’s) Hospital of Chicago.

After the death of the testatrix in 1937 her will was admitted to probate. The final account of the estate was approved and Jaeger retained the assets of the estate in his capacity as trustee. He remained in this position until his death in September of 1958.

In September 1958 Walter Pilkington filed a suit, thereby initiating the aforementioned proceedings relied upon as a bar in the present case, requesting the appointment of a successor trustee. On October 10th of the same year a decree was entered finding that the court had jurisdiction of both the parties and the subject matter; that the assets of the trust were as stated in an accompanying schedule; and that the original trustee had died. The decree approved the accounts, appointed Reuben Flacks as successor trustee and relieved him from liability for the acts of his predecessor.

On October 23, 1958, Walter Pilkington executed a will whereby, after bequeathing a specific legacy of $500 to the defendant Flacks and naming him executor, he left the remainder of his estate to the plaintiff. In August 1964 Walter was declared to be an incompetent and a conservator was appointed to manage his estate. He died on January 24, 1965.

The defendant had three current accounts approved in the period of time from his appointment as trustee to the death of the income beneficiary. In April of 1965 the defendant filed his final report and account in the case after giving notice of the proceedings to the conservator, the hospital, Mrs. Andreason and the Attorney General. On April 9, 1965, the court approved the final report and account, the trust was terminated, the corpus was distributed to the hospital and Mrs. Andreason and the defendant was discharged.

In addition to the foregoing, the plaintiff’s complaint contained substantially the following allegations and pertinent information: Eleanor and Walter (and their brother Richard) were the children of Lawrence Pilkington who died in 1911 leaving his three children surviving him. He disposed of his property by dividing it among his children in equal shares. Richard and Eleanor were given their shares outright, but the remaining third was given to Eleanor as trustee for Walter. Eleanor commingled Walter’s share with her own assets and it was understood between them that one-half of all her assets constituted the corpus of his trust. When her estate was inventoried and the assets turned over to the trustee, one-half of the assets of the trust belonged completely to him. Eleanor’s will set up the trust with Walter as the income beneficiary, but she had no right to dispose of his interest in this manner and both the defendant and his predecessor-trustee had knowledge of Walter’s true interest in the trust estate. Attached to the complaint was a copy of Eleanor’s will, the Seventh Article of which states:

“I have purposely made no provision under this will for my brother, Richard Sefton Pilkington, because and for the reason that my said brother, Richard, received his share of the estate of my father, Lawrence Pilkington, at the time of my father’s death, whereas my said brother, Walter, entrusted the care and custody of his own share of my father’s estate to me, and now I, in turn, deem it right and fair that I should dispose of the said estate, as hereinabove provided.”

The complaint further alleged that the defendant was Walter’s attorney and that a confidential and fiduciary relationship existed between them; that the defendant assured Walter that he had a one-half, undivided interest in the trust estate of his sister and a right to dispose of it by will, and that a conflict of interest existed between the duties and obligations of the defendant in his capacity as trustee and his duties and obligations as executor of Walter’s estate. It was also alleged that a confidential and fiduciary relationship existed between the plaintiff and the defendant and that the latter assured the plaintiff that, under Walter’s will, she was entitled to one-half of the residue of the trust created by Eleanor. It was further alleged upon information and belief that the defendant converted assets of the trust estate to his own use.

The complaint requested that the final decree in case No. 58 C 13645 be modified or set aside, that an accounting be had and that the defendants be ordered to turn over to the plaintiff the property due her.

A cause of action finally adjudicated by a court of competent jurisdiction cannot be relitigated by the parties or their privies except insofar as they may attack the judgment or decree by a direct appeal. Under the doctrine of res judicata, or estoppel by judgment, all matters which were or might have been determined in the first cause of action are barred by the prior adjudication. The corollary principle of collateral estoppel, or estoppel by verdict, arises when the subsequent cause of action differs from the one in the former suit, but is between the same parties or their privies. In such instances, the prior judgment operates as a bar only to those points and issues which were actually contested and determined and not to those which merely might have been. Schoenbrod v. Rosenthal, 36 Ill App2d 112, 183 NE2d 188 (1962); Kedzierski v. Kedzierski, 86 Ill App2d 264, 229 NE2d 919 (1967).

It is necessary then to compare the nature, purpose and allegations of the present complaint with the prior proceedings and those orders and decrees which the defendant contends conclude the plaintiff’s action. The initial proceeding in 1958 was for the appointment of a successor testamentary trustee under the will of Eleanor Pilkington. The second was for the approval of the current accounts of the defendant Flacks from the time of his appointment as successor trustee until the death of Walter Pilkington. The third was the presentation of his final account and the fourth was the decree which distributed the funds in the trust, discharged the defendant and closed the testamentary trust. None of these proceedings involved the cause of action set forth in the present complaint and the matters at issue and determined were not the same.

The only issues determined in the 1958 proceeding were that the original trustee had died; that his receipts and expenditures were in order; that the assets of the trust were as stated in an accompanying schedule; that the defendant should be appointed successor trustee and that he should be relieved of all responsibility for the acts of his predecessor. None of these particulars are dispositive of the questions arising in the instant action which pertain to a breach of fiduciary and confidential relationships, the construction of Eleanor Pilkington’s will and the ownership of the trust corpus.

The same is true of the defendant’s current and final accounts. The only matters touched upon in the uncontested accounting proceedings were the validity of the receipts and expenditures of the defendant in his capacity as trustee. In no way did they deal with the ultimate ownership of the corpus of the trust or with the other issues raised in the plaintiff’s complaint.

The final decree of 1965 distributed the trust funds and terminated the trust. Again, the cause of action was different, the parties were different and the issues before the court were not identical to the ones now in controversy. The plaintiff was not made a party to that action either as an individual or as a successor in interest to Walter Pilkington, and Flacks was not a party-defendant. Although notice was given to Walter Pilkington’s court-appointed conservator, neither the conservator nor his estate was made a party to the proceeding. If the proceedings leading up to the final decree, or the decree itself construed Eleanor Pilkington’s will and the trust in a manner which foreclosed the plaintiff’s present action, it was the defendant’s obligation to prove that this was so. This he did not do. It is always the burden of the party who relies upon res judicata or collateral estoppel to establish its applicability. Chicago Historical Society v. Paschen, 9 Ill2d 378, 137 NE2d 832 (1956).

The motion of the defendant to dismiss admitted the well-pleaded factual allegations in the complaint. Curtis v. Albion-Brown’s Post 590, American Legion of Illinois, 74 Ill App2d 144, 219 NE2d 386 (1966); Haney v. Haney, 37 Ill App2d 216, 185 NE2d 409 (1962). Although the allegations concerning both the existence and breach of fiduciary relationships were conclusionary in nature, the well-pleaded facts in the complaint were sufficient to require an answer by the defendant.

The order of the Circuit Court is reversed and the cause remanded with directions to overrule the defendant’s motion to dismiss and to set a time within which he may file an answer.

Reversed and remanded with directions.

SCHWARTZ and SULLIVAN, JJ., concur.


author: JUSTICE SULLIVAN.

text:
    Martin Klein, Plaintiff-Appellant, v. Lorraine Priest, Defendant-Appellee.
    Gen. No. 52,447. (Abstract of Decision.)
    First District, Third Division.
    February 8, 1968.

      Eugene K. Landenberger, of Chicago, for appellant;
    no brief filed for appellee.
   Opinion by Not to be published in full.

JUSTICE SULLIVAN.


author: MR. JUSTICE DAVIS

text:
    Barbara L. Coats, Plaintiff-Appellant, v. Richard E. Coats, Richard Bray, Clyde Savings & Loan Association and Naperville Truck Sales, Inc., an Illinois Corporation, and Curran Oil Company, Inc., Defendants-Appellees.
    Gen. No. 67-91.
    Second District.
    February 9, 1968.

      Nathan Shefner, of Chicago, for appellant.
    Neuendorf and Nickels, of Sandwich, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff, Barbara L. Coats, brought this action for partition against her former husband, Richard E. Coats, and others having an interest in the premises in question.

A decree for partition was entered on August 22, 1966. The commissioner appointed by the decree filed his report, and a decree for sale was then entered on September 13, 1966. One of the defendants then filed a motion to postpone the sale on the ground that a certain judgment creditor had not been made a party to the suit. This motion was granted and the creditor was made an additional party defendant.

On December 12, 1966, a supplemental decree for sale was entered. This decree, prepared by counsel for plaintiff, directed that the property be sold for at least two-thirds of the valuation ($32,500) placed on the premises by the commissioner, “. . . subject to the lien of first mortgage to Clyde Savings & Loan Association in the principal sum of $23,436.08 as to all of the above-described real estate; to lease and option agreement dated December 28, 1964, with Naperville Truck Sales, Inc., covering premises described in said lease; to judgment in favor of Curran Oil Company, Inc., and against Truman C. Barclay and Georgia Barclay in case No. 61-2490, Circuit Court of DuPage County, Illinois, entered May 8, 1962 for $6,307.52 and costs, which said judgment is a lien upon one-half of the above-described premises; and to lien for attorney’s fees in favor of Nathan Shefner and against Richard E. Coats in the sum of $1,000.00 by virtue of decree for divorce entered in case No. 65-2234^G, to be payable out of the net proceeds apportioned to said Richard E. Coats by virtue of the sale herein ordered.”

The premises were then offered for sale on January 23, 1967, subject to the terms of the supplemental decree. The plaintiff submitted the highest bid — the sum of $2,500. On February 10, 1967, prior to the filing of any report of sale, the defendant, Richard E. Coats, filed exceptions to the sale and asked that it be set aside and not confirmed for the reason, among others, that the decree was ambiguous to the extent that it hindered bidding at the sale.

On February 17, 1967, the Magistrate who conducted the sale filed his report, which stated what he had done in furtherance of the decree for sale. Therein he recommended that the sale be set aside; that the decree for sale be vacated; and that a new and more detailed decree for sale be entered in that under the existing decree it was difficult, if not impossible, to determine the charges against the premises and, consequently, the amount which constituted a proper or desired bid.

The plaintiff filed exceptions to this report and asked that the court enter a decree confirming the sale of the premises to her. Thereafter, on May 31, 1967, the court entered an order vacating and setting aside the sale and ordering the plaintiff to file a second supplemental decree for sale. It is from this decree that the plaintiff has appealed.

As grounds for reversal, the plaintiff urges that the supplemental decree for sale entered on December 12, 1966, was a final decree not subject to collateral attack or vacation after thirty days from the date of its entry; that the magistrate in conducting this sale was acting in a purely ministerial capacity and had no right to make a report to the court which included recommendations of any nature; and that the trial court’s order vacating and setting aside the sale of January 23, 1967, was arbitrary and an abuse of the court’s discretion.

With reference to her first contention, the plaintiff cites section 72 of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 72) and a number of cases which hold that after thirty days from the entry of a final, appealable order, the court is without power to review or amend such order except for certain established reasons. The plaintiff also refers to the cases of Schuck v. Schuck, 413 Ill 390, 394, 395, 108 NE2d 905 (1952) and Rabe v. Rabe, 386 Ill 600, 604, 54 NE2d 518 (1944) for the proposition that a decree of partition, a decree ordering the sale of the premises, and a decree confirming the report of sale are final and appealable decrees which cannot later be attacked by a party if not appealed from. Consequently, the plaintiff urges that any such decree could not be modified by the court after the expiration of thirty days from the date of its respective entry. (Ill Rev Stats 1965, c 110, par 68.1(3).)

In Getzelman v. Koehler, 14 Ill2d 396, 399-401, inch, 152 NE2d 833 (1958) the court determined this contention adverse to the plaintiffs. After referring to earlier decisions which held that the decree for partition was a final and appealable decree, it stated that consideration must be given to the effect of the subsequently enacted section 50(2) of the Civil Practice Act. (Ill Rev Stats 1965, c 110, par 50 (2).) The Partition Act (Ill Rev Stats 1965, c 106) contains no provision relative to when a decree thereunder is final and appealable and, thus, as provided in section 28 thereof (Ill Rev Stats 1965, c 106, par 71) the provisions of the Civil Practice Act and the rules adopted pursuant thereto apply and are controlling.

Section 50(2) of the Civil Practice Act provided in part: “In the absence of that finding (an express finding that there is no reason for delaying enforcement or appeal), any order, judgment or decree which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not terminate the action, is not enforceable or appealable, and is subject to revision at any time before the entry of an order, judgment or decree adjudicating all the claims, rights, and liabilities of all the parties.”

In Getzelman, the court held that consonant with its views expressed in Hanley v. Hanley, 13 Ill2d 209, 148 NE2d 792 (1958) and in Ariola v. Nigro, 13 Ill2d 200, 148 NE2d 787 (1958), a partition decree, under section 50(2), although final, was not appealable because it determined fewer than all of the rights and liabilities in issue. At page 400, the court stated: “A party, wishing to appeal from a partition decree before disposition of an accounting or other issue, should move the trial court to make an express finding in its decree that there is no just reason for delaying appeal therefrom.” This rationale also applies to a decree for sale and a decree confirming a report of sale. Thus, such decrees are subject to revision at any time before the entry of a judgment adjudicating all of the claims, rights and liabilities of all the parties. Present Supreme Court Rule 304 (Ill Rev Stats 1967, c 110A, par 304), effective January 1, 1967, supplants paragraph (2) of section 50 of the Civil Practice Act, but without any change of substance.

In the case at bar, the trial court had not yet confirmed the sale nor approved an accounting of the proceeds of the sale. Thus, it retained the power to revise its supplemental decree for sale entered on December 12, 1966, and the parties to the proceeding had the right to seek such a revision. Getzelman v. Koehler, supra; Calumet Federal Savings & Loan Ass’n of Chicago v. Markman, 50 Ill App2d 430, 438, 200 NE2d 419 (1964). Until the court enters an order approving an accounting of the proceeds of the sale, fewer than all the rights and liabilities of the parties are adjudicated, and, absent a finding that there is no reason for delaying an appeal, the prior orders in the partition action are not appealable.

Paragraphs 5 and 7 of Article 6 of the Illinois Constitution, and Supreme Court Rule 301 (Ill Rev Stats 1967, c 110A, par 301) provide that every final judgment of a circuit court is appealable as a matter of right. Supreme Court Rules 306 and 307 permit appeals from orders granting a new trial and from other, specified interlocutory orders, not pertinent in the case at bar. Thus, in the interest of judicial parsimony, this appeal could be dismissed without further comment.

However, upon approval of the sale held pursuant to the second supplemental decree, should the court therein find that there was no reason for delaying appeal from such order, then the other errors herein presented could again come before us for determination. Getzelman v. Koehler, supra, 400. In the interest of forestalling such contingency, we will consider the other contentions urged by the plaintiff.

Whether the magistrate had the authority to recommend to the court that a new sale be held is immaterial. The pertinent issue for our determination is whether the court, having the power to revise its supplemental decree for sale, properly did so.

The court, being in fact the vendor, is accorded a broad discretion with reference to the approval or rejection of the report of sale and in entering an order of resale when it deems such proper. Sauter v. Pickrum, 373 Ill 541, 544, 545, 26 NE2d 844 (1940). Also see: Ill Rev Stats 1965, c 106, par 61.

In a partition suit, the sale is not executed or completed until it is specifically approved by the court. The language of cases which stresses the significance of giving stability to judicial sales which have reached the point where title has vested in the purchaser, and asserts that such sales cannot be set aside except for reasons of fraud or other gross misfeasance, is not applicable to the court’s discretion to set aside a sale in a partition suit prior to confirmation of the sale by the court. Until a partition sale is confirmed by the court, the buyer has no interest in or title to the property. His bid is only an offer to buy, and the court, in its judicial discretion, may accept or reject such offer. Straus v. Anderson, 366 Ill 426, 431, 432, 9 NE2d 205 (1937).

The distinction between the discretion possessed by the court to set aside a sale not yet fully executed, and that vested in it in those cases where the judicial sale has in fact been fully executed, has often been recognized. People v. Schwartz, 397 Ill 279, 281-284, incl., 73 NE2d 279 (1947); Ryerson v. Apland, 378 Ill 472, 474-476, incl., 38 NE2d 712 (1942); Levy v. Broadway-Carmen Bldg. Corp., 366 Ill 279, 286-288, incl., 8 NE2d 671 (1937).

After reviewing the circumstances in the case at bar, the trial court exercised its discretion by ordering a second supplemental decree for sale and a resale of the premises. We cannot say that the court erred in exercising its discretion in this respect. The decree of December 12, 1966, provided that the premises should be sold subject to an existing first mortgage of a specified principal amount. It neither stated the interest due thereon, nor that the mentioned sum was the principal amount remaining due. It recited that the sale was to be subject to a certain lease and option, without specifying in any manner the nature or terms of the lease and option. It also provided that the sale was subject to a judgment lien against one-half of the premises in a certain principal amount; and that the sale was further subject to an attorney’s lien, which was “to be payable out of the net proceeds apportioned to said Richard E. Coats by virtue of the sale herein ordered.”

The trial court apparently believed that there was sufficient ambiguity or doubt raised by the language of its decree to discourage bidding, and to warrant the preparation of a new decree and a resale of the premises. Whether we would have made the same determination is immaterial. The trial court has a broad discretion in determining whether to approve or disapprove a report of sale. We may not disturb this discretion unless it is clearly abused. This rule operates as a two-edged sword, which commands that we must affirm a disapproval of a report of sale as well as affirm an approval of such report, unless the court has clearly abused the discretion with which it is vested. People v. Schwartz, supra, 284.

We fail to find any clear abuse of discretion in the action of the trial court which ordered that the sale held on January 23, 1967, be vacated and set aside, and ordered that a second supplemental decree for sale be entered.

We recognize that the portion of this opinion which considered the merits of the appeal is dicta, yet it may serve as a guideline to preclude further and unnecessary litigation herein.

Appeal dismissed.

ABRAHAMSON, P. J. and MORAN, J., concur.


author: MR. PRESIDING JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Smice, Defendant-Appellant.
    Gen. No. 67-93.
    Second District.
    February 9, 1968.

      William N. Stone, of Sterling, for appellant.
    John L. Moore, State’s Attorney of Ogle County, of Oregon, for appellee.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendant, Ronald Smice, was charged with the offense of battery in violation of section 12-3 of the Criminal Code (Ill Rev Stats 1965, c 38, § 12-3); found guilty by a jury at the conclusion of his trial, and sentenced by the trial court to the Illinois State Farm at Vandalia for six months. Smice appealed from that decision on the grounds that the verdict was improper; that the trial court improperly denied his petition for probation, and that the sentence imposed was excessive, cruel and extremely unusual. We considered that appeal in People v. Smice, 79 Ill App2d 348, 223 NE2d 548 (1967), wherein we concluded that the verdict of the jury was warranted by the evidence but remanded the cause with directions to obtain a probationary report and to reconsider the petition for probation. We also concluded that the appeal was also “an inarticulate request that we reduce the punishment imposed by the trial court pursuant to section 121-9 (b) (4) of the Code of Criminal Procedure,” and directed the trial court to conduct a hearing in aggravation and mitigation pursuant to section 1-7 (g) of the Code in the event that the report warranted a denial of probation.

In accordance with our directions, a probationary investigation was made, a report filed and a further hearing held on the petition. At the conclusion of that hearing the court again denied probation and immediately conducted a hearing pursuant to section 1-7 (g) whereafter Smice was again sentenced to Vandalia for six months.

This second appeal is based on the contention of the defendant that his petition for probation was improperly denied and that the sentence imposed was “cruel and unusual” and that he was denied “fundamental fairness.”

The report of the probation officer indicates that the defendant has a history of prior misconduct. He had previously served a one-year sentence at Vandalia for one misdemeanor and thirty days in the county jail for another. In addition, the report relates several other criminal violations including one committed during the pendency of his first appeal.

Section 117-1 of the Criminal Code (Ill Rev Stats 1965, c 38, § 117-1) provides that a person may be admitted to probation when it appears that, among other things, “(1) The defendant is not likely to commit another offense.” It is well established that the grant or denial of an application for probation is within the discretion of the trial court and that discretion will not be disturbed unless it has been clearly abused. People v. Molz, 415 Ill 183, 189, 113 NE2d 314; People v. Evrard, 65 Ill App2d 118, 126, 212 NE2d 305; People v. Smith, 62 Ill App2d 73, 76, 210 NE2d 574. Among other factors to be considered by the trial court in the exercise of that discretion is the prior record of the applicant. Under the circumstances disclosed by the record before us, it does not appear that the trial court abused it’s discretion in the denial of the application of the defendant for probation and we therefore affirm that denial.

We must again conclude that the contention of the defendant that the sentence imposed is “cruel and unusual” is a plea that we reduce that sentence in accordance with the power granted to us by section 121-9 (b) (4) of the Criminal Code (Ill Rev Stats 1965, c 38, § 121-9 (b) (4)) (now Ill Rev Stats 1967, c 110A, par 615(b) (4)). That section and rule provide the reviewing court with the power to reduce a manifestly excessive sentence and avoid the necessity of a complete reversal, remandment and retrial. The standards to be employed to determine if the sentence of the trial court is manifestly excessive have not been changed by this provision. People v. Stevens, 68 Ill App2d 265, 274, 215 NE2d 147 (1966) ; People v. Hobbs, 56 Ill App2d 93, 99, 205 NE2d 503 (1965). Those standards were described by the Supreme Court in the case of People v. Smith, 14 Ill2d 95, 150 NE2d 815, at page 97 as follows:

“Where it is contended that the punishment imposed in a particular case is excessive, though within the limits prescribed by the legislature, this court should not disturb the sentence unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose, or that the penalty is manifestly in excess of the proscription of section 11 of article II of the Illinois constitution which requires that all penalties shall be proportioned to the nature of the offense.” (Citations omitted.)

The sentence imposed by the trial court was within the limits of the statute but the defendant contends, apparently, that the penalty is manifestly excessive under the circumstances of this case. The incident that gave rise to the battery charge involved an attack on a male companion of the defendant’s teenage girl friend. During the hearing on mitigation, it was established that the girl friend, who had originally testified against Smice, had subsequently married him and that they now lead normal, stable lives. It is inferred by the defendant that a battery of this nature is not unusual and is not sufficiently grave to justify the imposition of a maximum sentence. The record does not disclose, however, that the incident was a trivial one nor does the subsequent marriage of Smice to a prosecution witness in any way lessen the gravity of his original offense.

The power to reduce sentences invested in courts of review should be used with “considerable caution and circumspection, for the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do the appellate tribunals.” People v. Taylor, 33 Ill2d 417, 424, 211 NE2d 673; People v. Valentine, 60 Ill App2d 339, 355, 208 NE2d 595.

We do not find that the penalty was manifestly excessive or that the trial court abused its discretion in its imposition.

The defendant also urges that he was denied “fundamental fairness” by the denial of his motion for a new judge when the case was first remanded. However, there is nothing in the record to indicate the reason for the motion; any record of a hearing on it, or any showing that he was prejudiced by its denial.

For the reasons given, the action of the trial court will be affirmed.

Judgment affirmed.

DAVIS and MORAN, JJ., concur.