text:
    Judy Foster, Plaintiff and Counterdefendant-Appellant, v. Louis Wills, Defendant-Appellee—(City of Grand Tower, Defendant and Counterplaintiff-Appellee. )
    (No. 72-220;
    Fifth District —
    July 24, 1973.

      Howard L. Hood, of Carbondale, for appellant.
    Charles C. Hines, of Carbondale, (Twomey & Hines, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Jackson County, Illinois, on a counterclaim, filed in an action by the plaintiff-appellant, Judy Foster, against the defendant-appellee, Louis Wills, seeking damages and injunctive relief for continued and repeated trespass by the defendant on the property of the plaintiff. The defendant, who is also the mayor of Grand Tower, Illinois, where the parties reside, asserted that the roadway in question was a public highway by virtue of its use by the public. The City of Grand Tower after intervening filed a counterclaim, alleging that the road crossing plaintiff’s property was a public highway, under Ill. Rev. Stat. 1969, ch. 121, section 2 — 2—2, and seeking an injunction to prevent plaintiff from closing the road. By stipulation of counsel, the threshold issue of the road’s character was tried first on the counterclaim. After hearing evidence, the trial court found that the road in question was a public highway under the statute, dismissed the original complaint with prejudice, and enjoined the plaintiff from obstructing the road.

The record discloses that, from approximately 1895 down to the date plaintiff acquired her real estate in Grand Tower, an unnamed road extended northward at a right angle from Market Street within the City of Grand Tower. The road passes in front of plaintiff’s house and continues in a northwesterly direction until it leaves her property and curves west over property owned by the Illinois Central Railroad, and then loops back south across the property of the defendant, Wills. During the entire history of the road it was never closed and no attempt was ever made to close the road until the plaintiff, Judy Foster, attempted to close it.

The road has been used in many different ways, by many different people. Originally the road served a box factory and the Illinois Central Railroad siding, which was located at the end of the northernmost point of the road. However, after the box factory burned in 1942, the road was used for ingress and egress to a lumber company, chipping mill and bulk oil station. Customers of these various businesses and the public in general have had occasion to use the road in question. In 1971 when the plaintiff bought the property through which the road passes, she sought to restrict the flow of traffic by erecting a gate. The defendant, Wills, and a sheriff’s deputy removed the gate and this lawsuit followed.

The issue presented on appeal is whether or not there was sufficient evidence to support the trial court’s finding that the roadway in question, which crosses the plaintiff-appellant’s property, is a public highway, as defined by Ill. Rev. Stat. (1969), ch. 121, section 2 — 202, which provides as follows:

“Highway — Any public way for vehicular travel which has been laid out in pursuance of any law of this State, or of the Territory of Illinois, or which has been established by dedication, or used by the public as a highway for fifteen (15) years.”

The tests for determining whether a road has become a public highway were recently summarized in Walden v. Bourn, 10 Ill.App.3d 289, 294, 296 N.E.2d 92, 95, wherein the court quoted Van Amburg v. Reynolds, 372 Ill. 317, 23 N.E.2d 694:

“The test in determining whether a road has become a highway by user is whether or not the public, generally, had the free and unrestricted right in common, to use the road. Where a road has been shown to have been openly and notoriously used as an open public highway in common by all the people for the statutory period, it will be considered a public highway. (Phillips v. Leininger, 280 Ill. 132, 117 N.E. 497; Lee v. Dickman, 316 Ill. 529, 147 N.E. 380.) In determining whether a strip of ground has become a public highway by user the test is not the number of persons actually using it, but the character of the use, — that is, whether or not the public, generally, had the free and unrestricted right to use the road. (Mudge v. Wagoner, (1926), 320 Ill. 357, 151 N.E. 276.) Where a roadway is shown to have been used and enjoyed by the public for the time required by statute, a presumption arises that such grant or use was prescriptive, and the burden is on one denying the existence of a public highway to show that the use was under some license or indulgence inconsistent with the claim of right by the public. Lee v. Dickman, supra; Thorworth v. Scheets, 269 Ill. 573, 110 N.E. 42; Law v. Neola Elevator Co., 281 Ill. 143, 117 N.E. 435.”

From an examination of the testimony of all the witnesses in the case at bar, we conclude that there was sufficient evidence to support the trial court’s determination that the road in question met all the criteria needed to establish that it was used as a public road for a period of time in excess of fifteen (15) years. All of the witnesses, including the plaintiff’s own witnesses, testified that the road had never been closed, and that it was in continuous use by the public in general from the time the box factory was in existence until the present, a period of about 85 years. All witnesses, including the plaintiff’s also testified that the use of the road had been continuous and uninterrupted, until the plaintiff Rad erected her gate. Witness Ralph Becker, a former plant manager of the box factory, testified that his company never asserted ownership of the road and never objected to public use of the road. Witnesses Becker, WHliam Kelly and Louis WHls testified that the City of Grand Tower installed street lights, water, gas and sewer lines within the road, all without obtaining permission of the property owners along the road. Mr. John Suggs, plaintiff’s predecessor in title, testified that, when the City of Grand Tower instaUed the sewers, it was done without an easement to do so and it tore up the road so badly he could not gain ingress and egress to his house. AH witnesses including those who were predecessors in title to the plaintiff testified that the property owners along the road had knowledge of the use by the public and the use was without their consent. AH of the witnesses also testified that the public used the road under claim of right, in that, no one testified that they sought permission to use the road or that consent was given by the property owners to their use of the road.

This recital of testimony serves to iUustrate that there was evidence to support the finding of the trial court that the use of the road by the public had been open, notorious, adverse, continuous, without the landowners’ permission and under a claim of right for more than fifteen years. (See Taylor v. Wentz, 15 Ill.2d 83, 153 N.E.2d 812.) The fact that the road in question was worked by the township authorities is a strong indication that it is a public highway. (Walden v. Bourn, supra.) We do not deem the testimony regarding the maintenance of the road so vague as to fall within tire category set forth in People v. Waitkus, 30 Ill.2d 335, 196 N.E.2d 668 (1964), relied upon by the plaintiff.

In applying these well established principles of law to the evidence in the case at bar we can only conclude that the trial court’s findings were correct in that there was an open, adverse, continuous and uninterrupted use of the road in question by the public without permission or consent of the property owners for the statutory period. (Ill. Rev. Stat., ch. 121, § 2 — 202.) Where such condition exists, there is a presumption that the road has become a public highway by prescription, and the burden of proof is on the party denying the existence of the public highway to show that the use was under some license or indulgence inconsistent with a claim of right in the public if such presumption is to be overcome. Walden v. Bourn, supra, at 295, 296 N.E.2d at 96; City of Greenville v. File, 130 Ill.App.2d 878, 265 N.E.2d 518.

The cases cited by the plaintiff do not support her contentions. Plaintiff contends that the trial court failed to consider the equities of the case, in finding that the plaintiff's portion of the road in question was public, whffe the defendant WiHs asserted his portion of the same road was private, citing Miller Bros. Lumber Co. v. Mayfair Lumber Co., 4 Ill.App.3d 616, 279 N.E.2d 389. This argument, however, is without merit. In Lee v. Dickman, supra, where the issue was whether or not a road was a public highway, the plaintiff in error attempted to introduce evidence that a private way to the defendant in error’s house existed. But the court held, 316 Ill. at 532-533, that: “Whether he may have had a private way leading in the other directions has nothing to do with the question of whether the road involved here is a public road * * See also Walden v. Bourn, supra. Applying this reasoning to the case before us, the fact that the defendant asserted that his portion of the same road was private has nothing to do with the question of whether plaintiff’s portion of the road is public. The issue of the public nature of the defendant’s portion of the road was not before the trial court and is not now before this court.

In citing Shell Oil Co. v. Village of Hartford, 280 F.Supp. 657 (S.D. Ill. 1968), plaintiff-appellant contends that the doctrine of adverse possession must be construed strictly in favor of the owner of the title to the land. But the factual situation in that case is completely different from the case at bar. In Shell Oil, the plaintiff held clear record title to the real estate in question. As in Waitkus, supra, the public authorities in the Shell Oil case did acts inconsistent with a claim of right in the public. The property in question was taxed as private property; public authorities dedicated parts thereof; the village never required Shell Oil to get permits for improvements of the road in question, but did as to other admittedly public property; and, finally, Shell Oil maintained the road. Furthermore in Shell Oil there was no persuasive evidence that the public use was continuous and uninterrupted, but there was considerable evidence that all use in recent years was permissive rather than adverse. None of these facts existed in the case before us; and, to the contrary, we have found that the evidence supports a conclusion that the public use was open, notorious, adverse, continuous and uninterrupted, with the knowledge of the landowners but without their consent for the statutory period.

For the reasons set forth the judgment of the circuit court is affirmed.

JONES and G. MORAN, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE EBERSPACHER

license: Public Domain

text:
    Monticello College, Plaintiff-Appellee, v. William J. Scott, Attorney General of the State of Illinois, Defendant-Appellee.—(Mrs. Theodore Stillman Chapman, Petitioner for Leave to Intervene-Appellant.)
    (No. 72-82;
    Fifth District —
    July 26, 1973.
    John C. Russell, of Phelps, Russell & Kasten, of Carlinville, and Harold E. Stassen, of Stassen and Kostos, of Philadelphia, Pa., for appellant.
    Hoagland, Maucker, Bernard & Almeter, of Alton, for appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Madison County, denying appellant’s petition for leave to intervene in an action brought by Monticeílo College for a decree approving its plan to operate as a charitable foundation, known as the Monticeílo College Fund, and for a decree that the Monticeílo College Fund has authority to continue its corporate operations and to devote, apply, and use the net assets of Monticeílo College for the College Fund.

The first issue presented is whether the court’s order denying the petition to intervene is a final appealable order. The court stated in its order denying leave to intervene:

“Wherefore, it is ordered, adjudged and decreed by the Court that the Petition to Intervene and the Petition and Motion for Reconsideration, Rehearing and Renewal filed herein by Petitioner-Intervenor be, and they are hereby denied, and PetitionerIntervenor’s Answer is stricken.”

Appellee cites Supreme Court Rule 304(a) (Ill. Rev. Stat., ch. 110A, sec. 304(a)) and its requirement for an express written finding that there is no just reason for delaying the enforcement or appeal, where multiple parties or multiple claims for relief are involved and where the judgment of which appeal is sought constituted a final judgment as to one or more, but fewer than all of the parties or claims. The appellant did not request the court below to enter the finding specified in the rule.

None of the cases cited by appellee have applied Rule 304(a) to an appeal from an order denying intervention. There are three Illinois cases which have held that an order denying intervention is a final order. (Hartzell v. Hungate, (1921), 223 Ill.App. 346; Korngabiel v. Fish (1942), 313 Ill.App. 286, 40 N.E.2d 314; Strader v. Bd. of Educ. (1953), 351 Ill.App. 438, 115 N.E.2d 539. See also Annot., 15 A.L.R.2d 340.) However, these cases do not refer to the requirements of Rule 304(a) or its predecessor (Ill. Rev. Stat. 1965, ch. 110, sec. 50(2)).

However, there is one decision which has dealt with the issue before us. In Board of Trustees of the University of Illinois v. Timpone (1963), 28 Ill.2d 255, 190 N.E.2d 786, our supreme court considered the application of § 50(2) to an order denying intervention. In that case the Board of Trustees have filed eminent domain proceedings and the defendant had filed a cross petition for damages to an adjoining piece of property. The corporate tenant of the adjoining property filed a petition for leave to intervene. On appeal from the court’s order denying the cross petition and the petition to intervene, the court dismissed the appeal, due to the absence of the court’s express finding that there was no just reason for delaying and enforcement or appeal.

The court reviewed the policies underlying § 50(2) and held, at 788:

“Section 50(2) applies in letter and spirit to both of the orders
now before us, and they are not appealable in the absence of the requisite finding.
# # #
In the absence of the statutory finding, the trial court’s denial remains subject to revision until all claims are adjudicated.”

Even though the application of Rule 304(a) to eminent domain has been changed by the 1969 addition of Rule 307(a)(7), the reasoning of the Timpone case is applicable to the present case, and the Rial court’s order is not appealable without the required finding.

Even though this case appears similar to the proceedings described in Rule 304(b)(2), the trial court made clear that it did not adjudicate any rights of persons who might assert an interest in the funds held by MonRcello College. It’s order specifically found:

“2. That the Plaintiff in this cause is not seeking an adjudication of the rights of any persons who may assert a special interest in the funds now being held by the Plaintiff, other than the interest of the public and the interest of donors arising from, unresRicted conRibutions to Monticello College.
3. That Plaintiff is seeking Court approval of its plan to operate as a charitable foundation and any Order so entered will not adjudicate or adversely affect the rights of any person who may assert a special interest in the funds now being held by Plaintiff, other than the interest of the public and the interest of donors arising from unrestricted conRibutions to Monticello College.
# # #
8. That the foregoing findings of facts are not intended to adjudicate the rights of those persons who may in the future in separate actions assert an express gift over or possibility of reverter in and to the assets of Monticello College presently being held by the Trustees of said College”

Therefore, since the Rial court did not enter the finding required by Rule 304(a), the order is not appealable. And the finding will not be implied where it is not expressed. Duncan v. Irwin (1971), 1 Ill.App.3d 3, 272 N.E.2d 407.

If the subject matter of this appeal were to be properly presented for review by this court at a later day, the abstracts and briefs now on file could be employed in that appeal without reprinting.

Appeal dismissed.

JONES and CREBS, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Carl Lambert, Defendant-Appellant.
    (No. 56604;
    First District (3rd Division) —
    June 14, 1973.
    James J. Doherty, Public Defender, of Chicago, (Stanley Sacks and Thaddeus L. Kowalski, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and James R. Carlson, Assistant State’s Attorneys, of counsel,) for the People.
   PER CURIAM.

McNAMARA, J., took no part.


author: Mr. JUSTICE SULLIVAN

text:
      In re Estate of Elijah Moses, Deceased — (John Burton, Petitioner-Appellant, Cross-Appellee, v. Frank Moses, Respondent-Appellee, Cross-Appellant.)
    (No. 56687;
    First District (5th Division) —
    June 15, 1973.

      Joseph and Friedman and Orlikoff, Prins, Flamm & Susman, both of Chicago, (Jack Joseph and Arthur T. Susman, of counsel,) for appellant.
    Nathaniel R Howse, of Chicago, for appellee.
   Mr. JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal and cross appeal from portions of an order entered on August 26, 1971, in probate proceedings.

Elijah Moses died in 1952 and his will was admitted to probate in 1953. It provided, inter alia, as follows:

“All my real and personal property to my wife, SALLY to have and hold for her natural life. EXCEPT-That my son FRANK, shall have one room in my house at 1906 Asbury Avenue as his home during the life time of my wife, SALLY. And that my son, FRANK, shall receive the rents from the WEST room in the basement of said house beginning July 15, 1955.
THIRD-At the death of my wife, SALLY all my real property shall vest in my son, FRANK: PROVIDED That he has lawful issue. If he does not then he shall have the said realty for his natural life only.
FOURTH-If my son FRANK dies without issue all my real property shall vest in my nearest blood relative and the nearest blood relative of my deceased wife, LOUISE BURTON MOSES. One-half share to each of our respective heirs.”

In 1954 Frank Moses, the son of Elijah by a prior marriage, murdered Sally, his stepmother, for which he was convicted in 1955 and served thirteen years of his sentence.

John Burton, the son of Sally by a prior marriage, was the executor of Elijah’s estate and after Sally’s death was the administrator of her estate. In 1958 an inventory was approved in Elijah’s estate listing his home as the sole asset. In 1959, after finding that all interested parties were properly notified, including the heirs of Elijah and Louise Burton Moses, the court ordered the sale of the home to meet expenses and costs of administration. The net proceeds of the sale amounting to $10,448 were the sole assets of Elijah’s estate.

Among the orders entered, the following have particular significance:

Order of July 23, 1962 — The court denied a petition of Burton, as executor, to (a) extinguish the interest of Frank Moses because he had murdered Sally, and (b) to ascertain the value of Sally’s life interest at the time of her death. The court also ordered the executor to file within 30 days a petition for distribution requesting the court for construction of the will at the time of Sally’s death.

Order of June 24, 1968 — The court entered an order sustaining or denying each of the 19 objections filed by Frank Moses to a final account, which included a proposed final distribution of specific amounts to (1) the estate of Sally Moses for the value of her life interest, (2) Frank Moses for the value of his life interest, and (3) the Clerk of the Probate Court for the undetermined remainder.

In objection 18, which was sustained, Moses contended that any claim by Sally’s estate was res judicata because the court had, in its order of July 23, 1962, denied a petition to determine the value of Sally’s life estate at the time of her death and to extinguish the interest of Frank Moses. In objection 19, which was also sustained, he disputed any distribution to the undetermined remainder maintaining that under the proper construction of the will that he (Frank Moses) was entitled to the entire balance. In his reply to objection 18 the executor contended that because Frank Moses murdered Sally, the amount he receives should be subject to the value of Sally’s life estate at the time of her death and in his reply to objection 19 he challenged Frank Moses’ claim to the remainder because he did not have lawful issue and the executor again raised the question of the proper construction of the will.

The court also sustained Frank Moses’ objection 8 in which he asked for interest under Section 308 of the Probate Act and the executor was ordered to be charged 10% per annum from August 1, 1959, on the proceeds from the sale of the home.

The executor was also ordered to prepare and submit to the court a corrected final accounting within 10 days.

Order of January 24, 1969 — On its own motion the court entered an order removing Burton as executor of Elijah Moses’ estate and appointing James L. O’Keefe, the public administrator, to act.

Order of May 5, 1969 — The court ruled on a petition of Burton and in its order denied the following requests:

1. to construe the will,

2. to vacate the order removing him as executor,

3. to vacate or modify the order of June 24, 1968, and

4. to modify the prior orders to provide for immediate appeal.

No specific findings were made and no reasons were given for the denial of any request.

The court also ordered Burton to file within 20 days an amended final account pursuant to the order of June 24, 1968.

Order of November 18, 1969 — The court ruled on a petition filed by Burton to vacate the order of June 24, 1968. It was supported by a memorandum of law which included a reference to a hearing on July 28, 1969 concerning a motion of Burton for instructions as to the distribution of funds held by him and accounted for in an amended final account filed on May 26, 1969. It appears from the memorandum that at the hearing on July 28, 1969, there was a suggestion that the motion for instructions be considered a petition under section 72 of the Civil Practice Act to vacate the order of June 24, 1968. It was indicated that the court permitted Burton to file a section 72 petition. However, if one was filed, it is not in the record nor have we found any order concerning a ruling on any such petition.

Moses moved to strike the petition to vacate because (a) Burton was removed as executor and, being neither an heir nor a creditor, he had no right to present the motion and (b) that the June 24, 1968 order was final and conclusive. In its order of November 18, 1969, the court:

1. denied the motion to vacate the order of June 24, 1968,

2. denied tire motion for instructions, and

3. sustained the motion of Moses to strike the petition.

Again, no specific findings were made.

Thereafter Burton filed a notice of appeal from the order of November 18, 1969, and subsequently he moved for a dismissal of this appeal "for the reason that no appealable order has as yet been entered in tire trial court.” This court granted the motion and the record here discloses there was no finding as to whether tire order of November 18, 1969, was or was not final and appealable.

Order of August 26, 1971 — Burton then filed another petition on November 17, 1970 asking:

1. a surviving spouse’s award for Sally Moses,

2. a determination of the value of the life interest of Sally Moses at the time of her death, and

3. for the appointment of a trustee to hold the assets pending the death of Frank Moses and to pay to him only the income to which he was entitled as a life tenant and/or an administrator to construe the will and determine the nature of the bequest to Frank Moses.

The court found as follows:

1. that no man being permitted to profit by his own wrong, Frank Moses has no interest in this estate,

2. that owing to the laxity of Burton, the motions for a widow’s award and for the recovery of a value of Sally’s life estate are denied,

3. that the court had no jurisdiction to determine who was entitled to the res of the estate until the will is construed,

4. that no ruling is made as to whether any prior orders were final,

5. that the petition in all other respects is denied, and

6. that the order disposed of all matters referred to or raised in the petition and is intended to be final with no just reason for the delay of enforcement on appeal.

Burton contends there was no final and appealable order prior to that of August 26, 1971, and that the trial court erred in refusing a widow’s award to Sally’s estate and in refusing to award a sum equal to the value of Sally’s life estate at the time of her death. Moses cross appeals from the finding that he had no interest in the estate and maintains that the June 24, 1968 order was final and appealable so that the trial court had no jurisdiction to enter the order of August 26, 1971. He also maintains that the orders of May 5, 1969 and November 18, 1969 were final and appealable.

OPINION

A review of the June 24, 1968 order discloses that the trial court sustained or overruled each of 19 objections to the final account and order “a corrected final accounting.” It appears to be the contention of Moses that by sustaining objections 18 and 19 the trial court determined the controversies as to all parties, i.e., he found (a) Sally’s life estate had no value at the time of her death, (b) the undetermined remaindermen were to receive no distribution, and (c) he was to receive the entire balance. Corollary thereto, he maintains that (1) because it disposed of all controversies, the order of June 24, 1968 was final and appealable and (2) because no timely appeal was taken the trial court had no jurisdiction to enter any subsequent orders.

He relies on the following cases in support of his positions: Lakatos v. Prudence Mutual Casualty Co. (1969), 113 Ill.App.2d 310, 252 N.E.2d 123; In re Estate of Murray Ireland (1971), 132 Ill.App.2d 157, 267 N.E.2d 681; Peach v. Peach (1966), 73 Ill.App.2d 72, 218 N.E.2d 504; and Altschuler v. Altschuler (1948), 399 Ill. 559, 78 N.E.2d 225.

Lakatos involved an appeal from an order dismissing the complaint and a motion to dismiss the appeal was made contending the order was not final. The court held that the order amounted to a dismissal of the suit and as such was a final order. In Peach, after a jury verdict for the plaintiff, the court granted a motion to dismiss from which an appeal was taken by the plaintiff and the defendants contended it was not a final judgment because of the absence of the traditional language “the plaintiff take nothing by virtue of this action and that the defendants go hence without day.” It was held that the other terminated the litigation and was final. In re Ireland involved a ruling on a petition by a conservator of a widow in the estate of her deceased husband to require support payments. The trial court ordered future payments, reimbursement for the past and awarded attorneys’ fees. On appeal it was held to be a complete disposition of the issues raised in the petition and was final and appealable. In Altschuler, the trial court ruled that title to property was not held as a partnership asset but by the plaintiff and defendant as tenants in common and our Supreme Court held it was a final order as to this issue although a trustee was required to give an accounting concerning his prior handling of the property.

We do not believe that any of these cases are controlling of the facts here and we particularly note that it was said in Altschuler at p. 569:

“A decree is final * # * if it finally disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate branch thereof. [Citations.] * * * Where accounts are to be settled between the parties and the decree contains an order of reference by which the accounts are to be stated according to certain principles fixed by the decree, the decree is final, but where the chancellor fails to fix the principles by which the accounts are to be stated and future judicial action and discretion on his part are contemplated and necessary, or where some equity different from the equities involved in the accounting remains for further adjudication, then such decree is interlocutory.” (Emphasis added.)

Here the trial court sustained or overruled the 19 objections and ordered a corrected accounting which apparently was to conform to his rulings on all objections. We believe that future judicial action and discretion on his part was contemplated and would be necessary to assure conformance to those 19 rulings and, accordingly, we conclude that the order of June 24, 1988, was not final. Furthermore, it does not appear in the order, nor were we able to ascertain from the record, that the interests of the undetermined remainder were represented before the court as they should have been.

The order of May 5, 1969, denied certain requests of Burton, inter alia, to vacate or modify the order of June 24, 1968, and to modify all prior orders to provide for immediate appeal. Having ruled that the June 24, 1968, order was not final and because the May 5, 1969, order (1) also contains no specific findings concerning the disputes involved and (2) again ordered the executor to file an account to conform to the order of June 24, 1968, it also requires future judicial action and discretion. Accordingly, we hold it to be not final.

The November 18, 1969, order resulted from the petition of Burton to vacate the order of June 24, 1968, and Moses moved to strike because (1) Burton had been removed as executor and had no standing to present the petition and (2) the June 24, 1968, order was final and conclusive. The trial court sustained the motion to strike but no specific finding was made nor does the order or the record disclose the basis of its ruling. Having found that the June 24, 1968, order was not final and there being nothing contained in the order of November 18, 1969, which further resolves the controversies, we now conclude that order also lacks finality.

Parenthetically, we note that paragraph (b) of Rule 304 of the Supreme Court Rules provides in part as follows:

“Judgments and Order Appealable Without Special Finding. The following judgments and orders are appealable without the finding required for appeals under paragraph (a) of this rule:
(1) A judgment or order entered in the administration of an estate, guardianship, conservatorship, or similar proceeding which finally determines a right or status of a party.”

The committee comments make it clear that paragraph (b) was intended to be merely declarative of existing law as follows:

“Subparagraph (1) applies to orders that are final in character although entered in comprehensive proceedings that include other matters. Examples are an order admitting or refusing to admit a will to probate, appointing or removing an executor, or allowing or disallowing a claim.”

Accordingly, we point out the January 24, 1969, order removing Burton as executor was a final and appealable order and because a timely appeal was not taken, we and the trial court have no jurisdiction to vacate or modify it.

We turn now to the order of August 26, 1971, from which these appeals are taken and we note, initially, that Moses contests the right of Burton, who has been removed as executor, to bring this appeal. An executor who has been removed and is not shown by the record to have been reinstated has no future right to interfere with or control legal proceedings unless he otherwise would be injured by the order or benefited by its reversal. (People v. Harrigan (1919), 291 Ill. 206, 125 N.E. 903.) Here the record discloses that Burton was an heir of Sally Moses and administrator of her estate and, as such, he has standing to bring this appeal concerning matters affecting Sally’s estate.

He first contends that the court erred in refusing a widow’s award to the estate of Sally Moses. We note that she received a life estate in the personalty and realty. In order to pay her a widow’s award during her life time it would have been necessary to sell her home which was the sole asset of her husband’s estate and in which she lived during her life time. In view thereof we consider that the failure on her part to seek a widow’s award was a waiver of any right to an award after her death. (Huch v. Wickersheim (1942), 316 Ill.App. 155, 44 N.E. 2d 338). Furthermore, the record discloses that her administrator made claim to an award for the first time in his petition of November 17, 1970, more than 16 years after her death and we consider this delay to be a bar to the estate’s claim for a widow’s award. (Gahan v. Golden (1928), 330 Ill. 624, 162 N.E. 164; In re Estate of Gersch (1963), 43 Ill. App.2d 224, 193 N.E.2d 208.) Accordingly, we affirm that portion of the order denying a widow’s award to the estate of Sally Moses.

Burton next contends that the court erred in denying her estate an award from the estate of Elijah Moses of a sum equal to the value of her life estate had she lived her natural life. In support of this contention he argues that because her successor life tenant, Frank Moses, accelerated his own life estate by murdering her, he would be unjustly enriched if Sally’s estate did not receive this award. We believe that there is a public policy in this state that no man should profit by his own wrong or his own crime. It is reflected in section 15a of the Probate Act (Ill. Rev. Stat., ch. 3, sec. 15a) which provides that an heir who murders an ancestor may not inherit from the ancestor, and under section 49a (Ill. Rev. Stat., ch. 3, sec. 49a) which provides that a legacy or devise to a murderer in a victim’s will is void. The policy is further manifested in Bradley v. Fox (1955), 7 Ill.2d 106, 129 N.E.2d 699, which, in holding that a joint tenant who murders his co-tenant does not succeed to the victim’s interest, stated at p. 116:

“The Illinois statute prohibiting the devolution of property to a convicted murderer from his victim, while not determinative of the rights of the parties in this situation, does evince a legislative policy to deny the convicted murderer the fruits of his crime. That policy would be thwarted by a blind adherence to the legal fiction that a joint tenant holds the entire property at the date of the original conveyance, and acquires no additional interest by virtue of the felonious death of his cotenant, since that rationale sanctions in effect the enhancement of property rights through murder. For legal fictions cannot obscure the fact that before the murder defendant, as a joint tenant, had to share the profits of the property, and his right to complete ownership, unfettered by the interests of a joint tenant, was contingent upon surviving his wife; whereas, after, and because of, his felonious act that contingency was removed, and he became the sole owner of the property, no longer sharing the profits with any one nor fearing the loss of his interest. * * # We cannot disregard these realities and apply a legal fiction which operates to increase the estate of one who murders his joint tenant, * * #.”

In Wilson v. Board of Trustees (1969), 108 Ill.App.2d 210, 246 N.E.2d 701, the court held that a widow who had been convicted of the voluntary manslaughter of her husband could not collect pension rights. In Wilson the court discussed the public policy as follows atp. 213:

“This philosophy applies where the beneficiary or heir under a life insurance policy murders the assured and thus acquires the proceeds of the policy, where a devisee or legatee feloniously kills his testator, where a person murders his intestate ancestor, and where one joint-tenant murders his other joint-tenant and thus accelerates survivorship rights. This case also squarely holds that such public policy, be it common-law, statutory, or by judicial construction, does not violate constitutional mandates against forfeiture of property or corruption of blood. One cannot forfeit that which he is precluded from having. It is not even debatable in our judgment that if the claimant in this case had been convicted of murder she would have been barred from recovery. This is not so because of any provision of the Descent Act or reference to that Act, but because the public policy of this State so directs.”

Here the interest of Frank Moses was contingent upon his surviving Sally Moses and he might have received nothing except for the murder since there is no way of ascertaining with certainty whether he would have survived Sally. We note that in such a case The Restatement of Restitution, ch. 11, sec. 188c, states that:

“[T]he murderer can be compelled to surrender his whole interest, and can be compelled to hold it upon a constructive trust. He can be compelled to hold it upon a constructive trust for the estate of the life tenant during the life expectancy of the life tenant at the time of the murder, and subject thereto for the person who would have been entitled in remainder if the murderer had predeceased his victim.”

This concept was recommended by our supreme court in Bradley where at p. 117 it said:

“The constructive trust concept, referred to as the ‘formula through which the conscience of equity finds expression [citation.], has been invoked whenever the legal title to property has been obtained under circumstances which render it unconscionable for the holder to retain and enjoy the beneficial interest. The imposition of such a trust under the circumstances of the instant case, where the defendant has acquired the sole legal title to the entire property and thereby enhanced his property rights through the murder of this joint tenant, has approbation not only in the case law, the Restatement of Restitution, and in legal treatises, but is consistent with the legislative policy evidenced in section 15a (par. 167) of the Probate Act. Moreover, as tersely stated by Justice Cardozo, ‘The social interest served by refusing to permit the criminal to profit by his crime is greater than that served by the preservation and enforcement of legal rights of ownership.’ ” Cardozo, Nature of the Judicial Process, 43.

Although there is apparently no decision in this state which extends the public policy against unjust enrichment to one who accelerates his own life interest by murdering a predecessor life tenant, we hold that the public policy should be so extended to prevent such a murderer from gaining any benefit from his crime and we affirm that part of the order holding Frank Moses had no interest in Elijah’s estate and we hold that Frank: Moses, by virtue of the murder of Sally Moses, is deprived of his life interest under the will of Elijah Moses.

We further conclude that the reasoning of the Restatement of Restitution should be followed in such a situation and, accordingly, we reverse that portion of the order denying to the estate of Sally Moses the value of her life estate. The record discloses that Elijah died in 1952 and Sally was murdered in 1954, and because both estates remain open we believe their closing will be expedited by resolving other issues here. Accordingly, we hold that the administrator of Elijah’s estate should be directed, subject to the further order of the circuit court:

1. to collect all of the assets of the estate of Elijah Moses,

2. to determine the life expectancy of Sally Moses at the time of her death, using the mortality tables current in 1954, and

3. to determine a value of the life interest of Sally Moses at the time of her death and pay the amount of that value to her estate after first providing for necessary administration costs and expenses.

The will of Elijah Moses provided that Frank Moses was to have a room in Elijah’s home during the life time of Sally Moses and was also to receive the rents from a basement room from July 15, 1955. These are benefits he acquired before the murder of Sally and, because our holding is limited to acquisition of any benefits resulting from the murder, Frank Moses will not be deprived of them. Therefore, the administrator should be directed also, subject to the further order of the circuit court, to determine:

1. the value, if any, of the rental of the west basement room for the number of years of the determined life expectancy of Sally Moses and to pay from the balance the amount of that value to Frank Moses, and

2. the value, if any, of the use of a room in the home for the number of years of the determined life expectancy of Sally Moses, excluding the number of years Frank Moses was in the penitentiary for her murder, and to pay from the balance the amount of the value to Frank Moses.

In addition, we find from the paragraphs third and fourth of his will that Elijah intended that his realty was to vest in Frank Moses at the death of Sally provided he survived with lawful issue at that time, otherwise he was to have a life estate only, which we have held to be forfeited by his crime. The record indicates that Frank Moses had no lawful issue at the time of Sally’s death, however, inasmuch as we have extended her life interest through her life expectancy, we hold that the realty vests in Frank Moss if he was or is then surviving with lawful issue at the expiration of the determined life expectancy of Sally. If Frank Moses does or did not so survive and had or has no lawful issue at that time then, because he has been deprived of his life interest, the realty (the net proceeds here) shall be distributed to the remaindermen as directed in the will.

Accordingly, the administrator should also be directed, subject to the further order of the circuit court, to hold the balance remaining until the expiration of the determined life expectancy of Sally and, if at that time Frank Moses survives with lawful issue, the balance of the proceeds shall vest and shall be paid to him after other payments are made. If, however, at that date Frank Moses is not surviving with lawful issue, the administrator shall be directed to make distribution to the remainder-men under paragraph four of the will.

Under all the circumstances of this case it does not seem appropriate to us that the 10% charge against John Burton, as executor, or against the public administrator under Section 308 of the Probate Act should be enforced.

Affirmed in part, reversed in part and remanded with directions.

DRUCKER, P. J„ and ENGLISH, J., concur.


author: Mr. JUSTICE LEIGHTON.

text:
    Mary B. Sauerland, Plaintiff-Appellant, v. Keith A. Sauerland, Defenfendant-Appellee.
    (No. 56018;
    First District (2nd Division) —
    June 29, 1973.
    Thomas C. Kearns, of Arlington Heights, for appellant.
    No appearance for appellee.
   Opinion by

Mr. JUSTICE LEIGHTON.


author: Mr. JUSTICE ENGLISH

text:
    Patricia R. Deahl, Plaintiff-Appellee, v. Benjamin T. Deahl, Defendant-Appellant.
    (Nos. 55345, 56124 cons.;
    First District (5th Division) —
    June 29, 1973.

      Frederick J. Rertram, of Chicago, for appellant.
    Mitgang, Levine and Schwartz, of Chicago, (John R. Schwartz, of counsel,) for appellee.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

On June 2, 1970, a judgment for divorce on grounds of mental cruelty was entered against defendant, Renjamin T. Deahl, and in favor of plaintiff, Patricia R. Deahl. The decree also provided, among other things, for plaintiffs custody of three minor children, payment of child support by defendant, transfer by him to plaintiff of child support, the entire interest in the family residence, and payment of plaintiffs attorney’s fees. Defendant has appealed from that entire decree. (Case No. 55345.)

On October 13, 1970, defendant filed a section 72 petition (Ill. Rev. Stat. 1969, ch. 110, par. 72), seeking to vacate or modify the divorce decree on the ground of newly discovered evidence which indicated that plaintiff had fraudulently procured from the court the entire interest in the family residence as “alimony in gross and in lieu of alimony payments,” while at the time intending to marry another man as soon as the decree had become final, thereby avoiding what would otherwise have been a cut off in alimony payments on the occurrence of her remarriage. Plaintiff moved to strike or dismiss defendant’s petition, but on May 6, 1971, after a hearing, the petition was denied. Defendant’s subsequent appeal (Case No. 56124) from that judgment has been consolidated with the earlier appeal.

Plaintiff and defendant were married on April 18,1947, and at the time of the divorce had six children, three of whom were minors. In 1963, a home was purchased with a $3500 down payment provided by plaintiff’s father. From then until the time of separation in 1970, defendant made monthly mortgage payments of $138.22, totalling more than $11,000, by far the larger part thereof representing payments of interest which, while accomplishing only a small increase in the parties’ equity, did, indeed, succeed in preserving the parties’ title and equity in the property.

Testimony erf plaintiff:

During the last three years of their marriage, she and her husband weren’t getting along very well; they were fighting about sex three or four times a week. He bathed every two or three weeks and always had a foul odor. He complained about her cooking and at times would throw the food on the floor. On Thanksgiving Day, 1967, he came downstairs for breakfast at about 2:30 in the afternoon. At that time plaintiff was preparing dinner for guests who had arrived about noon. Defendant demanded breakfast and when he was told dinner was being prepared and there was no time for breakfast, he made vulgar remarks to his wife in front of the guests. Plaintiff broke into tears and left the room. Defendant went back to bed and reappeared as everyone was finishing dinner, had his food reheated, and then told his wife, again in the presence of company, that her food wasn’t fit to eat.

In October of 1966, plaintiffs father was staying in the home while recuperating from a heart attack. Fights occurred regularly over sexual matters and in the presence of her father defendant would call his wife a bitch and a slut.

In the morning of December 22, 1967, defendant refused to get up and go to work. A fight ensued, after which defendant left the house and went downtown. When he returned that evening he asked his wife if she had made any money. When she replied that she hadn’t he said, “You could have went and sold yourself and made some money that way; that’s all you’re good for.” The next day, with all of the children present, he said he didn’t think the kids were his and that plaintiff was a slut like her mother.

From early 1987 through February, 1968, plaintiff was regularly taking tranquilizers which had been prescribed by her psychiatrist. She saw the doctor at least two or three times a week during that period. From December, 1967 until March of 1968, she was feeling very depressed and was ready to commit suicide.

On February 29, 1968, plaintiff was in a deep state of depression. She left home about 1:30 P.M., went to the drug store to have a prescription filled, then to the Savings & Loan to make the house payment, to her doctor, and then to the home of a friend about 5:30 P.M. She had dinner there and then went to a tavern with her girl friend. She had never before gone to a tavern with her girl friend but on this occasion she had two highballs and arrived home about 11:15 or 11:30. Her husband came down to meet her and tiled to push her out the back door and down the steps. Eventually they got back in the house, but the altercation had awakened all the children. When she reached for the phone to call the police, he pulled the phone from the wall and hit her with the receiver. She left the house and flagged down a squad car, telling the officer that she wanted to file a complaint against her husband and have him taken in. After she filled out the complaint, the officers went back to the house with her and arrested defendant. She had the locks changed about 3:00 A.M. because she was afraid her husband would try to return. She and the children felt much better after defendant had left the home. The children’s school work improved, and she was taken off tranquilizers and was able to sleep at night. She never had sexual relations with anyone other than her husband during their marriage.

From early 1967 until February 28, 1968, she had sexual relations with her husband about twice a week. Although there is a conflict in the testimony, it appears that this pattern continued until a few days before the final incident which led to defendant’s arrest, but was not renewed at any time thereafter.

Plaintiff was not regularly employed, but had worked for occasional periods of time in a laundromat and a pizza place. On February 13, 1968, she withdrew $1,676.83 from their joint bank account because her husband had been using the money to bet on the horses and she didn’t want the rest of it squandered. From 1963 until the last payment before trial, the mortgage payment was made by defendant from the money he earned at the post office.

Testimony of James McCorkle:

On April 5, 1968, he observed an incident which occurred in front of the Deahl family home about 2:00 in the afternoon. He had known the Deahls for about seven years and had come to the house on that day in the hope of effecting a reconciliation between them. He found plaintiff and defendant arguing on the front porch, overheard part of the conversation, and then saw plaintiff run into the house in tears. His testimony recited various other incidents which had occurred in the course of their friendship which evidenced defendant’s repeated acts of public embarrassment of his wife.

Other witnesses, including defendant’s 21-year-old daughter, related additional arguments between the parties, mostly concerning defendant’s claimed need to have more sex with his wife.

Testimony of defendant:

At the time of the trial, he had two jobs: during the day as a lathe operator; and four to five hours a night as a post office employee. He denied saying that none of the children were his. Concerning the incident of December 20, 1967, defendant stated that he had a migraine headache and decided not to go to work. Plaintiff called him all kinds of names and then beat on him with her fists. When he tried to get up to chase her, she ran down the hall and slipped down some stairs. He never touched her, hit her, or struck her, and didn’t push her at all. He took a bath at least once a week. He had sexual relations on a regular basis until February 29, 1968, when he was locked out of his house. During more than 20 years of marriage, he had turned his pay checks over to his wife and from this money she would pay the family bills. OPINION

Defendant raises a veritable gallimaufry of points on his appeal from the judgment for divorce:

1. The decree of divorce in favor of plaintiff is not supported by the evidence.

2. Plaintiff’s allegation of mental cruelty in Count II of her complaint failed to state a cause of action.

3. The court erred in denying defendant’s motion to strike and exclude from the evidence all testimony concerning alleged cruelty of defendant prior to February, 1968, the same having been condoned.

4. Plaintiff was guilty of recrimination.

5. The court erred in directing that defendant transfer his interest in the real estate described in the decree, and providing that it “be considered alimony in gross and in lieu of alimony payments.”

6. The court erred in decreeing that defendant pay plaintiffs attorney’s fees, and turn over half of his personal bank account and half of his federal tax refund check.

Defendant maintains that the law favors the preservation of the estate of marriage and should grant a divorce only when there is sufficient proof of the grounds as set forth in the statute. The grounds in the present case were mental cruelty, which case law states is dependent on the total circumstances of each case, the test being the effect such conduct has upon plaintiff and the marriage. Mental cruelty is established when the court determines that there is a pattern of “abusive and humiliating treatment, calculated or obviously of a nature to torture, discommode, or render miserable the life of the opposite spouse; and which actually affects the physical or mental health of such spouse.” (Howison v. Howison, 128 Ill.App.2d 377, 382, 262 N.E.2d 1, 3.) Furthermore, where the wife has psychiatric difficulties, the emotional stability of the wife is one of the factors to consider in determining the effect of the husband’s conduct on the wife and the marriage. (Simonson v. Simonson, 128 Ill.App.2d 39, 262 N.E.2d 326.) Even accepting defendant’s statement that the law favors preservation of the marriage, applying the above standard to the facts of the present case, we find the judge ruled properly on the basic issue of divorce, and his findings were not against the manifest weight of the evidence. (Hoffman v. Hoffman, 40 Ill.2d 344, 239 N.E.2d 792.) Without repeating the unfortunate incidents here, there is abundant evidence which discloses repeated attempts by defendant to humiliate and embarrass his wife, with the knowledge that she was seeking psychiatric help and that his conduct was contributing to her emotional despair.

Next, defendant asserts that Count II of plaintiffs complaint fails to state a cause of atcion. Since the original complaint contains only one count, we assume defendant is referring to plaintiffs amended complaint, Count II of which recites a series of alleged acts of mental cruelty and concludes in paragraphs 9 and 10 as follows:

“9. That as a result of the aforesaid acts of mental cruelty, plaintiff placed herself under care of a physician, is still under his care, and is and has been undergoing medical treatment since December, 1967.
10. That the aforesaid acts of mental cruelty have caused the plaintiff to suffer great shame, humiliation, fear, and mental anguish, and have destroyed the marriage relationship between the parties.”

Although there are no specific requirements about what constitutes a sufficient allegation of mental cruelty, Stanard v. Stanard, 108 Ill.App.2d 240, 247 N.E.2d 438, states that a proper allegation must include, among other elements present here, an allegation of the cumulative effect the acts have upon the complaining spouse, i.e., “the effect of his conduct on her life, person or health, * * It seems clear to this court that the allegations referred to above adequately allege the cumulative effect which defendant’s behavior had on plaintiff’s “life, person or health” when they state that they ‘have caused the plaintiff to suffer great shame, humiliation, fear and mental anguish, and have destroyed the marriage relationship between the parties.”

Defendant next maintains that the court erred by denying his motion to strike and exclude all testimony concerning the alleged cruelty of defendant prior to February, 1968. His argument is based on the proposition that each such alleged act of mental cruelty had been condoned prior to that date.

Condonation is an affirmative defense requiring a defendant to show by a preponderance of the evidence a plaintiff’s intent to forgive defendant’s prior acts which otherwise would constitute grounds for divorce. Proof usually is shown by deeds and words of voluntary forgiveness, but continued cohabitation alone will not necessarily constitute condonation. (Collinet v. Collinet, 31 Ill.App.2d 72, 175 N.E.2d 659.) We find nothing in this record which indicates that plaintiff did anything more than continue to live in the same house with her husband and occasionally have sexual relations with him, a course of conduct which, without more, is insufficient proof of condonation. (See Rasgaitis v. Rasgaitis, 347 Ill.App. 477, 107 N.E.2d 273; and Simonson v. Simonson, 128 Ill.App.2d 39, 262 N.E.2d 326.) Condonation is also a forgiveness conditioned on future good behavior, and nothing in the record discloses that plaintiff ever forgave the prior acts of defendant on the condition that the acts would not be repeated and that he would in the future treat plaintiff with conjugal kindness. (See Quagliano v. Quagliano, 94 Ill.App.2d 233, 236 N.E.2d 748.) In fact, there is little, if any, kindness apparent during the last few years of this bitter marriage. Even if defendant had been able to sustain his burden of proving condonation of his acts prior to February, 1968 (which we believe he did not do), the acts of cruelty on February 29, 1968, and April 5, 1968, would have been sufficient to revive the previously condoned acts and thereby provide a sufficient basis for the judgment. (Dunivant v. Dunivant, 5 Ill. App.2d 481, 125 N.E.2d 836.) The trial judge, therefore, did not err in. denying defendant’s motion to strike and exclude testimony of his acts of cruelty which occurred prior to February, 1968.

Defendant also suggests that plaintiff was guilty of the rather archaic and somewhat obsolescent defense of recrimination. However, the only evidence to support this contention is defendant’s own testimony, which, by a contrary ruling, the trial court indicated it chose not to believe. Since it is the trial judge who is in the best position to determine the credibility of the witnesses, we will not substitute our judgment for his in this regard.

Defendant’s next two contentions, (1) that the court erred when it decreed that defendant transfer his entire interest in the family residence to plaintiff as “alimony in gross and in lieu of alimony payments” when she intended to remarry soon after the decree was entered, and (2) that the court erred in ordering defendant to pay plaintiff’s attorney’s fees, and turn over one half defendant’s bank account, and half of his federal income tax refund check for 1968, are best disposed of by considering the appeal in the section 72 proceeding which has been consolidated with the earlier one and which raises closely related issues.

Defendant’s section 72 petition sought vacatur of the divorce decree, or, in the alternative, its modification or alteration.

The petition was filed on September 10, 1970, more than three months after the entry of the decree but within the two year limitation of the statute. Plaintiff filed a motion to strike, and a hearing was held May 6, 1971, at which time defendant’s petition was denied. After defendant appealed, plaintiff’s motion to dismiss the appeal was denied by this court.

Defendant’s section 72 petition alleged that in obtaining entry of her decree for divorce on June 2, 1970, plaintiff intentionally concealed from the court and from defendant the fact that she was about to remarry. It was further alleged that on June 24, 1970, plaintiff applied for a marriage license and that several days prior thereto she had been examined by a doctor, as required by statute for the issuance of such a license, and that the marriage did, in fact, take place on July 2, 1970, 31 days after entry of the divorce decree. Further, that none of the above-stated events became known to defendant until more than 30 days after the entry of the decree; that had such facts not been concealed from defendant by plaintiff, he could have moved to vacate or modify the decree within a 30-day period and thereby avoided the necessity of commencing the section 72 proceedings.

A similar situation arose in Roth v. Roth, 45 Ill.2d 19, 256 N.E.2d 838, where appellant sought to modify the decree of divorce by filing a section 72 petition. It was alleged in the petition that appellee had made “fraudulent and deceitful representations” to the court that she had no intention to remarry. It was further alleged that in reliance upon these statements, the trial court induced appellant to increase the property settlement. Thirty-one days after the decree was entered, appellee remarried. As in the present case, appellee filed a motion to strike and dismiss the section 72 petition. However, the motion was denied, and appellee decided not to answer but to stand on her motion. The circuit court modified the earlier decree based on the alleged fraud, but was reversed by the appellate court. In reversing the appellate court and affirming the circuit court, the Supreme Court stated that when a divorce decree is procured through the alleged fraud of either party, it may be vacated or modified through proceedings under section 72. And, further, the court stated: “When the appellee elected to stand on her motion to dismiss rather than file an answer to the appellant’s petition, there was an admission of all facts well pleaded in the petition.” Roth v. Roth, 45 Ill.2d 19, 23, 256 N.E.2d 838.

We find that defendant’s section 72 petition satisfies the necessary requirements of the statute. It pleads facts which were not known to him until more than 30 days after the entry of the decree and which, had they been known and proven, would have entitled him to the relief sought. Defendant was not lacking in diligence, nor was he negligent in any way in filing the petition on October 13, 1970, less than four months after plaintiff’s remarriage. The record indicates that at the hearing on defendant’s petition, the court was “fully apprised in the premises” but it also indicates that it did not call witnesses nor hold a full evidentiary hearing which could have disclosed the fraud which was adequately alleged in the petition.

Since plaintiff’s motion to strike admitted the truth of all facts well pleaded in defendant’s petition, as set forth above, and the allegations therein state sufficient facts which, if true, would provide a basis for modification of the divorce decree, the trial court erred when it denied the section 72 petition. Although the present case does not disclose that plaintiff affirmatively denied any intention to remarry, as in Roth the nondisclosure of her immediate intention to remarry constituted an affirmative withholding of a material fact which was vital for the judge to know in determining whether to decree periodic alimony payments terminable upon remarriage, or an award of alimony in gross which would not be so affected. Thus, while we do find the Roth case distinguishable on the basis of a stated misrepresentation, we apprehend no difference in principle. Actually, the corroborative evidence of intent to remarry as soon as the degree was entered, is substantially stronger in this case than in Roth. Therefore, we reverse the trial courts order denying defendant’s petition on plaintiff’s motion to strike, and, on the state of the pleadings, the cause is remanded to the trial court with direction to deny plaintiffs motion to strike and for further proceedings not inconsistent with this opinion. For reasons stated earlier, we affirm the trial court’s granting of the divorce itself on grounds of mental cruelty.

Affirmed in part and reversed and remanded with directions.

DRUCKER, P. J., and LORENZ, J., concur.

       See Forest Preserve District of Cook County v. Christopher, 321 Ill.App. 91, 105-106, 52 N.E.2d 313, 319, where the court said: “While it is true, as appellants argue, that mere silence does not amount to fraud, nevertheless, as stated by the law writers, there are times and occasions when it becomes the duty of a person to speak, in order that the party he is dealing with may be placed on an equal footing with him, and when a failure to state a fact is equivalent to a fraudulent concealment, and amounts to fraud equally with affirmative falsehood.”


text:
    Steven Davis, a Minor, by His Mother and Next Friend, Barbaba Davis, Plaintiff-Appellee, v. The City of Chicago et al., Defendants—(The Department of Public Aid, Intervenor-Appellant.)
    (No. 57021;
    First District (5th Division) —
    March 2, 1973.

      Supplemental opinion on rehearing filed June 29,1973.

      William J. Scott, Attorney General, of Chicago, (Warren K. Smoot and A. Zola Groves, Assistant Attorneys General, of counsel,) for appellant.
    Lloyd P. Douglas, of Chicago, for appellee.
   Mr. JUSTICE ENGLISH

delivered the opinion of the court:

This is an appeal by the State of Illinois, Department of Public Aid (hereinafter “the Department”), from an order adjudicating its lien of $1,028.88 for medical expenditures it had made on plaintiffs behalf and allowing the lien in the reduced amount of $100 as part of the settlement in a personal injury case. The Department contends: (1) that there is no statutory authority for a court to adjudicate a reduction in the Depart-merit’s lien, and (2) that a “petition for an adjudication” and notice to the Department were required prior to any such adjudication.

On February 15, 1968, plaintiff filed a complaint against the City of Chicago and Police Officer Strzyzynski for damages resulting from his having been struck by a police car. On October 9, 1969, the trial court allowed the Department to file its intervening petition asserting its lien and to become an additional party to the suit. The intervening petition asked that the Department “be reimbursed for the full amount received, and to be received by said plaintiff from date of injury to date of recovery.”

On March 3, 1971, the case was dismissed for want of prosecution, but pursuant to a section 72 petition filed by plaintiff, the dismissal was vacated on July 30, 1971. (Ill. Rev. Stat. 1969, ch. 110, par. 72.) The record does not indicate that the Department was notified of the dismissal, of the pendency of the section 72 proceeding, or of the order vacating the dismissal. On October 7, 1971, an agreed judgment for $15,000 was entered in favor of plaintiff, attorneys’ fees were set at $3,750, and the following disposition was made in respect to the Department’s hen claim:

“It is further ordered that the lien filed herein by the Illinois Department of Public Aid is hereby adjudicated to be in the amount of One Hundred ($100.00) Dollars.”

The balance, after costs, amounting to approximately $11,000, was ordered to be deposited in a bank for the account of plaintiff until his majority.

On November 5, 1971, the Department filed a petition to vacate the October 7 order on the ground that no “petition to adjudicate nor any notice of any kind was given to” the Department or its attorney prior to the entry of the October 7 order. The judge denied the petition on November 15 in the following order:

“This cause coming on to be heard on the petition of the III. Dept, of Welfare for tire court to reconsider its disposition of the lien of the dept and the court being fully advised in the premises.
It is hereby ordered that said petition be permitted to be filed and the court having considered the petition and heard arguments of counsel hereby determines that its previous adjudication of the amount of said lien is correct and finds that the Illinois Dept, of Welfare is entitled to be reimbursed in the sum of $100.00 with respect to the lien it has filed herein.”

The Department’s first contention in this court must fail in the light of Ill. Rev. Stat. 1967, ch. 23, par. 11 — 22, as amended in 1967, which provides in part:

“On petition filed by the Illinois Department, or by the local governmental unit or county if either is claiming a charge, or by the recipient, or by the defendant, the court, on written notice to all interested parties, may adjudicate the rights of the parties and enforce the charge. The court may approve the settlement of any claim, demand or cause of action either before or after a verdict, and nothing in this Section shall be construed as requiring the actual trial or final adjudication of any claim, demand or cause of action upon which the Illinois Department, the local governmental unit or county has charge. The court may determine what portion of the recovery shall be paid to the Illinois Department, the local governmental unit or county having a charge against the recovery. This Section shall not affect the priority of an attorney’s lien * * (Emphasis added.)

The cases cited by the Department in its brief held that the court’s statutory authority was limited to an adjudication of the validity of the lien and it had no authority to reduce the same. (In re Poole’s Estate, 26 Ill.2d 443, 187 N.E.2d 231; and Skaggs v. Junis, 28 Ill.2d 199, 190 N.E.2d 731.) These cases, however, were decided prior to 1967, in which year the statute was substantially amended, including, among other amendments, the insertion of the emphasized sentence quoted above which expressly grants the court authority to “portion” the recovery among the interested parties subject only to the priority of an attorney’s lien.

The Department also argues that prior to an adjudication, a petition must be filed and that there must be written notice to the Department. Both of these arguments are supported by reference to that portion of the statute quoted above. But the Department did file such a petition when it sought and was granted leave to intervene in the lawsuit as an additional party. The Department, like any other party, was entitled to appropriate notice, but like any other litigant, it must keep track of its cases. While it is true that the Department should have been given notice of the section 72 proceeding as required by Supreme Court Rules 105 and 106 (Ill. Rev. Stat. 1969, ch. 110A, pars. 105 and 106), the failure in this regard was cured, since the Department appeared generally, was permitted to file its motion for rehearing, and a full rehearing was conducted, as is indicated from the language of the order of November 15, 1971, from which this appeal is prosecuted.

We are aware of a similar appeal taken recently by the Department in Madison v. Reuben, 10 Ill.App.3d 16, 293 N.E.2d 700. There, the court held that the statute authorizing the adjudication of the Department’s lien at less than its full amount, was constitutionally infirm in view of Section 23 of Article IV of the Illinois Constitution of 1870 which provided that the legislature was without the power to release or extinguish, in whole or in part, any indebtedness to the State. The case before us, however, is governed by the Constitution of 1970 which has been in force since July 1,1971, and contains no similar provision. We therefore believe that the sentence of the statute in question is not unconstitutional and the court in the instant case did have the authority to reduce the Department’s hen. See Bender v. City of Chicago, 8 Ill.App.3d 267, 290 N.E.2d 376.

We nevertheless believe that this determination of the court’s power does not furnish the complete answer to the case, as it must be examined with respect to its particular facts to ascertain whether or not the court abused its discretion in reducing the hen to $100. We conclude that it did. It was ordered that the plaintiff was to receive more than $11,000 from the settlement of $15,000. The Department’s lien for $1,028.88 was based entirely on its payment of the plaintiff’s medical expenses which would no doubt have been adjudicated for payment to the doctor and hospital had they not been previously paid by the Department. Considering the amount to be received by the plaintiff, we believe that in this case the Department should be reimbursed in full. Accordingly, that part of the order appealed from which adjudicated that the Department be paid $100 out of the judgment proceeds in fuU satisfaction of its lien for $1,028.88, is reversed and the cause is remanded with directions to order fuU payment to the Department in the amount claimed.

Reversed and remanded with directions.

DRUCKER, P. J., and LORENZ, J., concur.

SUPPLEMENTAL OPINION ON REHEARING

Mr. JUSTICE ENGLISH delivered the opinion of the court:

In our opinion as originally filed, we referred to the cases of Madison v. Reuben, 10 Ill.App.3d 16, 293 N.E.2d 700, and Bender v. City of Chicago, 8 Ill.App.3d 267, 290 N.E.2d 376, both of which were decided on facts arising at the time the 1870 constitution was in effect. A provision in that constitution was held in Madison to have deprived the court of the power to reduce the Department’s hen. Bender held to the contrary. Since the provision in question was omitted in the 1970 constitution, under which the facts in the instant case arose, we were of the opinion that the trial court’s decision was not lacking in constitutional authority even though it did represent an abuse of discretion.

The briefing in this case had not invited our attention to the case of People ex rel. Hanrahan v. Caliendo, 50 Ill.2d 72, 277 N.E.2d 319, appeal dismissed, 406 U.S. 965, 92 S.Ct. 2412, and we were unaware of that decision until it was cited to us by the Department on Rehearing. In the Caliendo case, the Supreme Court was asked to examine the constitutionality of the 1969 Urban Transportation District Act which had been enacted under the constitution of 1870 but was questioned on constitutional grounds after the 1970 constitution had become effective. The court concluded that under these circumstances the constitutionality of a statute must be considered in the light of both constitutions since the adoption of the new constitution does not “validate all statutes enacted under the former constitution regardless of their legality or illegality under the earlier constitution. The issuance of bonds, the levy of taxes, and the construction of improvements will all be under the new constitution, but as the legislative origin of the Act and District was under the earlier constitution, we should consider the legality of that legislation under both constitutions.” 50 Ill.2d 72, 76.

We consider that case to be controlling here. We therefore now hold, consistent with the decision in Madison, that the trial court in the instant case lacked constitutional authority to reduce the Department’s hen. For this additional and more important reason, we therefore adhere to our original conclusion, and again decide that that part of the order appealed from which adjudicated that the Department be paid $100 out of the judgment proceeds in full satisfaction of its hen for $1,028.88, is reversed and the cause is remanded with directions to order full payment to the Department in the amount claimed.

Reversed and remanded with directions.

DRUCKER, P. J., and LORENZ, J., concur.


author: Mr. JUSTICE LORENZ

text:
    Seagram Distillers Company, Plaintiff-Appellee, v. Foremost Sales Promotions, Inc. et al., Defendants-Appellants.
    (No. 57053;
    First District (5th Division) —
    June 29, 1973.

      Rehearing denied July 25, 1973.

      Patrick W. O’Brien, David S. K. Platt, and Douglas J. Parry, all of Chicago, for appellants.
    Allen H. Schultz, of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff “Seagram Distillers Company, a division of Joseph E. Seagram & Sons, Inc., an Indiana corporation” filed a verified complaint for “temporary” and permanent injunctions against Foremost Sales Promotions, Inc., and several independent liquor retailers doing business as Foremost Liquors alleging that defendants violated the Illinois Fair Trade Act. (Ill. Rev. Stat. 1969, ch. 121½, secs. 188 — 191.) Pursuant to proceedings detailed below, the court issued two orders, an “order” maintaining the status quo and then a “temporary injunction.” Defendants’ notice of appeal challenges only the validity of the “temporary injunction.”

On appeal defendants contend: (1) that the complaint is invalid because plaintiff may be one of two entities, (2) that the complaint is insufficient because a corporation cannot do business in Illinois under an assumed name, and (3) that the injunction is invalid because it is not specific as to its terms.

After the complaint, defendants filed a motion to dismiss the complaint for three reasons: (1) that the complaint was insufficient because the plaintiff may be one of two entities, either a separate corporation or a division of a parent corporation, (2) that the complaint is insufficient because a corporation cannot do business in Illinois under an assumed name, and (3) that an exhibit to the complaint was inapplicable because it was executed after the violations alleged in the complaint.

Plaintiff then filed a verified motion for a “temporary injunction.” Following arguments by counsel, the court denied plaintiff’s motion and gave plaintiff the opportunity to reply to defendants’ motion to dismiss which it set for argument at a later date. Plaintiff filed a verified reply to defendants’ motion to dismiss alleging that defendants’ motion should be stricken for lack of verification and that defendants’ arguments are irrelevant and state no defense.

Before the date set for arguments on the motion to dismiss had arrived, plaintiff because of defendants’ additional advertisements, filed a verified petition for temporary restraining order (which does not appear in the record.) At the hearing thereon, in response to the court’s inquiry, defendants’ counsel stated “No, we will not maintain the status quo.” The court then entered an “order” maintaining the status quo until it could hear arguments on the motion to dismiss which was set for argument some eleven days later. When that date arrived, the court was engaged in trial. After discussing other times for hearing arguments on the motion to dismiss, defendants’ counsel continued to refuse to maintain the status quo and stated he would like to challenge the validity of an order maintaining the status quo. Thereupon, the court entered a “temporary injunction” in the following terms:

“[Defendants [naming them], and each of them, together with their agents, servants, employees and attorneys, and all persons in active concert or participation with them are hereby enjoined and restrained, until such time as this case can be heard on the merits, or otherwise disposed of, from willfully and knowingly advertising, offering for sale or selling [plaintiff’s] products including but not limited to [listing some of them] in Illinois, at less than the prices stipulated by plaintiff from time to time in any contract entered into pursuant to the provisions of the Fair Trade Act of the State of Illinois, which contracts at the time of filing of the complaint herein were, are now, and will hereafter be in force in Illinois relating to the sale or resale of any of said beverages in that State.” (Emphasis added.)

OPINION

Defendants’ first and second contentions, relating to the validity of the complaint, were raised at trial in a motion to dismiss the complaint. As plaintiff correctly points out, these matters are still pending in the trial court as it did not have an opportunity to rule on the motion. In view of this fact, we do not believe it is proper for us to advise defendants or the trial court on these matters.

However, in the light of the distinction between temporary restraining orders and preliminary injunctions, we believe we must call attention to the unusual procedure in the instant case. Here the trial court issued an “order” maintaining the status quo for a period of eleven days upon a verified petition for a temporary restraining order and then issued a “temporary injunction” without hearing either evidence or arguments after previously having denied a motion for such an injunction,

First, regarding the order maintaining the status quo, we believe the trial court merely misdesignated a temporary restraining order. Plaintiff properly requested a temporary restraining order upon defendants’ additional advertisement. A temporary restraining order may issue to preserve the substance of the controversy, plaintiff’s good will, until the court may rule on the matter of a preliminary injunction. If the situation justifies emergency relief, a temporary restraining order may issue regardless of the existence of unresolved legal issues (as where a motion to dismiss is pending). (See Paddington v. Foremost Sales Promotions, Inc. post, p. 170.) Furthermore, in a proper case, a temporary restraining order, if expressly and narrowly limited in duration, may issue for more than ten days where it is issued upon notice. The ten-day limitation on the issuance of temporary restraining orders in the Injunction Act (Ill. Rev. Stat. 1971, ch. 69, sec. 3 — 1) applies only to those issued without notice, not to those issued with notice. Since a temporary restraining order is not appealable (Kirchenberg v. Chicago Transit Authority post, p. 184.) if trial courts were to use the proper term in the proper situation, this court would not be unduly burdened with unnecessary appeals.

Second, aside from the fact that the misleading term “temporary injunction” was used (see Paddington Corp. v. Foremost Sales Promotions, Inc. post, p. 170), serious problems resulted in this case from the issuance of a “temporary injunction.” From the terms of the instant injunction, “until such time as this case can be heard on the merits,” it is clear that the court entered a preliminary injunction. However, this was more relief than was sought or than the situation required. The trial court would not be engaged in another trial during all the time before trial on the merits in the instant case.

When only questions of law are present as here where the pleading shows only a motion to dismiss, a trial court is not precluded from issuing a preliminary injunction upon the yet undisputed facts alleged in a verified complaint. (Capitol Records, Inc. v. Vee Jay Records, Inc. (1964), 47 Ill.App.2d 468, 197 N.E.2d 503.) However, even where no questions of fact are present, the trial court still must satisfy itself that the standards for issuing a preliminary injunction are met. In the instant case, the trial court could not possibly have satisfied itself that the standards for issuing a preliminary injunction were met. Here the trial court heard neither evidence nor legal arguments before issuing the injunction. Therefore, we believe the trial court erred in issuing the instant injunction.

Here, a temporary restraining order or an extension of an existing temporary restraining order would have served the court’s purpose. The entry of such an order would have permitted the court to hear arguments on defendants’ motion to dismiss and at that time to reconsider, if necessary, the issuance of a preliminary injunction. Defendants’ refusal to preserve the substance of the controversy pending the court’s determination, even preliminarily, of the issues could, in the court’s discretion, have justified the issuance of a temporary restraining order but not a preliminary injunction in these circumstances. A preliminary injunction was more extensive relief than was required.

This error was sufficiently serious to justify reversing and remanding the case. The judgment of the circuit court of Cook County is therefore reversed and remanded with instructions to hold a hearing on the motion to dismiss and for such further proceedings as may not be inconsistent with this opinion.

Reversed and remanded with instructions.

DRUCKER, P. J., and ENGLISH, J., concur.


text:
    The Paddington Corporation, Plaintiff-Appellee, v. Foremost Sales Promotions, Inc. et al., Defendants-Appellants.
    (No. 57054;
    First District (5th Division) —
    June 29, 1973.

      Patrick W. O’Brien, David S. K. Platt, and Douglas J. Parry, all of Chicago, for appellants.
    Allen H. Schultz, of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff Paddington Corporation filed a verified complaint for injunctive relief against Foremost Sales Promotions, Inc. and several independent liquor retailers doing business as Foremost Liquors alleging that defendants violated the Illinois Fair Trade Act. (Ill. Rev. Stat. 1969, ch. 121%, secs. 188 — 191.) Defendants filed a verified answer which denied many of plaintiff’s material allegations. Other pleadings not relevant to this appeal were also filed. When the matter came to the court’s attention, the court was experiencing scheduling difficulties. Defense counsel told the court defendants would not maintain the status quo. Without holding an evidentiary hearing, the trial court then entered the following “temporary injunction”:

“[Defendants [naming them], their agents, servants, employees and attorneys, and all persons in active concert or participation with them are hereby enjoined and restrained, until such time as this case can be heard on the merits, or is otherwise disposed of, from willfully and knowingly advertising, offering for sale or selling [plaintiff’s] products, including but not limited to [naming one of them], in Illinois, at less than the prices stipulated by plaintiff from time to time in any contract entered into pursuant to the provisions of the Fair Trade Act of the State of Illinois, which contracts at the time of filing of. the complaint herein were, are now, and will hereafter be in force in Illinois relating
to the sale or resale of any of said beverages in that State." (Emphasis added.)

On appeal defendants contend: (1) that the injunction is invalid because a prior hearing was not held where a verified answer denied material allegations raised in a verified complaint, and (2) that the injunction is invalid because it is not specific as to its terms.

OPINION

Defendants first contend that the injunction is invafid because no prior evidentiary hearing was held. Even though defense counsel had told the trial court that defendants would not maintain the status quo, defendants argue that the trial court erred in not holding an evidentiary hearing before issuing an injunction because their verified answer raised questions of material fact. A well-established rule of equity pleading seems to support defendants’ position. The best expression of this rule occurs in Centennial Laundry Co. v. West Side Organization (1966), 34 Ill.2d 257, 215 N.E.2d 443. There the Illinois Supreme Court held that a “temporary injunction” may not be issued without a prior evidentiary hearing where the pleading shows a verified answer which controverts material factual aHegations in plaintiff’s complaint. Although this decision preceded the 1967 revision of the Illinois Injunction Act (Ill. Rev. Stat. 1967, ch. 69) which substituted two different types of injunctions for the “temporary injunction,” the court in Schlicksup Drug Co. v. Schlicksup (1970), 129 Ill.App.2d 181, 262 N.E.2d 713, indicated that the rule applies with equal force to preliminary injunctions. Other decisions, however, demonstrate that a prior evidentiary hearing is unnecessary in the absence of disputed questions of material fact. Thus, such a hearing is not required where no answer is filed (see Capitol Records, Inc. v. Vee Jay Records, Inc. (1964), 47 Ill.App.2d 468, 197 N.E.2d 503) or where an answer does not controvert material factual aHegations. (Seay ir Thomas, Inc. v. Kerrs Inc. (1965), 58 Ill.App.2d 391, 208 N.E.2d 22.) Although the case of Hoda v. Hoda (1970), 122 Ill.App.2d 283, 258 N.E.2d 386, almost reaches the issue, no decisions indicate whether this rule specifically applies to temporary restraining orders.

The trial court in the instant case entered a “temporary injunction.” Since the 1967 revision of the Injunction Act, only two types of injunctions may be entered prior to resolution of the controversy on its merits: (1) temporary restraining orders (Ill. Rev. Stat. 1971, ch. 69, sec. 3 — 1) and (2) preliminary injunctions. (Ill. Rev. Stat. 1971, ch. 69, sec. 3.) While the prior statute did not use the term “temporary injunction,” the case law did so in referring to any injunction which could be issued prior to trial on the merits. Now, not only are “temporary injunctions” no longer appropriate but the use of the term “temporary,” which may refer to either type of injunction issued prior to trial on the merits, is misleading. A careful distinction between these two injunctions is important because a temporary restraining order is non-appealable while a preliminary injunction is appealable. (Kirchenberg v. Chicago Transit Authority, post, p. 184. Bohn Aluminum & Brass Co. v. Barker (1972), 3 Ill.App.3d 600, 278 N.E.2d 247.) In determining appealability, appellate courts will focus on the effect of the injunction rather than its designation. People ex rel. Pollution Control Board v. Fry Roofing (1972), 4 Ill.App.3d 675, 680, 281 N.E.2d 757, 759-760.

Temporary restraining orders and preliminary injunctions serve totally different purposes. A preliminary injunction is the primary means of obtaining injunctive relief prior to trial on the merits, which relief is exceptional in its own right. The standards for issuing preliminary injunctions involve a variety of circumstances, but generally the court must be satisfied of the need for such relief and the probability of ultimate success on the merits. Preliminary injunctions require notice (People ex rel. Pollution Control Board v. Fry Roofing (1972), 4 Ill.App.3d 675, 678-679, 281 N.E.2d 757, 760) and some sort of hearing. The nature of the required hearing depends upon the status of the pleading. A prior evidentiary hearing is required only where questions of material fact exist. (Schlicksup Drug Co. v. Schlicksup (1970), 129 Ill.App. 181, 262 N.E.2d 713.) Furthermore, since defendant is entitled to an opportunity to be heard and since the court must satisfy itself that the standards for issuing such an injunction are met, a hearing of legal arguments is generally required before a preliminary injunction may issue.

A temporary restraining order is an emergency remedy of extremely brief duration which may issue only in exceptional circumstances and only until the trial court can hear arguments or evidence, as the circumstances require, on the subject matter of the controversy and otherwise determine what relief is appropriate. The circumstances which normally justify its issuance relate primarily to preventing destruction of the subject matter of the controversay before the trial court has the opportunity to rule on the matter and to preventing imminent and irreparable injury to plaintiff before notice or hearing of arguments or evidence may be held. The only standard for issuing such an order is that the trial court must be satisfied of the existence of such an extreme emergency that such relief is required. We expect that such circumstances are extremely rare. However, the need for the existence of such a remedy is recognized in the Injunction Act (Ill. Rv. Stat. 1971, ch. 69, sec. 3 and 3 — 1) and is suggested in two cases which preceded the 1967 revision of the Injunction Act: Chicago Motor Coach Co. v. Budd (1952), 346 Ill.App. 385, 389-390, 105 N.E.2d 140, 142-143, and Hinson v. Ralston (1902), 100 Ill.App. 214. Furthermore, although the limitations on the form of temporary restraining orders in the Injunction Act (Ill. Rev. Stat. 1971, ch. 69, sec. 3 — 1) specifically apply only to such orders issued without notice, they do provide guidance for the trial court in issuing such orders with notice. From the nature of temporary restraining orders and their non-appealability, we believe it is clear that the presence of an answer which denied material factual allegations does not preclude issuance of a temporary restraining order in an appropriate situation.

The circumstances of the instant case would have permitted the trial court to issue a temporary restraining order. Here defense counsel specifically told the court that they would not maintain the status quo. It was clear that defendants would subsequently advertise plaintiffs products in what plaintiff’s complaint alleged would have been in violation of the Fair Trade Act if not restrained. It was also clear that imminent and irreparable injury might result before an evidentiary hearing could be held. The substance of the controversy, plaintiffs good will, could be further destroyed. This was an appropriate situation for the entry of a temporary restraining order pending, in tins case, an evidentiary hearing for a preliminary injunction.

However, such a temporary restraining order was not entered in the instant case. The terms of the injunction, restraining defendants “until such time as this case can be heard on the merits * * exceeds the proper duration of a temporary restraining order. If the trial court intended to enter a preliminary injunction it was necessary to hold an evidentiary hearing. Since no hearing was held the entry of this type of injunction was error.

Therefore, the judgment of the trial court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded with instructions.

DRUCKER, P. J., and ENGLISH, J., concur.


text:
    James B. Beam Distilling Co., Plaintiff-Appellee, v. Foremost Sales Promotions, Inc., Defendant-Appellant.
    (No. 57055;
    First District (5th Division) —
    June 29, 1973.
    Allen H. Schultz, of Chicago, for appellant.
    Morton Siegel, of Chicago, (Kenneth S. Freedman, of counsel,) for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff James B. Beam Distilling Co. filed a verified amended complaint for preliminary and permanent injunctions against Foremost Sales Promotions, Inc., alleging that defendant violated the Illinois Fair Trade Act. (Ill. Rev. Stat. 1969, ch. 12172, secs. 188 — 191.) Defendant filed a verified answer to the complaint. Pursuant to proceedings detailed below, the trial court issued an injunction.

On appeal defendant contends: (1) that the injunction is invalid because a hearing was not held, and (2) that the injunction is invalid because it is not specific as to its terms.

After complaint and answer were filed, the parties, pursuant to a letter from the President of defendant promising plaintiff that defendant would abide by plaintiff’s fair trade program, entered into a stipulation whereby a consent judgment was entered. It provided that the complaint would be withdrawn and provides:

“If any any [sic] time, Defendant does advertise the products of the Plaintiff at less than the stipulated or stipulated minimum prices, in effect from time to time under Plaintiff’s alleged Fair Trade contract, Plaintiff may petition the Court for appropriate relief. The Defendant shall be permitted to file an Answer to said Petition.”

After other advertisements, a second consent judgment to the same effect was entered upon stipulation of several Foremost liquor stores.

Plaintiff subsequently filed a verified petition for permanent injunction alleging- that defendant had advertised plaintiff’s products at less than their fair trade prices and contrary to the terms of the consent judgment. Pursuant to the terms of the judgment, the court gave defendant time to answer the petition. However, before the answer was filed and before the date set for hearing had arrived, plaintiff filed a separate verified petition for a temporary restraining order or in the alternative for immediate entry of a permanent injunction. Notice of the motion was served on defense counsel. When this last petition came to the court’s attention before the date set for hearing on the petition for permanent injunction, plaintiff’s counsel advised the court that defendant had twice advertised since the advertisement which had led to the petition for permanent injunction. Counsel expressed the opinion that defendant was delaying hearing on the matter so that it could irreparably injure plaintiff. Defense counsel pointed out that the court had allowed him a few more days to answer and that he was going to file an answer. He stated, however, that defendant would not maintain the status quo without an injunction.

As a result of these proceedings, the court determined to issue an injunction. However, the judgment of injunction does not appear in the record, but it was quoted in the notice of appeal:

“[D]efendant * * *, its agents and servants, and each and every one of them be, and they are hereby jointly and severally enjoined and restrained from wilfully and knowingly advertising, offering for sale or selling [plaintiff’s] products, including but not limited to [naming one product], in Illinois at less than the prices stipulated by plaintiff from time to time under the Fair Trade Act of the State of Illinois, and in accordance with the contracts made pursuant to said Fair Trade Act, which contracts at the time of filing of the Complaint were, or now are, or may hereafter be in force in Illinois relating to the sale or resale of any of said beverages in that State.”

The record does contain the writ of injunction. The terms of the injunction, to the same effect as the judgment quoted in the notice of appeal, were typed in on a printed form for such writs which ended with among other words: “until this court shall otherwise order.”

OPINION

Defendant first contends that the injunction was invalid because a hearing was not held. The nature and type of hearing which may be required before issuing an injunction depends primarily upon the type of injunction requested, the type of injunction issued, and the status of the pleading at the time. (See Paddington Corp. v. Foremost Sales Promotions, Inc. ante, p. 170.) The relief requested was a temporary restraining order or immediate entry of a permanent injunction. The pleading at the time showed no response of any sort by defendant to either petition although defendant’s counsel told the court defendant was going to file an answer within the time allowed by the court for pleading to the petition for permanent injunction. However, the type of injunction entered by the court is somewhat unclear. It certainly was not a temporary restraining order. Plaintiff had not requested a preliminary injunction even if we assume that the words in the printed form for the writ of injunction are significant. Permanent injunctions may not be entered without a trial on the merits where defendant is not in default. Since the judgment of the injunction quoted in the notice of appeal indicates a permanent injunction and since plaintiff requested immediate entry of such injunction, we must assume, where no other contrary indications exist, that the court entered a permanent injunction. This was error. It must be apparent, of course, that a temporary restraining order could have been appropriate in these circumstances. For the above reason, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded with instructions.

DRUCKER, P. J., and ENGLISH, J., concur.