text:
    Jerry Martin Vavrys, d/b/a Martins Warren Park Club, Plaintiff-Appellant, v. Illinois Liquor Control Commission, Howard S. Cartwright, Chairman, Defendant-Appellee.
    Gen. No. 51,858.
    First District, First Division.
    March 4, 1968.
    Rehearing denied April 4, 1968.
    Gerald B. Mullin, of Chicago, for appellant.
    William G. Clark, Attorney General of the State of Illinois, of Chicago (Richard A. Michael and Robert F. Nix, Assistant Attorneys General, of counsel), for appellee.
    VAVRYS v. ILLINOIS LIQUOR CONTROL COMMISSION 92 111 App2d 451
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

Plaintiff, Jerry Martin Vavrys, doing business as Martins Warren Park Club, filed a statutory action in the Circuit Court under the Administrative Review Act (Illinois Liquor Control Commission Rev Stats 1963, c 110, §§ 264-279) on June 22, 1966, to review the administrative order of the defendant, Liquor Control Commission, which revoked the plaintiff’s previously issued liquor license. The court affirmed the order of the Commission and this appeal followed.

The citation served upon plaintiff alleged two violations :

(1) That on February 19, 1966, the licensee, or his agents, did permit solicitation for drinks which is in violation of the Cicero Code of Ordinance, Section 4-20, which solicitation was made by females.
(2) That alcoholic beverages were sold on the licensed premises on February 19, 1966, and. February 21, 1966, which sales were made without a proper current State License.

After a hearing the Commission entered an order revoking the plaintiff’s liquor license. The order recited, inter alia, findings made by the commission:

That the evidence introduced before the Commission at said hearing supported the allegations contained in the Citation against the respondent licensee.

Initially, the plaintiff contends that the order of the Commission revoking plaintiff’s liquor license is void in that the Commission failed to make findings of fact to support its administrative determination, thereby denying plaintiff proper review of the administrative order in the courts. Plaintiff concedes that the Liquor Control Act, in granting the Liquor Control Commission authority to hold hearings for the purpose of determining whether to revoke a license, is silent on the requirement of the Commission making a finding of fact. However, he contends that since the Act does require, prior to the revocation of a license, a “determination . . . that a licensee has violated any provision of this Act or any rule or regulation issued pursuant thereto . . .” (Ill Rev Stats 1965, c 43, § 108) a finding of fact is required, because without one the courts can only surmise about the nature of the Commission’s “determination.”

There is much merit to plaintiff’s contention. It would seem to us that the Commission would have been more helpful had it made explicit findings, however, we will not reverse for that omission. We have found no cases, nor has any case been presented to us, wherein a failure to make “express findings” by the Illinois Liquor Control Commission requires a reversal of the Commission’s administrative decision to revoke a liquor license. The cases of Rockwell Lime Co. v. Illinois Commerce Commission, 373 Ill 309, 26 NE2d 99, Chicago Rys. Co. v. Commerce Commission ex rel. Chicago Motor Coach Co., 336 Ill 51, 167 NE 840, and Kewanee & G. Ry. Co. v. Commerce Commission, 340 Ill 266, 172 NE 706, cited by plaintiff are governed by an Act that requires “express findings” and are, therefore, inapplicable. The Commission, in the case at bar, plainly made a determination in consonance with the requirements of the Liquor Control Act. While the Illinois Supreme Court has stated that the absence of express findings of fact weakens the force of an administrative agency’s determination (Maywood Park Trotting Ass’n v. Illinois Harness Racing Commission, 15 Ill2d 559, 155 NE2d 626) that case did not hold that the absence of said findings requires reversal.

The plaintiff next contends that the first allegation in the Citation alleging a violation of a local Cicero Ordinance renders the order unenforceable because the ordinance was repealed unconditionally while the instant cause was pending on appeal. He further contends that the finding of the Commission in regard to the second allegation in the Citation was unsupported by substantial evidence in the record. We shall address ourselves to the second contention because we have concluded that it is determinative of this appeal.

The hearing before the Liquor Control Commission took place on May 3, 1966. At the hearing, Sergeant Kenneth Alexander of the State’s Attorney’s police, testified that he went into plaintiff’s tavern at 11:00 p. m. on February 19, 1966. He sat down alone at the bar and ordered a bottle of Schlitz beer. After Alexander had been served, a girl seated herself next to him and she and the bartender “almost simultaneously” asked the sergeant if he would buy her a drink and he said that he would. The bartender then poured a “dark liquid” into a shot glass in front of the girl and took $1.20 from Alexander, placing it in the cash register. The girl seated next to Alexander then left, another girl sat down, and the same procedure was repeated. Alexander, with the aid of other officers who were also present in the tavern at that time, proceeded to arrest the girls who had solicited drinks, the bartender and plaintiff’s father, the owner of the building in which the tavern was located, who was present in the tavern that evening.

Plaintiff testified that his father was the former licensee and that he leased the building from him. Plaintiff was arrested on February 21, 1966, and he testified that neither at that time nor on February 19th, did he possess a valid liquor license. He further testified, however, that by February 19th, the forms and money had already been sent in for the purpose of renewing the license.

The Illinois Liquor Control Act provides that a license may be revoked upon the Commission’s determination that any provision of the Act has been violated. The Act makes illegal the distribution or sale of alcoholic liquor “. . . at any place within the State without having first obtained a valid license so to do under the provisions of this Act . . .” (Ill Rev Stats 1965, c 43, § 183.) Thus, if the Citation’s allegation that alcoholic beverages were sold on plaintiff’s premises without a proper current liquor license can be sustained the order of the Commission revoking plaintiff’s license will be upheld. See Cermak Club, Inc. v. Illinois Liquor Control Commission, 30 Ill2d 90, 195 NE2d 178.

The findings and conclusions of an administrative agency on questions of fact are deemed prima facie true and correct. (Ill Rev Stats 1963, c 110, par 274.) Unless the findings are against the manifest weight of the evidence or fail to be supported by substantial evidence in the record they will be upheld on review. Show of Shows, Inc. v. Illinois Liquor Control Commission, 86 Ill App2d 109, 230 NE2d 268; Nechi v. Daley, 40 Ill App2d 326, 188 NE2d 243; Bruce v. Department of Registration and Education, 26 III2d 612, 187 NE2d 711.

The plaintiff admitted at the hearing that he did not possess a valid license on either February 19th, or on February 21st. It was this violation of law that was alleged in the Citation and which the Commission found to be supported by the evidence. In our opinion the finding of the Commission is not against the manifest weight of the evidence, and indeed, is established by the evidence.

Plaintiff contends, however, that there must be some evidence in the record of the alcoholic content of the beverage alleged to be sold since the provisions of the Liquor Control Act do not apply “. . . to any liquid or solid containing one-half of one percent, or less, of alcohol by volume.” (Ill Rev Stats 1965, c 43, § 95.05.) We have examined the record and do not find that plaintiff made this particular argument either before the Commission or the Circuit Court, and therefore, this issue cannot be raised here for the first time.

Our conclusion herein stated is sufficient to dispose of the case before us, and precludes our consideration of the other issues raised on this appeal. The judgment of the Circuit Court affirming the order of revocation of the Liquor Control Commission is correct, and is accordingly affirmed.

Judgment affirmed.

ADESKO and MURPHY, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE BURMAN

license: Public Domain

text:
    Mutual National Bank of Chicago, Plaintiff and Counter-Defendant, Appellee, v. Joseph Kedzierski, Defendant and Counter-Plaintiff, Appellant.
    Gen. No. 52,162.
    First District, First Division.
    March 4, 1968.

      Isidore Goodman, of Chicago, for appellant.
    Frank J. Wiedner and John P. McAuliffe, of Chicago (William J. Harte, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal by Joseph Kedzierski, defendant and counterplaintiff, (hereinafter referred to as defendant) from an order of the trial court setting aside an ex parte judgment entered against Mutual National Bank of Chicago, plaintiff and counterdefendant, (hereinafter referred to as plaintiff).

It appears from the record that plaintiff brought an action sounding in contract against defendant, and that defendant filed a counterclaim. The cause was originally set for trial on July 27, 1966, and was continued until November 4, 1966. On the latter date no one appeared on behalf of the Bank. Its complaint was dismissed for want of prosecution and judgment was entered against plaintiff on defendant’s counterclaim for the sum of $1,080. On December 27th, 1966, a writ of execution was issued.

On February 9, 1967, plaintiff filed a written motion by its attorney to set aside the judgment of November 4th. Proceeding under section 72 of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 72) plaintiff alleged that it first learned of the default judgment entered against it on January 31, 1967. Plaintiff, in its brief, unverified petition, further alleged:

That the counterdefendant missed this case on the call . . . That the counterdefendant had been in communication with the counterplaintiff by letter and by telephone concerning depositions with regard to matters of proof and was relying on this communication to continue before any trial of the issues was sought . . . That the counterdefendant has a meritorious defense and has acted with all due diligence in this matter . . . That to permit this default judgment to stand would be to work a grave injustice upon the counterdefendant.

Defendant filed written objections by his attorney in which it was alleged that on November 4, 1966, the cause appeared on the trial call and was listed in the Municipal Court Record of cases set for that day in Room 1304; that execution was served on plaintiff on or before December 30, 1966; that plaintiff’s motion to set aside the judgment did not comply with section 72 in that it is not supported by affidavit; that plaintiff was guilty of negligence in not appearing in court on the date set for trial and was not diligent in the presentation of its motion to vacate, and the allegations in the motion as to due diligence and a meritorious defense are conclusions, not supported by the facts.

On February 9, 1967, the court overruled defendant’s objections, and entered an order sustaining plaintiff’s motion to set aside the $1,080 judgment. The court file of the case being “short” on February 9th, the order did not get on the record. Upon notice, a draft order was entered on March 2, 1967, placing the order of record nunc pro tunc as of February 9th.

A proceeding under section 72 of the Civil Practice Act is the commencement of a new action although filed in the same proceeding, and is subject to the same rules of pleading as any other action. Wilson v. Wilson, 56 Ill App2d 187, 205 NE2d 636. The petition, like a complaint, must allege facts entitling the petitioner to the relief he seeks. Before relief is given under this section a petition must be filed in conformity with the requirements of the Act, which provides that “The petition must be supported by affidavit or other appropriate showing as to matters not of record.” (Ill Rev Stats 1965, c 110, § 72 (2).) Furthermore, a party seeking relief from a default judgment pursuant to section 72 must show (1) a meritorious defense and (2) the exercise of due diligence. Till v. Kara, 22 Ill App2d 502, 161 NE2d 363; Detres v. Rojo, 80 Ill App2d 38, 225 NE2d 100.

In the case at bar, plaintiff neither filed a verified petition nor any affidavits to support its allegations. The motion is replete with mere conclusions and is not supported by allegations of fact. Ultimate facts showing due diligence and a meritorious defense must be shown. This was not done, nor was any attempt made to amend the motion in conformity with the requirements of section 72.

The petitioner, through his attorney, alleges diligence by stating that it “missed this case on the call,” and that it had been in communication with the defendant concerning depositions “and was relying on this communication to continue before any trial of the issues was sought.” These allegations are insufficient to show that the plaintiff exercised due diligence. No facts are alleged showing an agreement between the parties that communications were to continue before the cause was brought to trial; nor are facts alleged showing that plaintiff’s reliance on the continuation of communications was justified. The fact that the plaintiff missed the case on call does not demonstrate diligence. Indeed, it demonstrates lack of diligence. Williams v. Pearson, 23 Ill2d 357, 177 NE2d 856. The motion to vacate was filed more than three months after the trial date and more than thirty days after execution was served. This can hardly be said to represent the exercise of diligence, especially in the absence of the allegations of substantial facts that would adequately excuse the inaction shown.

Plaintiff’s petition fails to show facts upon which the trial court could properly base a finding that the Bank had a meritorious defense to defendant’s counterclaim. The petition alleges that plaintiff has “a meritorious defense,” however, no facts are alleged in support of this contention. A judgment or decree cannot stand when allegations are not supported by proof of facts in support thereof. Stowell v. Satorius, 413 Ill 482, 109 NE2d 734. A petition under section 72 calls into play the sound discretion of the trial judge, and this discretion cannot be exercised when facts are not alleged in support of the contention that a meritorious defense exists. Sarro v. Illinois Mut. Fire Ins. Co., 34 Ill App2d 270, 181 NE2d 187; Lamoreaux v. Havranek, 25 Ill App2d 51, 165 NE2d 547.

Plaintiff relies upon Ellman v. De Buiter, 412 Ill 285, 106 NE2d 350; Elfman v. Evanston Bus Co., 27 Ill 2d 609, 190 NE2d 348, and Mutual Truck Parts Co., Inc. v. Nelson, 69 Ill App2d 30, 216 NE2d 301. Undoubtedly, as plaintiff contends, these cases stand for the proposition that a motion under section 72 calls into effect the equitable powers of the trial court when such power is necessary to prevent injustice. However, the court will exercise its equitable powers to grant relief only when the facts and circumstances of the particular case call for it. Park Ave. Lumber & Supply Co. v. Nils A. Hofverberg Inc., 76 Ill App2d 334, 222 NE2d 49. In Ellman the petition set out facts demonstrating that opposing counsel had acted unfairly, misleading petitioner until the power of the trial court over the cause ceased to exist. The Illinois Supreme Court concluded that this activity by counsel called for the exercise of equitable power by the trial court to prevent a failure of justice. The petition in the instant case does not set forth facts demonstrating that defendant’s counsel was responsible for the Bank’s failure to make an appearance within term time.

In Elfman the petition and supporting affidavits alleged that counsel’s failure to appear was as the result of the serious illness of his mother. Furthermore, petitioner had alleged a meritorious defense and, as in Ell-man, opposing counsel had taken advantage of petitioner’s absence. In view of the foregoing circumstances the Supreme Court concluded that the petition and its supporting affidavits presented a situation which addressed itself to the equitable powers of the trial court. In the case at bar, none of the circumstances that called for the allowance of petitioner’s motion in Elfman is present.

In Mutual Truck a sworn petition alleged that petitioner was misinformed by the clerk of the court as to the new trial date after the granting of a continuance, and the Appellate Court concluded that a meritorious defense and due diligence had been shown. In the case at bar, the petition has not been sworn to nor have affidavits been submitted in support thereof. Furthermore, the petition does not allege misinformation as to the trial date by an officer of the court as the cause of plaintiff’s failure to appear.

Only well-pleaded facts stand admitted for the purpose of our review of petitioner’s motion, Lamoreaux v. Havranek, 25 Ill App2d 51, 165 NE2d 547. We conclude that plaintiff’s petition did not set forth sufficient factual allegations to entitle it to relief under section 72. The order of the trial court vacating the judgment for the sum of $1,080, in favor of Joseph Kedzierski, defendant and counterplaintiff and against Mutual National Bank of Chicago, plaintiff and counterdefendant, is reversed.

Reversed.

ADESKO and MURPHY, JJ., concur.


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Sylvester Lewis, Defendant-Appellant.
    Gen. No. 50,274.
    First District, Second Division.
    March 5, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Barth H. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

In a jury trial, the defendant, Sylvester Lewis, was convicted of burglary and judgment was entered accordingly. After motions for a new trial and in arrest of judgment were denied, he was sentenced to five (5) to fifteen (15) years in the Illinois State Penitentiary. He appeals.

In the early morning hours of August 26, 1963, a television and radio shop at 122 East 43rd Street in Chicago, Rlinois, was burglarized. Mr. Jimmy Luckett testified that he was the proprietor and had left the premises just a few hours before, locking the front door as well as the iron gate at the rear entrance to his store. He explained that he had placed an iron bar across the inside of the rear door before he locked it.

At approximately 3:00 a. m. on August 26, 1963, Mr. Luckett returned to his place of business, in response to a police message that his store had been broken into. He testified that unlawful entry had been effected only through the rear door as someone had pried open the lock on the iron gate and had punched a hole through the rear door which also served to lift up the iron bar. He went on to say that his rear door was located in a long, dark passageway leading to the alley and no one could see his rear entrance from 43rd Street itself. He remembered that upon arriving at the scene he noticed an apparently abandoned Buick automobile in the alley and in it were some of his television sets and radios. He also noticed other television sets of his in the alley itself near the car and in the wide passageway connecting the rear of his store to the alley.

Officer Alvin Daniels also testified for the prosecution and stated that in the early morning hours of August 26, 1963, he and his partner, in a squad car, went into the aforementioned alley on a routine patrol. The alley itself was illuminated by few lights but the squad car’s headlights brought into view an open car trunk. Sensing a crime in progress, Officer Daniels’ partner turned on the police vehicle’s spotlight, and Officer Daniels, who was sitting in the front seat of the squad car on the right-hand side, saw that a man, carrying a television set, was approaching the other car. The offender was looking directly into the glare of the police car’s spotlight and headlights, and Officer Daniels was able to look at him directly for a few moments at a distance of approximately twenty to forty-five feet, before he dropped the television set and fled, and was not apprehended that night.

Officer Daniels went on to testify that the abandoned vehicle, with television sets and radios in it, was a 1958 Buick hardtop. The police officer concluded his testimony on direct examination by stating that before becoming a police officer, he had been a practitioner in the field of mortuary science and had taken courses studying physical profiles and human faces. He observed the defendant that morning in the alley and had an opportunity to get a front view of his face. He then identified the defendant in the courtroom as the man he had seen in the alley, as well as the man he had seen in December 1963, when the defendant, after his arrest, was brought from the lockup, by himself, to be identified by Officer Daniels.

On cross-examination, Officer Daniels testified that when he saw the defendant in the glare of the spotlight and headlights, the defendant was approximately twenty, thirty, to forty-five feet from him and he was able to observe him for moments.

Detective Otto McCollum testified for the State that he was a burglary detective assigned to this case. He investigated the ownership of the abandoned 1958 Buick automobile and found a Mr. Luther Lewis to be the title owner. Upon talking to Mr. Luther Lewis, Detective Mc-Collum determined that the son of Mr. Lewis, Sylvester Lewis, actually had sole possession of this car. The detective then placed a stop order at Police Headquarters against the defendant for suspected burglary.

The defendant’s father, Luther Lewis, was called as a State’s witness and testified that, prior to the date of the burglary, he had bought a 1958 Buick hardtop auto for his son, Sylvester, to drive as he, Luther Lewis, did not drive. When asked about the signed statement he had given Detective McCollum in the police station on March 25, 1964, allegedly implicating his son in the burglary, Mr. Luther Lewis testified that his memory was now faint and he had been under a doctor’s care for heart trouble and nervousness. Pursuant to his oral request, his signed statement was read to him by the State’s Attorney out of the jury’s presence, and when the jury returned, Mr. Luther Lewis testified in accordance with the written statement he had given Detective McCollum. His testimony was as follows:

“On August 26, 1963, I had a conversation with my son in which he said he and others had broken into a record shop and they stole some radios and what-not and they were in the car. He asked me if I would turn in a report that the car was stolen, and I said no.”

Officer Mucharski called as a witness for the State, stated that he and his partner were investigating a pattern of burglaries in the neighborhood of 63rd and Ingleside in Chicago, Illinois, when they saw the defendant, on the afternoon of November 27, 1963, standing next to a garage in an alley in this neighborhood. They asked the defendant if he lived in the nieghborhood and if he had identification papers. The defendant gave them a social security card and an unemployment compensation card, saying he was Richard Scott. The social security card had Richard Scott’s name on it, but the unemployment compensation card read Sylvester Lewis. Again, the defendant said he was Richard Scott, whereupon the officers placed him in their squad car and proceeded to the police station to investigate these two names. The defendant was fingerprinted and also at the police station, Officer Mucharski remembered a stop order had been placed against a Sylvester Lewis.

In response to Officer Mucharski’s call, Detective Mc-Collum came to the police station an hour later, and Officer Mucharski testified that the detective confronted the defendant with a picture which police officers have with files and which Detective McCollum had taken out of his file. The defendant viewed this picture, said it was his, and admitted being Sylvester Lewis, which was also revealed by his fingerprints. He denied being involved in the burglary, however.

On cross-examination, Officer Mucharski testified that he arrested the defendant for questioning due to his conflicting identification papers coupled with the fact that the defendant was stopped in an area troubled with a pattern of burglaries.

The defendant did not testify. The only witness for the defense was Christine Lewis, the defendant’s wife, who was an alibi witness. She testified that she had fallen down some steps at home on Saturday, August 24, 1963, and her husband had stayed with her on the night of August 25, 1963, a Sunday; that they watched television together and both retired at 1:30 or 2:00 a. m. on August 26, 1963; and that when she awoke at 7:00 a. m., her husband was still with her.

On cross-examination, she testified that the weekend before and the weekend after the burglary, her husband did not stay with her but was out until 1:00 or 2:00 a. m. Also, he was out this late on Friday and Saturday evenings immediately preceding the burglary, which occurred in the early morning hours of Monday, August 26, 1963. He did drive a Buick automobile.

On appeal, the defendant contends: (1) he was subject to an unconstitutional arrest and yet the “fruits” of that arrest were allowed to be admitted into evidence; (2) the one-man showup before Officer Daniels violated the defendant’s constitutional rights as his lawyer was not present; (3) the trial court committed reversible error by allowing the prosecution to present evidence of the defendant’s prior criminal record; (4) he was not proven guilty beyond a reasonable doubt; (5) he was denied equal protection when the trial court refused to provide him with a copy of the transcript from the prior trial, which had terminated in a mistrial. The State denies each of these contentions.

The defendant’s first contention is that he was subjected to an unconstitutional arrest, and therefore the “fruits” of that arrest, his body, should not have been allowed into evidence. Thus, the eyewitness identification of Officer Daniels at the showup and at the trial must necessarily fall. The leading case cited by the defendant in support of this contention is Mapp v. Ohio, 367 US 643, 81 S Ct 1684 (1961). In that case the majority of the United States Supreme Court held that the right of privacy protected by the 4th Amendment of the United States Constitution prohibiting unreasonable searches and seizures was to be incorporated into the 14th Amendment’s due process clause as a matter of fundamental right, and hence be binding upon State law enforcement officials as well as federal officers. The federal judicial standards in this area would henceforth be binding upon State law enforcement officers, as Wolf v. Colorado, 338 US 25, 69 S Ct 1359 (1949), was overruled insofar as it held to the contrary. Evidence illegally obtained by local officers, who were violating the 4th and 14th Amendments by their unreasonable searches and seizures, would no longer be admissible in State courts.

But the cited case and the present case are clearly distinguishable on their facts. In the Mapp case, the local police officers sought to invade the petitioner’s home in the afternoon without a search warrant and based on an unnamed informer’s tip. Upon being refused admittance, they waited for about three hours until more police came. The petitioner’s attorney arrived at this time also. The police refused to show him a search warrant which they now allegedly possessed, but instead, put him to one side while they gained entry to the petitioner’s home by breaking the glass on the rear door and opening the door from the inside. The evidence seized as a result of these methods was offered and received when petitioner was brought to trial for knowingly possessing certain lewd and lascivious books, pictures and photos in violation of a State statute. The alleged search warrant was never introduced into evidence nor was its absence explained.

In the present case, the police did not seek to invade a person’s home without a search warrant, but rather arrested the defendant in an alley, in a neighborhood plagued with burglaries. Furthermore, the local officers placed the defendant under arrest only after he had failed to give them an adequate explanation for his contradictory identification cards. The cited case and the present case are distinguishable on their facts.

More importantly, this entire point of an unconstitutional arrest was never brought to the trial court’s attention through a pretrial motion to suppress the evidence, so seized, but rather the argument is raised for the first time on appeal. It now comes too late in the judicial process. The Illinois Supreme Court recently stated in People v. Harris, 33 Ill2d 389, 390, 211 NE2d 693, 694 (1965):

". . . On this appeal much of defendant’s argument is devoted to the alleged illegality of his arrest. This issue becomes important only if the evidence obtained thereby is properly objected to at the trial. It is well settled that this court will not consider the question of illegal search and seizure, even though pursuant to an illegal arrest, where it has not been raised before the trial court (cited cases omitted). Justice will not be served by permitting a defendant to proceed through an entire trial without raising alleged error and then take advantage of such error on an appeal from an adverse judgment.”

Also see People v. Pecho, 362 Ill 568, 200 NE 860 (1936); People v. Bertrand, 385 Ill 289, 52 NE2d 706 (1944); and People v. Moore, 74 Ill App2d 24, 220 NE2d 105 (1966).

Secondly, the defendant urges that his one-man show-up before Officer Daniels was unconstitutional as his counsel was not present. In support of this contention, the defendant cites Wade v. U. S., 388 US 218, 87 S Ct 1926 (1967), which held that when a lineup is conducted after the accused has been indicted and has received court-appointed counsel, his constitutional right to receive the assistance of counsel requires that his attorney be present at all lineups as this is a critical stage of the adversary procedure. Both the 6th and the 14th Amendments require this. If this is not done, any courtroom testimony concerning lineup identification is inadmissible.

However, in one of the two companion cases decided with the Wade case, the United States Supreme Court held in Stovall v. Denno, 388 US 293, 87 S Ct 1967 (1967) that the Wade decision would not be applied retroactively but would only be applied prospectively from June 12, 1967. Since the questioned showup identification in this case occurred in December, 1963, and the trial here was concluded in June 1964, the constitutional principles enunciated in the Wade case are inapplicable here.

Thirdly, the defendant urges that the trial court committed reversible error in allowing the State to produce evidence of the defendant’s prior criminal record, although the defendant did not testify. The testimony attacked on appeal by this argument is that of Officer Mucharski who stated on direct examination that Detective McCollum confronted the defendant with a picture which police officers have with their files and which the detective had taken out of his file. This was done because the accused denied being Sylvester Lewis. After seeing the picture, the defendant admitted he was Sylvester Lewis. The record indicates that the picture in question was never introduced into evidence. In People v. Ogden, 77 Ill App2d 312, 222 NE2d 329 (1966), this court approved the practice of using police photos to identify wrongdoers. Reference at the trial to such use was not improper as long as the pictures themselves were not introduced into evidence and the witness did not refer to the defendant’s criminal record. Neither happened here and hence the proffered testimony is not objectionable.

Furthermore, no objection to this line of questioning was interposed by the defendant at his trial. Any objection to such testimony is therefore waived on appeal. See People v. Trefonas, 9 Ill2d 92, 136 NE2d 817 (1956), for the rationale supporting this rule.

Next, the defendant contends that the evidence was insufficient to sustain his conviction. In particular, he attacks Officer Daniels’ identification testimony as being inadequate, since the policeman only saw the defendant for a few moments at a distance from thirty to forty-five feet. Furthermore, the officer’s identification four months later of the defendant as the burglar was “tainted” as only a one-man showup was conducted. Such an argument overlooks the fact that these contentions were brought to the jury’s attention at the trial, but they still chose to believe Officer Daniels. Officer Daniels also testified that he was able to get a full front view of the defendant’s face for moments in the glare of the police spotlight, and before becoming a policeman, he had taken courses studying physical profiles and human faces for his earlier work in mortuary science. The jury had this testimony for consideration.

The one-man showup in the police station might be termed suggestive, but the manner and method of a defendant’s identification is a matter which goes to the weight, rather than to admissibility or competency of identification evidence. People v. Tunstall, 17 Ill2d 160, 161 NE2d 300 (1959).

The jury, by its verdict, chose to believe the eyewitness testimony of one identification witness. Such testimony is sufficient for the State to sustain its burden of proof in cases involving a weak alibi as a defense coupled with strong identification testimony which identification was initially obtained under good conditions. Such is this case.

The identification testimony was corroborated by the testimony of the defendant’s father, who reiterated to the jury the contents of his son’s oral admission to him the day of the burglary in which the defendant admitted committing this crime with his friends. On appeal, the defendant argues that his father’s testimony should be discredited because he was his accomplice. There is no evidence in the record to support this contention. The evidence was sufficient to sustain the conviction.

Finally, the defendant contends that he was denied equal protection of the laws because the trial court refused to give him a copy of the transcript from his prior trial which had ended in a mistrial. In support of this contention, the defendant cites People v. Miller, 35 Ill2d 615, 221 NE2d 653 (1966), in which the Illinois Supreme Court held that such a refusal was denial of a defendant’s constitutional rights under the 14th Amendment’s equal protection clause. However, the cited case and the present case are distinguishable on their facts.

In People v. Miller, supra, the indigent defendant wanted a free transcript of his prior two trials, both ending in mistrials, so his counsel could use their contents to perhaps impeach the prosecution’s witnesses. To accomplish that objective, he filed a pretrial petition listing what he wanted and why it was important. In the present case, no pretrial petition was presented by the defendant, but rather he delayed until the first day of his second trial to make this request, although more than ninety days had elapsed between the date of the mistrial and the start of this trial. When asked by the court the reason for this delay, the defendant replied that the day before this trial started, he had received a new attorney from the Public Defender’s Office. Only then did a transcript of his prior trial become essential to him.

His new attorney then said a transcript was unnecessary in the trial of this case. The trial court stated that he could not delay the trial any longer, but if the need for such a transcript became evident so that the defendant’s rights would be prejudiced by virtue of his not having it, the trial court would take appropriate action. In the trial that followed, defense counsel never indicated that a transcript of the prior proceedings was essential to the defendant’s rights nor did he ever request such a transcript. Hence, the argument is not well taken on appeal.

For the foregoing reasons, the judgment is affirmed.

Judgment affirmed.

BURKE, P. J. and McNAMARA, J., concur.


author: ALLOY, P. J.

text:
    Betty Jane Kuhlman, Administratrix of the Estate of Guy E. Redman, Deceased, Plaintiff-Appellant, v. Russell Eugene Cotter, Defendant-Appellee.
    Gen. No. 67-29.
    Third District.
    March 6, 1968.

      Hall, Borkenhagen & Gustafson, of LaGrange, for appellant.
    Stifler & Snyder, of Danville, and Bell, Smith & Dannehl, of Watseka, for appellee.
   ALLOY, P. J.

This action originated in consequence of a motor vehicle accident which occurred on December 9,1960, and resulted in the filing of an action by Betty Jane Kuhlman as Administratrix of the Estate of Guy E. Redman, deceased, on July 31,1961. In a trial of this action, the jury had returned a verdict in favor of defendant, Russell Eugene Cotter, on June 28, 1962. On July 9, 1963, the trial court allowed plaintiff’s motion for a new trial. Thereafter, defendant petitioned for leave to appeal to the Appellate Court. This petition for leave to appeal was denied on October 19, 1963. The mandate of the Appellate Court denying the petition for leave to appeal was filed in the trial court on November 13, 1964, one year and 25 days following the entry of decision in the Appellate Court. The case was redocketed and defendant filed a motion to dismiss the action because the mandate was filed in the trial court more than one year after its issuance by the Appellate Court. The motion to dismiss was filed on November 13, 1964, the date of the filing of the mandate. A memorandum decision of the trial court granting the motion to dismiss was filed in the trial court on February 7, 1967. The stated cause for granting of the motion to dismiss was that plaintiff had failed to file her mandate from the Appellate Court in the trial court within one year from the date of entry of the ruling of the Appellate Court denying the petition for leave to appeal from the order granting a new trial.

In this court, appellant had supplemented the record by filing a copy of the notice of appeal pursuant to leave of court which was filed without objection from appellee. Nearly three months later, appellee filed a motion to dismiss the appeal on the ground that the appellant had failed to comply with the Supreme Court Rules and the Appellate Court Rules in not submitting a report of proceedings upon notice to the trial judge and in not advising appellee of the date of filing of the record on appeal, and also that the record on appeal did not include the copy of the notice of appeal referred to.

There is no requirement under the Supreme Court Rules (Supreme Court Rule 321) that the record on appeal contain a transcript of proceedings unless review is requested of matters required to be included therein. The record on appeal before us does not contain a transcript of proceedings since the judgment appealed from relates only to a question of the law in a written decision of the trial court which was made part of the common-law record. For the purposes of appeal, the record on appeal is adequate. There is also a showing in this court that appellee was given notice of the filing of the record on appeal in timely and appropriate manner. The addition of the copy of the notice of appeal under Rule 366 of the Supreme Court Rules (which was made without objection on part of the appellee) was clearly within the power of this court on review. The motion to dismiss the appeal will, therefore, be denied.

The basic significant issue presented in this case is whether the statute (§88, c 110, 1965 Ill Rev Stats) require that the mandate of the Appellate Court be filed in the trial court within one year in order to permit the trial court to proceed in a civil case, when the Appellate Court has entered an order denying the petition for leave to appeal from an order granting a new trial. The pertinent provisions of the statute are as follows:

“MANDATE OF REVIEWING COURT FILED IN THE TRIAL COURT — NEW TRIAL OR HEARING.
“(1) If an appeal is dismissed, or a judgment, order or decree is affirmed, then upon the filing of the mandate of the reviewing court in the office of the clerk of the court from which the case was originally removed execution may issue and other proceedings may be had in all respects as if no appeal had been taken.
“(2) If any cause is remanded for a new trial or hearing, the reviewing court shall issue its mandate reversing and remanding the cause directly to the trial court. Upon the filing of the mandate in the trial court the cause or proceeding shall be reinstated therein, upon 10 days’ notice being given to the adverse party or his attorney. Service of the notice may be made upon any party personally, whether found within or without the State, or upon the attorney of record of the party in the trial court in any manner provided for service of papers upon attorneys, or as the trial court may direct.
“(3) No new trial or hearing shall be had by reason of the reversal of any judgment, order or decree, unless the mandate is filed in the trial court within 1 year after the judgment, order or decree of the reviewing court has become final either through the denial of a petition for rehearing or the expiration of the time within which a petition for rehearing might have been filed.
“(4) Other than as provided in subdivisions (2) and (3) of this section, no notice of the filing of the mandate of the reviewing court need be given, and lapse of time is not a bar to the filing of the mandate in the trial court.”

Other provisions of significance appear at chapter 110, § 101.30 and § 201.22, 1965 Illinois Revised Statutes. These sections provided as follows:

“If the petition is granted, the proceedings are stayed upon the filing of bond by the petitioner in an amount, and subject to conditions, to be fixed by the court, or a judge thereof in vacation. The case is then pending on appeal. Within 48 hours after the granting of the petition, the clerk shall send notice thereof to the clerk of the trial court.”

It should be noted that this case is being determined on the basis of the statutory provisions then in existence and prior to the adoption of Illinois Supreme Court Rules 368 and 369 (requiring automatic issuance of mandate by the clerk of the reviewing court). The problem would not arise in this fashion under the present provisions for automatic filing of mandate by the clerk of the court on review as provided in current rules.

Under the statute and previous rules, a mandate was required to be filed following a decision of the Appellate Court in cases where there has been an appeal (other than from an order granting a new trial) and where the court of review has reversed and remanded the case. In such cases it was required that the mandate be filed within the one-year period if the successful party wished to avail himself of the relief granted by the court of review. In Busser v. Noble, 32 Ill App2d 181, 177 NE2d 251, the trial had resulted in a judgment for the defendant. Plaintiff appealed and the Appellate Court reversed and remanded the case to the Circuit Court for a new trial. The mandate of the Appellate Court was not filed with the trial court within one year from the date on which the petition for rehearing in the Appellate Court was denied. On motion of defendant, the court ordered the cause to be stricken from the docket and refused to allow the plaintiff to file the mandate after the one-year period had expired. In that case the plaintiff attempted to show illness of the attorney who prosecuted the appeal as his excuse for filing the mandate after the one-year period but the court held that there was no discretion to allow the mandate to be filed after the one-year period. In that case the court explained the reason for filing of the mandate (Busser v. Noble, supra, at page 186) by referring to the fact that the mandate is the judgment of the reviewing court which is transmitted to the lower court. The court stated specifically:

“It is the timely filing of the mandate of the reviewing court which reinstates the case in the trial court and reinvests that court with jurisdiction and the limitation period begins to run from the time the judgment of the reviewing court has become final, either through the denial of the petition for rehearing or the expiration of the time within which a petition for rehearing might have been filed. (Ill Rev Stats 1959, c110, §88(3).)”

The court had thus concluded that where a case is appealed in the ordinary sense the trial court would lose jurisdiction of the case. The mandate from the Appellate Court is thereafter filed and this restores jurisdiction in the trial court and permits such court to proceed with the case as directed by the Appellate Court (Continental Paper Grading Co. v. Howard T. Fisher & Associates, Inc., 13 Ill App2d 1, 140 NE2d 526). In the Continental Paper Grading case, a petition for rehearing was denied in the Appellate Court on July 26, 1954. One of the parties attempted to file the mandate in the trial court on November 4,1955. The trial court refused to allow the mandate to be filed and this was affirmed in the Appellate Court with the observation that the failure of the appellant to offer the mandate for filing until November 4,1955, was a delay beyond the permitted statutory period.

The case before us, however, presents a different question. The problem is whether a petition for leave to appeal from an order granting a new trial is governed by the same statutes and by the same considerations. The question specifically posed is whether a petition for leave to appeal from an order granting a new trial deprives the trial court of jurisdiction of the case when the petition is filed or whether the trial court loses jurisdiction of the case when the leave to appeal is granted. If the trial court would lose jurisdiction of the case when the petition is filed, then it would be logical to assume that the provisions relating to filing of the mandate within the one-year period would be applicable to revest jurisdiction in the trial court. If, however, the trial court does not lose jurisdiction until the leave to appeal is granted, then the filing of the mandate within the one-year period would not be necessary since the trial court never lost its jurisdiction of the case.

Under Appellate Court Rule 22 (c 110, § 201.22, 1965 Ill Rev Stats) there is a recognition that no actual appeal divesting the trial court of its jurisdiction is involved in the leave to appeal procedure unless and until the leave to appeal is granted. In that Rule it is specifically provided that application for leave to appeal from an order granting a new trial shall be by petition accompanied by a transcript of portions of the record of the trial court necessary to present the questions for review, etc. It then specifically provides:

“If the petition is granted, the proceedings are stayed upon the filing of bond by the petitioner in an amount, and subject to conditions to be fixed by the court, or a judge thereof in vacation. The case is then pending on appeal. (Emphasis ours.) Within 48 hours after granting of the petition, the clerk shall send notice thereof to the clerk of the trial court.”

It is apparent from the Rule that prior to the stay of any proceedings, two conditions must be fulfilled. Primarily, the petition must be granted and, secondarily, the petitioner must then file a bond. The case is then pending on appeal. The trial court obviously loses its jurisdiction over the case at that time because at that time “the proceedings are stayed.” There would be no point in the provisions of this Rule and the requirement that a notice be sent to a trial court within the very short period of 48 hours if the trial court had already been deprived of jurisdiction. It is apparent, therefore, that the trial court still retains jurisdiction unless and until the petition for leave to appeal is granted.

In the case of Richichi v. City of Chicago, 49 Ill App2d 320, 199 NE2d 652, the court interpreted the legal effect of a motion for new trial. While the interpretation of § 88 of the Civil Practice Act referred to in this opinion is not involved, the case is a valuable precedent in determining the issue of the effect of granting a new trial. In the Richichi case the plaintiff first sued a man named Bielski for injuries occasioned as a result of an arrest, and obtained a $40,000 judgment in 1957. Bielski obtained an order for a new trial on the basis of newly discovered evidence. The new trial was never held. Later, plaintiff Richichi and Bielski both joined in an action against the City of Chicago for indemnity, and as part of this proceeding, the original judgment against Bielski was reinstated. To accomplish such reinstatement the order for a new trial granted to Bielski was vacated several years after it had been entered. The City of Chicago contended that the order for a new trial was a final order and could not be vacated after one year. The Appellate Court concludéd that the new trial order was not a final order even though the statute (then § 77, c 110, 1965 Ill Rev Stats) authorized an appeal from an order granting a new trial. In the Richichi case the court stated, at Page 324:

“However, this ‘finality’ is conditioned upon leave to appeal being allowed by a court of review; the order is not final in the sense of terminating the jurisdiction of the trial court.”

The Appellate Court in the Richichi case, therefore, concluded that the jurisdiction of the trial court is not terminated unless and until leave to appeal has been granted where a petition for leave to appeal is filed from an order granting a new trial. While there was no direct decision of the problem before us, the conclusion of the Appellate Court is consistent with the interpretation which we have outlined, that the trial court retains jurisdiction until leave to appeal is actually granted where a petition for leave to appeal is filed from an order granting a new trial.

A supplementary contention is made by appellee to the effect that if the provisions of § 88 referred to in this opinion are applicable only to cases where a new trial is ordered by the reviewing court or to cases where a petition for leave to appeal has been granted, that said § 88 is unconstitutional in defining a class of litigants to which it applies. We find no substance in this contention since the problem is one of jurisdiction. If the trial court does not lose jurisdiction of the case until leave for appeal is granted, the provisions of § 88 would not be applicable because its provisions apply only when there is actually an appeal pending as shown by the provisions of the act set forth in this opinion. There would, therefore, be a valid basis for distinction, and the act would not be unconstitutional. It is also difficult for us to rationalize the contention made by appellee, since if § 88 were unconstitutional and inapplicable, then appellee’s position would be untenable since there is no basis for the contentions advanced by appellee other than through § 88 referred to.

It is, therefore, our conclusion that the denial of the petition for leave to appeal the order granting the new trial by the Appellate Court, did not at any time deprive the court of jurisdiction, and that the trial court was vested with the right and obligation to proceed to a trial in this cause without the filing of a mandate.

We renew again our cautionary reference to Supreme Court Eules 368 and 369 providing for automatic filing of the mandate by the clerk of the reviewing court. Under such Supreme Court Eules the issue which is before us in this case would not arise.

The order of the trial court of February 2, 1967, dismissing the cause before us is hereby reversed and this cause is remanded to the Circuit Court of Iroquois County for a new trial and proceedings consistent with this opinion.

Eeversed and remanded with directions.

STOUDEE and HOFFMAN, JJ., concur.


text:
    Wilbur H. Seil and Everette E. Seil, Plaintiffs-Appellees, v. Board of Supervisors of Will County, Illinois, Roy F. Hassert, Chairman, and Clara Hartley Woodard, County Clerk of Will County, Illinois, Defendants-Appellees, and Anton Grate and Helen Grate, and Village of Shorewood, Intervenor Defendants-Appellants.
    Gen. No. 67-43.
    Third District.
    March 6, 1968.

      Galowich & Galowich, of Joliet, for appellants.
    Block, Levy & Becker, of Chicago, for appellees.
   ALLOY, P. J.

Plaintiffs, Wilbur H. Seil and Everette E. Seil, brought an action for declaratory judgment to determine whether certain amendments to the Will County Zoning Ordinance contained restrictions upon the use of the property described in the amendments. By leave of court, intervening defendants, Anton Grate and Helen Grate and the Village of Shorewood, filed answers and affirmative defenses to the complaint. Objections to such intervention were overruled and the plaintiffs’ motion to strike the petitions to intervene was denied. The original defendants, Board of Supervisors of Will County and others, then filed a motion to dismiss plaintiffs’ complaint for declaratory judgment. Such motion by the original defendants was allowed and the complaint of plaintiff was dismissed and, also, without any motion, oral or written by any party, the intervening petitions and answers of intervening defendants herein referred to were also dismissed. This appeal is taken from the order dismissing intervening defendants’ petitions and answers with the affirmative defenses referred to.

Plaintiffs were the owners of real estate in Will County which was classified in 1947 under the Will County Zoning Ordinance as “F” (Farming). On August 26, 1963, this area was reclassified from an “F” to an “L-l” (Light Industry) district. Such amending Zoning Ordinance contained the recital:

“excepting that part of the above described property dedicated as roadways for public use and subject to any easements for transmission lines by and for the use of public utilities.”

Thereafter, on April 27, 1966, there was another ordinance passed again rezoning the property from “F” to “1-1” and the second zoning ordinance excepted two acres in the northeast corner of the tract. This 1966 amendment also contained the following language:

“subject to the same restrictions as established at the previous rezoning of this tract.”

On May 31, 1966, plaintiffs filed their complaint for declaratory judgment setting out both the 1963 and the 1966 amendments to the Zoning Ordinance referred to and, also, alleging that there were representations made to the plaintiffs that there were other use and occupancy restrictions affecting their use of the property other than those in the 1947 Zoning Ordinance with the “1-1” property. The complaint alleged that there was an actual controversy between plaintiffs and the defendant, Board of Supervisors and the County Clerk of Will County, as to the existence of other use and occupancy restrictions affecting the premises. Plaintiffs requested a judgment declaring that their property could be used for any use under the “1-1” classification of the 1947 Will County Zoning Ordinance and, also, requested injunctive relief as against defendants to prevent them from maintaining any action which would prohibit plaintiffs from using their property for any “1-1” use.

The intervenors, Anton Grate and Helen Grate, alleged in their petition for intervention that they owned property adjacent to plaintiffs’ property which they were developing for homes. They also alleged that if plaintiffs’ property was classified as “1-1” it would curtail the right to enjoy and develop the property of intervener. They also alleged that the development of the property of intervenors, Grate, was in expectation that plaintiffs’ property would be developed under an “F” classification. The Village of Shorewood, in its petition to intervene, asserted that the property was within one and a half miles of the Village limits of Shorewood and that the Village was interested in the orderly development of the area. It was also alleged in such petition that prior to rezoning the land, plaintiffs represented that there would be restrictions placed on the land as to the use of the land by plaintiffs and their successors in title, and because of this, the Village did not object to the rezoning. The Village contended that plaintiffs were now seeking an unrestricted right to use their land for any “1-1” use (Light Industrial) contrary to their representations to the officials of the Village of Shorewood. All intervenors asserted that to allow rezoning to stand without the restrictions limiting the use of plaintiffs’ premises, would defeat the purpose intended by the Board of Supervisors. Both the Grates and the Village of Shorewood were permitted to intervene by the trial court and each party filed an answer and affirmative defense.

In answer to the plaintiffs’ allegations, the intervenors alleged that they specifically denied each and all the allegations of plaintiffs’ complaint and alleged to the contrary that the form and substance of the acts of the Board of Supervisors were invalid and of no effect, in that they purported to establish restrictions to a zoning amendment contrary to the provisions of chapter 34, Illinois Revised Statutes. They also alleged “that there were other and additional restrictions imposed as a condition to reclassifying the said premises; and that the said additional restrictions were intended by the Board of Supervisors to modify said reclassification of said premises, and, as a result, the amendatory ordinances of August 26, 1963, and April 27, 1966, are void in their entirety and of no legal effect.” They also alleged that plaintiffs had not exhausted their administrative remedies because they had not appealed the decision of the zoning enforcement officer or applied to the zoning board for interpretation of the ordinance as provided in the ordinance. As an alternative defense, the intervenors also set forth that the Board of Supervisors could not amend an existing ordinance reclassifying property with an amendment which was subject to restrictions; and contended that only through the medium of a variance could any such restrictions be used and, thus, that the attempt by the supervisors to attach such restrictions to the amendment rendered the entire amendment void. It was also alleged that to allow the reclassification to stand without the restrictions would defeat the purposes intended by the Board of Supervisors. The intervenors, therefore, requested that the court strike the 1963 and 1966 amendments and declare them void and declare the plaintiffs’ property was zoned “F.” The Village of Shorewood also set up as an affirmative defense that representations made by plaintiffs as to restrictions which they were going to place on the land caused the Village not to oppose the reclassification, and the Village likewise asserted, in such affirmative defense, that if it had opposed such reclassification it would not have been granted.

Plaintiffs moved to strike the petition for intervention on the ground that the answers were mere conclusions that did not allege the facts. After the trial court heard the objections it denied the motion and allowed the intervention as indicated.

After the intervenors Grates and the Village of Shore-wood were allowed to intervene and file their answers and affirmative defenses, the Board of Supervisors moved to dismiss plaintiffs’ complaint setting forth that the property of plaintiffs was reclassified “1-1” on April 27, 1966, with the exclusions noted, and that no additional restrictions were attached to the premises which were not a part of the Will County Zoning Ordinance, and that, therefore, plaintiffs already had what they were requesting and, therefore, no controversy existed and the declaratory judgment action should be dismissed. Following such motion, the trial court entered an order as follows:

“Plaintiffs’ cause of action is dismissed at plaintiffs’ costs. Intervening petitions and answers of all intervenors be and the same are dismissed.”

The intervenors Grates and the Village of Shorewood have appealed the dismissal of the action as to them and assert in this court that the trial court erred in dismissing (apparently on its own motion) intervenors’ petitions and answers generally entitled “affirmative defenses and alternative defenses” which requested affirmative relief for the intervening defendants independent of plaintiffs’ complaint. They assert that their intervening petitions and answers requesting affirmative relief should be allowed to stand and should be heard on the merits.

The basic question in the case before us is whether the intervenors, by their answers and affirmative and alternative defenses, established an actual controversy. An actual controversy is requisite under the statute and to vest the court with jurisdiction to enter an order in a declaratory judgment action (1965 Ill Rev Stats, c 110, § 57.1; People v. Reinhardt, 51 Ill App2d 110, 201 NE2d 4). If an actual controversy was established by the intervenors’ pleadings, then the mere fact that the trial judge dismissed the complaint of plaintiffs, did not require that the intervenors’ affirmative defenses and alternative defenses filed with their answer should also be summarily dismissed. Whether the trial judge dismissed the petitions and answers simply because he had dismissed plaintiffs’ petition, or whether, as defendants contend, the trial judge dismissed the intervenors’ actions because he felt there was no actual controversy, is not significant. On appeal, we must test the action of the trial court on the basis of whether or not the answers and affirmative and alternative defenses establish an actual controversy.

The simple fact that the trial court properly dismissed plaintiffs’ action, does not require dismissal of the action of the intervenors (Gage v. Cameron, 212 Ill 146, 72 NE 204). In the Gage case, the court indicated that an intervenor has the right to claim the benefit of the original suit and to prosecute it to judgment. The right cannot be defeated by dismissal of the suit by the plaintiff after the filing of the petition and notice thereof to other parties. A person who has an interest in the subject matter of the action who is a necessary party has the right, on his own motion, to intervene and become a party to the suit, and, even after the complaint has been dismissed, may proceed to have any actual controversy established by the pleadings determined in such action. The interveners may oppose both parties in such action (Strader v. Board of Education of Community Unit School Dist. No. 1 of Coles County, Ill., 351 Ill App 438, 115 NE2d 539). Such intervenor may also have all the rights of the original party (1965 Ill Rev Stats, c 110, §26).

Defendants contend on the basis of cases such as City of Springfield v. Kable, 306 Ill App 616, 29 NE2d 675, that no controversy was in fact established. The sufficiency of an answer, which was merely a general denial of all matters set forth in the bill of complaint, was involved in that case, and the trial court dismissed the action on the pleadings. In the case before us, notably in the affirmative defenses, facts were alleged which were not simple conclusions of the type pleaded in Springfield v. Kable, supra. In Macaulay v. Jones, 295 Ill 614, 129 NE 520, which was also cited by plaintiffs in support of plaintiffs’ position, an answer admitted execution of an instrument but only denied in general terms that it was in conformity with the law. The answer did not specify wherein the instrument failed to conform to the law or was defective. Such case is, therefore, not a precedent as to the issue before us. Here we have specific allegations relating to the nature of the action of the Board of Supervisors including the fact that restrictions were to be applicable to the property of plaintiffs.

The courts of this state have clearly indicated that the purpose of allowing intervention in a case is “to expedite litigation by disposing of the entire controversy among the persons involved in one action, so as to prevent a multiplicity of actions” (Baker v. Baker, 6 B1 App2d 557,128 NE2d 616; Strader v. Board of Education of Community Unit School Dist. No. 1 of Coles County, 111., 351 Ill App 438, 115 NE2d 539). In the cause before us, the answer and affirmative defenses of the interveners, specifically request a determination of the validity of the amending zoning ordinances based upon facts alleged relating to representations made in connection with such amendments by plaintiffs. If the action of the trial court in dismissing the intervening petitions were approved, interveners would be required to institute a separate action on such issues. The trial court could well dispose of these issues while it has before it all of the parties involved in the declaratory judgment action. We express no opinion on such issues in absence of evidence which would be required to determine whether interveners’ contentions have any basis in fact or law.

While some of the matters set forth in the answers consist of conclusions, by the specific denial of certain allegations of plaintiffs’ complaint and the affirmative defenses which were set forth by interveners as outlined in this opinion, intervenors did, in fact, establish an actual controversy of record. We, therefore, conclude that the trial court was in error in not concluding that the intervening answers and affirmative and alternative defenses set forth provable facts to establish the existence of an actual controversy between the intervening defendants and other parties in the action.

There is also a contention on the part of plaintiffs-appellees, that the appeal should be dismissed by reason of the fact that the record on appeal was not filed until 63 days after the filing of the notice of appeal. In the case before us, the intervenors obtained an extension of time within which to file the report of proceedings and the report of proceedings was filed within that extended time. The record on appeal was filed within the proper time after the report of proceedings was filed. Defendants contend that the report of proceedings was not necessary in this case and, therefore, that the extension of time allowed for filing of such report of proceedings should not be used to allow time to be extended for filing of the record on appeal. They rely on the case of Wise v. Civil Service Commission of Chicago, 50 Ill App2d 338, 200 NE2d 521. The Wise case involved an appeal from an administrative body to the Circuit Court and, on appeal, the reviewing court, was required to look only to the report and proceedings of the administrative body rather than those of the Circuit Court. In the action before us, the report of proceedings might have been significant in that it would contain information as to whether any procedure (such as an oral motion) was undertaken attacking intervenors’ pleadings, and, also, might contain some of the reasons which the trial court judge would assign for the dismissal of intervenors’ petition. Since the report of proceedings could consist of all matters upon which rulings might be made (Husted v. Thompson-Hayward Chemical Co., 62 Ill App2d 287, 210 NE2d 614) there would be no justification for dismissing an appeal which is filed within proper time under the rules following an extension of time for the filing of the report of proceedings.

The order of the Circuit Court of Will County dismissing the petitions and answers of the intervening defendants, Anton Grate and Helen Grate and Village of Shore-wood, will, therefore, be reversed and this cause will be remanded to said court for a hearing on issues raised in such intervening petitions and answers in accordance with the views expressed in this opinion.

Reversed and remanded.

STOUDER and CULBERTSON, JJ., concur.


text:
    Edgar Overocker, Plaintiff-Appellee, v. Manley Retoff, et al., d/b/a Retoff’s Tavern, and Mary Retoff, Defendants-Appellants.
    Gen. No. 67-55.
    Third District.
    March 6, 1968.
    Rehearing denied April 1, 1968.

      Berry & O’Conor, of Ottawa, for appellants.
    Tom Flood, of Streator, for appellee.
   ALLOY, P. J.

The defendants, Manley Retoff, John Retoff, and Louis Retoff, d/b/a Retoff’s Tavern, and Mary Retoff, appeal from a judgment of the Circuit Court of LaSalle County in favor of plaintiff Edgar Overocker, in the sum of $11,000 for injury to himself and in the sum of $2,000 for the loss of support for his four minor children. The action was brought by the plaintiff, Edgar Overocker, in two counts under the Illinois Dram Shop Act. In one count, plaintiff sought damages for personal injury, and in the other plaintiff sought damages for loss of means of support of his four minor children as a result of the injury sustained by plaintiff. The jury had returned a verdict of $11,000 for injuries under the first count and $5,000 for loss of support under the second count. The $5,000 amount was reduced to $2,000 by a remittitur which was the result of a denial of a motion for a new trial as to such count conditioned on plaintiff electing to remit $3,000 of the verdict returned under Count Two.

Plaintiff went to the tavern of defendants in the early evening of March 13, 1964. Around 8:00 p. m. he was watching a card game along the south wall of the tavern. An Earl King and a William Bradley were in the tavern at such time and there was evidence that they were intoxicated from drinking alcoholic liquors sold to them by defendants. These two men got into an argument and a scuffle resulted and both men went to the floor with King on top of Bradley. When they fell to the floor, plaintiff was about 15 feet away in the area of the card game. Plaintiff then walked over to the two men to help them or to break up the fight. There is a conflict in the evidence as to what ensued thereafter. There is evidence, however, that as plaintiff sought to pull King off Bradley, either King or plaintiff slipped and King fell across plaintiff’s legs so that plaintiff sustained a broken hip. It is clear, however, that plaintiff was injured while attempting to break up a fight by two men who had become intoxicated in defendants’ tavern. There is also evidence to the effect that one of the men fell upon plaintiff as a result of such activity.

The evidence disclosed also that plaintiff was a painter and, as a result of the accident, he was in the hospital for 42 days (sustaining a bill of $1,070.85); that he lost 29 weeks of work plus part of two more weeks (involving a total loss of earnings of $3,552.50); and that he likewise incurred a doctor bill of $210. Plaintiff was divorced from his wife and under the divorce decree he owed $40 a week child support for his four children which he was not able to pay while he recovered from his injury (involving a loss of about $1,280). It was also shown that since plaintiff had returned to work he was off an additional five days with muscle spasm which came as a result of the injury. There was testimony to the effect that his injury could result in loss of time in the future.

On appeal in this court, defendants contend that the evidence was insufficient to establish a cause of action and that the court should have directed a verdict for defendants; that the verdicts were against the manifest weight of the evidence; that the trial court improperly admitted certain evidence over the objection of defendants; and, that the damages awarded were excessive and the result of passion, prejudice and improper evidence. In connection with such contentions, defendants assert that the proof in the case fails to establish what is sometimes referred to as a “by” cause of action under the Illinois Dram Shop Act on the theory that to constitute such a cause of action it is necessary to show that the injury is the result of a direct affirmative act by the intoxicated person, and there must be a showing of a chain of causal connection between intoxication and injury to the plaintiff.

Under the Dram Shop Act in 1874, the statute provided for two separate and distinct causes of action. One was for the direct injury actually inflicted by an intoxicated person which was called the “by” cause of action. The other was for damages arising as a consequence of the intoxication, which was termed the “in consequence” cause of action (King v. Haley, 86 Ill 106; Howlett v. Doglio, 402 Ill 311, 83 NE2d 708). In 1955 the Illinois Dram Shop Act (1965 Ill Rev Stats, c 43, par 135) was amended to provide that:

“Every person, who shall be injured, in person or property by any intoxicated person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person . . .
“An action shall lie for injuries to means of support caused by an intoxicated person or in consequence of the intoxication, habitual or otherwise, of any person resulting as aforesaid.”

It is apparent from the language of the Act that the distinction between the two causes of action referred to was carried over into the 1955 statute.

A “by” cause of action under the Illinois Dram Shop Act is any action where a person, or his or her property or means of support are injured by the direct affirmative act of an intoxicated person (Hernandez v. Diaz, 31 Ill2d 393, 202 NE2d 9). Other cases where plaintiff can show that as a consequence of someone’s intoxication, he or she suffered injuries to their means of support is an “in consequence” type of action. A typical “in consequence” type of action involves a situation where the husband becomes intoxicated and, due to such intoxication, injures himself and thus causes injury to the means of support of his wife. Before the 1955 amendment, there may have been some significance to the distinction between the “by” cause of action and the “in consequence” cause of action by reason of the proof required in each type of action. Plaintiff was required to prove that the intoxication was a proximate cause of the injury when proceeding under the “in consequence” type of action, while this was not essential where the procedure was under a “by” cause of action (Hill v. Alexander, 321 Ill App 406, 53 NE2d 307; Cox v. Hrasky, 318 Ill App 287, 47 NE2d 728). Since in the “by” cause of action the injury to the person or property meant actual personal violence by the intoxicated person as against the person or property, it was assumed that the damage or injury resulted by reason of the intoxication upon proof of the damage or injury by the intoxicated person.

While we see no significance in the distinction between the “by” and “in consequence” cause of action in the instant case, for the purposes of our analysis we can consider the instant case to be a “by” cause of action. The reason therefor is that it was the direct act of two fighting and quarrelling intoxicated persons which caused the injury both to plaintiff and to the means of support for his four minor children. Since the courts of Illinois have enlarged the scope of recovery under the “by” causes of action, such plaintiff is also required to show a causal connection in such “by” causes of action (St. Clair v. Douvas, 21 Ill App2d 444, 158 NE2d 642). In the St. Clair v. Douvas case, at pages 452-453, the court stated:

“Under the Act two causes of action are given: one for an injury resulting from the direct affirmative act of an intoxicated person, and the other for an injury resulting ‘in consequence of the intoxication, habitual or otherwise.’ Whiteside v. O’Connors, 162 Ill App 108; Hill v. Alexander, 321 Ill App 406. In any case where the injury is caused ‘by’ or ‘in consequence’ of the intoxication there must be shown a chain of causal connection, and in the case of an ‘in consequence’ injury, since the case of Shugart v. Egan, 83 Ill 56, the rule in Illinois had been that the plaintiff is required to prove the element of proximate or effective cause ... It would be idle to speculate as to whether or not a more consistent result would not have been reached if the courts had held that there must be a causal connection between the selling of the intoxicating liquor and the acts resulting in the loss of support without bringing into the picture the technical and confusing interpretation of the legal meaning of proximate cause.”

What the court was apparently saying is that in both the “by” and “in consequence” cases, there must still be shown “a chain of causal connection,” while in the “in consequence” type of case there must be an additional showing of proximate cause. This is a distinction of no significance in the instant case.

We conclude that plaintiff, seeking recovery under the type of action involved, was required to show a chain of causal connection between the intoxication of the two men involved in the fight and the injury to the plaintiff. In the record before us, there was sufficient evidence of a chain of causal connection to sustain the verdict of the jury. The two men became intoxicated in the tavern. As a result of the intoxication, they engaged in an argument and a fight, and as plaintiff attempted to break up the fight he was injured. There was evidence to the effect that one of the intoxicated men fell upon the leg of plaintiff. Whether plaintiff slipped as he reached the fight or whether the intoxicated individual fell upon plaintiff’s leg, the record would still show that there was a causal connection between the intoxication and the injury to plaintiff. The defendant-tavern operators could reasonably foresee that if men became intoxicated, a quarrel and eventually a fight might ensue, and that someone might be injured other than those engaged in the fight. This injury could result from merely watching the fight, or trying to avoid it, or trying to break it up.

The case of Klopp v. Benevolent Protective Order of Elks, 309 Ill App 145, 33 NE2d 161, involved a dramshop case which was quite parallel to the case before us. In the Klopp case, the plaintiff and his wife had gone to the Elks’ Club for the evening. A Mr. Bartlett, who was in the club, became intoxicated and as he was being forcibly taken out, a fight began and plaintiff’s wife was knocked to the floor. Plaintiff then walked in and when he went to aid his wife he was also knocked to the floor and his leg was broken. There was no showing that Bartlett or the person with whom he began fighting were the ones who injured the plaintiff, since plaintiff was an innocent bystander in what was termed a general brawl. Defendant in the Klopp case contended that the injuries of the plaintiff came from an intervening cause, that cause being from a man who was not intoxicated. The court affirmed recovery for plaintiff and stated (at pages 151-152):

“The question of proximate cause under the evidence herein became one of fact to be determined, not alone from isolated circumstances, but from a fair and impartial consideration of the whole of the evidence . . .
“The natural and logical sequence of the events resulted entirely from the drunkenness of Bartlett caused by liquor furnished him by the defendant, and was the natural and probable consequence of selling and giving him intoxicating liquor. It is common knowledge that drunken brawls result in places where liquor is sold and drunk, and such brawls are frequently, if not usually, preceded by insolent and quarrelsome language on the part of intoxicated persons. It is a frequent occurrence in our nisi prius courts that suits seeking recovery of damages under the Dram Shop Act arise wherein altercations so begun have ended in fights and resultant injuries to the person, property or means of support of some other person or persons. To hold that a sober person who happened to be in a position to be injured in consequence of a condition caused by a dispenser of liquor could not recover would defeat the purpose of the statute. While statutes which are penal in character are generally to be strictly construed, the prevailing view is that legislation supplying remedies for injuries or damages caused by intoxication is remedial in its character and should be so construed as to suppress the mischief involved and advance the remedy provided for in the statute.”

In the case of Hernandez v. Diaz, supra, four men became offensive in a tavern and when a guard attempted to eject them, the guard’s gun went off, injuring plaintiff who was an innocent patron in the tavern and had nothing to do with the four intoxicated men. The complaint against the tavern was dismissed and the Appellate Court affirmed this ruling, but the Supreme Court reversed it and held that the plaintiff had stated a cause of action. It did away with any possible theory in Illinois that the intoxicated person must personally injure the plaintiff. The court stated (at page 398):

“We have found no case in Illinois which states that the direct affirmative act of the intoxicated person must be performed on or done to the person injured. What is required under the theory of a ‘by’ action is that the direct affirmative act of an intoxicated person must have a causal connection with the injuries sustained by the plaintiff. Mr. Justice Burke, in his dissenting opinion in the case, at bar, stated:
“ ‘Plaintiff seeks recovery on the basis that he was injured “by” an intoxicated person as interpreted by the judicial decisions setting forth the element of a “by” case. Under the reasoning in St. Clair v. Douvas, 25 Ill App2d 444, plaintiff is required to prove a chain of causal connection between the intoxication and the injury.....’
“We concur in this reasoning. If an intoxicated person commits an act which has a direct causal relation to the injury of another, the injury is caused ‘by’ the intoxicated person. If a drunken driver causes an innocent driver to leave the highway and injure a pedestrian, the pedestrian has been injured by the intoxicated person as much as if his vehicle had struck the injured person. We conclude that ‘by’ as used in the Liquor Control Act is the equivalent of a causal relation between an act of the intoxicated person and the injury.”

On the basis of the cases to which we have referred, it is apparent that there was sufficient evidence from which a jury could find a chain of causal connection between the intoxication and the injury to the plaintiff. The question of proximate cause is properly a question for the jury (Triggs v. McIntyre, 215 Ill 369, 74 NE 400). As to contributory negligence, the remedy under the Dram Shop Act is statutory and not based upon negligence and, therefore, contributory negligence is not involved as a factor (Quatrano v. Marrocco, 61 Ill App2d 1, 208 NE2d 632). We also see no substance to the argument that the verdict was against the manifest weight of the evidence, in view of the record in the case.

The award of damages for injuries to the person of the plaintiff under Count One in the sum of $11,000 in our judgment was not excessive. Plaintiff showed that he had a hospital bill of $1,070.85, a $210 doctor bill and had lost $3,552.50 in wages while off work. There was medical testimony that plaintiff would probably experience muscle spasms in the future which could impair his earning ability. He had already lost five days’ work from muscle spasms, and plaintiff’s doctor testified that, based upon a reasonable degree of medical certainty, he would have the same trouble in the future, particularly if he overexerted himself.

On the question of evidence objected to, the basic objection made by defendants concerns the testimony of plaintiff’s doctor as to the possibility of plaintiff experiencing arthritis in the future. Following some general questions in regard to arthritis from a metal plate in the body, the plaintiff’s doctor was asked:

“Q. Do you have an opinion, doctor, again based on your knowledge of this case and upon a reasonable degree of medical certainty as to whether or not an arthritic condition could or might occur in the future in Mr. Overocker?
“A. Well it might occur, but I don’t think it will.”

We agree that the question was improper since the doctor should not have been allowed to give his opinion as to what “might” develop in the future, and when the doctor answered “it might occur” this was also improper. Nevertheless, when he stated “but I don’t think it will,” we conclude that the effect of the doctor’s testimony was that while arthritis might develop in the future, it was his opinion, based upon a reasonable degree of medical certainty, that it would not occur. The jury could not have been misled so as to reach an excessive verdict on the basis of such question and answer. Therefore, we feel that the error would be harmless and would not justify a reversal. It is our conclusion accordingly that there was no reversible error in the ruling on objections to testimony, nor was the verdict of the jury excessive considering all of the factors in evidence in this cause.

While plaintiff had elected to remit $3,000 of the verdict of $5,000 which the jury had returned with respect to the damages for loss of means of support for the minor children, plaintiff in this Court asserts that the verdict of the jury as to Count Two was proper, and that the remittitur should be opened up and the original assessment of damages by the jury under Count Two should be approved. Under section 68.1(7) of chapter 110, 1967 Illinois Revised Statutes, it is provided that:

“A party who consents to a remittitur as a condition to the denial of a new trial is not thereby precluded from asserting, on appeal by the opposite party, that the amount of the verdict was proper. No cross appeal is required.”

The evidence in this cause showed that there was an actual out-of-pocket loss at the time of trial for lost time, as far as the children were concerned, of $1,280. The evidence also showed that the physical condition of plaintiff, as a result of the injury, could in the future result in further loss of earnings. It was shown that plaintiff would be reasonably certain to suffer muscle spasms as a result of the injury which could reasonably lead to future loss of time. On the basis of such record, the verdict of the jury as to the loss of support by the minor children raised a question of fact which was reasonably within the province of the jury to determine and within the range of the evidence as presented. A preponderance of the evidence certainly would not be against such verdict. We, therefore, conclude that the verdict of the jury was proper and should be restored as to the damages found under Count Two of the complaint.

This cause will, therefore, be affirmed with respect to the $11,000 judgment in favor of Edgar Overocker, but this cause is remanded to the trial court as to Count Two of the complaint with directions to the trial court to reinstate the verdict of the jury in the sum of $5,000 and to enter judgment thereon in the sum of $5,000 for injuries to the means of support of the four minor children as herein stated.

Affirmed in part and reversed in part.

STOUDER and SCHEINEMAN, JJ., concur.