text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John W. Jones, a/k/a Charlie Brown, Defendant-Appellant.
    (No. 56263;
    .First District (4th Division) —
    July 25, 1973.

      James J. Doherty, Public Defender, of Chicago, (Shelvin Singer, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis, Patricia Bobb, and John B. Adams, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

On April 2, 1971, John W. Jones, also known as Charlie Brown, was found guilty of armed robbery after a bench trial in the Circuit Court of Cook County, and he was sentenced to the Illinois Penitentiary for á term of two to five years.

The issues on review are whether an off duty policeman working as a security guard has a duty to give Miranda warnings during general on the scene questioning of one believed to have committed a crime, and whether the use of physical evidence at trial not previously disclosed to the defendant was prejudicial.

On December 12, 1970, at about 1:30 A.M., the complaining witness, the real Charlie Brown, parked his daughter’s car in a garage near his apartment at 3442 South Giles in Chicago. (For clarification it should be noted the defendant was impersonating the real Charlie Brown, who was the complaining witness.) When he got out of the car in the garage, he was accosted by two men with a rifle who demanded his money. They took his wallet which contained $29.00 in cash, a Sears credit card, a driver’s license, a Social Security card, and a voter registration card.

Brown reported the robbery and gave a description of the two men to" the police. Police officer Thomas J. O’Connor, who investigated the robbery, testified the area was well lit from a light in the alley, and he had no trouble seeing Charlie Brown while they were inside the garage.

Later that morning Charlie Brown contacted Sears to report the theft of .his credit card. At about 3:30 that" afternoon, Mr. Harold Lockett, chief of security at the Sears store at 6233 South Halsted, and William Parker, an off duty Chicago policeman, who was employed part time as a security guard, received a call that a stolen or lost plate was being used in the mens furnishing area of the store. Lockett and Parker went to the department and confronted the two men. Parker identified himself as a Chicago police officer. Lockett asked them to step over to the side where he requested further identification. Jones insisted he was Charlie Brown and produced a Social Security card and a driver’s license corroborating his claim. The description on the license was of a man above the age the defendant appeared to be and, consequently, the defendant and his companion were asked to go to the security office with Lockett and Parker, where color photographs were taken with a polaroid camera. These photographs were then placed on a bulletin board along with 60 to 65 others. The next day the real Charlie Brown went to the Sears store to claim his personal possessions and, while in the security office, he observed the bulletin board and identified the pictures of the defendant and his companion as being the ones who robbed him.

Mr. Lockett testified the defendant was in the security office 35 to 40 minutes until police officers arrived to take them into custody. At no time prior to the questioning on the floor or in the security office did the defendant receive any warnings pursuant to Miranda v. Arizona (1965), 384 U.S. 466, 86 S.Ct. 1602.

At trial, officer William Parker identified a Sears charge plate, a Sears charge slip, a Social Security card, and a voter registration card as being the same items seized from the defendant on January 12, 1970. Over defense objections, these items were admitted into evidence.

The defendant contends it was error for the court to allow the prosecution to use statements taken by officer Parker during his questioning of the defendant at the Sears store. Specifically, the defense complains Parker asked Jones who owned the charge card and Jones replied that it was his. At trial this statement was introduced into evidence.

Jones argues that even though Parker was working as a security officer, the detention and questioning of the defendant was done under color of his office as a police officer, because he had identified himself as such, and all police officers are authorized to make arrests even when not on duty; therefore, any questioning he might do would amount to custodial interrogation which would require Miranda warnings. However, in People v. Parks (1971), 48 Ill.2d 232, a defendant was found guilty of obtaining dangerous drugs by fraud. In that case police officers received a call from a pharmacist and apprehended the defendant as he was leaving the drug store. Without giving him Miranda warnings, the police asked the defendant whether he had made a purchase at the pharmacy, for whom he made the purchase, and what his name was. The Supreme Court of Illinois held that such questions were general on the scene questions and, as such, did not require Miranda warnings. In the instant case questioning the defendant with respect to who owned the charge card was similarly within the scope of general on the scene questioning. We need not reach the question of whether an off duty policeman, working as a security guard, is required to give Miranda warnings during actual custodial interrogation.

Second, the defendant claims he was prejudiced when the court allowed the prosecution to use physical evidence which had not been disclosed pursuant to a discovery motion. A month prior to trial the defense requested an itemization of all physical evidence in its possession or control pertaining to the case the State intended to use at trial. The State responded the victim’s Sears credit card was the only physical evidence in the case. The defendant argues he was caught completely by surprise when Parker identified exhibit 3, the Sears charge card, exhibit 4, a Sears charge slip, exhibit 5, a Social Security card, and exhibit 6, a voter’s registration card, all allegedly taken from Jones. The defendant’s counsel objected to admitting the exhibits into evidence and the State indicated to the court the exhibits were brought to its attention just that morning and defense counsel had an opportunity to observe them and talk to the witnesses, the same as the State did. Defense counsel did not ask for a continuance or make any showing of prejudice and proceeded with the trial. It is well settled that the trial court has discretion to allow a witness to testify whose name is not furnished to the defendant in answer to discovery. People v. La Coco (1950), 406 Ill. 303; People v. Jordan (1967), 38 Ill.2d 83. In Jordan, the court stated:

“We find that the defendant was not shown any unfairness in allowing these witnesses to testify. Moreover, we note that defense counsel was given an opportunity to interview the unlisted witnesses and did not ask for a continuance but proceeded with the trial.”

We think those cases are applicable to the instant situation regarding the introduction of physical evidence and hold that because there was no showing of surprise or prejudice the admission of the exhibits into evidence was not error.

Even if there had been error the other evidence was sufficient to convict the defendant beyond a reasonable doubt. The complaining witness had an ample opportunity to observe the defendant as he was being robbed, and he identified the defendant’s picture in the Sears security office from a board containing 60 to 65 pictures after the defendant attempted to use the credit card. Even if exhibits 3 through 6 had not been admitted into evidence, the guilt of the defendant still would have been established beyond a reasonable doubt.

For these reasons the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN, P. J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE BURMAN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Lewis, Defendant-Appellant.
    (No. 56904;
    First District (4th Division) —
    July 25, 1973.
    James D. Doherty, Public Defender, of Chicago, (Sheila Murphy Racey, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and James M. Schreier, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Charles Lewis, appeals from a finding of guilty after a bench trial on a charge of theft from Sears Roebuck & Company. Defendant was sentenced to serve one hundred and twenty days in the House of Correction.

On appeal, defendant contends (1) that the complaint was defective in failing to sufficiently aver the ownership of the property allegedly stolen, (2) that defendant did not knowingly waive his right to a jury trial, and (3) that the court improperly sentenced him to' the House of Correction when the latter institution had no drug rehabilitation program and the defendant was an admitted drug addict. •

The record reveals that Thornie Olden, a special agent for Sears, arrested defendant on November 20, 1970. Olden stated that he observed the defendant and Betty Harris, the co-defendant, at about 5:30 P.M. in the ladies wear department, and saw the defendant remove a poncho from a rack and place it in a bag. Olden testified that he followed defendant and stopped him outside the building. Defendant, who testified on his own behalf, admitted that he put the poncho in the bag, but said that he thought it was one previously purchased by Betty Harris at another store.

Defendant first contends that the complaint was defective in that it did not sufficiently aver ownership of the property allegedly stolen.

The statute under which the defendant was charged, Ill. Rev. Stat. 1969, ch. 38, par. 16 — 1, provides in part:

“A person commits theft when he knowingly:
(a) Obtains or exerts unauthorized control over property of the
owner * * *
and
(1) Intends to deprive the owner permanently of the use or benefit of the property * *

The complaint charged that defendant committed the offense of theft in that he “knowingly obtained unauthorized control over a Woman’s Poncho, of the value of less, than $150.00 U.S.C., the property of Sears Roebuck & Company with the intention to permanently deprive the said Sears Roebuck & Company of the use and benefit of said property.”

Defendant alleges that the complaint is defective in that it does not allege that Sears Roebuck & Company is the proper name of a corporation or that Sears is licensed to do business in the State of Illinois.

We think that the allegation in the complaint that the goods were “the property of Sears Roebuck & Company” adequately avers that the complainant is a corporate entity capable of owning property. The use of the word “company” under Section 9 of the Business Corportation Act, Ill. Rev. Stat. 1969, ch. 32, par. 157.9(a), connotes corporate existence. (See People v. Whittaker, 45 Ill.2d 491, 259 N.E.2d 787.) This being so, ownership was properly alleged. (People v. Voleta, 57 Ill.App.2d 279, 206 N.E.2d 737.) We know of no requirement that the complaint must aver that complainant is licensed to do business in Illinois, nor does defendant suggest any authority for that proposition.

Defendant admits that “Sears Roebuck & Company” is the proper corporate name of the complaining entity. The instant case is therefore distinguishable from People v. Baskin, 119 Ill.App,2d 18, 255 N.E.2d 42, cited by defendant. We conclude that there is nothing in the complaint which could have misled defendant in preparing his defense or put him in danger of being placed in double jeopardy. People v. Cicchetti, 2 Ill.App.3d 535, 275 N.E.2d 661.

Defendant next argues that he did not make a knowing and understanding waiver of his right to a jury trial. Of course every person accused of a crime has the right to a trial by jury unless understanding^ waived. Ill. Rev. Stat. 1969, ch. 38, par. 103 — 6.

The evidence shows that the court asked defendant if he was ready for trial and he replied that he was. The court swore the witnesses, then asked defendant if he wished to be represented by the Public Defender. The defendant replied he did. The court then said, “All right, pass for •the PubUc Defender.” Defendant contends that there was no reflection in the record that there was a recess affording the defendant time to confer with his newly appointed counsel and also that the record fails to affirmatively show that defendant was advised of his right to trial by jury. We disagree.

The record reveals that after the Public Defender was appointed, the court called the case again for trial. The Public Defender answered that defendant was ready. The Public Defender then stated, “Plea not guilty, trial by this court, jury is waived, and we would like to have a Motion to Suppress.” After a hearing, the trial court denied the motion to suppress. The Public Defender then again stated that the plea was not guilty; trial by jury was waived, and trial by the court was requested.

Defendant relies on People v. Baker, 126 Ill.App.2d 1, 262 N.E.2d 7, for the proposition that where the record does not affirmatively show that defendant was informed of his right to trial by jury, a jury waiver by appointed counsel was not knowingly and understandingly made. In Baker, counsel was not appointed until after the charge was reduced from armed robbery to petty theft. After the Public Defender was appointed, there was a “discussion off the record.” The Public Defender then stated that defendant was ready, that he pled not guilty, and that jury was waived. In reversing, the Appellate Court emphasized that the record was devoid of any showing that there was a pause or recess in the proceedings in order to give the defendant a chance to confer with his newly appointed counsel. A nearly identical situation was presented in People v. Boyd, 5 Ill.App.3d 980, 284 N.E. 699.

We think the instant case is distinguishable on the facts from both Baker and Boyd. In the case at bar, the cause was passed after being assigned to the Public Defender for the obvious purpose of preparation. Counsel afterwards made a motion to suppress. When this motion was denied after a hearing, the Public Defender again stated in the presence of the defendant, that the defendant wished to waive a jury trial and be tried by the court. On these facts, we are persuaded that the defendant knowingly and understandingly waived his right to a jury trial.

As stated in People v. Sailor, 43 Ill.2d 256, 260, 253 N.E.2d 397, 399, “An accused ordinarily speaks and acts through his attorney, who stands in the role of agent, and defendant, by permitting her attorney, in her presence and without objection, to waive her right to a jury trial is deemed to have acquiesced in, and to be bound by, his action.” While we feel that the better practice would be for the court to address the defendant about his desire to waive a jury trial, the record as a whole does not support the claim that he did not knowingly and understandingly waive a jury trial.

Lastly, the defendant complains that since he was an admitted drug addict, it was improper to sentence him to the House of Correction where there was no drug rehabilitation program. The defendant was sentenced to serve a term of four months. Without question, he has already served his sentence. Under the circumstances, this issue appears to be moot.

The judgment of the circuit court is affirmed.

Affirmed.

DIERINGER and JOHNSON, JJ., concur


author: Mr. JUSTICE STOUDER

text:
    Adelynne K. Woodshank, Plaintiff-Appellee, v. Rudolph M. Woodshank, Defendant-Appellant.
    (No. 72-237;
    Third District —
    August 15, 1973.
    Louis Olivero, of Peru, for appellant.
    Paul Perona, of Spring Valley, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal by defendant-appellant, Rudolph Woodshank, from an order of the Circuit Court of La Salle County requiring him to pay attorney’s fees incurred by his former wife, plaintiff-appellee, Adelynne Woodshank, in defending an appeal from an earlier order of the trial court. Plaintiff was awarded a divorce in 1969 and on March 5, 1970 a supplemental order was entered by the court which determined plaintiff’s rights to alimony, child support and attorney’s fees. The order included an award to plaintiff of $2,500 for attorney’s fees. Defendant appealed and plaintiff filed a cross appeal asserting the attorney’s fees, alimony and child support allowances were inadequate. In Woodshank v. Woodshank, 2 Ill.App.3d 596, 274 N.E.2d 694, this court affirmed the lower court decision and subsequently a petition for leave to appeal was denied by the supreme court. A petition was then filed by the plaintiff in the trial court requesting additional attorney’s fees incurred during the appeal. Although the trial court denied attorney’s fees for the cross appeal filed by plaintiff, the defendant was ordered to pay $1,650 for plaintiff’s attorney’s fees in defending the appeal. (The order was in the amount of $2,000 of which $350 was previously paid.) It is defendant’s appeal from this order which we are asked to consider at this time.

The contention of defendant is the trial court did not have jurisdiction to award attorney’s fees for the defense of the appeal. Defendant’s argument ignores the statutory provision which governs the awarding of such allowances. A provision within section 16 of the Divorce Act (Ill. Rev. Stat. 1971, ch. 40, par. 16) reads:

“In case of appeal by the husband or wife, the court in which the decree or order is rendered may grant and enforce the payment of such money for her or his defense and such equitable alimony during the pendency of the appeal as to such court shall seem reasonable and proper.”

In Riddlesbarger v. Riddlesbarger, 348 Ill.App. 31, 107 N.E.2d 770, the court, in answer to the contention the court had no jurisdiction to award an allowance for attorney’s fees in defending an appeal, declared the statute authorizes an allowance after proceedings on appeal have ended. The court said the statute does not fix the time in which the court can entertain the petition, that is, it does not require the court to entertain the petition during the pendency of the appeal. The court determines the time period for consideration of such petition, while the statute authorizes the circuit court to provide for such allowances incurred during the pendency of the appeal, if the circumstances warrant.

The cases cited by defendant in his brief are not controlling under the facts of this case. In Hokin v. Holan, 102 Ill.App.2d 205, 243 N.E.2d 579, the statutory provision was not applicable since the attorney’s fees sought were not to cover the defense of an appeal. The court in City of Chicago v. Myers, 37 Ill.2d 470, 227 N.E.2d 760, stated a broad general rule regarding jurisdiction of a trial court but the case was not concerned with an allowance of attorney’s fees in a divorce action.

Finally, according to the defendant, the award of attorney’s fees is inequitable and works an injustice on defendant. The cases cited by the parties discuss the general rule applicable in this case. Although the allowance of attorney’s fees rests in the discretion of the trial court (Canady v. Canady, 30 Ill.2d 440, 197 N.E.2d 42), in order to justify such allowance, the complainant must show financial inability to pay and the ability of the spouse to do so. Jones v. Jones, 48 Ill.App.2d 232, 198 N.E.2d 195, Berg v. Berg, 85 Ill.App.2d 98, 229 N.E.2d 282 and Cimino v. Cimino, 93 Ill.App.2d 412, 236 N.E.2d 299.

According to the findings of the trial court, plaintiff does not have sufficient financial ability to pay her attorneys fees and costs, and defendant does have sufficient assets and earning capacity to pay the additional attorney’s fees and costs. Having reviewed the record and the briefs of the parties, we find the evidence in support of these findings has not been preserved for this court to review. In the absence of evidence upon which the trial judge based his findings, the reviewing court will presume the order was justified by evidence. (Simpson v. Simpson, 29 Ill.2d 49, 193 N.E.2d 10, I.L.P. Divorce, sec. 222 and I.L.P. Appeal and Error, sec. 739.) It is the appellant who must show affirmatively by the record the evidence does not support the order.

Since it was within the power of the court to enter the judgment and since the evidence upon which the judgment is based is not preserved for review, we affirm the judgment of the Circuit Court of La Salle County.

Judgment affirmed.

ALLOY, P. J., and SCOTT, J„ concur.


author: Mr. JUSTICE DIXON

text:
    John H. Lee, Exr. of the Will of Joseph K. Carlisle, Deceased, Plaintiff-Appellant, v. Gerald Conroy, Defendant-Appellee.
    (No. 73-95;
    Third District —
    August 15, 1973.

      Medley A. Tomow, of Peoria, for appellant.
    Kehr & VanHooreweghe, Ltd., of Chillicothe, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This is an appeal from an order entered by the Circuit Court of Peoria County, Illinois, which granted a motion to dismiss filed by the defendant and dismissed the plaintiffs third amended complaint.

The plaintiff, John H. Lee, executor of the will of Joseph K. Carlisle, deceased, brought suit to require the defendant, Gerald Conroy, to repay $2,000.00 he had received from the decedent. The decedent had given the defendant a check for this amount, on which was written “Pay’t on Bldg.” The plaintiffs third amended complaint, which this appeal brings before us, alleges that when the decedent made this payment he intended to enter a written contract for the purchase of a certain building from the defendant; that no written contract was ever executed as anticipated by the decedent; that nothing was ever received for the $2,000.00 payment; and that the return of this sum has been demanded by the plaintiff and refused.

The defendant’s motion to dismiss the third amended complaint asks for its dismissal because of its being the same as Count I of the plaintiffs second amended complaint, which was earlier dismissed by the trial court on motion of the defendant for failure to state a cause of action. The third amended complaint differed from Count I of the second amended complaint only in having a copy of the decedent’s check attached. The plaintiff let the trial court know, in his unsuccessful motion to vacate the order dismissing his third amended complaint, that he had thought the court’s reason for dismissing Count I of his second amended complaint was his inadvertent failure to attach a copy of the check mentioned in the complaint. The defendant’s motions to dismiss do not point out in what way the plaintiff s pleadings may be insufficient.

It appears to us that the plaintiff’s pleadings do not adequately present his basis for recovery. If the terms of the contemplated sale had not been worked out and there was not even an oral contract for the decedent to purchase the defendant’s building, then the statute of frauds would be inapplicable, the decedent would in fact have got nothing for his money, and the plaintiff would be entitled to return of the money. (Falls v. Visser, 250 Ill.App. 481, 485.) If an agreement had been reached but not reduced to writing, then the decedent’s money would have to be given back if the defendant had repudiated the contract or were unable to perform, or if the contract had been rescinded by the parties or mutually abandoned. (Nelson v. Fricke, 335 Ill.App. 273; Ryan v. Schoenberger, 224 Ill.App. 308; 49. Am.Jur., Statute of Frauds secs. 563, 564; 37 C.J.S., Statute of Frauds sec. 256; see Annot., 169 A.L.R. 187.) The decedent’s death did not eliminate the need to show some such reason for recovery. (See Hunt v. Hunt, 261 N.C. 437, 135, S.E.2d 195.) Therefore the plaintiffs pleadings do not state all the elements of his claim.

On the other hand, a case should not be dismissed on the pleadings, if the pleader desires to amend, unless it is apparent that no cause of action can be stated. (Dinn Oil Co. v. Hanover Insurance Co., 87 Ill. App.2d 206, 211-12; Fanning v. Lemay, 78 Ill.App.2d 166, 172.) Furthermore, section 45 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110 sec. 45) requires that a motion to dismiss point out specifically why a pleading is thought to be insufficient. (Carmack v. Great Am. Indemnity Co., 400 Ill. 93, 96; Danville Producers Dairy v. Preferred Risk Mut. Insurance Co., 33 Ill.App.2d 359, 362; S.W. Coe & Co. v. Douglass, 334 Ill.App. 195, 196-97), so as to allow the party against whom the motion is directed an opportunity to cure the specified objection by amendment. (Central Ill. Elec. & Gas Co. v. Scully, 17 Ill.2d 348, 353.) We believe it is apparent that the plaintiff’s pleadings could be amended so as to obviate objections, and that the defendant’s motions to dismiss are inadequate for their purpose.

For the reasons given the judgment of dismissal of the Circuit Court of Peoria County is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

STOUDER, P. J., and SCOTT, J., concur.


author: Mr. JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Douglas Strode, Defendant-Appellant.
    (No. 11887;
    Fourth District —
    August 13, 1973.
    John E. Gambill and James R. Blunk, both of Rantoul, for appellant.
    Lawrence E. Johnson, State’s Attorney, of Urbana, (Thomas L. Knight, Assistant State’s Attorney and Scott Murphy, Senior Law Student, of counsel,) for the People.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

The defendant was found guilty by a jury in a criminal action charging him with violating Ill. Rev. Stat. 1971, ch. 95%, par. 6 — 303, which prohibits driving a motor vehicle while the operator’s license was suspended or revoked. The sentence imposed by the trial court was probation. The defendant here appeals from the judgment entered on the guilty verdict. We affirm.

After appropriately and properly waiving two assignments of error, there remains two for our consideration. First, did the trial court err in refusing to admit defendant’s exhibits 2 and 3 into evidence. They pertained to copies of the Secretary of State’s letters mailed to the defendant at two different addresses. Secondly, whether the trial court erred in giving People’s instruction #8 and refusing to give defendant’s instructions #3, 6, 7, 8, and 9. Neither contention can successfully have stature in a factually sterile seedbed. Defendant’s license was revoked in 1960 and he had notice of it.

The defendant tendered in evidence his exhibits 2 and 3. Number two related to certified copies of the Secretary of State’s records showing that on June 17, 1971, a letter was mailed to the defendant at 1506 North Mattis in Champaign and that a week later on June 24, 1971, the Secretary of State mailed a letter containing the order extending the period of revocation of the defendant’s drivers license to a different address in Champaign. (Exhibit No. 3.) From this he argues that the notice required under ch. 95Yz, par. 6 — 209 and 6 — 211, was not given and hence the State failed to prove a necessary element of the offense, that is, that to convict the State must establish that the defendant had knowledge of a revocation or suspension. Only two factors are required to establish guilt in a violation of the subject statute, that is, the act of driving a motor vehicle on a public highway and the fact of the suspension of the driving license. (People v. Dillingham, 111 Ill.App.2d 161, 249 N.E.2d 294.) The defendant’s intent, knowledge, moral turpitude, or motive is immaterial on the question of guilt. The only intention necessary to render a person liable to a penalty for violation of the automobile law is the doing of the act prohibited. (People v. Espenscheid, 109 Ill.App.2d 107, 249 N.E.2d 866.) The exhibits rejected have no bearing on this case. The record demonstrates that the defendant knew that his license has been revoked. Such being the case, questions of due process do not arise. Revocation implies a permanent ending of the license to drive, and the statute clearly suggests that a new Hcense would have to be acquired rather than there existing an automatic revival of its vaHdity. (People v. Suddoth, 52 Ill.App.2d 355, 202 N.E.2d 120.) The letters denied admission were not notice of initial revocation but notices of an extension of revocation. The defendant here knew that he had no drivers Hcense in his possession. He presented none to the arresting officer, and he knew that he had made no application for a new Hcense. His argument that these exhibits have any bearing upon his violation of the statute under the circumstances stated in this record is purely an abstract philosophy with no bearing on the issue.

From what is said above makes it clear that the instructions of the defendant which were refused were properly refused. Instruction #3 relates to the duty of the Secretary of State to notify a driver of suspension or revocation. Under the circumstances here, the instruction has no application. Instructions 6, 7, 8, and 9 elaborate on the defendant’s contention that notice being sent to the defendant’s last known address is a prerequisite for convicting him of the offense here charged, and seeks to establish that a third element of the statutory charge is proof of notice. People’s instruction #8 was a proper statement of the issues here presented for trial.

For the reasons stated, the judgment of conviction should be and the same is hereby affirmed.

Judgment affirmed.

CRAVEN, P. J., and SIMKINS, J., concur.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Marion Marcus, Plaintiff-Appellee, v. James C. Green et al., Defendants—(James C. Green, Appellant)—(Herman Schroeder, Third-Party Plaintiff-Appellee, v. James C. Green, d/b/a Jim Green Construction Company, Third-Party Defendant-Appellant.)
    (No. 70-36;
    Fifth District —
    August 13, 1973.

      Hoagland, Maucker, Bernard & Almeter, of Alton, (Robert B. Maucker, of counsel,) for appellant.
    Callis, Filcoff, Brandt & Gitchoff, of Granite City, for appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from judgments entered on verdicts in the Circuit Court of Madison County, by James C. Green as defendant and as third party defendant.

While Marcus, the plaintiff appellee, was employed as a carpenter by James C. Green, d/b/a Jim Green Construction Company, the sole owner of which business was James C. Green, scaffolding on which Marcus was standing collapsed causing him to fall to the ground and suffer serious injuries. At the time of his injury James C. Green and Herman Schroeder and their wives were the owners of the real estate on which there was being constructed an apartment building, and in the course of that construction the scaffold upon which Marcus was standing collapsed. The parties stipulated that Marcus’ injury occurred while he was in the course and scope of his employment. Marcus’ application for adjustment of claim against Jim Green Construction Company was filed with the Illinois Industrial Commission and the insurance carrier for and on behalf of James C. Green, d/b/a Jim Green Construction Company paid Marcus certain temporary total compensation, and hospital and doctor bills.

Marcus brought this action against Green and Schroeder, individually and/or as partners or joint venturers alleging that those defendants were owners of the land on which the construction was taking place, that they were in charge of the construction or had the right to exercise control over it and that they were in violation of the Structural Work Act (Ill. Rev. Stat., ch. 48, sec. 60), commonly referred to as the Scaffold Act. Answering, Schroeder admitted that as a partner of Green he had an interest in the title to the ground and denied that either as a partner or individually, he was in any way in charge of the construction or that he had a right to control over the construction. He further averred that the partnership of Green and Schroeder had contacted with Jim Green, d/b/a Jim Green Construction Company to build the building referred to in the complaint, and that the sole responsibility for construction was in Green. Green in his answer neither admitted or denied that he and Schroeder, individually and/or as partners or joint venturers, owned the land, or that the defendants were in charge of the construction or had the right to exercise control over it, and demanded strict proof of those allegations. In their separate answers both Schroeder and Green denied the allegations of the occurrence, their duty to comply with and their alleged violation of the Scaffolding Act, and the proximate cause and injuries alleged. Green attached and made a part of his answer, the application of Marcus for adjustment of claim against Jim Green Construction Company, filed with the Industrial Commission.

Green also filed an affirmative defense alleging that at the time of the alleged injury Marcus was an employee of Green who was the sole owner and proprietor of the business known as Jim Green Construction, and that Green on behalf of his construction business had elected to and was operating his business under the provisions of the Workmen’s Compensation Act (Ill. Rev. Stat 1965, ch. 48, sec. 138 et seq.); that plaintiff had made application for adjustment of claim under that Act, and contended that plaintiff’s only remedy against defendant Green was under that Act. Green prayed for judgment dismissing the complaint at plaintiff’s cost. Plaintiff moved to strike the affirmative defense alleging that Green was attempting to set up the defense of Workmen’s Compensation before the jury. The court denied the plaintiff’s motion to strike and ordered that the affirmative defense should not be presented to the jury. Plaintiff then replied denying each and every allegation of the affirmative defense.

Schroeder filed a complaint as third party plaintiff against James C. Green, d/b/a Jim Green Construction Company as the third party defendant, seeking'indemnification in the event Marcus recovered against him, Schroeder, based upon an alleged secondary or passive violation as compared to the primary or active alleged violation of James Green, d/b/a Jim Green Construction Company, and alleged the construction was under the exclusive control of the third party defendant. James G. Green, d/b/a Jim Green Construction Company answered the third party complaint, denying that the work was under the exclusive control of James C. Green d/b/a Jim Green Construction Company, denying that the third party defendant was the active and primary wrongdoer; denying that Schroeder was only secondarily or passively negligent, and denying that Schroeder was entitled to any rights of indemnity.

Upon trial, the jury found in favor of plaintiff Marcus against both Green and Schroeder and awarded him damages of $10,000. In addition, the jury found in favor of Schroeder on his party complaint against James C. Green, d/b/a Jim Green Construction Company. Upon judgment for plaintiff being entered against Green and Schroeder, and judgment for third party plaintiff Schroeder being entered against James C. Green, d/b/a Jim Green Construction Company, a post trial motion was filed by defendant Green, and a separate post trial motion was filed by third party defendant Green. Both were denied. Defendant Schroeder filed no post trial motion.

Defendant Green has appealed from the judgment in favor of plaintiff Marcus, against him. Third party defendant James C. Green, d/b/a Jim Green Construction Company has appealed from the judgment in favor of third party plaintiff Schroeder against third party defendant. Defendant Schroeder has not appealed from the judgment in favor of plaintiff Marcus, and has received permission in this Court to adopt the brief of plaintiff Marcus as his brief. No brief has been filed by or on behalf of Schroeder in his capacity as third party plaintiff appeHee in opposition to the position taken by James C. Green, d/b/a Jim Green Construction Company, that Schroeder, partner, has no action over against his partner, James C. Green.

Appellant (a single brief is filed as being that of appeHant and third party defendant appellant James C. Green) states the issues to be:

1. Where there is the relationship of employer and employee between two parties and the employee admittedly has a cause of action against his employer, a sole proprietorship, under the Workmen’s Compensation Act, does the employee have a separate cause of action under the Structural Work Act against his employer who is the part owner of property where the work is being done and where the employee is injured?

2. Does a workman have a cause of action under the Structural Work Act against a person who is a part owner of the property where the work is being done and where the workman is injured when that person is held not to be in charge of the work being done, but that person is also held to be a partner in the construction of the building with the employer of the workman?

3. Does one partner have a cause of action over against the other partner for the amount of a judgment rendered against him together with attorney’s fees and costs where the judgment was rendered by virtue of the partnership relationship between the parties?

Those issues were raised by appellant several times on the pleadings resulting in amended pleadings. The same issues were then raised in his motions for directed verdicts and post trial motions. AppeHant states in his brief, “In neither appeal is a new trial sought nor is any question being raised as to the size of the verdict, the rulings of the trial court on objections to evidence nor the propriety of instructions given or refused.”

Upon the request of Green, and over the objections of both plaintiff Marcus and Schroeder, the trial court submitted two special interrogatories to the jury. These interrogatories and the jury’s answers thereto were:

“Were the defendants, James C. Green and Herman Schroeder, partners in the construction of the building located at August Street and Washington Avenue in Granite City, Illinois, at the time of the plaintiff’s alleged injury? Yes.”
“Was the defendant, Herman Schroeder, at the time and place of the occurrence in question in charge of the work being done on the apartment building? No.”

The objections were preserved by neither plaintiff nor Schroeder. From a factual point of view the answers to them stand unchallenged by any party. As a result the question of whether Green and Schroeder, who admittedly were owners, were partners in the construction of the building is resolved. While the question of whether Schroeder individually was in charge of the work was resolved in the negative, no specific finding was made as to whether Green, as a partner, was in charge of the work. Appellant contends in his brief that he was completely in charge of the work by virtue of his construction business, however in the answer to the third party action he denied that the work was under the exclusive control of James C. Green, d/b/a Jim Green Construction Company. Since the jury determined in response to appellant’s submitted interrogatory that Schroeder individually was not in charge of the work, the only other party, who consistent with appellant’s denial in his pleading, that could have shared control of the work was the partnership, since none of the parties contend any unnamed party had anything to do with the occurrence. The jury was instructed,

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that: Where, by any wrongful act or omission of any partner acting in the ordinary course of business of the partnership, or with the authority of his co-partners, loss or injury is occasioned to any person, not being a partner of the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.”

As a result we are not impressed with appellant’s disputing that he was also in charge of the work as a representative of the partnership. We therefore conclude that the general verdict, in favor of Marcus against Green and Schroeder, was based on the conduct of Green, as an owner and partner in charge of the work. A careful analysis of cases under the Scaffold Act leads to the conclusion of H. C. Sorenson in Strategy and Proof under the Illinois Structural Work Act, 59 Ill. Bar Journal 552 (March 1971) that “it is difficult to imagine any business firm connected with any given construction project to be beyond the reach of ‘in charge.’ ” Under the Scaffold Act more than one person or firm may be in charge of a construction job on which an injury may occur as a result of the violation of the Act. See Clements v. Schless Construction Company, 91 Ill.App.2d 19, 234 N.E.2d 578 (Supp. Opinion) citing Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 321, 322, 211 N.E.2d 247 and Gannon v. C.M.St.P. & P.Ry. Co. (1961), 22 Ill.2d 305, 317-320, incl., 175 N.E.2d 785.

Appellant contends that he is entitled to a reversal of the Marcus judgment against him as a matter of law because as the employer of Marcus, Marcus’ sole and exclusive remedy against him is under the Workmen’s Compensation Act, supra, and that Marcus availed himself of that remedy. He points out that no corporate entity is here involved, and that one person cannot be two separate entities.

The Workmen’s Compensation Act (Ill. Rev. Stat., ch. 48, sec. 138.5) provides that an employee has no common law or statutory right to recover from his employer. It was enacted in 1911 subsequent to the Structural Work Act, (Ill. Rev. Stat., ch. 38, sec. 60.) which had been enacted in 1907. In Gannon v. C.M.St.P. & P.Ry. Co. (1958), 13 Ill.2d 460 at 463, 150 N.E.2d 141, our Supreme Court pointed out that to the extent that the Workmen’s Compensation Act prohibits an action by an employee against an employer, it has amended the Scaffold Act. The same principal was enunciated in Miller v. DeWitt, 37 Ill.2d 273, 226 N.E.2d 630.

Appellee urges that one man can be legally at the same time, an employer, or owner in charge of the work, and a member of a partnership, and that Green was all three; that each is a different legal capacity; and the Scaffold Act by its Section 9 imposes liability on those who are in the legal capacity of owners in charge of the work, and provides a right of action against those in such legal capacity for willful violation of the Act. He points out that the terms “employer”, “owner” and “partner” are concepts which relate to define legal capacities which may or may not be reposed simultaneously in the same person, and that in order to recover Marcus must show that Green was acting in a legal capacity which would cause him to be liable under the Scaffold Act, notwithstanding that Green was also acting in the legal capacity of employer. He contends that the interpretation of the interaction of the Workmens Compensation Act and the Scaffold Act, as pronounced in the 1958 Gannon case, is not applicable under circumstances in which the employer is a partner in a partnership composed of individuals who are owners and act as their own contractors, and that to apply such interpretation would render the Scaffold Act a nullity as to any such partnership arrangement of owners and contractors.

AppeUee urges application of the “Dual Capacity Doctrine” under which, according to Larson “* s * an employer normally shielded from tort liability by the exclusive remedy principal may become liable in tort to his employee if he occupies, in addition to his capacity as employer, a second capacity that confers upon him obligations, independent of those imposed upon him as employer”. (Larsons Workmens Compensation Law, vol. 2, § 72.80 @ 1. 226.20) Appellee also points out that the Workmens Compensation Act does not preclude an employee from bringing a statutory action against a third party tort feasor, and contends that accordingly it does not preclude Marcus from bringing an action against Green who in a different legal capacity than that of employer has placed himself vulnerable to liability under the Scaffold Act.

Although this is a question of first impression in Illinois, we find support for appellee’s position in the case of Reed v. The Yaka (1963), 373 U.S. 410, where the petitioner, a longshoreman, filed a libel in rem action against a ship for injuries sustained while he was engaged in loading the ship as an employee of a corporation which was operating the ship under a bareboat charter. The corporation was considered as a shipowner pro hac vice under a bareboat charter. The defendant corporation contended that it could not be held liable in damages to the petitioner because it was the petitioner’s employer, and that the Longshoremen’s and Harbor Workers’ Compensation Act provided that the compensation liability of an employer under that Act was exclusive and in place of any other liability. The Circuit Court of Appeals held in the defendant corporation’s favor. However, the United States Supreme Court reversed and held that the defendant corporation could be liable for the ship’s unseaworthiness, notwithstanding that the defendant corporation was also liable to the petitioner under the Longshoremen’s and Harbor Worker’s Compensation Act. The logic of permitting such a double recovery was grounded upon the necessity of recognizing and distinguishing the various duties and obligations that the defendant corporation had because it acted not only in the legal capacity as an employer, but also because it was acting as a shipowner and had the obligation to keep the ship seaworthy. As stated by the Supreme Court, after reviewing the prior decisions and the Longshoremen’s and Harbor Workers’ Compensation Act, at 415:

“In light of this whole body of law, statutory and decisional, only blind adherence to the superficial meaning of a statute could prompt us to ignore the fact that Pan-Atlantic was not only an employer of longshoremen, but was also a bareboat charterer, and operator of a ship and, as such, was charged with the traditional, absolute, and nondelegable obligation of seaworthiness, which it should not be permitted to avoid. We have previously said that the Longshoremens Act must be liberally construed in conformance with its purpose, and in a way which avoids harsh and incongruous results/ We think it would produce a harsh and incongruous result, one out of keeping with the dominant intent of Congress to help longshoremen, to distinguish between liability to longshoremen injured under precisely the same circumstances because some draw their pay directly from a shipowner and others from a stevedoring company doing the ship’s service.”

Thus, appellee’s position that appellant could be liable for violating more than one legal duty finds support in the highest court of our land. The Structural Work Act — like the doctrine of seaworthiness — was designed to provide a remedy for personal injuries and property damage sustained by particular employees. This duty of an owner in charge of the work is entirely separate from the duty of an employer. We see no reason to suppose that the Workmen’s Compensation Act has in any way limited the duty of an owner in charge to assure that scaffolds on construction property be kept safe. Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, 211 N.E.2d 247.

Nor do we believe that the appeHee is barred from bringing suit by the language of the Workmen’s Compensation Act, which provides that an employee has no common law or statutory right to recover from his employer. The holding in Gannon v. C., M., St.P. & P.Ry. Co., supra, is not applicable to the present facts, because that case involved an employer who was being sued under the Structural Work Act as an employer. The suit was properly dismissed, but the action in the instant case is not against the employer as employer. It is against an employer who is also an owner.

Furthermore, Illinois courts have permitted employers to be subjected to double liability under the Structural Work Act indirectly by way of indemnification. Miller v. Dewitt (1967), 37 Ill.2d 273, 226 N.E.2d 630 (architect and employer); Krambeer v. Canning (1962), 36 Ill.App.2d 428, 184 N.E.2d 747 (owner and employer); Boston v. Old Orchard Business District, Inc. (1960), 26 Ill.App.2d 324, 168 N.E.2d 52 (owner and employer); Moroni v. Intrusion-Prepakt, Inc. (1960), 24 Ill.App.2d 534, 165 N.E.2d 346 (owner and contractor); and Palier v. Dreis and Krump Manufacturing Co. (1967), 81 Ill.App.2d 1, 8, 225 N.E.2d 67, 72 (owner and employer), where the court said:

“An employer is capable of violating the terms of the Scaffold Act as the person or thing ‘having charge of, notwithstanding his absolute liability under the Workmen’s Compensation Act.”

Therefore, we are persuaded to agree with appellee that since the Workmen’s Compensation Act provides for recovery by an employee against a third party tort-feasor, (Ill. Rev. Stat., ch. 48, § 138.5), he should be allowed to bring an action against the appellant who in a different legal capacity than that of an employer has placed himself vulnerable to liability under the Scaffold Act. To paraphrase the language of the United States Supreme Court in Reed v. The Yaka, supra, we think it would produce a harsh and incongruous result to distinguish between liability to employees injured under precisely the same circumstances simply because some worked on property owned by their employers and others worked on property owned by third parties. Accordingly, the judgment against Schroeder and Green is affirmed.

The remaining issue is whether the trial court erred in denying appellant’s motion for judgment notwithstanding the verdict with regard to the third party complaint filed by Schroeder.

Appellant argues that, even if indemnification were proper, the trial court erred in allowing a suit by one partner against another partner before the accounts are settled and a balance struck.

The general rule is that one partner cannot sue the other at law until there has been a settlement of the partnership affairs and a balance struck. (Milligan v. Mackinlay (1904), 209 Ill. 358, 70 N.E. 685; Olson v. Olson (1965), 66 Ill.App.2d 227, 213 N.E.2d 95; Carter v. Wright (1934), 275 Ill.App. 224.) The mere dissolution of a partnership does not change the general rule. (Davenport v. Gear (1840), 3 Ill. 495; Chadsey v. Harrison (1849), 11 Ill. 151; Ridgway v. Grant (1855), 17 Ill. 117; Burns v. Nottingham (1871), 60 Ill. 531; George v. Pfeil (1910), 158 Ill.App. 261; Commons v. Snow (cert. denied 1915), 194 Ill.App. 569.) The principal reasons for the general rule were weU summarized by the court in Mayhew v. Craig (1929), 253 Ill.App. 238, 241:

“1.) a dispute of this nature ordinarily involves the taking of a partnership account, for, until that is taken, it cannot be known that plaintiff is not liable to refund even more than he claims in the particular suit; 2.) in partnership transactions a partner does not as a rule become a creditor or the debtor of a copartner, but of the firm.”

There are exceptions to the general rule if partnership accounts are not involved in the suit.

The established exceptions are listed in Pugh v. Newbern (1927), 193 N.C. 258, 261, 136 S.E. 707, 709:

“A partner may maintain an action at law against his copartner upon claims growing out of the following facts: 1.) Claims not connected with the partnership. 2.) Claims for an agreed final balance. 3.) Claims upon express personal contracts between the partners. 4.) Failure to comply with an agreement constituting a condition precedent to formation of a partnership. 5.) Where the partnership is terminated, all debts are paid, and the partnership affairs otherwise adjusted, with nothing remaining to be done but the amount due by one to the other, such amount involving no complicated reckoning. 6.) Where the partnership is for a single venture or special purpose, which has been accomplished, and nothing remains to be done except to pay over the claimant’s share. 7.) When the joint property has been wrongfully destroyed or converted. 8.) When one partner has been guilty of fraud in contracting the debt, or in incurring the obligation, or by concealing the property, or by other device defeating the rights of the complaining party.”

' Thus, the rule is not a hard and fast one, but is subject to exception.

In the case of Mayhew v. Craig, supra, it was held that one partner may maintain an action at law against another for breach of a partnership agreement where the damages belong exclusively to one partner and not to the firm, and can be assessed without taking an account of the partnership business and without inquiry as to the profits and losses or expenses of the firm or adjustment of any claims arising out of the business involved. The court said at 241: “The test seems to be * # * if the damages resulting from a breach of the partnership agreement by one partner belong exclusively to the other partner, and not to the firm, and can be assessed without taking an account of the partnership business.” An earlier case, Tichenor v. TÑewman (1900), 186 Ill. 264, 275, made the same distinction in allowing an action at law upon a breach of a partnership agreement: “The benefit of their performance would inure to Tichenor individually and not to the firm.”

Since the action for indemnity in the instant case involves Schroeder personally rather than the firm, we feel that it may be brought in absence of a settlement and balance. The partnership in question here was for a single venture, and an action would lie without an accounting for that reason also. See Myers v. Winn (1854), 16 Ill. 135; and Boyd v. Schnell, (abstract only, 1917), 209 Ill.App. 187, where an action at law without accounting was allowed to members of single venture partnerships.

Another consideration supporting the allowance of the third party suit is the policy behind Section 25 of the Civil Practice Act (Ill. Rev. Stat., ch. 110) dealing with third party proceedings, which is the avoidanee of a wastefully inefficient multiplicity of suits. Reynolds v. Illinois Bell Tel. Co. (1964), 51 Ill.App.2d 334, 201 N.E.2d 322; Embree v. Gormley (1964), 49 Ill.App.2d 85, 199 N.E.2d 250.

We therefore do not conclude that the court erred in denying the motion for judgment notwithstanding the verdict with regard to Schroeder s third-party complaint for the reason that the partnership accounts are not settled and a balance struck.

Appellant also argues that there is no common law right of indemnification by one partner against another partner for loss or injury resulting from the act or omission of a partner acting in the ordinary course of business of the partnership. Appellee Schroeder adopted the brief of appellee Marcus, which is not responsive to the issue, raised by appellant. Such a failure to meet and answer the grounds for reversal urged by appellant would alone be sufficient for reversal. (Stubbs v. Austin (1936), 285 Ill.App. 535, 2 N.E.2d 358. See also Illinois Bell Telephone Co. v. Miner (1956), 11 Ill.App.2d 44, 137 N.E.2d 1; In re Estate of Pruett (1971), 133 Ill.App.2d 499, 269 N.E.2d 356; Ill. Rev. Stat., ch. 110A, § 341(f).) However, since there is very little authority on the issue raised by appellant, we wiU consider the question. Section 13 of the Uniform Partnership Act (Ill. Rev. Stat., ch. 106½) provides that:

“Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, or with the authority of his co-partners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor the same extent as the partner so acting or omitting to act.”

Section 15 of the Act further provides that “All partners are liable (a) jointly and severally for everything chargeable to the partnership under Section 13 * * *.” In light of our holding that Schroeder and Green were partners and that Green was subject to liability under the Structural Work Act as an owner in charge of the work, the effect of Sections 13 and 15 is to render Schroeder jointly liable under the Structural Work Act.

GeneraUy, partnership losses occasioned by the conduct or poor judgment of one partner wUI be borne by the partnership in the absence of fraud, culpable negligence, or bad faith. (Snell v. DeLand (1891), 136 Ill. 533, 27 N.E. 183; Crane and Bromberg on Partnership 395 (1968); I.L.P. Partnership § 80.) This rule is also reflected in Section 18 of the Partnership Act (Ill. Rev. Stat., ch. 106%), which provides:

“The rights and duties of the partners in relation to the partnership shall be determined, subject to any agreement between them, by the foUowing rules:
(a) Each partner * * * must contribute towards the losses, whether of capital or otherwise, sustained by the partnership according to his share in the profits.”

There is no indication in the record that Green’s conduct as an owner in charge of the work was fraudulent, culpably negligent, or in bad faith. Furthermore, the injury which occurred could reasonably be anticipated in the construction business. Absent an express agreement of indemnification, we will not shift the liability for losses from risks which are inherent in the partnership business.

Accordingly, the judgment in favor of Schroeder on the third-party complaint is reversed.

Affirmed in part; reversed in part.

JONES and CREES, JJ., concur.


author: Mr. JUSTICE CREBS

text:
    Bank of Illinois in Mt. Vernon, Plaintiff-Appellant, v. Bank of Illinois in Mt. Vernon, as Trustee, et al., Defendants—(Keith Tittle et al., Defendants-Appellees.)
    (No. 72-151;
    Fifth District —
    August 14, 1973.
    Glenn E. Moore, of Craig & Craig, of Mt. Vernon, for appellant.
    N. Y. Dowell, of Dowell & Dowell, of Mt. Vernon, for appellees.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

On January 27, 1969, Mt. Vernon Management Co. conveyed the property involved here to the Bank of Illinois in Mt. Vernon, as trustee, and on the same date entered into a trust agreement with the bank. The deed and the agreement were in the standard forms used for creating an Illinois land trust. The trust agreement provided that Mt. Vernon Management Co. was the owner of the full beneficial interest. The deed into trust was recorded February 7, 1969.

On March 27, 1969, the. Management Co. and J. R. Lamberson, its president, borrowed $8,000 from the bank and signed a note in that amount as evidence of the loan. The Management Co., by written direction, directed the bank, as trustee under the land trust, to execute and deliver a mortgage of the property to secure the note. This was done. The mortgage was recorded April 1, 1969.

Subsequently, on June 5, 1969, Mt. Vernon Management Co. sold the property to Keith Tittle and Joyce Tittle. The Management Co., instead of having the bank, who held the title as trustee, convey the property to the Tittles, executed and delivered to the Tittles a warranty deed. It was recorded June 5, 1969. The Tittles obtained a loan from the Mt. Vernon Loan and Building Association and to secure the loan, executed and delivered a mortgage of the property to the Loan and Building Association. This mortgage was recorded June 5, 1969.

The Management Co. and J. R. Lamberson being in default in payment of their $8,000 on loan, the bank commenced this proceeding to foreclose its mortgage. The Tittles were joined as defendants in order to bar their right to redeem the property from a foreclosure sale.

The Tittles first filed an answer to the foreclosure complaint. In it they set up the transaction whereby they obtained the deed to the property from the Mt. Vernon Management Co. and their loan from and mortgage to the Mt. Vernon Loan and Building Association. They also said in their answer that they did not know of the mortgage to the Bank and that the officers of Mt. Vernon Management Co. failed, neglected or refused to inform them of it.

Later they filed a motion to dismiss the complaint. The motion was granted and the bank obtained leave and filed an amended complaint. The Tittles filed their motion to dismiss the amended complaint. The motion was granted and judgment entered for the Tittles. This appeal is from that judgment.

The question presented is whether the Bank of Illinois in Mt. Vernon is able to maintain a suit against the Bank of Illinois in Mt. Vernon acting as trustee.

Appellants argue that the corporation is acting in two legal capacities and should therefore be considered to be two separate legal entities. They maintain that a fiduciary acting in his representative capacity is a different person for judicial purposes from the same person in his individual capacity, citing 89 C.J.S. 715, Trusts, sec. 3. They also refer to the case of Cleveland v. Cleveland, 225 Ill. 570, where in a suit by Harry L. Cleveland executor against Phoebe A. Cleveland the Illinois Supreme Court said: “Harry L. Cleveland in his individual capacity as an heir was not a party to that suit. In his individual capacity Harry L. Cleveland is as much a stranger to that record as if he bore a different name and had no interest whatever in the subject matter of the litigation. The right to appeal is statutory, and no one is authorized to prosecute an appeal who is not a party to the suit.” However we find that we do not have to pass on the question of whether or not the bank and the bank trust department are separate entities and we make no ruling on that point.

The rights of the appellees, Keith and Joyce Tittle, are no greater than the rights of Mt. Vernon Management Co. from whom they obtained their title.

Under the trust agreement the trustee had the power to mortgage the property but only upon the direction of the beneficiary. According to the terms of this land trust the trustee held both the equitable and legal titles. The real power, the power to direct the trustee, was vested in the beneficiary. The trustee could act only if told to do so by the beneficiary.

In this case the trustee executed the mortgage not only with the full knowledge of the beneficiary, but upon the latter’s orders.

Under the circumstances here shown, it would be fundamentally unfair to allow Mt. Vernon Management Co. to direct the trustee to obtain the mortgage, obtain the proceeds thereof, and then escape payment because the trustee had followed its directions.

The further contention that the bank cannot recover because of self-dealing is not valid in this case because the acts were specifically authorized by the beneficiary. Morris v. The Broadview, 328 Ill.App. 267.

We hold that the Bank of Illinois in Mt. Vernon may maintain the suit.

Reversed and remanded with directions.

EBERSPACHER, P. J., and JONES, J., concur.


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
      In re Estate of Everett Lamont, Incompetent—(Virginia D. White, Conservator, Petitioner-Appellee, v. Lyda Holliday et al., Respondents-Appellants.)
    (No. 72-281;
    Fifth District —
    August 17, 1973.
    Don Johnson, of Hohlt, House, DeMoss & Johnson, of Pinckneyville, for appellants.
    R. N. Gandy, of Peek and Gandy, of Du Quoin, for appellee.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Cross-petitioners Lyda and Roy Holliday appeal from the appointment of petitioner Virginia White as conservator of the person and estate of Everett Lamont, incompetent. No objection was made to the adjudication of incompetency. Appellants contend that the court abused its discretion in appointing a Mrs. White, his deceased wife’s niece as conservator rather than the nominee of the incompetent’s closest but out-of-state relatives; and that the court abused its discretion in appointing as conservator a person whose own pecuniary interest allegedly conflicted with those of the incompetent.

Appellants characterize Mrs. White as a “stranger” and contend that the legislative policy of Illinois is to give preference to relatives, or their nominee, in the appointment of a conservator, citing Rathbun v. Rimmerman (2nd Dist. 1955), 6 Ill.App.2d 101, 126 N.E.2d 856. In Rathbun, resident relatives of the incompetent sought to have one of themselves appointed conservator over the petition of the public administrator. We observe that here the relatives are not Illinois residents, but instead live in the state of Washington, and the opposing petitioner is a niece-by-marriage rather than a public administrator. The Appellate Court ruled in favor of the cousins in Rathbun, stating:

* * Krome v. Halbert, 263 Ill. 172, held that the established policy in this State is to give preference in the appointment of an administrator to a relative. The reasons for giving preference to relatives when an administrator is. appointed are applicable upon the appointment of a conservator for an incompetent.
We concur in the conclusion arrived at by the circuit court that in the absence of any valid objections to the qualifications of Fred H. Rathbun, who is a first cousin and next of kin of the incompetent who expressed a preference, he should be named conservator rather than a stranger." 6 Ill.App.2d at 107-108.

Rathbun is distinguishable from the present case in that there the relatives were residents and the opposing petition was that of the public administrator, while here the relatives are non-Illinois residents seeking to appoint a public administrator rather than a niece by marriage. Both Kromé and Rathbun involved resident relatives. In Krome v. Halbert, 263 Ill. 172, the court stated at 178:

"For nearly a century it has been the legislative policy of this State to give a preference to the surviving husband, widow or near relative to administer upon the estate of an intestate, and this regardless of whether or not the deceased was a resident of this State. It has, however, also been the policy for years to require that the relatives, in order to be entitled to administer, must be residents of the State.”

We need not decide whether relatives must be Illinois residents in order to have preference in nominating a conservator. The legislative preference cited in Krome is now codified. (Ill. Rev. Stat. 1971, ch. 3, par. 96). It lists preferences for administrators of decedents’ estates. However, Article X of the Probate Act (Ill. Rev. Stat. 1971, ch. 3, pars. 112 — 130) governs the appointment of conservators for incompetents. This Article does not list preferences for appointment. Nor does it incorporate the preference listed for administrators. It does provide in Section 120 (Ill. Rev. Stat. 1971, ch. 3, par. 120) that:

“A non-resident of this state may be appointed as conservator of the person of an incompetent person but not as conservator of his estate.”

We do not read this as expressing a legislative policy that a non-resident’s nominee has preference in the appointment of a conservator for an incompetent. We distinguish Krome as applying to resident relatives and the appointment of administrators. We distinguish Rathbun as applying to resident relatives, and disapprove of its extension of administrator’s preferences to the appointment of conservators.

Mrs. White had known the incompetent and his deceased wife for over forty-nine years, and visited them frequently. The record shows that the incompetent had asked her to help him with his financial affairs, had executed a power of attorney naming her to act for him, and had opened joint checking accounts in both his and her name. By contrast, appellants live in the state of Washington, had visited the incompetent only once in many years, and did not write very often. The court’s appointment of Mrs. White under these circumstances was an exercise of discretion which we find proper.

Appellants also contend that the court abused its discretion by appointing a person whose own pecuniary interest might conflict with those of the incompetent It is fundamental that a conservator must be free from any interest which might impair or prevent the proper assertion and protection of the rights of an incompetent. Here the appellant indicated only a suspicion of possible conflicts, and testified, “I made no allegation that anything was missing. I said there was a possibility. I am not making any allegation.”

In a similar situation, the court in Proehl v. Leadley, 86 Ill.App.2d 472, 230 N.E.2d 516, stated:

“# « # Appellant’s argument that an adverse interest exists is anticipatory and premature and is based on the hypothesis that Leadley might have a personal interest in upholding the sale or in asserting his rights as trustee. In an appropriate proceeding where such issues were presented for adjudication it is possible an adverse interest might be found. However from the state of the record before us there is no evidence of an adverse interest, fraudulent conduct or bad faith from which it may be concluded that the trial court abused its discretion.” 86 Ill.App.2d at 479.

We find the above reasoning applicable to this case, and hold that the court below did not abuse its discretion.

The judgment of the Circuit Court of Perry County is affirmed.

Judgment affirmed.

JONES and CREBS, JJ., concur.


author: Mr. JUSTICE CREES

text:
      In re Estate of Clyde R. Lindsey, Deceased—(Clydene Taylor et al., Ex’rs, Appellees, v. Wava Taylor et al., Appellants.)
    (No. 72-318;
    Fifth District —
    August 17, 1973.
    Robert J. Neely, of Metropolis, for appellants.
    Louis G. Horman, of Metropolis, for appellees.
   Mr. JUSTICE CREES

delivered the opinion of the court:

This is an appeal by some of the heirs and devisees of Clyde R. Lindsey from the order of the Circuit Court of Massac County approving the final report of the co-executors. It is the contention of the appeHants that six items, which were included in the residuary estate, should have been distributed to the specific devisees.

The pertinent provisions of the wiU of Clyde R. Lindsey are as follows:

“Second: I give, devise and bequeath the Egyptian Trail Motel and the Egyptian Trail Restaurant together with the real estate upon which the same are located, * * * together with all equipment, furnishings, and other personal property in or about said Motel and Restaurant and the real estate upon which the same are located, * * * [to his five children].
Third: I give and devise any and all other real estate owned by me at the time of my death, except such real estate as is held in joint tenancy, to my five children, * * *.
Fourth: I give, devise and bequeath all the remainder of my property of whatsoever sort, whether real, personal, or mixed, and wheresoever situated, of which I may die seized, possessed, or to which I may be entitled at the time of my death, to my beloved wife, Elizabeth Lindsey, if she survives me ° ° *.
Sixth: I direct that my Executors pay all my debts, claims against my estate, costs and expenses of the administration of my estate, and taxes of every sort, including Illinois Inheritance Taxes and Federal Estate Tax on my estate, from property other than that described in paragraphs Second and Third hereof.”

The executors operated the motel business for a period of time under court order and made a net profit of $10,282.26. This was distributed as part of the residue instead of being treated as part of the specific devise under the second paragraph of the will. This was error. The gift of the land, building, and furnishing carries with it the right to the net income therefrom.

At the time of Mr. Lindsey’s death he had a separate bank account for the motel business with a balance of $2,917.94 which was also distributed as part of the residue and is here claimed to have passed under the second paragraph as part of the motel. However we find that under the “ejusdem generis” rule the bank account is not covered by the phrase “and other personal property in or about said Motel.” Equipment and furnishings constitute tangible items and giving meaning to the phrase “in or about” we find that the testator did not intend for this language to cover money on deposit in a bank account. Strickland v. Strickland, 271 Ill. 614.

A third item in dispute was $230 rental received for property on Sixth- Street which was disposed of under item Third of the will. Since this real estate went to the children, they were entitled to the rent on this property and it was error to distribute this amount as part of the residue. The same reasoning applies to the rental of the restaurant property. It should go with the ownership of the building and not as part of the residue.

The will here in question was executed September 4, 1970. On September 18, 1970 Clyde Lindsey signed a contract for deed on certain real estate. After his death on September 25, 1970 his executors received payment of the balance due under said contract of $630. AppeUants contend that item Third of the will is a specific devise. We do not agree. Considered in connection with item Second, we find that the devise in item Third is a general devise. Finding nothing in the will to indicate a contrary intention, under the doctrine of equitable conversion after the decedent entered into the contract for deed this property would be considered as personal estate and the balance due was properly distributed as residue. In re Estate of McDonough, 113 Ill.App.2d 437, 251 N.E.2d 405.

The last item in dispute is “10/22/71 Rebate on motel insurance $162.” In appeUants’ brief this is referred to as a rebate upon canceUation of a fire insurance premium upon decedent’s restaurant building. However nothing in the record identifies this item further than the quoted phrase. With no more factual basis than this, we cannot say that the trial court committed error in distributing this amount as part of the residue.

Reversed in part and remanded for entry of an order in accordance with this opinion.

G. MORAN, P. J., and JONES, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harold Edgar Halley, Defendant-Appellant.
    (No. 73-16;
    Fifth District —
    August 20, 1973.

      Dick H. Mudge, Jr., of Edwardsville, (Paul David Kelley, of counsel,) for appellant.
    W. C. Spomer, State’s Attorney, of Cairo, (William F. Meehan and Ralph J. Mendelsohn, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

In a jury trial in the Circuit Court of Alexander County, defendant, Harold Edgar Halley, was convicted of murder and unlawful use of weapons for which he received concurrent sentences to the penitentiary of not less than 18 years nor more than 45 years for murder and one year for unlawful use of weapons. The main thrust of this appeal is that defendant acted in self-defense and was not proven guilty beyond a reasonable doubt.

The incident occurred at about 3:45 A.M. on May 4, 1972, in a tavern owned by the decedent, Mearl Chamness, and located on the outskirts of Cairo. Other than defendant the only eyewitness was the wife of the decedent, Marlene Chamness. Previously she had been married to defendant for sixteen years, had divorced him in September, 1969, and had married decedent on April 27, 1972. The argument precipitating the shooting involved the children of defendant and Mrs. Chamness, two boys 12 and 16 years of age.

Mrs. Chamness, .testifying first as a witness for the State and then as the Court’s witness, stated that for some time prior to her marriage she had lived with the decedent in his apartment above the tavern; that though she had been awarded custody of the children she was reluctant to have them live with her as the only entrance to the apartment was through the tavern. She did visit them occasionally as defendant’s trailer home, but her husband objected to this and finally forbid her to continue the practice. On the night of the shooting defendant had come to the tavern to talk over the problem with her and her husband. She had had a conversation with defendant earlier in the evening, and' then he had waited until closing time, about 3:15 A.M., to talk with her husband. When everyone had left the tavern the three of them sat at the bar and talked until 3:45 or 4:00 o’clock. Suddenly, she said, the decedent moved about eight feet towards the bar cooler where he kept his gun, grabbed it, and turned around and shot twice at defendant. She immediately ran to an adjacent hallway and did not see defendant return the fire, but she did hear several shots. When she returned defendant was seated in the same place he had been; his gun was on the bar, and her husband was lying immobile on the floor behind the bar. Defendant told her to call the sheriff, but when she was unable to complete the call defendant himself called. Two deputies arrived about 30 or 45 minutes later. She also testified that in her opinion her husband was intoxicated.

The defendant testified that he had offered to keep the children until his former wife and the decedent found suitable living quarters; that the decedent refused to allow Mrs. Chamness to visit his trailer so defendant suggested that both of them could come and he would leave while they were there, but decedent refused to accept this arrangement. About two days prior to the shooting, when defendant brought the boys to the tavern and asked their mother to take them to the dentist for a previously set appointment, he said the decedent became obnoxious for the first time and said, “All I can tell you is to get heeled.” Then, on the night in question, defendant said he went to the tavern to discuss the problem again because the youngest boy thought his mother had left him. Decedent asked him to wait until closing time. When everyone had left they started to talk, but again the decedent insisted that under no circumstances would he permit his wife to visit defendant’s trailer. Finally, defendant asked to be let out of the tavern (the door having been previously locked at closing) and as the decedent got up and started to move from his seat behind the bar he, the decedent, grabbed a gun and “turned in a sidewise fashion and shot at me directly.” Defendant jumped off his bar stool, ducked down and fired three shots at decedent. Decedent then seemed to stoop down or stumble, but when defendant saw decedent’s gun hand come up above the bar again he shot twice more. Defendant said he shot only in self defense, stating, “That when a man shoots at you point blank he has full intention of- killing you.”

The State presented a number of witnesses. The two deputy sheriffs who responded to defendant’s call testified that when they arrived Mrs. Chamness informed them that her husband had started it, not defendant, and the “* a * no-good son of a bitch got what he deserved.” The defendant told them that “° * * the man pulled down on me and took a couple of shots at me and I had to defend myself.” Defendant pointed out his gun to them and they found that it had five spent cartridges. Decedent’s gun was recovered near his body behind the bar and it had two spent and four live cartridges. On cross examination it was brought out that neither officer had mentioned Mrs. Chamness’ alleged remarks about her husband getting what he deserved either at the coroner’s inquest or in their statements to the state’s attorneys’ office on the day of the incident.

The bartender, who had left the tavern at about 3:15 A.M. and had locked up, testified that about two weeks previously he had overheard defendant say that he was going to get decedent, and that on the night of the shooting he had seen defendant hold a gun on decedent, but that he could not hear what was said. On cross-examination he admitted that when he was interviewed by the state’s attorneys’ office on the day of the shooting he had not mentioned this latter incident. Two other witnesses also stated that about two weeks prior to the shooting they had heard defendant say he was going to kill decedent. However, prior to the day of trial neither of them had reported such threats, not even to the decedent or his wife.

State crime laboratory technicians testified that the bullet causing the death came from defendant’s gun and that five spent cartridges also came from his gun. Two bullets, one recovered from the ceiling and one from the wall across the room from the bar, were identified as coming from decedent’s gun. The physician who performed the autopsy stated that decedent was hit with three bullets and that he was killed by the one that entered in from the front, under the left arm area, and went towards the back slightly, exiting under the right arm area. Another witness testified that blood tests showed that decedent’s blood contained only .03 per cent alcohol and that he was not intoxicated.

In support of defendant’s conviction the State cites a number of general principles with which we agree. The issue of self defense, is a question of fact for a jury under proper instructions, and a jury’s decision on that issue will not be disturbed, unless the evidence is so unreasonable, improbable or unsatisfactory as to suggest a reasonable doubt. (People v. Sustak, 15 Ill.2d 115.) Where evidence is in part circumstantial a conclusion that defendant is guilty beyond a reasonable doubt need not follow necessarily from the proven circumstances, but may be obtained therefrom by probable deductions. (People v. Kelley, 29 Ill.2d 53.) A jury is not required to accept a defendant’s account of the events as conclusive but may consider surrounding circumstances and the probability or improbability of the matters testified to by the defendant. People v. Watts, 101 Ill.App.2d 36.

These principles must, of course, be applied to the facts of the individual case under consideration, and always with the overriding principle in mind that once the affirmative defense of self defense is interposed, the burden of proving guilt beyond a reasonable doubt as to that issue, as well as all other necessary elements of the offense, is placed on the State. (People v. Graham, 2 Ill.App.3d 1022.) As stated in People v. Dillard, 5 Ill.App.3d 896, the burden of proof never shifts to the defendant, and, where he pleads self defense, it is sufficient to acquit him, if his evidence, together with all other evidence in the case, creates a reasonable doubt of guilt.

In the case before us the only element of justifiable self defense at issue is whether decedent or defendant was the aggressor, and it is this issue that the State was obligated to prove beyond a reasonable doubt.

To sustain this burden the State has cited the general principles above mentioned and argues that the improbabilities of defense testimony, and the surrounding circumstances, all lead to the reasonable conclusion that defendant was the aggressor and that his act constituted murder. It is contended that the only eye witness to the “murder” was defendant, as Mrs. Chamness did not see defendant fire his gun. But this ignores the very crux of the question, for Mrs. Chamness did testify that she saw decedent fire twice at defendant without any apparent provocation and then, only after she ran to the hallway, did she hear defendant’s return shots. If this is true then defendant had a right to use a deadly weapon in self defense with intent to kill and yet not be guilty of murder. (People v. Taylor, 3 Ill.App.3d 734). Her credibility is questioned because she stated that decedent had been drinking heavily for several days and was intoxicated, whereas subsequent blood tests showed him to be sober. However, it appears to us that this discrepancy has little, if any, probative value and the State has failed to point out any. Attention is called to the fact that one of decedent’s bullets entered the ceiling at an angle indicating that he was in a position different from that testified to by defendant and Mrs. Chamness, but no mention is made of the other bullet which entered the wall directly back of defendant. Also, a reasonably probable explanation of this fact was offered by defendant when he stated that decedent’s gun jerked upward after the first shot. Much is made of the contention that decedent was shot in the back, but even that is questionable for the physical evidence establishes that the bullets entered and exited from the sides of decedent’s body; and the shot that killed him entered from the front, under the left arm area and went towards the back slightly, exiting under the right aim area. It is stated further that neither the defendant nor Mrs. Chamness attempted to help decedent after he was shot, but there is no evidence that any assistance would have been helpful; and they did call the sheriff’s office immediately. Finally, the State cites the “threats” which defendant allegedly made on decedent’s life approximately two weeks prior to the killing and the bartender’s testimony that he had seen defendant pull a gun on decedent sometime earlier in the evening. Such incidents may or may not have occurred, but they were never mentioned to anyone prior to the day of trial even though each witness had previously been interviewed by the State. In any event, in view of all the circumstances they too have little probative value on the question of who was the first to resort to violence and start shooting.

In effect, the State’s case rests almost entirely upon suspicion, conjecture and supposition. The only direct evidence of the shooting consists of the testimony of defendant and the other eye witness which in itself is not improbable, nor uncorroborated, nor contradicted in its material parts. In like circumstances, and with similar contentions made by the State, the court in People v. Jordan, 4 Ill.2d 155, commented as follows:

“To support the judgment of conviction in this case, defendant in error argues that where defendant is the only person to testify for the purpose of establishing self defense, the jury is not compelled to accept defendant’s statements but may consider the probability or improbability thereof, and the surrounding circumstances; and further that the reviewing court will not substitute its judgment for that of a jury because the testimony is conflicting unless, from a consideration of all the evidence, there is reasonable doubt of defendant’s guilt.
Implicit in the first part of the foregoing statement is that there is evidence in the record supporting a conclusion that the blow was unlawfully struck, or in other words, that there is a conflict in the evidence, or that there are at least two variations from which to choose, one of which could support a verdict of guilty. This is entirely wanting in this case. Here we have only one version of what occurred when the two men met. It is the version of defendant, and if it is not improbable, nor uncorroborated, nor contradicted in its material parts, then the jury may not disregard or reject it, and if the jury, as in this case, does reject it, then such action must be regarded as the result of passion or prejudice of the jury. The rejection of defendant’s testimony by the jury still does not have the effect of supplying proof of defendant’s guilt beyond a reasonable doubt sufficient to sustain the conviction of defendant.”

We agree with this reasoning and find that the State’s proof here is so unsatisfactory as to leave a grave and substantial doubt of defendant’s guilt. Accordingly, the judgment of the Circuit Court of Alexander County finding defendant guilty of murder and unlawful use of weapons is reversed.

G. MORAN, P. J., and JONES, J., concur.


author: Mr. JUSTICE ABRAHAMSON

text:
    Mark Hagen, d/b/a Hagen Excavating, Plaintiff-Appellee—(Shirley Hagen, Intervenor-Appellee), v. Ruby Construction Company, Inc., Defendant-Appellant.
    (No. 72-294;
    Second District —
    August 8, 1973.

      Supplemental opinion upon rehearing filed September 27, 1973.

    Richard Weinberger, of Chicago, for appellant.
    Mirabella, Facktor, Mirabella, & Kincaid, of Wheaton, for appellees.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The defendant Ruby Construction Company, Inc. brings this appeal from a finding by the circuit court of Du Page County in favor of the plaintiff and an intervenor and against the defendant on its counterclaim and the judgment entered thereon.

The action was commenced on June 22, 1971 when Mark Hagen, individually and doing business as Hagen Excavating, brought a complaint against Ruby, the State of Illinois School Building Commission and Lace Marion Common School District No. 61 “to foreclose a lien against public funds.” Count I of the complaint alleged that Ruby was a general contractor and had entered into a contract with the Illinois School Building Commission to construct the Lace Marion Common School in Westmont. It further alleged that Hagen was an excavator and had furnished labor and materials in connection with the construction of the School and was owed a balance of $18,159.43 and had served a notice of a claim for lien on public funds. Count I contained no prayer for relief except as may be inferred from the title of the complaint.

Count II alleged that Hagen had entered into a sub-contract with Ruby to furnish the labor and materials for the school and that he did everything required to be done by him until prevented by the wrongful acts of Ruby and that Ruby was indebted to him for $18,159.43 and prayed for judgment in that amount.

Ruby answered the complaint and admitted that Hagen did certain excavating work required by Ruby’s contract to construct the school but alleged that Hagen’s work was done so poorly that it was necessary to take over the work to complete it and that its damages exceeded any amounts due the plaintiff. Ruby also filed a counterclaim wherein they alleged that Hagen failed to furnish the necessary equipment and manpower to complete his sub-contract and that he was, in accordance with the provisions of that agreement, discharged after due notice was served upon him. The counterclaim further alleged that it was necessary for Ruby to complete a portion of the excavating themselves and to employ another sub-contractor and that as a result they were damaged in the sum of $34,000 and asked for judgment against Hagen in that amount.

Ruby noticed Hagen to appear for a discovery deposition and to produce certain documents on August 6, 1971 but he failed to appear at the designated time and place. A rule was entered on the plaintiff, pursuant to Supreme Court Rule 219, to appear for the deposition in a specified courtroom on September 2, 1971. On September 1, the then attorney for the plaintiff was permitted to withdraw as his counsel and Hagen was given 20 days to obtain new counsel. The deposition was continued until such time as a new attorney would be obtained. After the expiration of the 20 days, the defendant again noticed the plaintiff for sanctions under Rule 219 and for an order of default for failure to answer the counterclaim. Hagen did not respond to that notice, did not obtain new counsel, did not answer the counterclaim, did not appear for a deposition and took no further action in the lawsuit.

On September 30, 1971, however, Shirley Hagen appeared and filed a “Motion To Intervene.” In that motion, brought pursuant to Section 26.1 of the Civil Practice Act or so it alleged, Shirley Hagen stated that she had been divorced from Mark Hagen on February 26, 1971 and that under the terms of the divorce decree she had a vested interest in the proceeds of the litigation and was fearful that it would be dismissed unless she were allowed to intervene. The motion asked that she be permitted to intervene “* ” * as an additional party-plaintiff for purpose of prosecuting this action.” The trial court permitted Shirley Hagen to intervene, over objection, and she was ordered to file her pleading and answer to the counterclaim. On October 14, Shirley Hagen filed an answer to the counterclaim where she denied the allegations contained therein but no other pleadings.

The School Building Commission and the School District were subsequently dismissed from the suit and the matter set for trial on June 7, 1972. On that day, the defendant renewed his motion for sanctions under the Rule 219 and for an order of default against Mark Hagen for failure to answer the counterclaim. Although the trial court indicated that it did not know how it could deny the motion, the matter proceeded to trial, without a jury and without Mark Hagen. At the conclusion of the evidence, the court found in favor of the plaintiff on the complaint and against the defendant on the counterclaim and entered judgment in the amount of $6,000 in favor of Shirley Hagen and $6,000 in favor of Mark Hagen with the further provision that Mark Hagen’s money be deposited with the county treasurer until further order of court on the representation that he was in arrears in child support payments.

On June 19 (after the trial) Shirley Hagen was allowed, again over objection, to file an “Amended Motion to Intervene” wherein she again alleged the provisions of the divorce decree and asked that she be permitted to adopt the complaint filed by Mark Hagen as her pleading.

Section 26.1(1) of the Civil Practice Act provides that upon timely application that anyone shall be permitted as a matter of right to intervene in an action in certain situations including “* ° * (b) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by a judgment, decree or order in the action.” Paragraph (2) provides that a person may be permitted to intervene, at the discretion of the courts in some sitúations including “* * * (b) when an applicant’s claim or defense and the main action have a question of law or fact in common.” Ill. Rev. Stat. 1971, ch. 110, sec. 26.1(1) (b) and (2)(b).

There is nothing in the original complaint, adopted by Shirley Hagen as her own pleading, to indicate that she had any interest, claim or defense to the matters in controversy. The “motion” to intervene states that she had a “vested” right as a result of the divorce decree and it is apparent that the trial court considered the decree as assigning at least a 50% interest in the claim to her. If, in fact, Mark Hagen had assigned an interest in his claim against Ruby to his former wife, her claim of right to prosecute the suit might be valid. However, it does not appear anywhere in the record before us that such an assignment was made and a reading of the divorce decree refutes the contention that such an assignment was intended. The decree provides, inter alia, as follows:

“IT IS FURTHER ORDERED that the claim of Hagen Excavating Company against Ruby Construction Company, or any other party to said claim, will be conditioned in that it will be conducted exclusively by the Defendant, by and through his legal representative, and that if this claim is settled, or if a lawsuit is filed and said suit goes to judgment, the Plaintiff is entitled to Fifty percent (50%) of the net proceeds of any settlement or judgment returned, after deducting all fees, including Attorney’s Fees, and costs in the conducting of said claim or lawsuit, and that Fifty percent (50%) of the net proceeds will be given to the Defendant; that the Defendant will execute an assignment of this Fifty percent (50%) interest to the Plaintiff and the Plaintiff will execute a disclaimer of any proprietary interest in and to the conduct of the claim or lawsuit; the Plaintiff further divests herself of any right, title or interest in and to said claim, other than to the Fifty percent (50%) interest of the net proceeds, if any, realized from this claim. It is further Ordered that if no monies whatsoever are realized, that both the Plaintiff and the Defendant will equally share in the costs of said lawsuit.”

It appears from the record before us that Shirley Hagen had no direct interest or claim in the lawsuit (other than a 50% interest in a judgment, if one should be entered). Ordinarily, intervention is a matter largely left to the discretion of the trial court and will not be disturbed unless a clear abuse of discretion is shown. (Jackson v. Pioletti, 346 Ill.App. 569, 105 N.E.2d 779.) In this instance, it is apparent that the intervention was improper and resulted in, among other things, the anomaly of a judgment entered in favor of a party who failed to answer a claim against him, comply with orders of court or personaHy appear at any time during the litigation.

For the reasons stated the judgment must be reversed and the cause remanded for further proceedings. In view of our decision, we will not consider the other matters raised by the defendant.

Reversed and remanded.

GUILD, P. J., and T. MORAN, J., concur.

SUPPLEMENTAL OPINION

In the original opinion we reversed and remanded this case. Upon consideration of the petition for rehearing filed by the intervenorappeHee, Shirley Hagen, we rule that this case should not be remanded and that both judgments of the lower court are reversed.