author: MR. JUSTICE DAVIS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lewis Clinton Billingsley, a/k/a Lew Billingsley, Defendant-Appellant.
    Gen. No. 65-61-M.
    Second District.
    February 1, 1966.

      John D. Vosnos, of Chicago, for appellant.
    Bruno W. Stanczak, State’s Attorney, and Jack Hoogasian, Assistant State’s Attorney, both of Waukegan, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal from a judgment entered on the verdict of the jury, finding the defendant, Lewis Billingsley, guilty of deceptive practices under section 17-1 (d) of the Criminal Code (Ill Rev Stats 1963, c 38, par 17-1 (d)). The defendant was sentenced to six months at the Illinois State Farm at Vandalia and fined $500.

The charge was based upon a check signed by the defendant and given to William Bicket on November 4, 1964. The check was in the sum of $3,445.58, the amount of the defendant’s delinquent telephone bill. Bicket held this check and, on the same day, issued his check to the telephone company in payment of the bill, which had to be paid on this date to prevent defendant’s telephone services from being disconnected.

In May of 1964, the defendant met Bicket, who was president of Bicket Enterprises, Inc., comprised of four retail stores, one being a drug store in which he operated a currency exchange. Bicket was acquainted with Mrs. Friend, a business associate of the defendant and had, in essence, extended credit to defendant and Mrs. Friend in a series of twelve or more transactions between May and November in 1964. On these occasions, they represented to Bicket that they needed immediate cash for various purposes. Bicket would then give them his check, which was good, for the sum requested, and take their check in return, which would supposedly be good in the near future. By September 28, 1965, defendant and his associate owed Bicket $17,500 to $24,000 in that apparently a number of their checks had been returned N. S. F.

The defendant testified that he told Bicket that he didn’t have the money to pay his telephone bill, but would have the money in a few days; that this conversation took place on the day before he gave Bicket the check in question; that Bicket then stated that he handled telephone bills at the currency exchange and the telephone company would take his check; that defendant then arranged to give Bicket his check, in the amount of the telephone bill, to hold until it could be made good; and that Bicket agreed to issue his own check in payment of the defendant’s bill. According to the defendant, his check was to be held as a note, similar to their prior transactions.

The testimony of Bicket was not as clear or precise as that of the defendant relative to the time of the various conversations and their substance, but a fair inference therefrom is that he was not aware that the defendant did not have funds in the bank to cover his check until after he received the defendant’s check, and the telephone company had notified him that it was not good. However, he was aware of this fact prior to submitting his check to the telephone company in payment of the defendant’s bill.

Bicket also testified that he never tried to cash defendant’s check; and that he took cash, or checks made payable to the telephone company, and not to himself, in payment of other persons telephone bills. Bicket’s transaction was unique in regard to the handling of defendant’s telephone bill, and he did the same thing again in the latter part of November 1964, in payment of another of defendant’s telephone bills in the sum of approximately $3,800. When called in rebuttal by the State, Bicket was not asked to clarify his testimony as to when he was made aware of the fact that there were not sufficient funds in the bank to cover defendant’s check.

The defendant’s principal contention is that section 17-1 (d) of the Criminal Code, which provides that:

“A person commits a deceptive practice when: With intent to obtain control over property or to pay for property, labor or services of another, he issues or delivers a check or other order upon a real or fictitious depository for the payment of money, knowing that it will not be paid by the depository. Failure to have sufficient funds or credit with the depository when the check or other order is issued or delivered is prima facie evidence that the offender, knows that it will not be paid by the depository; ” (Ill Rev Stats 1963, c 38, par 17-1 (d)),

is a codification of the law as it existed at the time of the enactment of the Criminal Code. He contends that in order for a criminal offense to occur, a person must issue a check to. another, among other things, “with an intent to defraud”; and that the complaint against him was fatally defective in failing to allege that he intended to defraud Bicket in issuing his check and obtaining over $3,445.58 of Bicket’s money. The defendant further contends that the jury was grossly misled by the instructions which contained no reference to the various elements of the offense charged, including the intent to defraud.

The statute quoted above makes no reference to an “intent to defraud.” It requires only that a person, with an intent to obtain control over property, issue or deliver a check for the payment of money knowing that it will not be paid by the depository. If taken literally, this could be read to mean that a person has committed a criminal offense, who, when issuing his check in return for funds advanced to him, knows that his depository cannot then honor it, and so advises the person to whom the check is issued, and asks him to take and hold it until a specified future date, at which time the check will be good. The statute, so construed, would thus convert the use of a check as a “note,” or the creation of a debtor-creditor relationship in such manner, into a criminal offense. Interpreted thusly, the statute would impose absolute liability.

Section 4-9 of the Criminal Code provides:

“A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in Sections 4-4 through 4-7 if the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500, or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” (Ill Rev Stats 1963, c 38, par 4-9.)

The deceptive practice charged in the complaint carries a possible incarceration of up to one year. Thus section 17-1 (d) of the Criminal Code does not come under the first clause of Section é-9 of the Code. If section 17-1 (d) is to create absolute liability, it must be that “the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” We do not believe that such is the case.

The Committee Comments to section 17-1 state: “Subsection (d) codifies the former section 255 on making bad checks to defraud.” (SH Ill Anno Stat, c 38, sec 17-1.) Such comments are an appropriate and valuable source in determining legislative intent. The People v. Touhy, 31 Ill2d 236, 239, 201 NE2d 425 (1964); Moran v. Bowley, 347 Ill 148, 155, 179 NE 526 (1932).

Former section 255 commenced by providing: “Any person who with intent to defraud shall make or draw or utter or deliver any check . . . .” The Supreme Court in People v. Balalas, 334 Ill 444, 166 NE 47 (1929), in defining the elements necessary to establish a criminal offense under the statute which was a predecessor to section 255 and substantially the same, set forth as the first of the four essential elements of the offense, “an intent to defraud.” We are of the opinion that the legislature did not intend to alter the elements of this offense, at least with reference to “an intent to defraud” in connection with the issuance of a bad check; and that it did not clearly manifest a purpose to impose absolute liability in connection therewith. This view is substantiated by the Committee Comments and the statutory organization and terminology of section 17-1 (d).

The defendant contends that the complaint in this case, couched solely within the framework of the statute, was fatally defective. Section 111-3 (a) of the Criminal Code provides:

“A charge shall be in writing and allege the commission of an offense by:

(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
(3) Setting forth the nature and elements of the offense charged;
(4) Stating the time and place of the offense as definitely as can be done; and
(5) Stating the name of the accused, if known, and if not known, designate the áccused by any name or description by which he can be identified with reasonable certainty.” (Ill Rev Stats 1963, c 38, par 111-3(a).)

Prior to the enactment of this Section, an offense was usually charged either in the language of the statute or by setting forth the facts which constituted the crime. The People v. Barnes, 314 Ill 140, 145, 145 NE 391 (1924); also see Committee Comments, SH Ill Anno Stat chap 38, sec 111-3.

It is adequate to allege the offense in the language of the statute when the statute particularizes the offense sufficiently for the defendant to know the precise offense with which he is charged. The People v. Sims, 393 Ill 238, 241, 66 NE2d 86 (1946). Where, however, the statute does not describe the acts which constitute the crime, or where, by its generality, it may embrace acts which the statute does not intend to punish, a charge solely in the language of the statute is not then sufficient. The People v. Peters, 10 Ill2d 577, 580, 581, 141 NE2d 9, (1957); The People v. Green, 368 Ill 242, 252, 253, 13 NE2d 278 (1938); The People v. Barnes, supra.

Section 111-3 (a) of the Criminal Code now sets forth the requirements in connection with the specification of all criminal charges. It embraces all situations, and compliance therewith satisfies the constitutional requirement that the accused be informed of the nature and cause of the accusation. The complaint against the defendant in this case did not set forth the nature and elements of the offense charged, as required by sub-paragraph (3) of section 111-3(a). In addition, it embraced acts which it was not the intent of the Code to punish. The question before us, when the sufficiency of a charge is challenged, is whether it complies with the express requirements of the statute.

The manner of alleging the commission of an offense is that prescribed in section 111-3(a). It specifies that the charge shall allege the commission of an offense by setting forth the five requirements stated therein. A complaint that does not set forth the nature and elements of the offense charged, fails to state an offense and is subject to dismissal under the provisions of section 1141-1 (a) (8). of the Criminal Code. (Ill Rev Stats 1963, e 38, par 114-1 (a) (8).) Whether the various requirements of section 111-3 (a) are met, must be determined by the substance of the charge and not the technicalities of its language. The People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1965); People v. Petropoulos, 59 Ill App2d 298, 324, 208 NE2d 323 (1st Dist 1965).

We are confronted here with a situation where the defendant at no time challenged the sufficiency of the complaint in the trial court, either by a motion to dismiss or a motion in arrest of judgment. Section 114-1 (b) provides that if a motion to dismiss is not presented within a reasonable time, any grounds therefore, except as to subsections (a)(6) and (a)(8), are waived. Subsection (a) (6) relates to the court not having jurisdiction. Subsection (a) (8) is the section with which we are concerned, and, as indicated above, applies to those cases where “The charge does not state an offense.”

Here, the complaint failed to set forth all of the elements of the offense charged. The State proceeded throughout the trial on the theory that it did not have to prove an intent to defraud. The complaint made no reference to such intent. On a number of occasions, the jury was advised of the language of the complaint, and it was instructed therein. It seems apparent that from the inception of the trial, the jury was given no reason to believe that an intent to defraud was a necessary element of the offense. The failure to charge an offense and the obvious harm to the defendant resulting therefrom, is the kind of defect involved in due process of law and it cannot be waived. Such defect may be attacked at any time, and may be attacked for the first time in this court. The People v. Minto, 318 Ill 293, 296, 149 NE 241 (1925); People v. Petropoulos, supra, 324.

This view is supported by the Committee Comments to section 114-1 (SH Ill Anno Stat c 38, section 114(1)) which state:

“Subsection (a) (8) permits the motion to dismiss where the charge does not state an offense. In accordance with Article III, charge refers to the complaint, indictment or information. Since a charge which does not state an offense does not give defendant a full notice of why he is being tried, and the charge will not support a judgment unless an offense, is stated therein, due process would be violated and may be attacked at any time. (See section 114-1 (b) of this Code; and see generally People v. Clark, 256 Ill 14, 99 NE 866 (1912).) ”

Section 116-2 (Ill Rev Stats 1963, c 38, par 116-2) which allows a motion in arrest of judgment when the “indictment, information or complaint does not state an offense,” and section 114-1 (b) precluding the waiver of such omission, add emphasis to the manifest necessity of setting forth the nature and elements of the offense charged as required by section 111-3 (a) (3). People v. Blanchett, supra.

Under prior law, a complaint or information, unlike an indictment, could be amended by leave of court before or during trial. The People v. Clarke, 407 Ill 353, 95 NE2d 425 (1950); People v. Stringfield, 37 Ill App2d 344, 348, 185 NE2d 381 (1st Dist 1962). Section 111-5 of the Code of Criminal Procedure of 1963 (Ill Rev Stats 1963, c 38, par 111-5) authorizes amendment at anytime because of formal, but not substantive, defects in an indictment, information or complaint. See People v. Hall, 55 Ill App2d 255, 259, 204 NE2d 473 (4th Dist 1964). However, the complaint in the case at bar was defective in a substantive matter in that it did not allege a criminal offense. It was not amended in the trial court and we deem it improper to reverse and remand for that purpose. In view of our determination that the complaint was fatally defective, it is improper to remand the cause for the futility of a new trial (People v. Minto, 318 Ill 293, 296, 149 NE 241 (1925)), and we need not consider the other errors assigned herein. Accordingly, the judgment entered on the verdict of the jury herein is reversed.

Judgment reversed.

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


source: Caselaw Access Project

author: ALLOY, J.

license: Public Domain

text:
    Bernard E. Newton, Plaintiff-Appellee, v. Mamie Lehman, Defendant-Appellant.
    Gen. No. 65-43.
    Third District.
    February 3, 1966.

      Harold C. Lounsberry, of Rock Island, for appellant.
    Stewart R. Winstein, of Rock Island, for appellee.
   ALLOY, J.

The proceeding from which this appeal is taken originated as a Declaratory Judgment action against Mamie Lehman, Defendant, by Bernard E. Newton as Plaintiff, requesting that the Circuit Court of Rock Island County find that the claim of Defendant that she was the wife of Plaintiff by virtue of a purported common-law marriage in Iowa was not true and requesting that the court find the parties to be not legally married. Defendant has never resided in Illinois. Any common-law marriage involved in the proceeding would have been entered into in the State of Iowa on the basis of pleadings filed in the cause.

Defendant, Mamie Lehman, a resident of Iowa when the suit was commenced was served with summons outside of the State of Illinois. Such Defendant entered a special appearance in a motion to quash return of service. The motion was overruled on October 16, 1963, and Defendant was given twenty days within which to plead. No pleading was filed, and on November 20, 1963, the Circuit Court held the defendant to be in default and on December 17, 1963, a decree was entered by the court decreeing that no common-law marriage existed between the parties. Plaintiff notified Defendant’s attorney by mail and by telephone that a hearing would be held on the merits of the Declaratory Judgment action on November 20, 1963. Defendant did not appear on that date and the court entered an order of default. On December 17, 1963, the court entered an order decreeing that there was no common-law marriage between the parties.

On January 8, 1964, Defendant Mamie Lehman filed a verified answer and counterclaim for separate maintenance in which she alleged the parties were husband and wife and that Plaintiff had abandoned their home. In such answer and counterclaim, Defendant asserted that she was Mamie Newton Lehman and that she and plaintiff were husband and wife by virtue of a valid common-law marriage under the laws of the State of Iowa and she prayed for separate maintenance. On January 16, 1964, within 30 days of the entry of the default and the Declaratory Judgment Order, Defendant filed a motion to vacate such orders. The motion alleged that the court had no jurisdiction over the defendant, a nonresident, and likewise had attached thereto and made a part thereof, a copy of the verified petition in equity filed in the District Court of Scott County, Iowa, entitled Bernard E. Newton v. Mamie Newton, in which Bernard E. Newton presumably stated that the parties began living together as husband and wife and that such actions on part of Plaintiff and Defendant constituted a common-law marriage and that the parties recognized the common-law marriage as binding upon each. The motion also asserted that defendant was a nonresident of the State of Illinois and that the failure to answer and defend the suit in Illinois was not the result of negligence on the part of defendant but rather a desire to choose the courts of the state of her residence as a forum. It was asserted that the inconsistent allegations in the State of Iowa and at the hearing in the proceeding in the Illinois Court constituted a fraud upon the court, and that this action has forced defendant to submit to the personal jurisdiction of the Illinois Court. Defendant then alleged that she has a good and meritorious defense to the cause of action and prayed that the court set aside the order for Declaratory Judgment and that the filing of her answer and counterclaim for separate maintenance be approved and that she be granted a trial on the merits in the cause. The motion itself was not verified. The answer and counterclaim for separate maintenance which was filed, were verified.

Plaintiff filed counteraffidavits setting up that notice was given to defendant’s attorney informing him of the date of the trial and also that defendant’s attorney was called the day before the actual default and when requested whether or not he would appear stated that he was not going to appear at the time of the hearing on November 20 at 10:00 a. m. and that the Illinois proceeding would be ignored. It was also asserted that the motion to vacate the order was insufficient in that it contains no verification as required by Section 72 of the Practice Act. The motion was taken under advisement on February 21, 1964, and on March 3, 1965, the court entered an order denying defendant’s motion to vacate the Declaratory Judgment Order. It is from denial of such motion to vacate that defendant now appeals.

In conjunction with the appeal in this cause, Plaintiff has filed a motion to dismiss the appeal, strike the Record on Appeal filed in this court and to strike the abstract of record and the brief of defendant-appellant on the ground that the Record on Appeal was not transmitted within 60 days after notice of appeal had been filed herein and that the abstract and brief of appellant were not filed on or before 30 days after the time for filing of the Record on Appeal in accordance with Uniform Appellate Court Rules. Notice of appeal was filed on April 2, 1965. On April 15, 1965, defendant-appellant filed her motion to extend the time in which to file a Report of Proceedings in the trial court until July 6, 1965. An order was entered by the trial court allowing such motion. No Report of Proceedings, as such, was actually filed in the case since there was in fact no transcript of evidence as a result of the default proceeding. The Record on Appeal was filed on July 6, 1965, and the Statement, Brief and Argument of defendant-appellant was filed on August 5, 1965.

Under the procedure available to appellant pursuant to Uniform Illinois Appellate Court Rules (1963 Ill Rev Stats c 110, § 201.1) the Report of Proceedings at the trial normally would be required to be filed within 50 days after notice of appeal and the Record on Appeal would be filed not more than 60 days after said notice of appeal. The trial court, by proper order, extended the time for filing the Report of Proceedings until July 6, 1965, an appropriate extension of 45 days from May 22, 1965, when the Report of Proceedings would normally have been required to be filed. The Record on Appeal was filed on July 6, 1965, within the time allowed by the trial court. The Abstract and Brief of appellant were filed within 30 days after filing of the Record on Appeal. As indicated by the parties, the extension of time for filing of the Report of Proceedings granted by the trial court was entered by agreement of the parties and the circumstance that there was in fact no transcript of evidence but only an order of default does not deprive the defendant-appellant of the benefit of such extension of time available for filing of the Record on Appeal and such report as may be available as a result of proceedings in the Circuit Court. The motion to dismiss the appeal, strike the Record on Appeal and to strike the abstract and brief of defendant-appellant which were taken with the case is, therefore, denied.

As this proceeding has developed, defendant has never specifically raised the question of whether an Ulinois Court has jurisdiction under the Declaratory Judgment Act to declare the status of a marriage. Nevertheless, we feel it appropriate to review this situation as it relates to the facts before us. Under the provisions of the statute (1963 Ill Rev Stats, c 110, § 57.1) no independent or specific rules for service are required in declaratory judgment actions and the courts of this State have taken the view that a declaratory judgment action is in fact sui generis and takes on the legal character of the matter which is sought to be determined by such action. As stated in Freeport Motor Cas. Co. v. Tharp, 406 Ill 295, 299, 94 NE2d 139, a declaratory judgment action “is neither legal nor equitable but is sui generis . . . We think it takes the character of the nature of the relief declared, in this case a suit at law involving the rights of the parties and the liability under the terms of a policy of. insurance, and the judgment rendered thereon is in the nature of, and is governed by the rules affecting the rendition and entry of, judgments at law.” To the same effect is Jones v. Hodges, 2 Ill App2d 509, 119 NE2d 806. The action in the instant case, by the terms of which the Plaintiff seeks to have declared invalid a purported common-law marriage, is in the nature of an annulment action rather than a traditional divorce action since the Plaintiff seeks to show that no valid marriage existed because no lawful marriage had ever been undertaken by the parties.

The question of jurisdiction of the defendant in annulment actions has led to some conflict among the various jurisdictions as shown in 4 American Jurisprudence 2d, Annulment of Marriage, Section 65, where the authors state “In an annulment action against a nonresident defendant, where the court has jurisdiction of the subject matter, either because of the domicile of one of the parties in the forum or because the marriage was celebrated there, the authorities are divided as to whether, apart from specific statutory authority, the court has power to entertain the action upon constructive service on the nonresident defendant.” Since this matter is being considered in Illinois based upon the domicile of the plaintiff, it is the Illinois rule and interpretation rather than the Iowa rule which would govern the question of jurisdiction. In Simonds v. Allen, 33 Ill App 512, the plaintiff sought under the old common-law procedure to establish in Illinois that his New York marriage was void. His wife, the defendant, was a resident of New York when the suit was filed and she was served with process in New York. Defendant defaulted but the Judge refused to enter the decree and on appeal the Appellate Court determined that the New York marriage was void. The parties had been married in New York in 1877 and lived there for a number of years. The husband later found out that his wife’s former husband, whom he thought to be dead, was in fact alive in Michigan. That former husband had sued his wife for divorce and served her by publication in New York and obtained a Michigan divorce. At that time under New York law, a divorce could not be obtained from a New York resident who was not served personally. The Appellate Court in determining that the second New York marriage was a nullity stated (at page 517):

“Such marriage was in fact and effect nothing but a mere form; as a contract or as creating the status of marriage between the parties, it was an absolute nullity.”

In Weinberg v. Weinberg, 242 Ill App 414, plaintiff and defendant were first cousins and went to Kentucky to marry even though they were both Illinois residents. After their return to Chicago they never cohabited and the wife moved to South America. An action was instituted to declare the marriage void under the Illinois Marriage Evasion Act. The court found that plaintiff was entitled to relief. The court there stated (at page 416):

“The bill prayed that the marriage between complainant and defendant might be decreed to be null and void ab initio and for other relief. Defendant was served by publication, but has not appeared.”

In Volume 26 of Illinois Law and Practice, Section 56 on Marriages (as is commonly stated in most treatises on the subject), the authors state:

“The power to annul a marriage requires jurisdiction of the marriage res and such jurisdiction depends on the domicile of at least one of the parties. The Circuit Court has jurisdiction of an action to annul a marriage, and the rules with respect to jurisdiction of the person are the same in general of those applied to divorce proceedings.”

While there appear to be no exact precedents, such recital is substantially correct in its interpretation of the view taken by the courts in the older Illinois Appellate Court cases referred to. To the extent that such analysis would be of value, it is apparent that an annulment action or an action to declare a purported marriage invalid should be considered an in rem action, since the State of plaintiff’s domicile has an interest in the marital status of its resident and since an annulment or similar action does in fact determine marital status. If neither party lived in the State where the marriage was contracted and both lived in separate states, it is obvious that the parties could have the status of the marriage determined in the state of domicile of the person initiating the proceeding and would not be required to go to the state where the marriage or presumed marriage was contracted. There appears to be no compelling reason for requiring the parties to go to such state simply because one of the parties has chosen to remain in that state where the person initiating the proceeding is domiciled in another state.

It is not necessary, however, that we predicate the jurisdiction of the person on service since an answer and counterclaim has in fact been filed in this cause and defendant has submitted herself to the jurisdiction of the court, even though such answer and counterclaim for separate maintenance were filed after the default order was entered (Lord v. Hubert, 12 Ill2d 83, 145 NE2d 77).

The really significant question before this court is whether the trial court should have set aside the default and judgment order pursuant to the power vested in the court by the terms of the statute (1963 Ill Rev Stats c 110, § 50 (6)). The act provides that the court may in its discretion on motion filed within 30 days after the entry thereof set aside any final order, judgment, or decree, upon any terms and conditions that shall be reasonable. In the order entered by the Trial Judge on March 3, 1965, the trial court stated, among other things, in treating the recitals in the motion referring to the Scott County, Iowa, proceeding, and the question of negligence on the part of defendant:

“The same being matters not of record as shown on the face of the pleadings, must be under oath or supported by affidavit in order to be entertained by the court. Even though the matters contained in said Paragraphs 5, 6 and 7 of said Motion would appear to have merit, they are ineffective since they are not verified.”

Since the motion was taken under advisement by the trial court on February 21, 1964, and not finally determined until March 3, 1965, it was obviously given a great deal of thought and consideration by the court. We feel, however, on the basis of the recitals contained in the order of the court, that the trial court would have allowed the motion to vacate the order if the court did not feel that it could give no consideration to the matters referred to in the motion including the attached documents. This conclusion was apparently based on the fact that the motion was not verified.

In Widucus v. Southwestern Electric Cooperative, Inc., 26 Ill App2d 102, 167 NE2d 799, the Appellate Court stated:

“History will reveal that the courts of Illinois have been liberal in setting aside defaults entered at the same term, and that where there has been no trial on the merits, the courts’ discretion is usually exercised in favor of granting the motion . . . The statute, prior to the 1933 amendment, prescribed that a default might be set aside ‘upon good and sufficient cause, upon affidavit . . .’ Sec 58, Practice Act of 1907. Since the amendment, this quoted part has been deleted and now a default may be set aside ‘upon any terms and conditions that shall be reasonable’ ... In view of the fact that the statute, as it now stands, does not contain the requirement that good and sufficient cause appear, we do not believe that a court now must categorically determine that a meritorious defense or a reasonable excuse be proven to justify setting aside a default. We believe that the discretion will be properly invoked if it is based upon principles of right and wrong and is exercised for the prevention of injury and the furtherance of justice . . . The entering of a default is one of the most drastic actions a court may take to punish for disobedience to its commands. The court has other powers which are ample in most instances. In our judgment, a default should only be condoned when, as a last resort, it is necessary to give the plaintiff his just demand.”

The court also states (at page 108):

“The question of whether or not a court should set aside a default should be so resolved as to do substantial justice between the parties and with the idea in mind of carrying out, insofar as it is possible, the determination of matters upon their merits. In resolving this problem, a court may well consider whether or not a defendant has a meritorious defense, and whether or not defendant’s delay in. responding to the court’s command actually jeopardizes plaintiff’s basic position. But this should not be the only, nor necessarily, the determining factors. It seems to us that the overriding reason should be whether or not justice is being done . . . What is just and proper must be determined by the facts of each case, not by a hard and fast rule applicable to all situations regardless of the outcome.”

Similarly, in Lynch v. Illinois Hospital Services, Inc., 38 Ill App2d 470, 187 NE2d 330, the court reaffirms the conclusions set forth in the case of Widucus v. Southwestern Electric Cooperative, Inc., supra, and goes on to say (at pages 475, 476):

“Reviewing the record and exhibits in this cause, and after having heard the oral arguments of the parties, this court is not unmindful of the fact that the defendant’s attorney, failed not once but twice to appear and represent the defendant in the trial court. Unquestionably, the trial court had grounds for believing that the defendant’s attorney was careless and indifferent in not appearing on behalf of his client. We are not prepared to say that the order of the trial court denying the petition to set aside the default, was an abuse of discretion. We do not believe it is required, under the liberal interpretation and rule of the cases of Widucus v. Southwestern Electric Cooperative, Inc. . . . that this court determine as a matter of law, that the trial court exceeded or abused its discretion in denying the petition to set aside a default. We believe that the overriding rule that should determine cases of this character, is whether or not justice is being done.
“. . . The motion of September 18, 1961, was made in apt time, within 30 days and this motion was denied. There is no showing that any hardship would result if the cause was tried on the merits.”

The court went on to say, without any reflection on the trial court, that the Appellate Court felt that justice would be done by reversing the judgment and order of the trial court and remanding with instruction to set aside the default and permit Defendant to plead. On the basis of the record before us, we believe that a similar procedure should have been followed in this case and that it will promote the ends of justice to remand this case to the Circuit Court of Rock Island County with directions to set aside and vacate the order for declaratory judgment and permit defendant’s answer and counterclaim to stand and to proceed with the trial of this cause on the merits.

Nothing we have stated in this opinion should be construed as justifying the position of the defendant or implying that either plaintiff’s position or defendant’s position, as asserted in the pleadings, is or is not justified as a matter of law. The sole purpose of remandment is based upon the determination of the court that on the basis of the record before us the default should be set aside and defendant should have her day in court.

The order of the Circuit Court of Rock Island County in the declaratory judgment action will, therefore, be reversed and this cause will be remanded with directions to the trial court to approve the filing of the answer and counterclaim heretofore filed by defendant and to proceed in the hearing of this cause on the merits.

Reversed and remanded with directions.

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


author: JUSTICE MORAN.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Roger Clarence Slaughter, Defendant-Appellant.
    Gen. No. 65-65-M.
    Second District.
    February 4, 1966.
    John Vogel, of Glen Ellyn, for appellant;
    'William V. Hopf, State’s Attorney, and Edward Van de Houten, Jr., Assistant State’s Attorney, both of Wheaton, for appellee.
   Opinion by

JUSTICE MORAN.

Not to be published in full.


author: EBERSPACHER, J.

text:
    Citizens Savings and Loan Association, Plaintiff, v. Conrad C. Fischer, Ella M. Fischer, Kelly-Louvier Company, a Corporation, and Ehret Plumbing and Heating Company, Inc., Defendants. Conrad C. Fischer and Ella M. Fischer, Counter-Plaintiffs-Appellees, v. Citizens Savings and Loan Association, Kelly-Louvier Company, D. J. Kelly, et al., and Ehret Plumbing and Heating Company, Inc., Counter-Defendants-Appellants.
    Gen. No. 65-25.
    Fifth District.
    February 4, 1966.

      James W. McRoberts, of East St. Louis (James W. McRoberts, Jr., of counsel), for counter-defendant-appellant, Donald J. Kelly.
    C. E. Heiligenstein, of Belleville, for counter-plaintiff sappellees, Conrad C. Fischer and Ella M. Fischer.
   EBERSPACHER, J.

This action began as a suit by Citizens Savings and Loan Association against holders of title to real estate to foreclose a mortgage. The defendants in that suit, Conrad C. Fischer and Ella M. Fischer, filed a counterclaim against the corporation which sold them the mortgaged real estate, and also four of the corporation’s officers and employees, including Appellant Kelly, alleging that the counterdefendants had represented, that the title to the real estate involved was clear; that a guaranteed title insurance policy was ordered and forthcoming; and that the statements, promises, representations, and execution of the warranty deed to Fischers, by Kelly on behalf of the corporation, were fraudulent and false; and by an amendment to the counterclaim alleged that “the statements, promises, representations, and execution” of the warranty deed to Fischers were “in the alternative, fraudulent, false, tortious or negligently made” by reason of the fact that there was in fact a mortgage construction loan on the premises, of which Fischers had no knowledge. Fischers prayed that any losses sustained by them, be taxed against the defendants in the counterclaim ; subsequently they paid Citizens $9,000 to preclude the foreclosure, and the foreclosure proceeding was dismissed.

The court, sitting without a jury, after the evidence was taken, entered judgment for all the counterdefendants except Kelly, and entered an order containing findings of fact, and conclusions of law and entered judgment against Kelly on behalf of Fischers for $9,000, and from which Kelly, his post trial motion having been denied, files this appeal.

The evidence shows that Conrad C. Fischer, the counter-plaintiff-appellee was 73 years old, retired and owned a home located at 707 West Cleveland Street in Belleville, Illinois. In February of 1961, Fischer and his wife were contacted by Wilmer Feurer, who was a salesman employed by Kelly-Louvier Company, a corporation engaged in the buying and selling of homes and in the construction and building of new homes and subdivisions. The corporation owned a new home at 605 St. Mary’s Drive valued at $17,000; Fischers valued their home on Cleveland Street at $23,000. A contract, negotiated by Feurer, was entered into between the Fischers and Kelly-Louvier Company, wherein the Fischers would trade in their home at 707 West Cleveland Street and in exchange therefor would receive the house located at 605 St. Mary’s Drive, plus $6,000 in cash. This contract was accepted by the company on March 2, 1961 and was signed by Earl L. Louvier, Secy.-Treas., on behalf of the company. It called for delivery of warranty deeds conveying merchantable title free and clear of all encumbrances. The closing statement, signed by Fischers and Louvier for the company, was dated March 17, 1961; it was essentially a recapitulation of the transaction and showed no credit for any mortgage. The warranty deed from the company to Fischers was dated March 22, 1961 and was signed by D. J. Kelly as president of KellyLouvier Company and attested by Earl L. Louvier as secretary; it was recorded May 9, 1961; and its delivery to Fischers is established as being after April 1, 1961, the date on which Fischers moved into the St. Mary’s Drive property, only after inquiries and requests by Fischers addressed to various employees of the company. Prior to April 1, the Fischers had delivered a deed of the Cleveland Street property to the company. Feurer after being contacted by Fischers asked Kelly for the check for the difference payable to Fischers, and in a day or two Kelly gave Feurer such check, which was held by Feurer for some time, and delivered to Fischers on June 18,1961.

There was uncontradicted evidence that at the time of entering into the contract Feurer inquired as to whether Fischers’ Cleveland Street property was mortgaged, and Fischers asked Feurer if the St. Mary’s Drive property was mortgaged; he assured them that it was not. The evidence shows that as a matter of policy of the corporation, construction loans were not shown on their contracts of sale because they paid them off after a sale and Feurer as salesman had no knowledge as to whether the properties were mortgaged or not, but that Feurer was carrying out his orders when he advised the purchasers that no mortgage existed on the property they were buying and that they could depend on Kelly-Louvier; he had so been instructed to advise prospective purchasers. There is also uncontradicted evidence that previous to entering into the contract Fischer suggested that he could get another lawyer or real estate man to represent him and Feurer said “no you don’t have to do that. KellyLouvier is the biggest outfit in Southern Illinois, you can depend on them.” The evidence also disclosed that as president of the corporation Kelly had been instrumental in setting up and was aware of such policies and practices and that he knew the salesmen were making such representations, regardless of the fact that the properties of the corporation were subject to construction loans. There was also evidence that shows Kelly was the moving spirit of the corporation; that the business was not so large and extensive as to make it unfair to presume that there was some knowledge on his part, of the transaction in question. Louvier testified that when the contract was approved by him he took the matter up with Kelly and gave Kelly $50 which Feurer had collected from Fischers at the time of signing. The evidence is uncontroverted that the appellant Kelly had never personally communicated with the Fischers. The evidence also shows that Kelly knew that the corporation was short of working cash, and that contrary to company rules, which he had participated in making, and custom, he did not, in five separate transactions, including the one with Fischers, cause a title policy to be ordered or cause existing mortgages upon the real estate sold under his direction and supervision, to be satisfied.

There was also evidence that after it was determined there was some irregularity, a meeting was held at the offices of Citizens at which Kelly was present, along with other officers of the corporation, at which Kelly admitted that he had created the situation without the knowledge of the other officers and employees, and admitted that he knowingly failed to pay off the mortgages. Louvier testified that his words were “I created the problem without the knowledge of any other member of the firm.” Another witness testified that when Kelly was questioned about his knowledge of the transactions, including the Fischer transaction, that Kelly “stated that he had full knowledge of the matters and that he assumed full responsibility over that, that it was his function to take care of those matters.” The meeting at Citizens was followed by a meeting at the Kelly-Louvier offices, where, according to the corporation’s attorney, Kelly “reiterated what he said at Citizens Savings and Loan Association, that he knew about the conveyances that had been made, and admitted his sole guilt as he called it in the matter, his sole responsibility”; and “He was questioned about the use of the money involved and he again stated the money had been used for working capital”; and on cross-examination of this witness the witness further testified that Kelly “did state as financial manager and president of the company and over-all manager he was responsible for these items and to his knowledge and in fact the other officers had no knowledge.”

Kelly, called on his own behalf, claimed to have no independent recollection of the Fischer transaction, nor of signing the deed, and admitted he made no effort to check whether the property was free and clear of a mortgage lien at the time he signed the warranty deed to Fischers; he also admitted that he knew the contruction loans were in existence because he had arranged for them and made them. He testified with reference to his statement at Citizens offices, that the other witnesses’ testimony was not correct and further testified, “I possibly said as president I would be responsible.”

Appellant argues that fraud cannot be presumed and must be proved by clear and convincing evidence; and that since there was a lack of direct communication between Kelly and Fischers, that Kelly made no representation as a statement of fact which was untrue and known to be untrue by Kelly; and argues that Kelly made no representation with intent to deceive for the purpose of inducing Fischers to act upon it, and that Fischers did not in fact rely on a misrepresentation of Kelly and were not induced by Kelly’s misrepresentation to act to their injury or damage. He points out that Fischers delivered their deed of the Cleveland Avenue property before April 1, whereas the corporation deed was executed and delivered much later, and that after April 1 there could have been no reliance and damage; that the execution of the warranty by Kelly was not a representation as distinguished from a warranty in the law, and that it is essential that the person claiming fraud show that he changed his position or was damaged while relying reasonably on a misrepresentation; and since Fischers gave their deed before Kelly executed the warranty deed to them and they parted with nothing after April 1, 1961, they cannot be said to have relied on Kelly’s misrepresentation, even if the warranty was to be considered as a representation. He points out that Feurer, who was also a counter-defendant, was the only agent of the corporation that communicated with Fischers before April 1 and the court found Feurer “was not guilty of or participated in any knowing act to defraud the counter-plaintiffs”; and since the evidence shows that Louvier was the sales manager, or supervisor of the salesmen, and that Feurer whose sole capacity was nothing more than a salesman, was under direct supervision and control of Louvier, and not Kelly, that Kelly cannot be held responsible for the actions of the employees of the corporation of which he was president, since there was no proof of Kelly’s knowledge of the details of the transaction.

There is no general rule for determining what facts will constitute fraud; whether or not it is found depends upon the special facts of each particular case. Majewski v. Gallina, 17 Ill2d 92, 160 NE2d 783. Fraud includes anything calculated to deceive, whether it be a single act or combination of circumstances, whether suppression of truth or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or by silence, or by word of mouth or by look and gesture. People ex rel. Karr v. Weihe, 30 Ill App2d 361, 174 NE2d 897. As a general rule a corporate officer or director is not liable for the fraud of other officers or agents merely because of his official character, but he is individually liable for fraudulent acts of his own or in which he participates. 19 Am Jur2d Corporations par 1384. The mere fact that a person is an officer or director does not per se render him liable for the fraud of the corporation or of other officers or directors. He is liable only if he with knowledge, or recklessly without it, participates or assists in the fraud. 13 ILP Corporations par 353; Hough v. Commercial Wheat Growers Co., et al., 212 Ill App 306.

Examination of this record leads us to believe that the failure to clear the title to the property sold to Fischers was no mere oversight, that Kelly knew the customs and practices of the employees and participated to such •an extent in violating the rules of the corporation to become an active participant in the fraud, and that he cannot be heard to say that his actions were only those of an officer performing his required duties.

The rule is that whoever participates in a fraudulent act is guilty of fraud. In the case of Hahl v. Brooks, 213 Ill App 134, 72 NE2d 727, the Court said:

“Appellant, Hahl, was responsible for the false and fraudulent representations made by Moody within the scope of his agency, and because he referred the plaintiff to Moody for information as to the state of the title. He was as much responsible for the falsehood and fraud as if he had been guilty of them personally.”

In Creighton v. Elgin, 395 Ill 87, 69 NE2d 501, the Court stated:

“All those taking part in a fraudulent transaction will be regarded as participants therein and their rights are subject to the same rule. Svalina v. Saravana, 341 Ill 236, 173 NE 281, 87 ALR 821; Garlick v. Imgruet, 340 Ill 136, 172 NE 164; Third Nat. Bank v. Norris, 331 Ill 230, 162 NE 829; Rosenbaum v. Huebner, 277 Ill 360, 115 NE 558.”

Appellant Kelly also raises the question of the failure of the counterplaintiffs to take ordinary precautions to ascertain the truth. It is generally held that fraud may be predicated on false representations or concealments, although the truth could have been ascertained by an examination of public records. 23 Am Jur Fraud and Deceit par 163; McCormick v. Miller, 102 Ill 208. In the absence of circumstances putting a reasonable person on inquiry, a person is justified in relying on a misrepresentation of a material fact without making further inquiry. 19 ILP Fraud par 14; Tate v. Jackson, 22 Ill App 2d 471, 161 NE2d 156; Simon v. Carlson & Sons, Inc. v. Fricks, 45 Ill App2d 88, 195 NE2d 17. Where it appears that one party to a transaction has been guilty of an intentional and deliberate fraud, by which, to his knowledge, the other party has been misled, or influenced in his actions, he cannot escape the legal consequences of his fraudulent conduct by saying that the fraud might have been discovered had the party whom he deceived exercised reasonable diligence and care. Peterson v. Yacktman, 25 Ill App2d 208, 166 NE2d 452. Counterdefendant Kelly cannot assert the defense that counterplaintiffs were not sufficiently careful to discover the fraud. They were innocently, specifically assured, that they needed no other professional counsel.

Even looking at the evidence most favorable for Kelly, we believe he should be held responsible, on a theory of negligent misrepresentation. He admits that his was the responsibility of seeing that purchasers received a clear title, and that he at no time made an effort to check if the conditions set forth in either the contract or warranty deed were fulfilled.

In Texas Tunneling Co. v. City of Chattanooga, Tenn., 204 Fed Supp 821, after an extensive discussion covering the development of deceit and negligent fraud as a basis for recovery, the court said on page 830:

“For these reasons the Court holds that an action should be allowed for negligent misrepresentations with regard to business transactions when damages proximately occur from justifiable reliance thereon. This view has been adopted by the American Law Institute and is set forth in Sec 552 of the Restatement of the Law of Torts as follows:
“ ‘One who in the course of his business or profession supplies information for the guidance of others in their business transactions is subject to liability for harm caused to them by their reliance upon the information if
“ ‘ (a) he fails to exercise that care and competence in obtaining and communicating the information which its recipient is justified in expecting, and
“ ‘ (b) harm is suffered
“ ‘ (i) by the person or one of the class of persons for whose guidance the information was supplied, and
“ ‘ (ii) because of his justifiable reliance upon it in a transaction in which it was intended to influence his conduct or in a transaction substantially identical therewith.’ Restatement, Torts, Sec 552.”

and at 832, it said:

“. . . the real issue in this regard is whether a duty to refrain from negligent misrepresentation may be owed to a plaintiff who receives the misrepresentation through an intermediary.
“As indicated above, the American Law Institute, in the Restatement of Torts, has answered this question in the affirmative, . . . .”

The fact that a corporation must act through its agents has no bearing on appellant’s liability. Aldridge v. Fox, 348 Ill App 96, 108 NE2d 139; Laver v. Kingston, 11 Ill App2d 323, 137 NE2d 113.

In B. F. Hirsch, Inc. v. C. T. Gustafson Co., Inc., 315 Ill App 56, 42 NE2d 123, defendant Broucek, an employee of the corporation, had negligently let jewelry be stolen. The trial court held the corporation liable but not the agent Broucek. In reversing the judgment as to Broucek, the court pointed out that Broucek in a statement said that he operated as a wholesale jeweler under the trade name of C. T. Gustafson Co., Inc., an Illinois corporation. The court said, “this is another case of doing business under what is generally known as a ‘corporate veil’ ” and added,

“Moreover, it is well established that in an action for the recovery of damages, both the employer and employee, whose negligence while in the line of his employment caused the damage, may be sued and held liable.”

By failing to argue the seventh point of his brief, to the effect that fraud cannot be pleaded generally, for which authorities are cited, this point is considered to be waived. A point made but not argued may be considered waived. Appellate Court Rule 7, Sec IV.

We agree with the result in the trial court and accordingly affirm the judgment.

Judgment affirmed.

MORAN and WRIGHT, JJ., concur.


author: PRESIDING JUSTICE TRAPP.

text:
    Reba N. Corray, Plaintiff-Appellee, v. Frank M. Corray, Defendant-Appellant.
    Gen. No. 10,667.
    Fourth District.
    January 18, 1966.
    Reno, O’Byrne & Kepley, of Champaign (Donald M. Reno, of counsel), for appellant;
    Burt Greaves, of Champaign, for appellee.
   Opinion by

PRESIDING JUSTICE TRAPP.

Not to be published in full.


author: MR. PRESIDING JUSTICE BURKE MR. JUSTICE BURKE

text:
    Marlene H. Martino, Administratrix of the Estate of Herbert L. Hazen, Jr., Deceased, and Marlene H. Martino, Administratrix of the Estate of Josephine F. Hazen, Deceased, and Iola Saunders, Administratrix cum testamento annexo of the Estate of Charlotte D. Thacker, Deceased, Plaintiffs-Appellees, v. Ned Thomas Barra, Leon B. Stilley Construction Company, Leon B. Stilley, Anton Halmel, Cities Service Oil Company, and Mt. Vernon Tire Service Corporation, Defendants, Ned Thomas Barra and Mt. Vernon Tire Service Corporation, Defendants-Appellants. Anton Halmel and Cities Service Oil Company, Counter-Plaintiffs-Appellees, v. Ned Thomas Barra, Leon B. Stilley Construction Company, Leon B. Stilley and Mt. Vernon Tire Service Corporation, Counter-Defendants, Ned Thomas Barra and Mt. Vernon Tire Service Corporation, Counter-Defendants-Appellants.
    Gen. No. 49,738.
    First District, Second Division.
    October 5, 1965.
    Supplemental opinion March 18, 1966.

      Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (Oswell G. Treadway, of counsel), for Ned Thomas Barra, appellant; Patrick J. Muldowney, of Chicago, for Mt. Vernon Tire Service Corporation, appellant.
    James A. Dooley, of Chicago, for plaintiff-appellees; Nat. P. Ozmon, of Chicago, for Anton Halmel, counter-plaintiff-appellee; Kirkland, Ellis, Hudson, Chaffetz & Masters, of Chicago (Charles M. Eush and John M. O’Connor, Jr., of counsel), for Cities Service Oil Company, counter-plaintiff-appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

This action was brought to recover damages for the wrongful deaths of Herbert Hazen, Jr., Josephine Hazen and Charlotte Thacker, resulting from an automobile-truck collision near Mt. Vernon, Illinois.

Named as defendants were Leon B. Stilley and the Leon B. Stilley Construction Company, owners of a concrete mixer truck; Ned Thomas Barra, driver of the concrete mixer truck; Cities Service Oil Company, owner of a tractor-trailer; Anton Halmel, driver of the tractor-trailer; Mt. Vernon Tire Service Corporation; and Stanley V. Koziara, owner of the Mt. Vernon Tire Service Corporation. Defendants Halmel and Cities Service Oil Company cross-claimed against the other defendants for personal injuries to Halmel and for property damage to the Cities Service tractor-trailer. The jury returned a verdict for all the defendants and against the plaintiffs, and judgment was entered thereon. No verdict was specifically rendered on the cross-claims of Halmel and Cities Service.

Post-trial motions were filed by the plaintiffs for judgment notwithstanding the verdict and for a new trial on the question of damages. Cross-claimants Halmel and Cities Service filed post-trial motions, Halmel requesting a directed verdict on his cross-claim and a new trial on the question of damages, and Cities Service requesting judgment in its favor on its cross-claim in the amount of $3,000, which amount was agreed by all the parties to be the amount of damages to the tractor-trailer. Cross-defendant Mt. Vernon Tire filed a post-trial motion for judgment in its favor and against plaintiffs and cross-claimants, consistent with the jury’s verdict. Cross-defendants Barra and Stilley likewise filed motions for judgment in their favor and against plaintiffs and cross-claimants.

Plaintiffs’ motion was sustained as to defendants Barra and Mt. Vernon, and a new trial on the question of damages was granted; the motion was denied ás to the other defendants. Cross-claimant Halmel’s motion was sustained as to Barra and Mt. Vernon, and a new trial on the question of damages was granted. Cross-claimant Cities Service’s motion was sustained as to Barra and Mt. Vernon, and judgment entered in the amount of $3,000. It is from these judgments that Ned Thomas Barra and Mt. Vernon Tire Service Corporation bring this appeal.

Route 37 is a two-lane highway running north and south through Mt. Vernon, Illinois. The accident involved here occurred about 2:00 p. m. on August 26, 1958, some one and one-half miles to the north of the city. The Cities Service tractor-trailer, driven by Anton Halmel, was proceeding northerly on Route 37, followed some 500 feet behind by an automobile driven by Phillip Lenseler. Proceeding in a southerly direction and to the north of the tractor-trailer was the Stilley Construction concrete mixer truck driven by Ned Thomas Barra, followed by the automobile in which the decedents were riding, an undetermined distance behind the mixer truck. It was undisputed that all the vehicles were in their proper lanes and traveling within the posted speed limit, and that the day was sunny and the road surface in good physical condition. As the concrete mixer truck and the tractor-trailer got to within 60 feet of each other, the two left rear dual wheels of the mixer truck rolled off the axle and continued to roll in a southerly direction down the highway. The left rear side of the mixer truck fell to the pavement, but Barra was able to keep the truck in its own lane until he maneuvered it to a stop on the southbound shoulder of the highway.

One of the dual wheels proceeded directly down the center of the road and passed the automobile driven by Lenseler. The other wheel crossed into the northbound lane of traffic, directly in front of the tractor-trailer. In an attempt to avoid colliding with the wheel, Halmel testified that he applied his brakes immediately and attempted to turn his truck to the right. He stated that the wheel struck the front of the truck, throwing him against the windshield, and thereafter did not remember anything until he was told to enter an ambulance after the accident. The tractor-trailer cab swerved into the southbound lane, and the rear of the truck jackknifed across the southbound lane onto the shoulder of the road. The decedents’ automobile struck the tractor-trailer resulting in their deaths.

The record shows that in June of 1958, Mr. Fred Curl of the Nelson Concrete Culvert Company, which was not made a party to this action, inquired of Mr. Stilley concerning the possibility of renting one of Stilley’s mixer trucks. It appears that two concrete mixer trucks were leased on a monthly rental, Nelson Concrete to care for their maintenance and repair. At the time of the conversation, Mr. Curl inquired whether Stilley had any drivers available who were familiar with the operation of the mixer trucks. Stilley recommended Ned Thomas Barra, who was not then in the Stilley employ, but who had been employed by Stilley until Stilley ran out of work in the spring of 1958.

The concrete mixer truck involved in the accident was driven by Howard Rector, a Nelson Concrete employee, until August 25th, while Barra drove the other mixer truck. On August 11th, Rector’s truck developed a flat on the outside left rear dual tire. Mt. Vernon Tire Service Corporation was employed by Nelson Concrete to repair the tire, and Mt. Vernon Tire sent its serviceman, Alvie Joe Burke, to make the repair. Burke testified that he removed the entire wheel, replaced the tire, reinflated it and replaced the wheel by the use of a hand wrench and a cheater bar, which he stated was used for leverage. Burke further testified that the nuts which hold the wheel onto the wheel drum are lock nuts, and that once the nut is on tight, it cannot come off. Burke stated that after he let the mixer truck to the ground he used the cheater bar to make sure the nuts were on tight, informed Rector that the tire was repaired, and Rector looked at the tire.

Rector testified he operated the truck every day after August 11th until August 25th, sometimes two and three times a day. He stated that the truck operated normally, and that he noticed nothing unusual about the performance of the left rear wheels.

Barra’s truck broke down on August 25th, and when he appeared for work on the 26th he was told to use the truck previously used by Rector, since Barra was more familiar with its operation than was Rector. Barra inspected the oil and motors of the truck, the air pressure in the tires, and sprayed the metal parts of the truck with paraffin, all of which was customary procedure for the truck drivers employed by Nelson Concrete. Walter Goddard, plant superintendent at Nelson Concrete, testified that the Nelson drivers were not required to check the mechanical parts of the trucks, other than to see that the truck operated. About noon on the 26th Barra was ordered to deliver a load of concrete to a job site and was returning from the site when the accident occurred.

Officer Lee Lyons of the Illinois State Highway Police, called to the scene of the accident, testified he inspected the left rear wheel drum of the mixer truck after the accident and found the lugs which support the wheel to be partially stripped. The officer also stated he examined some tire marks to the north of the point of impact and found them to be of a wobbly, hit-and-miss nature, but he could not say whether they were caused by any vehicle involved in the accident. Barra testified he also inspected the threads on the wheel lugs immediately after the accident and found them to be in fair condition. Melvin Donoho, a body shop foreman for the Homan Motor Company where the mixer truck was sent by Nelson Concrete for repairs after the accident, stated that the lugs were not stripped; two of the ten lugs on the wheel drum were bent and had to be replaced, Donoho stating that they were bent after the wheels had rolled off. Officer Lyons and Barra testifed that the lug nuts which held the wheels onto the wheel drum were never found.

The trial judge was of the opinion that the evidence clearly showed Mt. Vernon Tire liable, for the reason that they repaired and replaced the wheel on the left rear of the truck, and if it had been properly replaced, it would never have come off. He was further of the opinion that the evidence clearly showed Ned Thomas Barra liable, for the reason that he failed to properly inspect the mixer truck before operating it on the highway and for the reason it was Barra’s duty to locate defects in the truck. The record does not clearly show liability on the parts of Ned Thomas Barra and Mt. Vernon Tire Service Corporation.

Defendant Barra maintains that, on all the evidence, the jury found he properly discharged whatever duty of inspection he had, that plaintiffs failed to prove he failed to discharge his duty to inspect, and that the trial court improperly rendered judgment for plaintiffs and cross-claimants against him. Defendant Mt. Vernon Tire maintains the trial court improperly rendered judgment for plaintiffs and cross-claimants since there is evidence in the record upon which the jury could reasonably have found Mt. Vernon not guilty.

With respect to defendant Barra, the operator of a vehicle has a duty to make a reasonable inspection thereof before operating the vehicle on the highways. Fried v. Korn, 286 App Div 107, 141 NYS2d 529, 531; 8 Am Jur2d, Automobiles and Highway Traffic, § 699. What constitutes a reasonable inspection and whether the duty has been breached is primarily for the jury to determine. Johnson v. Skau, 33 Ill App2d 280, 285, 179 NE2d 40.

Where a party receiving an adverse verdict seeks a judgment notwithstanding the verdict, it is the duty of the trial court to consider all of the evidence in the case most favorably to the party against whom the motion is directed, and if there is evidence in the record upon which reasonable minds could disagree, the motion should be denied. Biggerstaff v. Estate of Nevin, 2 Ill App2d 462, 119 NE2d 826; Hadden v. Fifer, 339 Ill App 287, 291, 89 NE2d 854; Palmer v. Poynter, 24 Ill App2d 68, 71, 163 NE2d 851. On alb of the evidence the jury could reasonably have found that defendant Barra made a reasonable inspection of the concrete mixer truck on the day of the accident.

The evidence strongly indicates that Nelson Concrete assumed responsibility for the repair and maintenance of the two Stilley mixer trucks. The Nelson Concrete superintendent stated that the Nelson drivers were not required to inspect the mechanical parts of the truck, but merely to see that the truck operated. There is no evidence that Barra, or any other Nelson driver, ever inspected the mechanical parts of the trucks other than the motors to see that they were functioning properly. Nelson Concrete employed their own mechanic for this purpose, and further employed two outside agencies to make major repairs, and an outside agency to make tire repairs. The evidence in the record shows no more than that the left rear dual wheels came off the mixer truck and in no way shows that they fell off due to the breach of any duty on Barra’s part to inspect.

The cases cited by plaintiffs in support of their position that the owner or operator of a vehicle must make, or cause to have made, a thorough inspection of the vehicle are inapposite for the reason that they deal with privately owned vehicles, or situations where the operator otherwise assumes the duty to inspect. None of plaintiffs’ cases deal with the specific question involved here, namely, the extent of the inspection of mechanical parts to be made by an employee of his employer’s vehicle where the employer has assumed the burden of making such inspection. (See Fried v. Korn, 286 App Div 107, 141 NYS2d 529; Delair v. McAdoo, 324 Pa 392, 188 A 181; Scarborough v. Aeroservice, Inc., 155 Neb 749, 53 NW2d 902; Petersen v. Seattle Automobile Co., Inc., 149 Wash 648, 271 P 1001; Dostie v. Lewiston Crushed Stone Co., 136 Me 284, 8 A2d 393; Lonergan v. American Ry. Exp. Co., 250 Mass 30, 144 NE 756; Dowden v. Jefferson Ins. Co., 153 So2d 162 (La App, 1963); McLaughlin v. Lasater, 129 Cal App2d 432, 277 P2d 41.) To hold a driver-employee to the same degree of duty of inspection of his employer’s vehicle which is required of the employer himself is unreasonable, for, when extended to its natural bounds, such duty would be required of the operators of commercial busses, railroad trains, airplanes, and the like.

With respect to the Mt. Vernon Tire Service Corporation, the lapse of the fifteen days between the day the tire was repaired and the day of the accident, and the continued use and control of the mixer truck by Nelson Concrete during that period created a question for the jury. It does not follow that, merely because Mt. Vernon Tire replaced the left rear dual tire, it was Mt. Vernon’s fault that the wheels came off the truck. The only evidence before the jury was that the wheel was replaced on August 11th in the usual and customary manner and that the tightness of the nuts on the lugs was recheeked by use of a cheater bar after the truck was lowered to the ground. Furthermore, there was testimony to the effect that, if the wheel had been improperly mounted, it would have come off within a matter of hours, of, at the most, one or two days. The holding that Mt. Vernon Tire Service Corporation was liable as a matter of law was erroneous since the jury could reasonably have concluded differently.

Plaintiffs support the trial judge’s action in rendering the judgments notwithstanding the verdict, with the position that, since plaintiffs made out a prima facie case for the liability on the parts of Barra and Mt. Vernon Tire, and since these defendants offered nothing in their defense, it was proper to take the case from the jury. The record does not support this argument. Barra offered evidence tending to show that he exercised his duty to inspect, and that the Nelson Concrete Culvert Company, not made a party to this action, had the duty to make the inspection of the mechanical parts of the trucks. Mt. Vernon Tire offered evidence that the wheel was properly mounted and the nuts rechecked for tightness, and that Nelson Concrete used and operated the mixer truck for fifteen days before the wheels came off.

Finally, the trial court should have entered judgment for the cross-defendants and against the cross-claimants on the cross-claims. While it is true the jury rendered a general verdict “for all the defendants and against the plaintiffs,” the finding for all the defendants would include the cross-defendants on the cross-claims. If no liability was found by the jury on the part of Barra and on the part of Mt. Vernon Tire as to the original plaintiffs, with respect to the coming off of the wheels, there could be no liability on their parts as to the cross-claimants with respect to the coming off of the wheels. See Kinney v. Kraml Dairy, Inc., 20 Ill App2d 531, 540, 156 NE2d 623.

The judgment of March 6, 1964, against both appellants is reversed and the cause is remanded with directions to enter judgment on the verdict in favor of these appellants and against plaintiffs and counterplaintiffs.

Judgment reversed and cause remanded with directions.

BRYANT and LYONS, JJ., concur.

Supplemental Opinion on Motions to Dismiss and on Rehearing

MR. JUSTICE BURKE

delivered the supplemental opinion of the court.

The opinion in this cause was filed on October 5, 1965, reversing a judgment notwithstanding the verdict and an order for a new trial on damages entered against appellants Ned Thomas Barra and Mount Vernon Tire Service Corporation, and remanding the cause with directions to enter judgment on the verdict for said appellants and against appellees, Marlene H. Martino, administratrix, Iola Saunders, administratrix, Anton Halmel, and Cities Service Oil Company.

Appellees thereafter filed “motions to expunge the orders entered” by this court. Although designated as “motions to expunge,” these motions are in reality motions to dismiss the appeal, which are normally filed immediately after the notice of appeal is filed, and before an appellant incurs costs in connection with the filing of his brief and abstract. Appellees also filed petitions for a rehearing.

The basis of the “motions to expunge” is that this court cannot entertain the appeal because appellants took a direct appeal from the trial court’s order, which was not final and appealable, rather than proceeding by way of a petition for leave to appeal as required in cases involving the granting of new trials, as set out in Supreme Court Rule 30. The original briefs of the appellees did not call our attention to this procedural question.

Section 68.1(2) of the Civil Practice Act requires that a post-trial motion must “state the relief desired.” Ill Rev Stats 1965, chap 110, par 68.1(2). Section 68.2 recites that the court shall impanel a jury, where not waived, for the purpose of assessing damages if the ruling on the post-trial motion is in favor of the party entitled to recover damages and if there is no verdict assessing damages. Appellees’ post-trial motions requested, and the trial court granted, “judgment notwithstanding the verdict” against the appellants and a new trial as to damáges. This, however, is a misnomer with regard to that part of the order concerning appellees Martino, Saunders, and Halmel. The trial court, as to said appellees, rendered a finding on liability notwithstanding the verdict and granted a trial as to damages. A “judgment” could not have been granted because damages had not been assessed. A “new trial” on damages could not have been ordered because the jury, by finding no liability in the first instance, did not consider the question of damages. The relief requested and the relief granted did substantially conform to sections 68.1 (2) and 68.2 of the Civil Practice Act. Appellees Martino, Saunders and Halmel’s motions for a new trial on the issue of damages only were not in fact motions for a new trial because there had been no trial on the issue of damages. These motions were incidental to the motions for a finding notwithstanding the verdict in favor of these appellees as contemplated by sections 68.1(2) and 68.2 of the Civil Practice Act.

The trial court’s order incorporated a recital under section 50(2) of the Civil Practice Act that there was no just reason to delay enforcement or appeal of the order. Ill Rev Stats 1965, chap 110, par 50(2). This recital, however, did not render the order final and appealable as to appellees Martino, Saunders and Halmel, against whom the order was not in fact final and appeal-able since a trial was ordered on the question of damages. Under section 50(2) there is no right of appeal in favor of any party against whom no final judgment, order or decree has been entered. See Davis v. Childers, 33 Ill 2d 297, 211 NE2d 364; Central Wisconsin Motor Transp. Co. v. Levin, 66 Ill App2d 383, 214 NE2d 776; Griffin v. Board of Education of Chicago, 38 Ill App2d 79, 186 NE2d 367. Since there was no final judgment as to appellees Martino, Saunders and Halmel, there was no appealable order entered by the trial court to give this court the authority to entertain a direct appeal as to these appellees. The appeal against Martino, Saunders and Halmel must therefore be dismissed.

As to the appellee Cities. Service Oil Company the order of the trial court is final and appealable, for the reason that damages were stipulated in the amount of $3,000 and a judgment entered thereon. Appellants Barra and Mount Vernon could have taken, and did in fact take, a direct appeal from this part of the order. The order further contained a recital that there was no just reason to delay enforcement or appeal, required under section 50(2) of the Civil Practice Act in cases involving multiple parties or multiple claims where a final order, judgment or decree is entered as to one or more but fewer than all of the parties or claims in order to appeal therefrom. Ill Rev Stats 1965, chap 110, par 50(2). The Cities Service Oil Company is therefore not entitled to a dismissal of the appeal against it.

The Cities Service Oil Company, in its petition for rehearing, has adopted the arguments contained in the alternative petition for rehearing of appellees Martino and Saunders. The matter relating to the right of this court to entertain the appeal has been dealt with above.

The contention is made that the decision of this court violates the general principles of the doctrine of respondeat superior, in that a corporation can act only through its employees or agents and that a corporation may be held liable for the acts of its employees or agents even if such acts are unknown to the corporate officers. The argument is made that the Nelson Concrete Company could act only through its employee, Barra, and for this reason Barra must be held liable. It is further argued that “the concept that there could have been another employee negligent in no wise exculpates [Barra].” It is difficult to follow this reasoning in view of the fact that evidence was offered that Barra, as a Nelson Concrete truck driver, was not responsible for the maintenance and inspection of the mechanical parts of his truck. If an employer places a certain duty upon one employee and not upon another, the latter employee clearly cannot be charged with the breach of that duty by the former employee, even though the employer may be charged with liability for the breach. There was no showing Nelson Concrete placed any duty with regard to maintenance and inspection of the mechanical parts of the truck upon Barra, nor that Barra voluntarily assumed such burden, and the jury so found; rather, the evidence shows that Nelson Concrete itself assumed that burden. The argument advanced with regard to the doctrine of respondeat superior revolves around the basic concept of responsibility of an employer for the acts of his employee. Whether the doctrine could have been invoked against Nelson Concrete, had it been made a party to this action, need not be considered for the reason that appellant Barra was not shown to be the employee responsible for the inspection and maintenance of the mechanical parts of the truck. Consequently, merely because the jury could have found Nelson Concrete liable under the doctrine of respondeat superior does not necessarily mean that the appellant Barra is the employee from whom this liability would stem.

The argument is raised that, under the doctrine of res ipsa loquitur, the evidence shows there is liability on someone and consequently someone should be held liable. As stated in our original opinion, neither Barra nor Mount Vernon was shown to have violated the specific duty with which they were charged so as to be held liable. Rather, the evidence showed that Nelson Concrete assumed the duty to inspect and maintain the mechanical parts of the truck, which might have given rise to the application of the doctrine of res ipsa loquitur, but Nelson Concrete was not made a party to the action. Furthermore, while it is true, as contended, that the inclusion of a specific charge of negligence does not preclude a finding of liability under a general charge of negligence (Goertz v. Chicago & N. W. Ry. Co., 19 Ill App2d 261, 153 NE2d 486), the complaint and cross-complaint contained no general charge of negligence upon which a finding of liability under the doctrine of res ipsa loquitur could be predicated, nor were any instructions submitted to the jury with regard to a general charge of negligence. The law as cited is correct, but the circumstances of this case do not permit its application. It should also be pointed out that this matter was not raised in the pleadings or in the trial court, and consequently cannot be raised for the first time on appeal. Benson v. Isaacs, 22 Ill2d 606, 609, 610, 177 NE 2d 209.

We adhere to our original opinion as to the appellee Cities Service Oil Company.

The appeal is dismissed as to appellees Martino, Saunders and Halmel, and the judgment for Cities Service Oil Company is reversed and the cause remanded with directions to enter judgment in favor of appellants Barra and Mount Vernon and against appellee Cities Service Oil Company.

Appeal dismissed as to appellees Martino, Saunders and Halmel and judgment for Cities Service Oil Company reversed and cause remanded with directions.

BRYANT, P. J. and LYONS, J., concur.


text:
    Robert H. Pettigrew, Plaintiff-Appellant, v. National Accounts System, Inc., a Delaware Corporation, Defendant-Appellee. National Accounts System, Inc., a Delaware Corporation, and Aurora Accounts Service, Inc., an Illinois Corporation, Plaintiffs-Appellees, v. Lincoln Collection Service, Inc., an Illinois Corporation, and Robert H. Pettigrew, an Individual, Defendants-Appellants.
    Gen. No. 65-76.
    Second District.
    February 1, 1966.

      George W. Presbrey, of Aurora, for appellants.
    Givler, Meilinger, Casey & Flanders, of Aurora, and Pedersen & Houpt, of Chicago, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This appeal involves two cases which were consolidated, the first, a suit for declaratory judgment by Robert H. Pettigrew, herein called Pettigrew, against National Accounts System, Inc., herein called National; the second, a suit for injunction by National and Aurora Accounts Service, Inc., herein called Aurora Accounts, against Pettigrew and Lincoln Collection Service, Inc., herein called Lincoln.

The trial court heard the two cases, as consolidated, and rendered a decree against Pettigrew and in favor of National in the declaratory judgment action; and granted National and Aurora Accounts an injunction, permanent in nature, on their complaint, whereby Pettigrew and Lincoln were restrained from engaging in the credit service and debt collection business within a 25-mile radius of the City of Aurora, for a period of two years from the date of February 12,1965.

Pettigrew and Lincoln have perfected this appeal from the foregoing decree urging, among other grounds, that they were denied procedural due process, as guaranteed by Section 1 of amendment XIV of the Constitution of the United States, and section 2 of article II of the Constitution of the State of Illinois, by the manner in which the trial court conducted the proceedings below. We agree with this contention.

In deciding this case, we had no desire or intent to enlarge our jurisdiction and were cognizant of sections 5b and 7 of article VI of the Illinois Constitution, and Rules 28-1 and 47 of the Supreme Court. (Ill Rev Stats 1965, c 110, pars 101.28-1 and 101.47.) Also, we believed that the constitutional principles involved were well settled.

Our decision required a factual analysis of the procedures followed in the case and a construction of the terms of the Civil Practice Act and the Rules of the Supreme Court in their application to such facts, in the light of the well settled constitutional principles herein recited—principles which are no longer fairly debatable and, consequently, not susceptible of being parlayed into substantial constitutional questions. (See: The People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1965); First Nat. Bank & Trust Co. v. Evanston, 30 Ill2d 479, 483-486, 197 NE2d 705 (1964); People v. Valentine, 60 Ill App2d 339, 344-349, 208 NE2d 595 (1st Dist 1965).)

With due deference to the jurisdiction of the Supreme Court in cases involving constitutional questions—yet firm in our belief that this court, of necessity, has jurisdiction over certain and limited aspects thereof— we decided this case, in the above manner, on the threshold issue of procedural due process.

Pettigrew filed his complaint, seeking a declaratory judgment, on April 9, 1965. Essentially, the complaint alleged that he was hired in 1957 by National to manage its Aurora collection agency office; that in 1964, National forwarded to him a pad of employment agreement forms for his signature and that of the other employees of the office; and that he signed such an agreement, bearing the date August 31, 1964, without any additional salary or other consideration. The agreement provided in part:

“That Employee will not directly or indirectly, as principal, agent, employee, or in any other capacity, for the term of two (2) years after the date of termination of his employment hereunder, enter or engage in any branch of the business relating to the collection of debts, demands, accounts, estates or claims of any kind, or in any other business or activity which is in any respect, or may be considered by Employer to be competitive with the business of Employer within a radius of fifty (50) miles of any of the places of business of Employer or within a radius of fifty (50) miles of any of the offices of any firm or corporation owned or controlled by Employer.”

It also provided that either party could terminate the employment upon two weeks written notice, and that the employer could also terminate the agreement at any time without notice for cause.

The complaint further alleged that National fired Pettigrew in February, 1965, without explanation; that he returned to the collection business to earn a livelihood; that National notified Pettigrew to cease engaging in the collection business; and that he, therefore, sought a judgment declaring the rights and duties of the parties under the employment contract dated August 31, 1964. Summons was served upon National in the declaratory judgment action on April 9,1965.

On April 12, 1965, National and Aurora Accounts (which we shall treat as identical for our purpose here) filed a suit based upon the same contract and two preceding ones, alleging that Pettigrew had been branch manager of the Aurora office since 1957; that he had thus acquired knowledge of a confidential nature; that he had contacted a substantial number of customers of plaintiff; that after the termination of his employment, he caused Lincoln to be incorporated and entered into the collection business in competition with National, contrary to the employment agreements; and that National was entitled to a judgment for $50,000 for damages already sustained, a temporary injunction pending final hearing, and an injunction, permanent in nature, prohibiting further competition from Pettigrew and Lincoln within a 50-mile radius of Aurora for a period of two years from the date of termination of the employment. This complaint was served upon Pettigrew and Lincoln on April 13,1965.

The parties then appeared before the court on April 20, 1965, apparently on a notice of National and Aurora Accounts for hearing for a temporary injunction. At this time the cases were consolidated by agreement, and the court advised the parties that the consolidated cases would be continued until the following morning, at which time the court would start hearing proof. Counsel for Pettigrew and Lincoln objected, stating that the only matter before the court was a motion for temporary injunction, and Pettigrew further asserted that he had not yet had an opportunity to file a motion, an answer or other pleading to the complaint for injunction.

On the following morning—twelve days after suit was commenced and summons served in the declaratory judgment action, and eight days after summons was served in the injunction action—the court proceeded to hear proof. At this time, National filed an answer to the declaratory judgment complaint, and a lengthy affidavit setting forth matters in support of its motion for temporary injunction. Pettigrew and Lincoln filed a motion to dismiss the complaint for injunction.

Counsel for Pettigrew again objected to proceeding on the merits, again stating that the only matter before the court was a hearing on the application for temporary injunction. Counsel for National suggested that if opposing counsel were not ready to proceed on the declaratory judgment action, the motion for temporary injunction was still before the court. The court indicated it would then proceed with both cases. Counsel for Pettigrew stated that he had not had an opportunity to examine the answer filed to his complaint for declaratory judgment; that an answer had not yet been filed by him to the complaint for injunction; that the latter suit was thus not at issue; and that he was not ready to proceed on the merits of either case and thus wanted the cases set for hearing at a later date.

The court then heard and denied the motion to dismiss the complaint for injunction and proceeded to hear proof. Just prior thereto, counsel for National indicated they were before the court only on their motion for temporary injunction, stating, “Your Honor, we have moved for a motion for temporary injunction, based upon our verified complaint and upon our affidavit in support of the verified complaint.” On several occasions throughout the hearing, counsel for Pettigrew made objections to testimony on the ground that it was not pertinent to the issue of whether a temporary injunction should issue. The court did not point out, at those times, that it was proceeding on more than the motion for temporary injunction.

At the close of National’s proof, counsel for Pettigrew again indicated that it was his understanding that they were before the court only on the matter of the temporary injunction. The court replied that the two cases were consolidated and set for hearing that day, and that it was hopeful that both cases could then be disposed of. Proceedings were then adjourned until the following day when counsel for National stated to the court, “Your Honor, we are, as you know, before you on our motion for a temporary injunction. We feel that, with the witnesses we have presented, together with the verified complaint and affidavit in support of our motion for temporary injunction, that we have sustained our burden. . . . We rest on our motion for temporary injunction, Your Honor.”

Pettigrew then testified on behalf of the defense. Thereafter the court entered the decree dismissing the complaint for declaratory judgment and granted an injunction, permanent in nature. Counsel for Pettigrew renewed his objection to the hearing on the merits and the issuance of a final decree.

The procedural aspects of due process and equal protection of the laws require that a person be given notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. In City of Chicago v. Cohn, 326 Ill 372, 158 NE 118 (1927), at pages 374 and 375, the Court stated:

“The guaranty of due process of law requires that every man shall have the protection of his day in court and the benefit of the general law,—a law which hears before it condemns, which proceeds not arbitrarily or capriciously but upon inquiry and renders judgment only after trial, so that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society. (Citations) . . . The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case.”

Also see: Durkin v. Hey, 376 Ill 292, 300, 33 NE2d 463 (1941); Truax v. Corrigan, 257 US 312, 332 (1921); Simon v. Craft, 182 US 427, 436 (1901); In re Estate of Hoffman, 49 Ill App2d 436, 441, 200 NE2d 37 (1st Dist 1964).

A fundamental requisite of procedural due process is that every man shall have the protection of his day in court and the benefit of an orderly proceeding according to the general law or established rules; and that the hearing shall not be arbitrary, but rather shall afford to him an opportunity to be heard in his defense and shall assure to him an inquiry on the issues of the case, wherein judgment is rendered only after trial. There must be an intrinsic fairness of procedure by which any judgment, order or decree is rendered. This is essential to the untainted administration of justice—the most cherished aspect of our judicial system.

Tested by these standards, we find that appellants were not afforded the due process guaranteed them by our Constitutions. What is, or is not, a denial of due process does not readily lend itself to any refined definition, but it can be rendered progressively more clear by the course of litigation. Where’ however, the procedure followed by a court is so lacking in a principle or principles basic to our system of justice that it offends the system, that procedure must be condemned as a denial of due process.

In the case at bar, Pettigrew, called into court on a motion for a temporary injunction, found himself directed by the court to proceed on the merits of his suit for a declaratory judgment, filed only eleven days before; and to proceed in defense of the suit against him for damages in the sum of $50,000, and for a permanent injunction which had been on file only seven days. At that time, no answer had been filed to his complaint—the answer being filed the following morning; and no pleading had been filed by Pettigrew to the suit against him—the motion to dismiss likewise being filed the next morning. Answer was never filed to the complaint for injunction, and judgment was rendered prior to the expiration of the time permitted for its filing.

Without sufficient opportunity to examine the answer filed to his complaint, Pettigrew could not determine what evidence he should present to establish his contention on the issues made by the pleadings. As to the injunction complaint, he was not permitted the time allowed by the Civil Practice Act to file his answer and thereby put matters at issue. Under this posture of the case, it was not proper to proceed with a hearing on the merits prior to issues having been formed by the pleadings. The right to plead, according to the general law and established rules, is implicit in any concept of ordered liberty and fairness and is required by a right sense of justice. See Roth v. Roth, 284 Ill App 71, 72, 1 NE2d 724 (1st Dist 1936). The action of the trial court in compelling the litigants to proceed on the merits of the case, at a time when both parties asserted they were before the court only on. a motion for temporary injunction, without permitting them to plead in the mannér prescribed by the Civil Practice Act and Rules of Court, and in denying them the opportunity to prepare and present their case fairly and fully, was a denial of due process.

National contends that a plea of unpreparedness may not be a basis for a claim of denial of due process. However, the cases cited by National are cases in which the parties were at issue and had been given the opportunity to file pleadings. Thereafter, the normal rules prevail as to whether or not a motion for continuance should be granted. These cases are unlike the one at bar where the parties were not given an opportunity to plead pursuant to the provisions of the Civil Practice Act and to prepare their cases for trial in the light of the issues raised in the pleadings. The fact that Pettigrew asserted he had no further evidence to present does not warrant the assumption that if given the normal opportunity to prepare for trial under the issues of the pleadings, he would not have found further evidence to present.

This distinction is suggested in the quotation in National’s brief taken from-the-case of Grattan v. Ahlberg Bearing Co., 373 Ill 455, 26 NE2d 499 (1940), where it was stated at page 457:

“It is necessary in order to constitute due process of law within the provisions of the State and Federal constitutions, that orderly proceedings according to established rules, which do not violate fundamental rights, shall be observed, but where the person affected has due and sufficient notice and an adequate opportunity to present his defense, the constitutional requirements of due process of law are met.” (Emphasis ours.)

National further contends that Pettigrew waived his objection to formal pleadings by proceeding with the trial of the case. In all but two of the cases cited by National in support of this contention, all of the parties had filed their pleadings, and the only question involved was the propriety of permitting evidence on certain issues not raised by the formal pleadings. No question of denial of due process was presented under such factual situation.

In Witteman v. Goeke, 200 Ill App 108 (2nd Dist 1916) cited by National, the record did not show that there was any plea to the common counts, and the parties, without objection, voluntarily proceeded to trial. However, the Appellate Court pointed out that while no issue had been formed on the common counts, a plea had been made to the special count, and the judgment entered in the case was presumed to be correct upon the issues made by these written pleadings. Said case is not authority for any waiver of rights herein by Pettigrew.

In City of Chicago v. Campbell, 27 Ill App2d 456, 170 NE2d 19 (1st Dist 1960), likewise cited by National, the time for filing an answer had elapsed and the defendant, who was not rushed to trial, elected to represent himself, appeared, and proceeded to trial voluntarily without having filed a formal answer. Under these circumstances the court held-that the defendant waived the necessity of a formal joinder of issues. The distinction between said case and the. one at bar is apparent, and it does not indicate any waiver of rights by Pettigrew, who, over his objections, was compelled by the trial Court to proceed with proof.

Further, National has referred to several Federal cases for the proposition that a permanent injunction may under certain circumstances be issued upon a hearing for temporary injunction and without further hearing. While such procedure may be proper under certain circumstances, as where there are no controverted questions of fact, it is not appropriate in the case at bar, where Pettigrew was denied the opportunity prescribed by law to plead and to prepare his case for an orderly presentation. The procedure observed by the Court in the case at bar does not comport with the traditional ideas of fairness.

Other substantive matters were raised by the parties which we have not considered in view of our determination that the proceedings below were a denial of due process. The decree appealed from is, accordingly, reversed and the cause remanded to the trial Court with directions to dissolve and set aside the injunction previously granted and to proceed to hear the case in accordance with the views herein expressed.

Reversed and remanded with directions.

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