text:
    The People of the State of Illinois, Defendant in Error, v. Charles Faulkner, Plaintiff in Error.
    Gen. No. 50,488.
    First District, First Division.
    February 18, 1966.
    Russell & Bridewell, of Chicago (Robert C. Scott, of counsel), for plaintiff in error.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. Roger Horsky, Assistant State’s Attorneys, of counsel), for defendant in error.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant was indicted for armed robbery, for attempted murder, and for aggravated battery allegedly committed at Al’s Food and Liquor Store at 618 South Independence Boulevard in Chicago on December 21,1962. The cases were consolidated for trial, and the jury found him not guilty of attempted murder but guilty of the other two offenses. He was sentenced to five to twenty years in the state penitentiary on the robbery conviction, and five to ten years on the conviction for aggravated battery, the sentences to run concurrently. On this appeal, commenced in the Supreme Court and transferred here, he contends that he was not proved guilty beyond a reasonable doubt. His primary allegation is that the testimony of the witnesses who identified him as a participant in the robbery leaves a reasonable doubt as' to his guilt.

The testimony of the persons in the store at the time of the robbery indicates the following: at about 11:45 p. m. on December 21, 1962, three men entered the store. The defendant approached the owner, Albert Overton, and asked him for a half-pint of gin. Overton and the defendant were at the front of the store, two feet away from each other and under fluorescent lighting, which was turned on. As Overton went to the back of the store, the defendant ran through the aisle to the back, colliding along the way with Anderson Hardy, the store’s cashier. After a brief conversation between Hardy and the defendant, Hardy continued out the front door of the store with the rubbish he was carrying. When Overton reached the back of the store, the defendant was waiting for him there, holding a sawed-off shotgun across the counter. He ordered Overton to put up his hands, and then to lie down. The defendant then attempted to open the cash register, could not do so, and ordered Overton to get up. Overton opened the register, and the defendant struck him across the head with the barrel of the shotgun. He was ordered to lie down again, which he did, and the defendant emptied the cash drawer while another man emptied the register at the front of the store. The defendant ordered Overton to raise his hand, and then removed Overton’s wristwatch.

As the robbers were preparing to leave the store, Wendell Burch, who was eleven years old, and his brother Michael, who was about a year older, entered the premises. Wendell testified that he saw everyone facing the counter, and that a man said, “Be still.” He faced the counter, and then turned around to see the defendant about twenty feet away pointing a sawed-off shotgun at him. The defendant said, “Turn around, kid, I don’t play,” and then shot Wendell in the left leg.

After the men left and the police arrived, Overton and Hardy agreed to go to police headquarters to look at photographs in an attempt to identify the robbers. From several hundred pictures shown them, both selected that of the defendant, and were then told his name. The defendant was apprehended on December 23, and later that day Overton and Hardy viewed him with four other men in a lineup. Each man in the lineup stated his name and address. Overton and Hardy then identified the defendant as one of the men who had robbed the store two days earlier.

Overton also testified that he had seen the defendant during the summer months preceding the robbery, prior to September. Wendell Burch testified that while he was in the hospital recovering from his gunshot wound the police brought in the defendant, whom Wendell identified as the man who had shot him.

The defendant denied participating in the robbery, and testified that he had been in a tavern from 9:30 p. m. until 1:30 a. m. on the night of the robbery. A girl who knew the defendant testified that he was in the tavern at 11:45 p. m. that night; and another girl testified that she had seen him there at 10:00 p. m. and that he was still there at 12:30 a. m. The defendant also testified on direct examination that from 1960 until September 15, 1962, he had been in prison in Pontiac for strong-armed robbery.

The defendant argues that Overton’s identification of him should not have been believed because Overton was in no position or condition to see the man who robbed his store; and also in view of the fact that Overton testified he saw defendant in the summer months of 1962 before September, while the defendant was in prison during that time. He further urges that his identification by Overton and Hardy at the police station was of no import because they knew the man they were looking for was named Faulkner, and the defendant was forced to state his name before he was identified. It is suggested, in attacking'Hardy’s identification of the defendant, that he would agree with whatever identification his employer might make. The identification by Wendell Burch is challenged by the suggestion that he would make whatever identification he thought the police wanted him to make; and that of Michael Burch is attacked as not worthy of belief because he is a thirteen-year-old who claims to be able to remember most of the people he sees walking down the street.

The jury apparently believed the witnesses for the State, and not the defendant and his witnesses. A conviction will not be disturbed unless it clearly appears that there is not sufficient credible evidence to establish the guilt of the accused beyond a reasonable doubt. Where the evidence on an issue is conflicting but legally sufficient if the prosecution’s witnesses are believed, the question is for the trier of fact. People v. Carpenter, 28 Ill2d 116, 122, 190 NE2d 738.

The defendant cites People v. Jefferson, 24 Ill2d 398, 182 NE2d 1, and People v. Sheppard, 402 Ill 347, 83 NE2d 587, in support of his contention that the identifications of him do not prove him guilty beyond a reasonable doubt. In Jefferson, the victim of a strong-armed robber was unable to identify the defendant, in spite of the fact that he had an equal if not better opportunity to observe the robber as did other witnesses who subsequently identified the defendant. In addition, a witness who had admittedly participated in the robbery testified that he had taken the victim’s property himself, and that the defendant, Thomas Jefferson, was not involved in the robbery. Other evidence adduced by the State in that case was deemed by the Supreme Court to be of no weight; and it was held that the evidence as a whole had not created an abiding conviction of the defendant’s guilt.

In Sheppard, the Supreme Court reviewed the testimony and concluded the record was replete with conflicts, not only between the testimony for the defense and prosecution, but also within the testimony introduced by the respective parties. 402 Ill at 351. The court stated that the entire record left them with grave and substantial doubt of the guilt of the defendant, and reversed the conviction. 402 Ill at 352.

In the case at bar, the record reveals no such failure of identification or conflict in the testimony. The identification of the defendant by four witnesses was positive and unshaken. The Burch brothers each had a good opportunity to see the robber, and Overton and Hardy saw and conversed with him at close quarters. All four saw him under good lighting. The testimony of one witness alone, if positive and the witness credible, is sufficient to convict even though the testimony is contradicted by the accused. People v. Miller, 30 Ill2d 110, 113, 195 NE2d 694.

We conclude that the defendant was proved guilty beyond a reasonable doubt. The judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    Remus Burchette, Plaintiff-Appellee, v. Carrie Carter, d/b/a New Marquette Lounge, Grant D. Dazey, et al., and Highway Insurance Company, Garnishee-Defendant and Appellant.
    Gen. No. 50,577.
    First District, First Division.
    February 18, 1966.
    Brody & Gore, of Chicago (Robert L. Brody, of counsel) , for appellant.
    Arthur S. Gomberg and Philip E. Howard, of Chicago (Samuel Nineberg, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Garnishee-defendant, Highway Insurance Company, appeals from a $15,000 judgment entered against it in garnishment proceedings grounded on a dramshop policy issued by Highway. The policy covered the basic defendants, an operator of a tavern and the owner of the building. Highway denies liability because the tavern operator failed to cooperate and breached the policy.

It is undisputed that the policy was in effect on April 9, 1958, the date of plaintiff’s alleged injuries, and that the “policy contained the usual cooperation clause requiring the assured to cooperate in the handling of a claim, including the necessary attendance at trial.” The named insureds were Carrie Carter, d/b/a New Marquette Lounge, and Grant D. Dazey and Martha L. Dazey, as the owners of the premises in which the lounge was located.

Plaintiff’s action was commenced in 1959, and the three defendants were served with summonses, which were forwarded to Highway. An answer was filed on their behalf, and an investigation was made. The case was assigned out for a jury trial on November 6, 1963, and on November 12, 1963, judgment for $15,000 was entered against “Carrie Carter, Grant D. Dazey and Martha L. Dazey and each of them.”

During the trial, and after plaintiff had substantially completed his evidence, the attorneys for the defendants presented a motion “to withdraw from the trial of this matter as attorneys for the defendant Carrie Carter” for the reason “that the named defendant refuses to cooperate and aid in the defense of this matter on her own behalf.” The motion, under oath, set forth the efforts of the attorneys to secure her appearance at the trial. After a hearing, the trial court denied the motion, and the case proceeded to verdict and judgment.

The garnishment proceedings against Highway Insurance Company were initiated on January 17, 1964, and in response to a “Request for Admissions,” Highway admitted retaining attorneys to undertake the defense of Carrie Carter, Grant Dazey and Martha L. Dazey, and that Highway “had issued its dramshop insurance policy for the tavern at 160 East Marquette Road, Chicago, Ulinois, for a period encompassing April 9, 1958.” After a “contested hearing and trial of the garnishment action,” and hearing evidence at length, a judgment order was entered on February 18, 1965, in favor of the plaintiff and against the garnishee-defendant for $15,000, interest and costs. This is the judgment from which Highway, the garnishee-defendant, appeals.

The instant record includes a transcript of the hearing on the original motion to withdraw made during the dramshop trial and a transcript of the hearing and testimony of witnesses at the garnishment hearing.

From the foregoing, it is obvious that Carrie Carter was notified by both Highway and her attorneys of the approaching trial, and that on November 5, 1963, she stated she would attend the trial and have her sister available as an additional witness. The first notice that her attorneys had that Carrie Carter would not appear was on November 6, 1963, after the case was assigned out for trial. Repeated efforts made during plaintiff’s case failed to secure her appearance.

The record indicates that the defendants Dazey had no knowledge of the facts of the case and did not appear at the trial. Highway does not claim that the Dazeys refused to cooperate. In fact, there is nothing in this record to show that the Dazeys were informed of the trial or the judgment against them.

As a general rule, a judgment creditor has no greater rights than the insured, and any defense which the insurer may assert against the insured may be asserted as a defense against the injured parties. (Meyer v. Aetna Cas. Ins. Co., 46 Ill App2d 184, 190, 196 NE2d 707 (1964).) A breach of a policy cooperation clause by the insured has been held to preclude recovery against the insurance company in a garnishment proceeding initiated by a judgment creditor. (Schneider v. Autoist Mut. Ins. Co., 346 Ill 137, 178 NE 466 (1931).) Failure of an insured to appear at a trial, after notice, has been held to be a breach of a cooperation clause. Pawlik v. State Farm Mut. Automobile Ins. Co., 302 F2d 255 (1962).

From the foregoing pronouncements, Highway’s contention of noncooperation on the part of Carrie Carter appears to be well grounded, but the determinative question is whether her asserted noncooperation can be used against the Dazeys. The policy might provide a direct answer, but it is not in this record.

Highway contends, “the failure of one of the assureds to cooperate is a breach of contract which is binding on the other assureds. . . . There was only one policy, their interests were identical and a breach by any one of them would constitute a breach of all of them. In the case at bar, Grant D. Dazey and Martha L. Dazey had no knowledge of the fact of the case and therefore could not aid in the defense of the case, but the assured Carrie Carter would and could have greatly aided in the defense of the case and present a question of fact for the jury and may have resulted in an entirely different verdict.” Cited is Eakle v. Hayes, 185 Wash 520, 55 P2d 1072, where the insured was a husband, and a codefendant with his wife. The wife appeared at the trial but the husband did not. There the court said (pp 1073, 1074):

“The respondent’s agreement to assume liability for loss in the event of accident was expressly conditioned upon full cooperation by the insured, Hayes, in the disclosure of all facts known by him pertaining to the happening of the accident, and the rendition by him of aid in the securing of evidence, the attendance of witnesses at the trial, and the prosecution of any appeal. According to the complaint, Hayes was the principal actor in the main case, the party against whom negligence was charged. He, in turn, was the principal cross-complainant, charging negligence against the appellant. He was a party to the action, and, under the issues raised by him in his answer and cross-complaint, he was a necessary and vital witness. His failure to attend the trial and there disclose the facts known to him regarding the accident was a breach of his contract of insurance and therefore barred any recovery on the policy by him. . . . Under its contract, the respondent here was entitled to the assistance of the insured, in so far as such assistance was lawf ul, and liability to the insured, under the contract, would not attach if such assistance were withheld. The insured, Hayes, by his conduct breached the terms of the policy. No recovery could, therefore, be had against the insurer for any judgment obtained against the insured, unless the insurer had waived the breach or was in some way estopped to assert it.”

From the foregoing statement, it appears that it was “his contract of insurance,” and the only person insured was the husband, the owner and driver of the car, and the wife was not named an insured. This case is not persuasive here, where all defendants were named as insureds.

Plaintiff argues, “the Dazeys retained title to their building and apparently still do so. Very often the licensee has sold his tavern, lost his license, or for various reasons cannot be served with summons. The injured party can nevertheless sue the property owner alone and recover under the Dram Shop Act of Illinois. This is the very reason every dram shop policy insures not only the operator of the tavern, but the owner of the building premises as well.”

Plaintiff also argues that the Illinois courts hold there are three distinct remedies, and cites Hyland v. Waite, 349 Ill App 213, 110 NE2d 457 (1953), where it is said (pp 215, 216):

“Section 14 of the Dram Shop Act . . . gives to one injured in consequence of the sale of intoxicating liquors three distinct remedies. He may sue the tavern keeper alone and obtain a personal judgment against him; he may sue the tavern keeper and the owner of the building jointly and obtain a personal judgment against them; or he may sue the owner of the building separately and obtain a personal judgment against him.”

An examination of section 135 of the Dram Shop Act (Ill Rev Stats 1959, c 43) states that the statutory liability of the lessor or property owner is “severally or jointly, with the person or persons selling or giving liquors aforesaid . . . .”

In Canadian Radium Corp. v. Indemnity Ins. Co., 411 Ill 325, 104 NE2d 250 (1952), it is said (p 332):

“The construction to be given insurance contracts, like other contracts, should be a natural and reasonable one. ... If the language is clear, the terms are to be taken and understood according to their plain, ordinary and popular sense. . . . But because the insurer is the one who prepares the contract, ambiguous or equivocal expressions whereby the insurer seeks to limit its liability will be construed most strongly against the insurer.”

These principles should be applied here, notwithstanding the policy is not in the record.

Although the one policy of insurance covered the three parties named therein, and the extent of their liability under the Dram Shop Act was identical and dependent upon the same facts, we are not persuaded that their interest in the instant insurance policy was intended to be only joint and not joint and several. The status of the three insureds here, their factual knowledge and their ability to cooperate were obviously different. The cooperation required of the tavern operator may not have been the same as that of the lessor or property owner. Therefore, in the absence of the policy in the record, and without the citation of pertinent authorities, we believe the policy obligation to cooperate in the instant case should be considered to be joint and several and the asserted noncooperation of the tavern operator Carter cannot be used by Highway as a defense against plaintiff’s judgment against the Dazeys, the owners of the property in which the Dram Shop Act violation occurred.

For the reasons given, the garnishment judgment appealed from is affirmed.

Affirmed.

KLUCZYNSKI, P. J. and BURMAN, J., concur.


author: MR. JUSTICE BURMAN

text:
    Dolores K. Mirsky, Plaintiff-Appellee, v. Marvin Mirsky, Defendant-Appellant.
    Gen. No. 50,757.
    First District, First Division.
    February 18, 1966.

      Morris L. Simons, of Chicago (Marshall Patner, of counsel), for appellant.
    Bjork & Kuehn, of Chicago (Robert D. Bjork, of counsel) , for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Marvin Mirsky, the defendant, filed a petition for a post-divorce order restraining Dolores Mirsky, the plaintiff, from interfering with the enrollment of their son in a school chosen by him. The petition alleged that the father had chosen the Sands Point School in accordance with the provisions of an agreement between the parties which had been incorporated in the divorce decree, and that it was in the best interests of the child that he attend that school. The mother filed a motion to strike the petition, alleging that the terms of the decree require the agreement of the mother to the enrollment of their son in the school chosen by the father. She also alleged that the father had raised the same issue in a prior proceeding, and that it was therefore res judicata; and that even if it were not, the father is estopped from raising the issue now because he could have done so in connection with that prior proceeding. The trial court, after hearing argument of counsel, sustained the motion to strike on August 13, 1965, and the father has brought this appeal.

We first consider the mother’s contentions that the prior proceeding brought by the father renders this issue res judicata, or in any event estops him from raising it at this time. Previously the father filed a petition on May 17, 1965, alleging primarily that the mother had interfered with the father’s visitation rights during vacation periods,, and that the mother had embarked upon a course of conduct calculated to alienate the father from the child. The petition also alleged that, “The father is in the process of selecting a school for SETH and has tentatively chosen the Sands Point School. The mother refused to visit the school.” The prayer for relief in the petition, however, contained no request for a finding by the court with respect to the education of the child. In her answer to that petition, the mother amongst other things raised several practical problems connected with the child’s attendance at the school chosen by his father. After hearing the argument of counsel, the court entered two orders on June 30, 1965, which inter alia modified the provision of the decree relating to visiting privileges during vacation periods. There was no mention in either order of the matter of the choice of school for the child.

The mother contends that the doctrine of res judicata embraces not only what was actually adjudicated, but also those matters which could have been adjudicated. Adams v. Pearson, 411 Ill 431, 439, 104 NE2d 267. It appears from the record that at the time of the filing of the prior petition the father had only tentatively selected the Sands Point School; that the mother had done no more than refuse to visit the school; and that it was not until July 14, 1965, that the mother actually refused to send the child to that school. Thus the father did not raise and could not have raised in the prior proceeding the issue of the mother’s refusal to send the child to the Sands Point School. The issue is not res judicata, and the father was not estopped from raising it in his petition filed on August 2,1965.

Turning to the merits, we find that the parties, with the advice of their respective counsel, entered into an agreement in anticipation of divorce on December 14, 1964. Section 4 of the agreement is essential to this appeal, and reads in relevant part as follows:

4. The court has carefully weighed the custody of the child Victor Seth Mirsky, and upon its own order caused physical and psychological examination and tests of the child and has received written reports thereof. The child shall reside with his mother and she is hereby given leave to remove the child into the jurisdiction of the State of New York. In all matters involving the care and day-to-day mode of the life of the child, and religious guidance and religious education, the mother shall have the primary responsibility and control. In matters concerning both the formal and informal education of the child, the father shall have the primary responsibility provided that the father’s directions in this respect shall not be unreasonable, taking into consideration all circumstances then existing. The parties further agree that they will both discuss with each other whenever possible all matters concerning the child’s future; and more particularly, the husband shall counsel with the wife and seek her advice on matters concerning the child’s formal and informal education. In the exercise of his responsibility and direction, the father shall be required to consider the best interests of the child in all respects; and in particular, the program directed shall not be harmful to the physical, psychological and emotional well-being of the child. Except as otherwise later agreed upon between the parties, any private school education, through the completion of High School shall be on the basis of the said child living at home with his mother. The father shall pay all costs in connection with any private or extra education opportunity. These payments shall be in addition to the aforesaid child support payments.
The parties recognize that it is desirable and in the child’s best interests that they discuss and seek to agree in all matters which affect the child. Similarly, they acknowledge that each of them is entitled to full and free access to all information concerning the child. The parties further state that it is not their intention to divest the court of any of its supervisory powers in connection with the child; and their right to petition the court, whenever either party believes that the physical, psychological, emotional or general well-being of the child requires it, shall not be diminished.

In its decree entered seven days after the agreement was signed, the court specifically found that the agreement was fair and reasonable, and incorporated it into the decree and ordered that each and every provision thereof was binding upon the parties. The decree also recited that the court had interviewed the child, had carefully considered and discussed with the parties the welfare of the child, and deemed the agreement to be in the best interests of the child.

Under the language of the agreement, the father was given the primary responsibility of the child’s formal and informal education. He is required to counsel with the mother and seek her advice as to the education of the child; but her consent to his decisions relating thereto is required only if the child is to live away from home while attending school. These provisions of the voluntary agreement are binding on the parties, as are the other provisions including the grant of permission for the child to live with his mother in New York.

The record indicates that attendance by the child at the Sands Point School would not require that he live away from home. The only challenge which the mother could raise under the terms of the agreement to the choice of this school is that it is unreasonable under the circumstances, is contrary to the best interests of the child, or is harmful to the physical, psychological, emotional, or general well-being of the child. The burden of so showing is on the mother. The trial court granted her motion to strike the petition, however, after considering only the pleadings and the argument of counsel. We think evidence should have been taken, and weighed by the trial court in light of the standards set by the divorce decree before the entry of an order favoring either party.

The plaintiff raises the objection that repeated litigation of matters relating to the divorce and to her son constitutes a great inconvenience to her, in that she must travel to Chicago on each occasion. We recognize this fact, but must also note that the defendant also meets with considerable inconvenience in visiting his son by reason of the fact that he now lives in New York with his mother; and that this arrangement imposes a considerable expense upon him, too.

The order of the Circuit Court sustaining the motion to strike the petition of defendant is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


author: PRESIDING JUSTICE BRYANT.

text:
    People of the State of Illinois, Appellee, v. Clarence Mayfield, Appellant.
    Gen. No. 50,194.
    First District, Second Division.
    March 22, 1966.
    Rehearing denied May 10, 1966.
    Sam Adam, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE BRYANT.

Not to be published in full.


author: MR. PRESIDING JUSTICE BRYANT

text:
    Florence Scianna, Plaintiff-Appellant, and Paula J. Luck and Betty Ann Scianna, Intervenors-Appellants, v. Jennie Scianna, Defendant-Appellee.
    Gen. No. 50,370.
    First District, Second Division.
    March 22, 1966.

      Frank Licastro, Sr., of Chicago, for plaintiff-appellant. McKeown, Trussell, Brooks & Boland, of Chicago (William Y. Brooks, of counsel), for intervenors-appellants.
    James C. Kellogg, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This appeal is taken from an order of summary judgment entered January 13, 1965 in the Circuit Court of Cook County. The appellants urge as error that the affidavit of Jennie Scianna in support of her motion for summary judgment should have been stricken on the basis that she was barred from testifying in this matter by sec 2 of the Evidence Act. (Ill Rev Stats 1963, c 51, § 2.) It is also urged that the form of the motion for summary judgment filed by Jennie Scianna does not conform to Supreme Court rule 15 (Ill Rev Stats 1963, c 110, § 101.15). The third point raised on this appeal is that there were triable issues of fact raised by the pleadings and affidavits, and that summary judgment was, therefore, improper.

Thomas Scianna died on September 9, 1964. At that time he was lawfully wed to Florence Scianna, one of the appellants in this matter. Paula J. Luck and Betty Ann Scianna are the children of Thomas Scianna and Sally Scianna, the first wife of Thomas, from whom he was divorced October 25, 1960. The appellee, Jennie Scianna, is a sister of the deceased. At the time of his death, Thomas Scianna held in joint tenancy with his sister, Jennie, real estate in Palatine, Illinois and savings accounts in three banks, First National Bank of Des Plaines, The Pioneer Trust and Savings Bank and The Northwest Federal Savings and Loan Association, “and other sums in divers banks and savings and loan institutions known and secreted by (appellee), including a safe deposit box rented by decedent.”

The real estate in Palatine, Illinois had been owned and used as a residence by Thomas and Sally Scianna until their divorce. The property was then given to Sally Scianna as a part of the property settlement. According to the Statement of Facts in the appellants’ brief, Sally Scianna later defaulted in the provisions of the settlement order and on January 24, 1961, Thomas Scianna negotiated for the repurchase of the real estate from his former wife. This was accomplished on February 10, 1961 when Sally Scianna reconveyed the property to Thomas for $5,000 and the cancellation of an amount due to Thomas under the property settlement.

On August 31, 1961, about nine months prior to his marriage to Florence Scianna, Thomas Scianna conveyed the property in Palatine, Illinois to one Agnes Brownlie, and she then reconveyed this property to Thomas Scianna and Jennie Scianna as joint tenants with the right of survivorship. It is alleged that no consideration passed in either of these transfers. It is further alleged that Jennie Scianna has never resided upon the premises.

The amended complaint in chancery filed by Florence Scianna individually and as executrix of the estate of Thomas Scianna alleges that the money in the savings accounts was money saved and accumulated by Thomas Scianna from his wages, investments and the like, and that after his divorce from his first wife and before he remarried, Thomas Scianna put these funds in joint accounts with his sister Jennie. It is alleged that Jennie made no deposits of her own money to these accounts and that all the money contained therein was the money of the deceased.

The complaint of Florence Scianna asks that Thomas Scianna be declared to have had the sole interest in the real estate and in the bank accounts or in the alternative that a resulting trust be declared in this property with Jennie Scianna holding the land and money for the benefit of the estate of Thomas Scianna.

The answer to the complaint filed by Jennie Scianna states that she was a joint tenant in the real estate and states that the love and affection between her and her brother was the consideration for the transfer of this real property. She denies that Thomas Scianna left large sums of money in the savings accounts mentioned in the complaint and alleges that if any funds were in the banks mentioned, they were funds earned, accumulated and deposited by her. She denies secreting funds in any other banks, savings and loan institutions or safety deposit boxes. She denies the existence of any fraud in these transactions and states that the deceased was a person of sound mind and fully aware of his familial obligations.

Jennie Scianna also filed a counterclaim alleging that she was the owner of valuable personal belongings with a value of $1,565 which were in the home in Palatine, and which Florence refuses to deliver to her. This property has not been identified. She also claims that one Frank Licastro, attorney for Florence, persuaded her to execute a quitclaim deed of the real estate in question, and asks that the court direct that the deed be surrendered and cancelled so as to prevent its filing and a subsequent cloud on Jennie’s title to the property.

After these pleadings were filed, Paula J. Luck and Betty Ann Scianna were given leave to intervene. Jennie Scianna then filed a motion for summary judgment with an affidavit setting forth her claim and alleging certain facts. This motion was accompanied with a memorandum of authorities.

A counteraffidavit was then filed by Frank Licastro, attorney for Florence Scianna. In this affidavit it is stated that he represented the deceased in his divorce action from Sally Scianna. He then alleges the background facts concerning the reconveyance of the real estate from Sally to Thomas. It is further alleged that “affiant advised and counselled Thomas Scianna with respect to safeguards and protections that might be devised to prevent Sally Scianna from transferring or attaching accounts then in the name of Thomas Scianna; or to prevent any future spouse from laying claim to the property until said Thomas Scianna could decide on the final disposition of his properties. . . .” It is alleged that Thomas Scianna then made Jennie a joint tenant in these bank accounts and that Thomas had confidence that Jennie would follow his wishes with respect to the money contained therein. A similar allegation is made with respect to the real estate.

It is also alleged in this affidavit that Thomas Scianna had expressed to the affiant his desire to have his new wife, Florence, made joint tenant in the bank accounts and in the real estate. Finally, it is alleged that Jennie Scianna stated to affiant on the date of the death of Thomas and on the day following, that she knew the wishes of Thomas and requested affiant to complete the work necessary to carry out his desires.

Betty Ann Scianna, a daughter of the deceased and one of the appellants herein, filed an affidavit stating that on or about September 27, 1964, 18 days following the death of Thomas, she attended a conference at which were present her sister, Paula J. Luck, and Jennie Scianna. It is alleged, “That during the discussion Jennie Scianna stated that she had not wished to have Thomas Scianna place any of his property in joint title with said Jennie Scianna; and told said Thomas Scianna that ‘if you insist on putting my name as a joint tenant of your property, and something happens to you, I will do everything in my power to see that the girls get their rightful share of all your property.’ ”

It was alleged that at this time Jennie Scianna also stated, “I never considered that I had an interest in the property that your father put in my name, but that I was taking care of the rights of my nieces; and I always felt no outsider, like Florence Scianna, should get any interest against our flesh and blood.”

A complaint was then filed by Betty Ann Scianna and Paula J. Luck, intervenors, which does not differ in any material respect from the amended complaint of Florence Scianna. Florence Scianna then moved for summary judgment. This was accompanied by an affidavit of Frank Licastro which is in substance the same as the affidavit he filed earlier.

A motion to dismiss Paula J. Luck and Betty Ann Scianna as intervening parties was filed by Jennie Scianna. This motion stated that the cause of action, if any, lies with the personal representative of the deceased, that the intervenors are heirs of the deceased and could not be original parties plaintiff in this matter and that the rights of the intervening parties are identical with those of Florence Scianna as an heir, and must await the outcome of the suit in which Florence Scianna is plaintiff in her representative capacity.

Further pleadings were filed by Florence Scianna concerning the countercomplaint of Jennie Scianna in which she denied that Jennie Scianna had any valuable belongings in the deceased’s home. Another motion was filed by Florence Scianna asking the court to strike the affidavit of Jennie Scianna because it does not comply with the requirements set forth by Supreme Court rule 15, because Jennie Scianna is not competent to testify to the facts set forth in the affidavit, and because the affidavit sets forth conclusions only and not facts admissible in evidence.

The court then ordered that the motion for summary judgment on behalf of Jennie Scianna be granted. It is from this order that the appeal has been taken.

The first point we shall consider is whether the court below should have granted the motion of the appellants to strike the affidavit of Jennie Scianna on the basis that she was incompetent to testify concerning this matter. The relevant portions of sec 2 of the Evidence Act read:

“No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, . . . when any adverse party sues or defends ... as the executor, administrator, heir, legatee or devisee of any deceased person . . . unless when called as a witness by such adverse party so suing or defending, and also except in the following cases, namely: . . .
“Third — Where, in any such action, suit or proceeding, any such party suing or defending, as aforesaid, or any persons having a direct interest in the event of such action, suit or proceeding, shall testify in behalf of such party so suing or defending, to any conversation or transaction with the opposite party or party in interest, then such opposite party or party in interest shall also be permitted to testify as to the same conversation or transaction.”

Supreme Court rule 15 states that affidavits in support of and in opposition to a motion for summary judgment or decree “shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.”

Appellees argue that since Florence Scianna is suing as administratrix and as heir, and since Paula J. Luck and Betty Ann Scianna are suing as heirs, Jennie Scianna is, therefore, precluded from filing her affidavits. Since she could not testify at a trial, it is argued that under Supreme Court rule 15 she should not be permitted to file an affidavit. The only answer made to this claim by the appellee is from her brief which states, “. . . for us to point out that the affidavit of intervenor-appellant, Betty Scianna attributes remarks to defendant-appellee which would certainly remove restrictions as to her testifying . . . would ... be an idle display of semantics and become an academic exercise.”

It would seem from this that the claim is being made that Jennie Scianna’s affidavit is admissible as an answer to that of Betty Ann Scianna under the third exception of sec 2 of the Evidence Act. The difficulty with this line of reasoning is that the affidavit of Jennie Scianna was filed before that of Betty Ann Scianna and cannot be said to be an answer to anything related in the latter affidavit. On the other hand, no objection was made to the affidavit of Jennie Scianna until after all the affidavits had been filed before the court. It would seem, therefore, that if the affidavit of Jennie Scianna does in fact answer claims as to any conversation or transaction made in the affidavit of Betty Ann Scianna, then it would be unnecessary to order the affidavit of Jennie Scianna to be stricken, for she would then be able to refile it immediately as an answer to Betty Ann Scianna.

We must consider, therefore, whether the affidavit of Jennie Scianna can in any way be considered an answer to that of Betty Ann Scianna. The latter’s affidavit deals with a specific meeting which took place 18 days after the death of Thomas and which sets out two specific statements Jennie is alleged to have made. The affidavit of Jennie, however, deals with such matters as the belief of the affiant concerning the state of mind of the decedent when the transfers in question were made. This is not responsive to the affidavit filed by Betty Ann Scianna nor is it the sort of affidavit as would be permitted by any exception to sec 2 of the Evidence Act. Accordingly, the court below should have granted the motion of the appellants to strike the affidavit.

Even without the affidavit of Jennie Scianna, however, there remains from the pleadings a question of fact for determination by the court — whether or not Jennie Scianna was made a joint tenant in the property in question with the understanding that she would distribute it after the death of Thomas according to his wishes. There is evidence from the affidavit of Betty Ann Scianna which is probative of the fact that Jennie Scianna took title to the property knowing that she was only a trustee for the children of the deceased. There is also evidence in the affidavit of the attorney, Frank Licastro, whose standing as an uninterested witness is not contested here, that the deceased did not intend his sister to have the equitable title to the property. It seems to us that either of these affidavits would raise a sufficient question of fact to require a trial on the issues.

The holding that there was a question of fact makes it unnecessary for us to decide whether or not the motion for summary judgment was made in proper form. The counterclaim of Jennie Scianna has apparently been dropped by that party and will not be considered on this appeal. The question of whether the daughters of the deceased are proper parties has not properly been raised in the appellee’s brief.

The judgment of the Circuit Court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed.

LYONS and BURKE, JJ., concur.


text:
    Emma Galler, Individually, and as Trustee Under a Trust Agreement Dated July 21, 1956, and as Executor of the Last Will and Testament of Benjamin A. Galler, Deceased, Plaintiff-Appellee, v. Isadore A. Galler, et al., Defendants-Appellants.
    Gen. No. 50,570.
    First District, Second Division.
    March 22, 1966.
    Mayer, Friedlich, Spiess, Tierney, Brown & Platt, of Chicago (Frank D. Mayer, Patrick W. O’Brien, Edward R. Lev and George W. Hamman, of counsel), for appellants Rose and Aaron Galler; Jesse Marcus, of Chicago, for appellant, Rose Galler, as Executrix of Estate of Isadore A. Galler, Deceased.
    Arvey, Hodes & Mantynband, of Chicago (Sidney R. Zatz and Jack H. Oppenheim, of counsel), for appellee.
   MR. PRESIDING JUSTICE BRYANT

delivered the opinion of the court.

This appeal comes from an order entered in the Circuit Court of Cook County, February 11, 1965 which directed that a meeting of stockholders of the Galler Drug Company take place, and also directed who the officers to be elected were and what would be their salaries.

The case was returned to the Circuit Court after the Supreme Court held that an agreement entered into by the parties was enforceable. The stockholders’ meeting was directed pursuant to this agreement. The Supreme Court also ordered an accounting concerning certain funds paid to appellants herein, and there is pending in the Circuit Court a question concerning the ownership of six shares of stock in this corporation.

This case was taken along with a motion to dismiss the appeal on the grounds that this court did not have jurisdiction under chap 110, Ill Rev Stats 1965, § 50(2). That section reads:

“If multiple parties or multiple claims for relief are involved in an action, the court may enter a final order, judgment or decree as to one or more but fewer than all of the parties or claims only upon an express finding that there is no just reason for delaying enforcement or appeal. In. the absence of that finding, any order, judgment or decree which adjudicates fewer than all the claims or the rights . and liabilities of fewer than all the parties does not terminate the action, is not enforceable or appeal-able, and is subject to revision at any time before the entry of an order, judgment or decree adjudicating all the claims, rights and liabilities of all the parties.”

In this case there was no finding that there was no just reason for delaying enforcement or appeal. According to the clear language of the statute, the order that was entered is not appealable.

The appellants have cited two cases in opposition to this proposition, In re Estate of Sherwood, 56 Ill App2d 334, 206 NE2d 304 (1965) and Micelli v. Micelli, 45 Ill App2d 159, 195 NE2d 233 (1963) for the proposition that where a judgment or order is enforceable through the use of a contempt of court citation, the matter is appealable whether or not the court has determined all the issues and whether or not there has been a finding that there is no just cause to delay enforcement or appeal. In this case, however, contempt citations are not available. The parties did hold the meeting and elected the persons selected by the Court at the designated salaries. The Court now has no basis for charging anyone with contempt. Had the appellants chosen to take this appeal before complying with the order of the Court below, they might have had a reviewable order on appeal. We need not speculate, however, on what might have been. There is no appealable order before this Court and the appeal is dismissed.

Appeal dismissed.

LYONS and BURKE, JJ., concur.


author: MR. JUSTICE McCORMICK

text:
    Walter D. Wilson, Plaintiff-Appellee, v. Village of Forest View, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 49,687.
    First District, Fourth Division.
    March 25, 1966.

      Ancel, Stonesifer, Glink & Levin, of Chicago (Louis Ancel and Marvin J. Glink, of counsel), for appellant.
    Wisch, Crane & Kravets, of Chicago (Myron E. Wisch, Benjamin B. Crane, and James E. Brown, of counsel), for appellee.
   On Rehearing

MR. JUSTICE McCORMICK

delivered the opinion of the court.

The Village of Forest View appeals from a judgment entered in the Circuit Court of Cook County against it and in favor of the plaintiff in the sum of $67,292.40. On the original hearing the defendant raised only two questions:

1) Was there a valid contract between plaintiff and defendant;
2) Did defendant abandon the Water Works Improvements and Sewer System for which the plaintiff had drawn plans which were given to and used by the defendant ?

From the record it appears that on November 10, 1959, the plaintiff filed a complaint in two counts against the Village of Forest View, a municipal corporation. The Village filed an answer, and a reply to the answer was filed by plaintiff. Count I was based on an oral contract allegedly entered into between the plaintiff and the Village in “the early part of November 1955.” This allegation was denied by the defendant. The second count was based on the allegation of plaintiff that a subsequent contract was entered into on April 22, 1957, reducing to writing the verbal agreement which allegedly had been entered into between plaintiff and the Village. The defendant admits that there was such a written agreement but denies that the agreement was legally entered into, and further denies that the written instrument was a reduction to writing of the previous verbal agreement between the plaintiff and the defendant.

From an inspection of the pleadings it appears it was admitted by the Village that the plaintiff, Walter D. Wilson, a resident of Chicago, Illinois, was a duly licensed civil engineer engaged in the practice of that profession, specializing as a consultant and mechanical engineer, having been so engaged for the past 25 years; that the Village, in accordance with the law, proposed certain local improvements to be made in the said Village, which improvements involved the construction of certain water mains, reservoirs, and a pumping station and supply line, hereafter referred to as the Water Works Improvements; and for the construction of the combined sanitary and storm sewer system, which will hereafter be referred to as the Sewer System; that in section 5 of his complaint the plaintiff alleges that “pursuant to [his] employment” he prepared all the necessary plans, specifications, etc. In its answer the Village states, “Defendant admits the allegations contained in Paragraph 5 of Count I of Plaintiff’s complaint.”

The total estimate of costs for the Water Works Improvements aggregated $942,193, which included the sum of $65,953 for the costs of engineering services for planning and supervision of construction, or a total of $819,708, excluding costs of engineering services and making, levying and collecting the special assessments. The total estimate of costs for the Sewer System aggregated the sum of $997,228, which included the sum of $74,792 for the costs of engineering services for planning and supervision of construction, or a total sum of $862,602, excluding the costs of engineering services and the costs of making, levying and collecting special assessments. Ordinances for the Water Works Improvements and Sewer System were presented to the President and Board of Trustees of the defendant Village, together with the recommendations of the Board of Local Improvement for such improvements. On December 19, 1956, the said ordinances were adopted and approved by the President and Board of Trustees of the Village. On January 11, 1957, plans, specifications and estimates of costs prepared by the plaintiff and approved by the Village were filed in the County Court of Cook County, pursuant to Local Improvements Act (Ill Rev Stats 1955, ch 24, art 84), and identified as Special Assessments Nos. 5 and 6 of the Village of Forest View, for the construction of the Water Works Improvements and the Sewer System.

An important question to be discussed is whether or not a contract entered into by the Village with an engineer (requiring that he prepare certain plans, specifications, etc., as a preliminary step to the processing of certain improvements which were to be paid subsequently by a special assessment) was a valid contract. Ill Rev Stats 1965 ch 24, § 8-1-7, provides:

“No contract shall he made by the corporate authorities, or by any committee or member thereof, and no expense shall be incurred by any of the officers or departments of any municipality, whether the object of the expenditure has been ordered by the corporate authorities or not, unless an appropriation has been previously made concerning that contract or expense. Any contract made, or any expense otherwise incurred, in violation of the provisions of this section shall be null and void as to the municipality, and no money belonging thereto shall be paid on account thereof. . . .”

In the Supreme and Appellate Court cases interpreting this statute we find some contradiction.

The defendant relies upon DeKam v. City of Streator, 316 Ill 123, 146 NE 550 (1925). In that case sixteen taxpayers of the City filed an action to enjoin the City and its officials from paying any further sums to an engineer pursuant to certain contracts between him and the City, under which he had undertaken to design a sewer system. The contract, entered into in February 1919, recited that no prior appropriation had been made but stated that an emergency condition existed as a result of certain sanitary problems. The following May the annual appropriation ordinance was passed which included an item in the amount of $5,000 for the new sewer system. Subsequently, a supplemental agreement was executed which purported to ratify and affirm the prior contract. The engineer completed his work by March 1920, and submitted his plans and specifications together with his bill for $34,263. In May 1920, an appropriation ordinance for the next fiscal year was passed which included a similar item and amount for the new sewer system. From the two appropriations the engineer was paid a total of $8,000, and prior to plaintiffs’ filing their action the City Council passed a resolution authorizing the payment of the balance of the bill as soon as it could legally be done. The Supreme Court held the contract void as prohibited by law, holding that a contract expressly prohibited by a valid statute is void, and the prohibition of the legislature cannot be disregarded by the courts. The court was relying on the statute then in force. The case is based flatly on the theory that since no appropriation of money had been made the contract of February 14, 1919 was void and consequently could not be ratified, nor was the City estopped to question the legality of the contract since a city cannot be estopped where a contract is ultra vires.

In Simpson v. City of Highwood, 372 Ill 212, 23 NE 2d 62 (1939), a case which involved the validity of proceedings by the City of Highwood to provide facilities for a water supply to be connected from Lake Michigan to the existing system, the plaintiffs filed a representative suit in the Circuit Court against the City, its officers, the engineer, contractors, et al. The relief prayed was that the ordinance providing for the project and bond issue and all contracts thereunder be declared null and void. The proceedings provided for establishing a pumping and purification plant, etc., to be financed by a federal grant and water revenue bonds payable solely from the income of the completed project. Among other things the plaintiff contended that the expenditures of the proceeds of the bonds, and the contracts for such expenditures were unlawful because there was no prior appropriation for the expense of construction, engineering services or purchase of ground. Defendants claimed that an appropriation was not necessary. The statute we have referred to above was cited and the court held that these provisions were mandatory as to contracts and expenses payable from the general fund; that the proceedings were valid; that it was not claimed that the contracts were to be payable out of general funds, but only out of the special fund derived from the sale of the bonds. The court discussed DeKam v. City of Streator, supra, and stated:

“. . . At the time the DeKam contract was made the Local Improvement act made no provision for including engineering services in the cost of the improvement, and they could be paid only out of the general funds of the city. Subsequently the statute was amended and now permits the expense of engineering services to be included as a part of the improvement to be defrayed by special assessment or special tax. We have never held that contracts for or the expenses of constructing the portion of a local improvement which are not to be paid from general funds of a municipality must be preceded by an appropriation. The DeKam case is not controlling here. The contracts and expenditures in this case are in many respects analogous to those under a local improvement proceeding.”

People ex rel. Anderson v. Village of Bradley, 367 Ill 301, 11 NE2d 415 (1937), was a mandamus suit brought to compel the Village to pay certain judgments obtained against it. The Village had entered into a contract with one Connors for the construction of a sewer. The sewer was built, accepted, and the acceptance duly confirmed. A subcontractor filed a proceeding to establish a lien. The Village filed a cross-petition and brought into the proceeding the contractor and all the subcontractors and interested parties. Some contractors filed intervening petitions to establish their liens. An account was taken and the Circuit Court entered a decree which found that there was a balance due the contractor in the sum of $41,577.10. It was further found in the decree that the Village had wrongfully diverted over $25,000 from the special assessment fund. Judgment was entered against the Village in favor of the subcontractors and the administratrix of Connors, who was the contractor, and the court found certain various amounts to be due each. The defendants contended that the relators had a claim only against the funds to be derived from the special assessments to be collected from the territory specially taxed for the local improvement, and that the effect of the judgment would be to compel the taxpayers of the city, generally, to pay the several judgments when no such liability existed originally. The Supreme Court stated:

“. . . As the situation existed at the inception of the contracts between the contractor, subcontractors and the village, the liability was limited to the funds collected from the special assessment levied. The change in the positions of the parties has been brought about by the default and misfeasance, if not malfeasance, of the village, acting through its governmental officials. The amount of public benefits assessed is not shown. If any, they would be payable out of the general taxes.”

The court affirmed the judgment of the Circuit Court.

In Branigar v. Village of Riverdale, 396 Ill 534, 72 NE2d 201 (1947), a contract was entered into by which the subdividers agreed to finance and construct an extension of the Village’s water system so as to serve the developers’ subdivision, and the Village agreed to reimburse them on a percentage basis solely from the receipts and charges made for the use of the water facilities so constructed. The court said that the distinction made in earlier cases is “whether the special fund is a part of the general fund or a segregation of income which never becomes a part of the general fund.” The Village contended that the contract was ultra vires. The plaintiffs contended that there are two types of ultra vires contracts — those where there is no power to contract whatsoever, and those where there is a power to contract but the contract is irregularly made. The court said that the only question was whether at the time the contract was entered into the municipality had the power to enter into such contracts, and discussed the statute which provides that no contract can be made unless an appropriation shall have been previously made. In discussing the question as to whether an appropriation must have been made before the contract with the plaintiffs became valid, the court said that it was necessary to consider other cases decided in like situations, and various cases were discussed, including DeKam and Simpson. The court held that the sole question was whether under the statutes in effect at the time the contract was made, the municipality had power to enter into it. The court said that as in the Simpson case, under the contract, at the time of its inception no debt was created on the part of the defendant Village; that the contractors cannot look to the taxes or general fund of the Village for payment; they can only look to a percentage of the water revenue collected from the particular extensions in question. Consequently, it was held that no appropriation was necessary to validate the contracts and there was a power on the part of the defendant Village to enter into the contracts in question. In commenting on the failure of the Village to publish as required by the statute, the court said:

“. . . We have already stated that where there is a power to enter into a contract but such contracts are irregularly made, and the city accepts the benefits of the contracts, it is estopped from setting up or relying on its own irregularity to defeat recovery. (McGovern v. City of Chicago, 281 Ill 264.)”

In DeLeuw, Cather & Co. v. City of Joliet, 327 Ill App 453, 64 NE2d 779 (1945), an engineering firm was permitted to recover from the general funds of the City the value of services rendered pursuant to a contract made without prior appropriation but providing for payment solely out of a special fund to be obtained from a federal grant. Application for the grant had been withdrawn by the City, and the special fund was never established. The Appellate Court relied on the Simpson case and held that no prior appropriation was necessary, and followed the general rule of contract law that where one party abandons an express contract, as the city did in this case, or makes it impossible for the other party to perform, such other party may treat the contract as rescinded, and in case the plaintiff has not completed the contract, plaintiff may recover on a quantum meruit for the value of services. The court said:

“. . . [T]he fact remains that appellant was retained by the city to do the engineering work at the regular meeting of the city council on July 17, 1933. No price for the services was mentioned in the motion, and, if appellant is entitled to recover, it must be on a quantum meruit, which the parties agree' is the basis claimed.” [Emphasis supplied.]

The court cited Gray v. City of Joliet, 287 Ill 280, 122 NE 550, in which case it was held that where a city may by ordinance “provide for the payment of the expense of levying an assessment from the fund produced by levying it, it cannot relieve itself from liability to pay the reasonable expenses incurred where the city itself voluntarily abandons and dismisses the proceeding before judgment of confirmation.”

Beling v. City of East Moline, 14 Ill App2d 263, 144 NE2d 865 (1957), also bears on the instant case. In that case an action was brought to recover $36,000 for services allegedly rendered by plaintiff as the eingineer designing a waterworks system. The City answered, saying there was no prior appropriation made for the amount claimed out of the general corporate fund of the City, and that therefore the City was not liable. From the pleadings it appears that the City had adopted an ordinance providing for waterworks expenses and improvements. The entire costs, including the engineering expenses, were to be paid out of a fund derived from the sale of revenue bonds which bonds were to be a lien against the water revenues only and not a general obligation of the City unless the bonds were not sold. A contract was entered into between the City and the plaintiff for engineering services, and some work was performed. The City abandoned the project, repealed the ordinance, and no bonds were issued. In a trial before the court without a jury, a judgment was entered in favor of the City. The defendant again relied upon the prior appropriation statute. The plaintiff urged that because the contract provided payment of his fees from the special fund the statute did not apply and that the act of the defendant in repealing the bond ordinance and not continuing with the project prevented the special fund from coming into existence. The court cited and quoted from the DeKam case and the Simpson case, and held that under those cases the contract was void for want of a prior appropriation. The court stated that without such prior appropriation it was impossible for a city to create a liability against itself, payable out of its general funds. A rehearing was granted and another judge wrote an additional opinion in which the court reiterated the rule that where payment for engineering services under a contract is to come from the general fund of the city an appropriation for the payment of such services must be made prior to the execution of the contract; otherwise, the contract is void. The court said:

“The law is well settled that where a city enters into a contract for the construction of a public works including engineering services, that provides for the payment of said services out of a special fund such agreement is valid. Simpson v. City of Highwood, 372 Ill 212, 23 NE2d 62; DeLeuw, Cather & Co. v. City of Joliet, 327 Ill App 453, 64 NE2d 779.”

On examination of the contract, however, the court found that it provided for the engineer to be paid out of a special fund created by the sale of bonds, but in case such bonds were not sold the plaintiff was to be paid out of the general fund, and that under those circumstances the contract was void.

In Hall v. County of Cook, 359 Ill 528, 195 NE 54 (1935), the plaintiff filed an action in assumpsit against the defendant to recover for services. The declaration consisted of a special count and the common counts. On a trial before the court judgment was entered for the defendant. The Appellate Court affirmed the judgment of the Circuit Court (274 Ill App 503). The plaintiff in that case was appointed county architect in 1915 by the board of county commissioners, and the commissioners passed a resolution providing for the employment of a county architect. His rate of compensation was to be a fee of 6 per cent of the cost of the work under his supervision, in accordance with the rules of the American Institute of Architects, with such compensation to be paid only on work ordered by the county commissioners, and provided that all the plans and specifications for such work became the property of the county. The compensation was set out in detail, and in 1926 the county board had in view the erection of a civic auditorium to be built at the expense of the county but to be used by both the county and the City of Chicago. A resolution was adopted, a committee was appointed, and in 1927 the legislature passed an act providing that the county would have the right to acquire land for a municipal hall which should be erected from the sale of bonds of the county, subject to a referendum vote. A referendum election was ordered by the county commissioners as to a bond issue and to authorization of additional taxes. The election was held and the proposals were approved. A committee of six leading architects and consulting engineers of Cook County entered into an agreement with the plaintiff, Hall, for the payment by him for their services in assisting him in and about preparing such plans, which agreement was approved by the county board. A bill was filed in the Circuit Court of Cook County to restrain the issuance of the bonds on the ground that the act of the legislature was unconstitutional; that the bond issue was void and the levy of additional taxes was unconstitutional; and in Campe v. Cermak, 330 Ill 463, 161 NE 761, the Supreme Court so held. Before the decision of the Supreme Court the county had collected, by virtue of taxes extended, the sum of $750,000. After the decision in the Campe case the County ordered this sum to be transferred to the general fund of the County. The Supreme Court in the Hall case held that there was a valid employment of the plaintiff, and stated:

. . The county is not excused from the fulfillment of its obligation to the plaintiff because of the fact that the act of June 1, 1927, was found thereafter to be unconstitutional. [Citing cases.] The plans and prepared drawings are the property of the county. The plaintiff is entitled to recover. There is no conflict in the evidence as to the amount to be paid him under the contract. . . .”

In Deleuw & Co. v. City of Charleston, 298 Ill App 403, 19 NE2d 207 (1939), the court, in upholding a judgment entered in favor of an engineering corporation (based upon a contract to make plans, specifications, etc., for a waterworks improvement to be paid for by a loan from the federal government, which loan and public improvement were abandoned by the municipality), the court said:

. . The courts of this State have held that where an individual undertakes a municipal improvement, agreeing to look wholly to a special fund to be created therefor, and thereafter the city abandons the proposed improvement, the municipality cannot avoid payment by setting up the contingent nature of the contract but is liable out of the general fund. Bunge v. Downers Grove Sanitary Dist., 356 Ill 531; Gray v. City of Joliet, 287 Ill 280; Murrie v. Harper, 249 Ill App 586.”

See also Vail, Mills & Armstrong v. City of Paris, 344 Ill App 590, 101 NE2d 861.

In 1959 the Act (Ill Rev Stats 1965, c 24, § 8-1-7) was amended by adding the following:

“. . . However, pending the passage of the annual appropriation ordinance for any fiscal year, the corporate authorities may authorize heads of departments or other separate agencies of the municipality to make necessary expenditures for the support thereof upon the basis of the appropriations of the preceding fiscal year.”

In 1961, the Act was further amended by adding:

“. . . However, if it is determined by two-thirds vote of the corporate authorities at a regularly scheduled meeting of the corporate authorities that it is expedient and in the best public interest to begin proceedings for the construction of a needed public work, then the provisions of this section shall not apply to the extent that the corporate authorities may employ or contract for professional services necessary for the planning and financing of such public work.”

We conclude that since in the instant case, under the provisions of chapter 24, sec 8-1-7 (in force at the time the contract in question wás entered into), the Village could have legally executed a contract for the improvement which was payable out of a special fund, there was no necessity for any appropriation being made out of the general fund at the time of the inception of the contract. Indeed, such an appropriation ordinance would have been inconsistent with the terms of the contract. When the Village, after utilizing the product of plaintiff’s services, thereafter abandoned the project, it prevented creation of the fund out of which plaintiff was to have been paid, but it could not thus unilaterally impair the validity of the contract. It therefore remained liable to meet the obligations thereunder from another source — its general fund.

The Village argues that since there was no record of a meeting of the Board of Trustees of the Village in November 1955, the trial court was not justified in finding that an oral contract was at that time entered into between the plaintiff and the Village. The trial court had a right to consider the paucity of records of proceedings of the Village and to take judicial notice of the subsequent court proceedings, both civil and criminal, brought against certain officials of the Village. The plaintiff and several persons who were members of the Village Board in 1957 testified that the oral contract alleged in the complaint had been entered into at a meeting of the Board of Trustees of the Village in November 1955. This was contradicted by other then members of the Board of Trustees, and while no record was introduced in evidence showing that the Board of Trustees passed a motion or discussed the question, it was admitted that in many instances there were no records in existence showing the proceedings of the Village Board. In our opinion, the court was fully justified in finding that an oral agreement had been entered into between the Village and the plaintiff. There is no dispute that the Village board purported to ratify an oral contract on April 22, 1957, and it is admitted that the Village used the plans, specifications and estimates of cost prepared by the plaintiff in its special assessment proceedings in the County Court of Cook County.

McQuillin, Municipal Corporations, Vol 10, § 29.103, p 415 (3d Ed) states:

“. . . A municipality may ratify a contract (a) by express acts or (b) by conduct.”
It is also said (p 418) that “. . . when a city enters into a contract, or becomes obligated to another by operation of law, within its municipal powers, the doctrine of estoppel obtains against it with the same force and effect as against an individual, and hence it cannot deny the binding force and effect of such contract or obligation.”
On p 419 it is said: “As respects individuals, the principle is familiar that if one, with a full knowledge of the facts, ratifies the doings of another who has assumed to act in his name and behalf, he will be bound thereby as fully as if he had originally conferred authority on him in the premises. This ratification may be by express consent or by act or conduct of the principal inconsistent with any other supposition than that he intended to adopt and own the act done in his name. ‘Ratification, like waiver, rests upon the doctrine of estoppel. An estoppel may arise against a municipality the same as against any other party.’ The principle of ratification has been said to apply to a municipal corporation the same as to an individual as to contracts which have been unauthorizedly entered into in its behalf, if it could have originally authorized such contracts. [Citing Potter v. Fon du Lac Park District, 337 Ill 111, 168 NE 908.]”

The Potter case, supra, involved a decree awarding specific performance. It was urged that the contract was invalid because the minutes lacked the necessary details to constitute them as authority to any officer of the board to enter into such a contract. The court found that it appeared from the record there was authority for the execution of the contract and that the plaintiff had in all respects carried out his part of the contract and therefore, a decree for specific performance was proper. In National Meter Co. v. Village of Bellwood, 192 Ill App 424, it is stated that a ratification of contracts may be by a resolution of the corporate authorities of the village.

The only question with reference to ratification of the contract which has been raised in the instant case is as to whether or not at the time of the inception of the contract the contract was valid. We have already found that it was a valid contract fully performed by the plaintiff, and subsequently ratified by the Village.

The plaintiff testified that he started to work on the plans, studies and estimates of costs, and that he submitted the plans to the Board for study in April 1956. (The plans and specifications for the proposed water works improvements and the proposed storm and sanitary sewers were introduced in evidence.) On August 23, 1956, an ordinance was passed and approved by the President and Board of Trustees of the Village which provided that a Board of Local Improvements for the Village was created which would consist of the President of the Board of Trustees and all the members designated by name. On October 22, 1956, at a meeting of the Board of Local Improvements, resolutions were adopted providing for the construction of the Water Works Improvements and the Sewer System. The specifications, plans and estimates of both projects as prepared by plaintiff were attached to the resolutions, and it was further provided that these improvements be constructed by special assessments. After a public meeting on November 7, 1956, the Board of Local Improvements resolved that the Board recommend to the President and Board of Trustees of the Village the adoption of ordinances for such improvements. On December 19, 1956, the Board of Local Improvements submitted to the Board of Trustees of the Village a recommendation that ordinances be passed providing for the construction of the Water Works Improvements and the Sewer System, and such ordinances were duly passed.

On January 11, 1957, the plans, specifications and estimates of cost as prepared by the plaintiff and approved by the Village were filed in the County Court of Cook County in accordance with the Local Improvements Act (Ill Rev Stats 1955, c 24, § 84-11, now § 9-2-13) identified as Special Assessments Nos. 5 and 6. Objections were filed in the County Court in the special assessment proceedings, and on May 9, 1958, the County Court sustained the objections and dismissed the petitions in the special assessment proceedings on the ground that the estimate of cost in each case exceeded $200,-000 and that they had not been referred to the proper committee or published as required by law before action was taken by the Village. No appeal was taken by the Village from that order.

In 1957 an election was held in the Village and of those in office during 1955 and 1956, the President and three members of the Board of Trustees were defeated, changing control of the affairs of the Village to the newly elected majority. A new clerk was also elected. The new Board continued to process the special assessment proceedings in the County Court up to the time that the May 9, 1958 order heretofore referred to was entered. Nothing further was done with reference to the Water Works Improvements or Sewer System until April 13, 1959, on which date the owners of certain properties filed suit to disconnect from the Village the areas involved in the improvements. An order was entered in the Circuit Court dismissing that suit, and an appeal was taken. In People ex rel. Jordan Co. v. Forest View, 21 Ill2d 384, 172 NE2d 780 (1961), the Supreme Court held that the dismissal was premature, and in 1961 remanded the case to the Circuit Court for further proceedings. On remand the case was tried and a judgment of ouster from all of the area was entered against the Village, and the area was disconnected from the Village. This order was entered on May 24, 1962. An appeal was taken by the Village and an order remanding the case to the Circuit Court was entered in this court (No. 48843). In the Circuit Court an order was entered on January 29, 1963, modifying the prior judgment and restoring certain areas to the Village, but not the area covered by the projects. The only reason that the special assessment proceedings were dismissed in the County Court was that the agents and attorneys of the Village had proceeded in violation of the provisions of the statute. The case was dismissed on May 9, 1958, and from that date the Village did nothing to follow up with proper proceedings. It was not until April 13, 1959, that the-disannexing proceedings were filed which were finally disposed of by an order of the Circuit Court entered on January 29, 1963. Had the Village corrected the errors and filed new petitions for confirmation, a legal charge might have been created upon the territory which was subsequently disannexed. Its failure to take such steps was in effect an abandonment of the special assessment proceedings.

In its petition for rehearing the defendant raises the question that the only recovery which could be had by the plaintiff in this case was a recovery on quantum meruit. This question was not raised in the defendant’s original brief; nevertheless, we will consider it. The argument is based on the fact that in the original opinion, in most of the cited cases recovery was on a quantum meruit; however, a close examination of those cases will indicate that the contract was not fully completed. If recovery could have been had on a quantum meruit it would necessarily carry with it the implication that the Village had entered into an implied contract with the plaintiff. If the contention of the Village is correct that a contract could not be entered into, it would seem to strain all legal theories to hold that under such circumstances an implied contract would be valid, and a formal contract invalid. Corbin on Contracts, Vol 5, sec 1005, states:

“The established remedy against a debtor for his breach of a contract to pay a sum certain in dollars of the legally established currency is a judgment for the exact principal sum in dollars. . . .”

The rule of contract law does not change because a municipality is involved. Hall v. County of Cook, supra.

In Izzo v. City of Loves Park, 20 Ill App2d 117, 155 NE2d 312, the court said:

“ Tt is well settled that where one party repudiates the contract and refuses longer to be bound by it, the injured party has an election to pursue either of three remedies: He may treat the contract as rescinded, and recover upon quantum meruit so far as he has performed; or he may keep the contract alive for the benefit of both parties, being at all times himself ready and able to perform, and at the end of the time specified, in the contract for performance, sue and recover, under the contract; or he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing.’ L. S. & M. S. Ry. Co. v. Richards, 152 Ill 59-80; Banik v. Bishop-Stoddard Cafeteria Co., 288 Ill App 174, 5 NE2d 868.” (Emphasis supplied.)

Furthermore, in the instant case, the plaintiff testified that the usual and customary charges for the preparation of plans and specifications and estimates of cost in the County of Cook in the year 1955 were 4 per cent of the estimated cost of construction for the preparation of the preliminary plans, final plans and specifications. The plaintiff further testified that he had received no payment from the Village, but that his out-of-pocket expenses were about $20,000. At the time plaintiff was questioned by his counsel about the customary charge an objection was interposed by counsel for the Village, who subsequently withdrew his objection and stated that they would not object to the testimony as to 4 per cent. Hence, there was proof in the record both of the amount which was agreed to be paid and the amount which reasonably could have been charged, and this evidence was sufficient to support the amount of the trial court’s judgment.

A rehearing was granted in this case, and after a full consideration of the matters therein raised this opinion has been modified, but we adhere to our former conclusion. The judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

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

       The amendment is in accord with an article in 1961 University of Illinois Law Forum at 357, entitled “Municipal Law,” by Louis Aneel, one of the attorneys in the instant case. In that article it is stated on page 365: “It would appear that the statutory restriction on municipal contracts lacking a prior appropriation is not one that insures the careful exercise of municipal power, but serves primarily as a trap for the unwary.”

       There was testimony in the record both by the plaintiff and by the members of the Board of Trustees that there was a Board of Local Improvements in existence in the Village in 1955.

       Richter v. City of Mt. Carroll, 398 Ill 473, 76 NE2d 452, holds that the obligation of a city contracted by it prior to the filing of a petition for disconnection of land is an indebtedness against the disannexed land until the debt is completely paid. Geweke v. Village of Niles, 368 Ill 463,14 NE2d 482.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. William A. Oster (Impleaded), Defendant-Appellant.
    Gen. No. 49,753.
    First District, Fourth Division.
    March 25, 1966.

      Anna R. Lavin, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The Criminal Division of the Circuit Court of Cook County in a bench trial found the defendant, William A. Oster, guilty of the crime of armed robbery, and sentenced him to serve a term of not less than three nor more than six years in the State Penitentiary. The defendant appeals from that judgment on the grounds that the evidence did not support the finding of guilty beyond a reasonable doubt; that the trial court deprived him of the right to examine a statement which had been given to the police by one of the People’s witnesses; that the court failed to consider the uncontradicted testimony of two disinterested witnesses; and that the court demonstrated prejudice against the defendant’s witnesses.

The indictment charged that Douglas Aldridge, Edward J. Somerville, Byron A. Benton and the defendant, by force and while armed with a dangerous weapon, took $600 from the person and presence of Judith Towne. Aldridge pleaded guilty. At the conclusion of the People’s case the trial judge dismissed the charges as to Somerville and Benton.

From the record it appears that the testimony at the trial showed that three or four men armed with guns held up the Club Alpine, its owner and occupants, at about 1:00 a. m., on May 12, 1963, taking $251 from the cash register and money and jewelry from the owner and occupants. During the robbery the persons in the Club were made to lie down on the floor, and one customer — a police officer, Harold W. Foster — was bludgeoned to his knees when he hesitated to lie down in accordance with the order given by one of the robbers. Officer Foster, employed by the City of Chicago Heights, Illinois, testified as follows: He was off duty in the Club Alpine, sitting at the west end of the bar and approximately 45 feet from the front door. At about 10 minutes after 1:00 a. m., he noticed a car pull up to the west end of the Club; he observed the car through the window just behind him and about five or six feet away from him; he saw a man get out of the car, come up to the window and look in, which man he identified as the defendant, William A. Oster. In a few minutes there was a lot of shouting and the police officer was ordered by one of the men (who had a .38-caliber pistol in his hand) to lie on the floor, which he did not do. Officer Foster identified the other two men in the tavern as defendants Benton and Somerville. The man with the pistol (Aldridge), using profane language, again ordered the officer to lie on the floor and struck him on the head with the pistol barrel, and continued to strike him until he went down to the floor on one knee. His wallet was taken from him. After he was struck the last time the officer fell to the floor and remained in a prone position.

Mrs. Mattie Hull, co-owner of the Club Alpine, testified as follows: At 1:00 a. m. on May 12, she was in the back room of the Club when a masked man with a gun came into the door leading to the public area of the Club and announced that it was a stickup. He ordered her, with her daughter Nellie, and her future son-in-law Frank Klip, to go into the bar. They went into the bar through a door located immediately behind the center of the bar, at which time Judy Towne was tending the bar, standing behind it, alone. One man was standing near the door; he was not masked nor did he carry a gun. Another man, masked and carrying a gun, was in the barroom. Mrs. Hull testified that there were three men involved in the holdup, and that she and her companions were made to lie on the floor, where they stayed until the holdup men left.

Mrs. Hull’s daughter had married Frank Klip between the time of the holdup and the trial. She corroborated the testimony of her mother that they were ordered to go into the bar and lie down on the floor. She further testified that Oster was standing in the middle of the barroom about five feet from the public entrance, which was in the center of the building; that he was not wearing a mask or hat; that Aldridge had a gun and Oster was waving a gun and using foul language. She could not testify as to whether or not the third man had a gun, but she did state that to her knowledge there were three men involved in the holdup — Aldridge, Oster and the third man at the west end of the bar. She further testified that she had never seen Oster before the night of the robbery, and had not served him at the Club Alpine two weeks before the trial.

Frank Klip testified that Oster was standing in the center of the room about 14 or 15 feet away from him, on the right side of the bar and not by the door. He did not specifically testify that Oster had a gun. Both Frank and Nellie Klip testified that Oster’s hair appeared to be lighter at the time of the trial than it was at the time of the holdup. Officer Foster testified that he did not at any time see Oster inside the tavern. This could be explained by his position on the floor. The defense here argues that the witnesses’ identification of Oster as one of the participants in the holdup was in conflict and therefore not sufficient to sustain conviction. This was a matter of credibility for the trial court to resolve.

Several lineups were held at the Oaklawn, Illinois, police station, the last of which was held on June 13, 1963. Oster was in that lineup and was identified by Foster and the Klips. Oster had been arrested on May 18, and there were lineups at that time. Judy Towne was present at a lineup on that date and also identified Oster. Byron Benton testified that he was in a lineup at the Oaklawn station on May 18, 1963, on which date he had been in two or three lineups; that in the first two Oster was not included, but later in the morning Oster was in a lineup. Somerville testified that he was arrested May 17 or 18, 1963; that Oster was in a room with him in the station; that he (Somerville) went through the lineup five or six times and that each time Oster was in the lineup with him. Oster testified that he was arrested the 17th or 18th of May and went-through four or five lineups. Frank Gilbert, a police officer of the Oaklawn Police Department, testified that he arrested Oster on May 18, 1963. The police records did not show who the individuals were in the various lineups. There was no positive testimony either way as to which lineups Oster had been in.

To summarize the evidence, Officer Foster and the Klips testified that they did not see Oster at the lineups on May 18 in the Oaklawn police station. Benton testified that Oster was not in the first two lineups on that date. Somerville and Howard Craig (who were in those lineups at various times) and Oster each testified that Oster was present at all the lineups on that date. The point the defendant stresses is that from the evidence it should be determined that Oster was at all of the lineups and was not identified by any of the holdup victims.

It is the province of the trial judge in a bench trial to determine the weight and credibility of the testimony, to resolve conflicts, and to make findings of fact. The trial judge has the opportunity to observe the witnesses, and his judgment should not lightly be set aside unless the proof is so unsatisfactory or improbable as to present a reasonable doubt as to the guilt of the defendant. People v. Clark, 30 Ill2d 216, 195 NE2d 631; People v. Johnson, 47 Ill App2d 441, 198 NE2d 173; People v. Harvey, 62 Ill App2d 480, 210 NE2d 818; People v. Lyons, 65 Ill App2d 139, 212 NE2d 512. It is also the law that the positive testimony of one credible witness is sufficient to sustain a conviction. People v. Crenshaw, 15 Ill2d 458, 155 NE2d 599; People v. Soldat, 32 Ill2d 478, 207 NE2d 449.

While there were certain conflicts in the evidence in the instant case, it was the duty of the judge to resolve the conflicts. The evidence presented was sufficient to prove the defendant guilty beyond a reasonable doubt.

The defendant here argues that the trial court deprived him of an established right by prohibiting him from looking at a signed statement which Frank Klip had previously made to the police. The record indicated that during the trial the State’s Attorney promptly handed the statement to the defense counsel upon request, but that the trial judge admonished the defendant, Oster, to refrain from looking at it. The defendant argues that the court violated the rules laid down by the United States Supreme Court and the Illinois courts, and cites in support of that contention the cases of People v. Wolff, 19 Ill2d 318, 167 NE2d 197, and Jencks v. United States, 353 US 657. These cases stand for the proposition that the defense has a right to be given statements made by witnesses to the police or prosecution. In the instant case the defendant was represented by counsel retained by him. The statement was handed to the defense counsel and not to the defendant. The court said that the defendant should refrain from looking at the statement, but that counsel might look at it. This was not a serious error, as there was nothing which would indicate that the court would not permit counsel, having read the statement, to consult with his client with reference to it. The trial court has the right to control the trial of a case and prevent disorder, and his ruling was not reversible error.

The defendant took the stand in his own behalf and denied that he had anything to do with the robbery. He stated that he was married and lived with his wife and two children; that on the day of the robbery he was employed on two jobs: at one job he worked from 11:00 p. m. to 7:00 a. m.; at the other job he started at 7:30 a. m., and worked until 5:00 or 5:30 p. m. He stated that on the day of the robbery he had worked and arrived home at about 4:00 p. m.; that he was supposed to work that evening but did not, and went to bed instead. One of his employers took the stand and testified that Oster had worked for him since April, that he was a satisfactory employee, and that one of his duties was to make bank deposits which sometimes contained cash. James E. Sweet testified that he knew Oster and knew Nellie and Frank Klip, having tended bar for the Klips three months before the robbery. He further testified that on a Friday, about a week before the trial, he was in the tavern with Oster and Armalis; that he introduced both men to the girl known as Nel (Nellie Klip); that she did not make any statement that she recognized Oster, merely saying that she was pleased to meet them; and that she served Oster a drink. Armalis also testified to the same effect, except that he identified the girl to whom they were introduced as “Kitty or Kate — Mickey,” and said that she did not indicate that she knew Oster. Oster also testified to the meeting in the tavern. Mrs. Klip testified that she was sure she did not serve Oster drinks in the tavern after the robbery and that if she had she would have recognized him. The testimony of Sweet, Armalis and Oster, standing by itself, is inconclusive, nor does it appear that Mrs. Klip’s denial of the incident was impeached or rendered incredible by the defense. At best, her denial went to the question of her credibility, which was a question of fact to be determined by the trial court. In People v. Clark, supra, the court said:

“Where the cause is tried without a jury, it is the function of the trial court to determine the credibility of the witnesses and the weight to be afforded their testimony, and where the evidence is merely conflicting a reviewing court will not substitute its judgment for that of the trier of fact.

The defendant also argues that by its remarks the trial court indicated prejudice against the defendant. The court admonished one of the defendant’s witnesses who was testifying as to what happened at the various lineups, by telling him that he was under oath and stating that the witness knew what it meant for him if he didn’t tell the truth. The statement by the court was not proper; however, standing alone, it does not amount to reversible error.

The judgment of the Criminal Division of the Circuit Court is affirmed.

Affirmed.

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