text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. ALBERT BERLAND, Petitioner-Appellant.
    First District (4th Division)
    No. 81—2024
    Opinion filed June 9, 1983.
    Rehearing denied July 5, 1983.
    George B. Collins, of Collins & Amos, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Joan S. Cherry, and Marie Quinlivan, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE LINN

delivered the opinion of the court:

Petitioner, Albert Berland, appeals from the denial of his petition for post-conviction relief. (Ill. Rev. Stat. 1981, ch. 38, par, 122 — 1 et seq.) The issue is whether petitioner established that his conviction resulted from the State’s use of perjured testimony. For the reasons set forth below, the judgment of the circuit court is affirmed.

Petitioner and his codefendant, Louis Wolff, were convicted of having committed arson with intent to defraud an insurer in violation of section 20(l)(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1969, ch. 38, par. 20(l)(b)). Berland’s conviction was based on an accountability theory. (Ill. Rev. Stat. 1969, ch. 38, par. 5 — 2.) Each defendant was sentenced to a penitentiary term of IV2 to 4V2 years and was fined $10,000. The convictions were reversed on direct appeal by this court on the grounds that: (1) defendants had conflicting interests such that their representation by single retained counsel was improper and (2) that the evidence was insufficient to sustain the convictions. (People v. Berland (1977), 52 Ill. App. 3d 96, 367 N.E.2d 181.) The Illinois Supreme Court later reversed the appellate court decision and affirmed the circuit court. (People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, cert. denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 63.) The supreme court held that: (1) the joint legal representation was not improper because the record did not show any actual conflict of interest between the codefendants; (2) that the evidence was sufficient to sustain the convictions; and (3) that a challenge by Wolff to the identification testimony given by two eyewitnesses, Albert Kyles and Evelyn Mayberry, based upon Wolff’s contention that their identification of him was suggested by a mug shot shown to them prior to trial, had been waived. In addition the supreme court explicitly upheld a finding which had been made by the trial court that the testimony given by Kyles and Mayberry was credible. In the petition for post-conviction relief, petitioner alleged, inter alia, that Kyles and Mayberry gave perjured testimony in order to bolster their identification of Wolff.

The contention with regard to Kyles is premised upon a claim that, in a deposition taken five years after the trial, Kyles recanted that portion of his trial testimony in which he said he recognized Wolff on the day of the fire because of prior encounters with him. According to the supreme court opinion, the fire occurred in November 1969, the indictments were returned in May 1973, and the trial was held in January 1974. Kyles testified at the trial that he could identify Wolff because he had seen Wolff on three or four occasions before the fire at a paint store and one other time when he paid Wolff the rent on an apartment which his aunt had leased in the building which was burned. (People v. Berland (1978), 74 Ill. 2d 286, 298.) Thereafter, in a deposition taken in March 1979, and again during the hearing on the petition for post-conviction relief in July 1981, Kyles stated that he never had an aunt living in the building which was burned and that he never paid rent to Wolff for an apartment in that building. Kyles also stated that he did not know Wolff and could not identify him.

On appeal, petitioner argues that Kyles’ recantation demonstrates that his identification of Wolff at the trial was based on perjured testimony. We disagree.

The post-conviction hearing transcript indicates that during cross-examination of Kyles, the following colloquy took place:

“THE COURT: You’re saying you don’t know Mr. Wolff and you couldn’t identify him if you — if I pointed out, said is this Mr. Wolff, you can say it was or wasn’t?
[Kyles]: I did at that time when I first went to court, I knowed him, but I don’t know him now because it’s been so many years since that happened.
THE COURT: Okay. We just want to get your answer clear. You did not know a Mr. Wolff at the time of the fire?
[Kyles]: Yeah.
MR. ROBBINS [assistant State’s Attorney]: Q. Did you have any dealings—
A. If he walked in now, I wouldn’t know the man.
Q. That’s what I asked you. At the time of the fire, did you know a Mr. Wolff?
A. Yeah, I knowed him then when we went to court. I knowed him then.”

At the close of the post-conviction hearing, the judge, who we note was not the judge who presided at the original trial, stated that notwithstanding Kyles’ partial recantation of his trial testimony, he did indicate at the post-conviction proceedings that at the time of the trial he knew Wolff and could identify him as one of the men who removed a gasoline can from a station wagon in front of the building and went into the building about 15 minutes before the fire started.

The presiding judge had the opportunity to observe Kyles’ demeanor at the post-conviction proceeding and to assess the veracity of his persistent representation that he was able to identify Wolff at the time of the trial. As a court of review, we find no reason to disturb the court’s assessment of Kyles’ credibility. We therefore affirm the trial court’s conclusion that Kyles’ partial recantation of his trial testimony did not amount to perjury.

In any event, at a post-conviction hearing it is not sufficient to show that perjury took place during the trial. Rather, petitioner must establish that the State knowingly used perjured testimony. (People v. Oswalt (1975), 26 Ill. App. 3d 224, 227, 324 N.E.2d 666.) In this case, even if Kyles’ partial recantation of his trial testimony amounted to perjury, petitioner has not shown that the State used his testimony knowing it to be false. Consequently, the evidence does not entitle petitioner to post-conviction relief on the perjured testimony theory.

Petitioner also contends that the testimony given at the trial by Ms. Mayberry to support her identification of Wolff was false. Ms. Mayberry testified at the trial that in November 1969 she lived across the street from the subject premises. On the date of the fire, at about 9:30 a.m., she saw Wolff, whom she had seen on several prior occasions, take a gasoline can from the back of a station wagon and enter the subject building. (People v. Berland (1978), 74 Ill. 2d 286, 298-99.) At the hearing on the post-conviction petition Ms. Mayberry testified that she could not see the face of the man carrying the gasoline can. However, prior to the State criminal trial, Ms. Mayberry had testified in a Federal civil suit arising out of the same fire that she never saw the faces of the men who went into the building. (People v. Berland (1977), 52 Ill. App. 3d 96, 99.) The effect on Ms. Mayberry’s credibility as a witness due to this discrepancy between her testimony in the Federal case and that given at the criminal trial was raised and addressed on direct appeal. It is therefore not a proper basis for post-conviction relief. People v. Pierce (1977), 50 Ill. App. 3d 525, 531, 365 N.E.2d 988, cert. denied (1978), 434 U.S. 1077, 55 L. Ed. 2d 784, 98 S. Ct. 1270.

Accordingly, for the reasons noted, the judgment of the circuit court is affirmed.

Affirmed.

ROMITI, P.J., and JIGANTI, J., concur.

       Although the record includes a transcript of the post-conviction hearing proceedings, it does not include the transcripts from the trial. Therefore, unless otherwise indicated, factual statements regarding the evidence introduced at the trial are taken from the supreme court opinion.


source: Caselaw Access Project

author: JUSTICE McGLOON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT WILLIAMS, Defendant-Appellant.
    First District (1st Division)
    No. 81—2442
    Opinion filed May 31, 1983.
    James J. Doherty, Public Defender, of Chicago (Andrew E. Sohn and Donald S. Honchell, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Thomas Gearen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

Following a jury trial, defendant Vincent Williams was found guilty of rape and unlawful restraint. He was sentenced to serve concurrent terms of six years for rape and two years for unlawful restraint.

On appeal, defendant contends the trial court erred: (1) in instructing the jury on the issue of consent by a mentally deranged female; (2) in instructing the jury on the issue of accountability; (3) by restricting defense counsel’s cross-examination of the complaining witness; and (4) by entering separate judgments of conviction for both rape and unlawful restraint.

We affirm in part, reverse in part.

The complainant, a 26-year-old special education student, testified that on August 9, 1980, at about midnight, she was with three of her friends at the Douglas Park Swimming Pool. The pool was closed. Complainant’s companions crawled under the fence to swim. Defendant and his friend, Edward Cherry, were also swimming. Complainant was standing outside the pool area when defendant approached her and asked if they could have sex with her. She responded by saying, “No.” As complainant and her friends started to leave the area, defendant and Cherry followed the group. The girls became afraid and started to run. Defendant and Cherry caught up with complainant. Cherry then threatened to hurt complainant unless her friends left. He grabbed complainant by the neck and dragged her into the bushes. After he removed her clothing, he had sexual intercourse with her. Afterwards, defendant had sexual intercourse with her. Complainant repeatedly denied consenting to intercourse with either defendant or Cherry. She also testified that she was screaming and crying throughout the incident. She further testified that her blouse was torn by both defendant and Cherry.

After the incident, complainant received treatment at Mount Sinai Hospital. The physician’s examination of complainant revealed no vaginal lacerations. However, a vaginal smear positively indicated the presence of sperm.

Regina Campbell, complainant’s 13-year-old girlfriend, testified that on August 9, 1980, she and complainant agreed to have sex with defendant and Cherry. After exiting the pool area she became frightened and changed her mind. Regina and the other girls began to run from the area when they discovered that defendant and Cherry were following them. Regina further testified that Cherry grabbed complainant by the neck and forced her into the bushes.

Regina then ran to Mount Sinai Hospital for help. She accompanied Chicago police officers back to Douglas Park where complainant was walking from the bushes, pulling her pants up and crying. Defendant and Cherry were apprehended by Chicago police officers and hospital security guards as they ran from the scene of the incident.

While in custody, defendant was interviewed by Assistant State’s Attorney Markovitz. Markovitz testified that defendant stated that he and Cherry talked about having sex with complainant. After the conversation, Cherry put his arm around complainant’s neck and took her to some bushes. Defendant further stated that he had sex with the complainant and that she said she “wanted to get up” several times during the incident.

Testifying in his own behalf, defendant stated that he was a special education student, but never attended school with complainant. He had known complainant for eight to 10 years and had previously had sex with her on two occasions. He stated that he and Cherry were swimming at the Douglas Park pool on August 9, 1980. Regina Campbell and her friends were also swimming. Complainant waited outside the fence. As the group left the area, Cherry grabbed complainant and walked her to some bushes. Defendant described how he waited outside the bushes for about 15 minutes. He then approached complainant, who was sitting on the ground with her slacks and panties down to her knees. Defendant further testified that complainant voluntarily had sex with him and that she was not crying or disturbed. Defendant mentioned that while he was having sex with complainant, Cherry looked through her coin purse. Defendant denied telling Assistant State’s Attorney Markovitz that complainant said she “wanted to get up.” Defendant and Cherry were arrested as they ran from the location and were later identified by complainant.

At trial, the jury was instructed that defendant could be convicted of rape if it found that he had sexual intercourse with complainant by force and against her will. Defendant contends that the trial court erred by further instructing the jury that intercourse by force includes intercourse with a female who is so mentally deranged or deficient that she cannot give effective consent to intercourse.

The jury returned a general verdict of guilty. Therefore, we are unable to discern whether the verdict was based upon a finding that the act' of intercourse was committed by force or upon a finding that complainant was incapable of giving effective consent. If the evidence adduced at trial is sufficient to support either finding, then the guilty verdict must stand. (People v. McMullen (1980), 91 Ill. App. 3d 184, 414 N.E.2d 214.) A general finding of guilt is presumed to be based upon any proper count in an indictment where the applicable evidence is sufficient. McMullen; People v. Collins (1979), 71 Ill. App. 3d 815, 390 N.E.2d 463.

In the instant case, there is ample evidence to prove beyond a reasonable doubt that sexual intercourse was performed forcibly and against the will of complainant. Complainant testified that Cherry grabbed her by the neck and forced her into some bushes. This fact was corroborated by Regina Campbell, Assistant State’s Attorney Markovitz and defendant. Although complainant and defendant’s testimony regarding the issue of consent conflict, we find complainant’s testimony to be credible. She testified that she cried and screamed throughout the incident. Furthermore, she repeatedly denied consenting to intercourse with either Cherry or defendant. Where the complainant’s testimony is clear and convincing, as it is in the case at bar, it is sufficient to sustain a rape conviction despite the fact that it is contradicted by the accused. People v. Sanders (1976), 38 Ill. App. 3d 473, 348 N.E.2d 229.

Accordingly, we find that the evidence was sufficient to support a guilty verdict based on the fact that the acts of intercourse were committed by force and against the will of complainant.

Defendant first contends that the trial court committed reversible error when it instructed the jury on deranged consent since there was no medical evidence to support the instruction. We disagree. The State and defendant are entitled to instructions presenting their theories of the case. Even slight evidence relating to a theory will justify the instruction. (People v. Isenberg (1978), 60 Ill. App. 3d 325, 376 N.E.2d 778.) Complainant attended three different special education schools. She was 26 years old, but socialized with children who were less than half her age. Although expert testimony may have been helpful in assessing complainant’s mental deficiencies, the jury was capable, as the trier of fact, of determining whether complainant could fully understand the physical and moral implications of sexual conduct. The evidence supports the State’s theory that complainant lacked the mental capacity to consent to intercourse. Therefore, the trial court properly instructed the jury on the issue of deranged consent.

Second, defendant contends that the trial court erred in giving the jury an accountability instruction because there was no evidence that defendant aided or abetted Cherry in raping complainant.

It is well settled that even where the accountability instruction is inappropriate, any resultant error is harmless where sufficient evidence was presented upon which the jury could find defendant guilty as a principal. (People v. Dukett (1974), 56 Ill. 2d 432, 308 N.E.2d 590, cert. denied (1974), 419 U.S. 965, 42 L. Ed. 2d 180, 95 S. Ct. 226; People v. Feierabend (1981), 98 Ill. App. 3d 731, 424 N.E.2d 765; People v. Taglia (1979), 76 Ill. App. 3d 199, 392 N.E.2d 725.) As stated above, there is ample evidence from which the jury could have found defendant guilty of rape as a principal. Therefore, we find no reversible error occurred here.

We find no merit in defendant’s third contention that the trial court erred in restricting defense counsel’s cross-examination. During the cross-examination of complainant, defense counsel made an offer of proof regarding complainant’s failure to testify against Edward Cherry in juvenile court. The trial court ruled that defense counsel could not inquire on cross-examination as to why complainant failed to appear.

The trial court is vested with substantial discretion in determining the scope and manner of cross-examination. (People v. Bivens (1981), 101 Ill. App. 3d 8, 427 N.E.2d 791.) A court of review will interfere only where there is a clear abuse of discretion resulting in prejudice to defendant. (People v. Bracey (1981), 93 Ill. App. 3d 864, 417 N.E.2d 1029.) The trial court did not abuse its discretion in the instant case because an accomplice’s guilt or innocence is irrelevant to defendant’s guilt. Therefore, we find that the trial court could properly restrict defense counsel’s cross-examination of complainant.

Defendant’s final contention is that the trial court erred in entering judgments of conviction for both unlawful restraint and rape. We agree.

In People v. McCann (1979), 76 Ill. App. 3d 184, 394 N.E.2d 1055, the court held that all the elements of unlawful restraint are present in rape. A judgment of conviction may not be entered for lesser included offenses. (People v. Coleman (1980), 83 Ill. App. 3d 429, 403 N.E.2d 1266.) Therefore defendant’s conviction for unlawful restraint must be reversed.

For the foregoing reasons, we affirm the conviction and sentence imposed for rape, and reverse the conviction for unlawful restraint.

Judgment affirmed in part, reversed in part.

GOLDBERG and CAMPBELL, JJ., concur.


author: JUSTICE LINN

text:
    BELL FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff-Appellee, v. ALBERT F. BELCASTRO et al., Defendants—(Mary Belcastro, Defendant-Appellant).
    First District (4th Division)
    Nos. 81—3175, 82—1019 cons.
    Opinion filed May 26, 1983.

      Mary Belcastro, of Oak Park, for appellant, pro se.

    No brief filed for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Mary Belcastro (Mary), who is the pro se defendant, prosecutes this appeal from several orders entered in a foreclosure proceeding brought by plaintiff, Bell Federal Savings & Loan Association (Bell), as mortgagee. Bell sought to foreclose the mortgage on property located at 1178 South Harvey in Oak Park, Illinois, against Albert F. Belcastro (Albert) and Mary, his wife, as mortgagors.

We recently have had occasion to consider litigation between Mary and Albert. A judgment of separate maintenance entered on October 5, 1977, granted Mary exclusive possession of the marital home. However, on July 31, 1979, an order was entered directing the parties to offer the marital home for sale on April 1, 1980. On May 5, 1980, an order was entered terminating Mary’s right to exclusive possession of the marital home. The previous appeal affirmed an order denying Mary’s petition to vacate the July 31, 1979, order directing that the marital home be sold. (In re Marriage of Belcastro (1982), 103 Ill. App. 3d 1199 (Rule 23 order).) The record shows that the orders entered in the separate maintenance action remain in effect.

The complaint for foreclosure was filed on February 17, 1981. Although served personally, Mary filed a special appearance and moved to dismiss on the grounds that the issues had been litigated in the separate maintenance action and that the trial court lacked jurisdiction because such orders were pending on appeal in cause No. 80— 3131. Mary also claimed in her pleadings that she had tendered payments that Bell had refused and that Bell had arbitrarily cancelled the insurance on the property.

Bell moved to strike the aforesaid pleadings on the grounds that a special appearance could be used only for the purpose of objecting to jurisdiction of the court over the person, and that orders entered by the domestic relations division of the circuit court did not deprive the chancery division of jurisdiction of the mortgage foreclosure proceeding. The trial court granted Bell’s motion to strike.

Mary filed an answer again setting forth the pendency of the appeal in No. 80 — 3131 and protesting that Albert had not been making appropriate payments. Mary also filed a counterclaim seeking damages from Albert and Bell and an accounting from Albert, who, she maintained, had a good job and substantial income. The counterclaim was stricken and Mary’s motion for a change of venue from Judge Green was denied.

Bell filed a motion for summary judgment, contending that the mortgage had been in default since September 1980 and that the total amount owing was $14,030.76, including unpaid principal and interest and advances made by Bell for real estate taxes and insurance. On September 30, 1981, a judgment of foreclosure and sale was entered. Mary unsuccessfully moved to vacate this judgment.

On December 23, 1981, the sheriff’s report of sale and distribution showing a balance of $10,178.81 was filed. Mary claimed she had spent over $12,000 on the property since July 2, 1976, and was entitled to the entire proceeds of the sale. She claimed Albert was liable for half of these expenses and attached several dozen receipts in support of her contention. The trial court, however, entered an order confirming the sheriff’s report of sale and distribution. On December 31, 1981, the court denied Mary’s “tender of proof” and denied her a hearing on her “written tender of proof.” On January 20, 1982, Bell moved to modify the order so it could be reimbursed $505.72 for real estate tax Bell had paid. This motion was granted on January 20,

1982.

On March 9, 1982, Mary filed a notice of her motion for an order to turn over the surplus held by the sheriff. On March 11, 1982, the cause was set down for an evidentiary hearing on March 20, 1982. On that date the court denied Mary’s motion for a “turnover order” and ordered the clerk of the circuit court to pay the proceeds in separate checks equally to Mary and Albert.

Mary has prosecuted appeals (1) from an order entered March 29, 1982, denying her motion for a “turnover order” and directing the clerk of the circuit court to pay the proceeds of the sale of the premises equally, $4,836.54 to Albert and $4,836.55 to her (No. 82 — 1019), and (2) from an order entered November 30, 1981, denying her motion to vacate earlier orders, denying her motion for change of venue and to dismiss the complaint, striking her counterclaim, and granting summary judgment of foreclosure and ordering sale of the premises (No. 81 — 3175). We have granted Mary’s motion to appeal as a poor person and have consolidated both appeals. That Bell and Albert have not filed briefs does not affect our disposition of the case. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

With regard to Mary’s first contention, we find that she has waived any jurisdictional defect by her subsequent general appearance. (Lord v. Hubert (1957), 12 Ill. 2d 83, 145 N.E.2d 77.) Moreover, Mary’s claim of conflict in jurisdiction is without merit. As pointed out above, orders were entered in the separate maintenance action directing Mary and Albert to put the marital home up for sale (April 1, 1980), and Mary’s right to exclusive possession was terminated by court order (May 5, 1980). Our affirmance of these orders in the prior appeal disposes of Mary’s frequently reiterated claims that the foreclosure action could proceed only in violation of the rights granted to her in the separate maintenance action. The record also reveals that Bell’s motion for summary judgment, to which Mary filed no truly responsive pleading, was granted properly.

Mary next contends she was denied due process because the proceedings did not recognize her homestead rights in the property. Citing Anderson v. Anderson (1976), 42 Ill. App. 3d 781, 356 N.E.2d 788, Mary contends that she alone, and not Albert, was entitled to the homestead estate. It is true that, under certain circumstances, a husband or wife may lose homestead rights by deserting the other spouse. (Ill. Rev. Stat. 1981, ch. 40, pars. 1011, 1016; ch. 52, pars. 2, 5.) However, in this case the order of May 5, 1980, the correctness of which is not properly before us on this appeal, terminated Mary’s rights to exclusive possession of the marital home and thus extinguished her homestead estate.

In Skach v. Sykora (1955), 6 Ill. 2d 215, 127 N.E.2d 453, cited by Mary, the court stated that the purpose of a mortgage foreclosure is to enforce the payment of the mortgagor’s debt; the purpose of the redemption statute is to give the debtor time and opportunity to avoid the loss of his property and to give his other creditors an opportunity to collect their debts from any surplus over the mortgage debt. In this case, the record does not demonstrate the existence of any bona fide defense to the mortgagee’s right to payment. Although Mary now asserts that summary judgment was improper, she does not articulate any issue of fact that would constitute a defense in this proceeding.

In her fourth argument Mary claims that she had a vested interest in possession of her property by virtue of the order entered on October 5, 1977, in the separate maintenance proceedings and that the foreclosure proceedings denied her the equal protection of the laws under the fourteenth amendment of the Federal Constitution. The modification of the October 5, 1977, order, which is the basis for this claim, is not before us on this appeal.

Next, Mary contends the trial court arbitrarily denied her a hearing on her claims under the Joint Tenancy and Domestic Relations Acts. Mary contends that one joint tenant who bears the financial burden of taxes, repairs and heating is entitled to reimbursement from the other joint tenant. (Kratzer v. Kratzer (1971), 130 Ill. App. 2d 762, 266 N.E.2d 419.) Assuming, arguendo, that Albert, as a result, owed her $12,000, which would have been enough to cover the mortgage payments, Mary’s rights against Albert did not constitute a defense to the foreclosure proceedings.

Mary next contends that she repeatedly was denied hearings on her motions, petitions, counterclaims and answers. However, Mary makes this complaint in general, rather than pointing out particular occasions when she was denied a hearing. A reviewing court is not required to search the record to reverse, since it is the responsibility of the appellant to point out where the trial court has erred. Several of the major orders entered in the case recited that the court was fully advised in the premises, and Mary has not filed a report of proceedings. As Mary points out, the record does not explicitly reflect that the court granted Mary a factual hearing on her claims against Albert. But the rules of appellate procedure also apply to a pro se litigant like Mary, who is required to present a cohesive legal argument. (Bank of Ravenswood v. Maiorella (1982), 104 Ill. App. 3d 1072, 433 N.E.2d 1044.) An order entered September 30, 1981, for example, which recites that the court was “fully advised in the premises,” struck Mary’s counterclaim seeking an accounting from Albert. Under these circumstances we are required to presume the court heard sufficient information to justify the order. Cf. Doran v. Doran (1972), 7 Ill. App. 3d 614, 287 N.E.2d 731.

Mary next contends the court erred in denying her petition for change of venue. However, Mary’s petition for change of venue was not filed until after the trial court had entered several substantive orders in the case. Once the trial judge has ruled on any substantial issue in the case, the right to a change of venue is not absolute, but requires specific allegations to support the charge of prejudice and may be granted in the sound discretion of the court. (Lebovitz v. Cahill (1979), 69 Ill. App. 3d 614, 387 N.E.2d 943.) Since the petition for change of venue was not timely, it was properly denied.

Mary’s final argument is that the court allowed a fraud upon her marital rights, an argument directed at the alleged unsavory character of the purchasers of the property at the sale. Mary also complains of the arbitrary cancellation by Bell of the insurance, of the “rush to judgment,” and of Bell’s failure to obtain payments from Albert. We have examined these arguments and find no reason for reversing the judgment. Therefore, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

ROMITI, P.J., and JOHNSON, J., concur.

      On July 1, 1982, the trial court entered an order approving reports of proceedings for December 23, 1981, and December 31, 1981, as correct, but denied Mary’s motions to certify as correct bystander reports of proceedings for September 30, 1981, and March 29, 1982.


author: PRESIDING JUSTICE SEIDENFELD

text:
    UNITED BANK OF LOVES PARK, Plaintiff-Appellee, v. J. PATRICK DOHM et al., Defendants-Appellants.
    Second District
    No. 82—609
    Opinion filed June 9, 1983.
    Rehearing denied July 13, 1983.

      J. Patrick Dohm, of Rockford, for appellant, pro se.

    Theodore Liebovich, of Remencius, Liebovich and Gaziano, of Rockford, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

J. Patrick Dohm and Ingrid Dohm, as beneficiaries of a land trust, seek to vacate the sale of real estate made under a decree of foreclosure entered by default. They contend that J. Patrick Dohm was not properly served in the original foreclosure action by substituted service on his wife at their Rockford house because at the time of the service his usual place of abode, at which service was required to be made, was in Chicago, not Rockford. He also contends that the First National Bank & Trust Company of Rockford, as trustee under trust No. 4774, holding record title to the subject real estate, was not properly served.

I

The claim of improper substituted service of process is based on section 2 — 203 of the Code of Civil Procedure, which provides as relevant:

“[Sjervice of summons upon an individual defendant shall be made (a) by leaving a copy thereof with the defendant personally or (b) by leaving a copy at the defendant’s usual place of abode, with some person of the family *** provided the officer or other person making service shall also send a copy of the summons *** addressed to the defendant at his or her usual place of abode. The certificate of the officer or affidavit of the person that he or she has sent the copy in pursuance of this Section is evidence that he or she has done so.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 110, par. 2 — 203.

Defendants argue that delivery of a copy of the complaint and summons to Ingrid Dohm, the wife of J. Patrick Dohm, at their residence in Rockford did not comply with the statute because his “usual place of abode” at the time of service was an apartment in Chicago, not the Rockford house.

Initially we consider the argument of the plaintiff, United Bank of Loves Park, that service was waived when J. Patrick Dohm entered his appearance on the petition to vacate the decree of foreclosure. It argues that defendant, by arguing nonjurisdictional issues such as adequacy of price at the sheriffs sale, waived the right to contest the propriety of the service of process. The defendant, however, made no appearance in this case until after the entry of the judgment of foreclosure. Moreover, the petition to vacate, though attacking the propriety of the post-decree sheriff’s sale, does not argue the merits of the foreclosure action itself. For these reasons the petition to vacate did not amount to a waiver of the right to contest the service of process. See Sullivan v. Bach (1981), 100 Ill. App. 3d 1135, 1141-42.

The sheriff’s return on the summons states that the summons was served and mailed on October 7, 1980. Dohm testified that he was employed as a commodity investment program salesman in Chicago from September 26, 1980, through January 19 or 20, 1981, and that during this time he resided in an apartment in Chicago. He stated that previously he had resided at the home in Rockford where service was made and that he moved back to Rockford on either January 19 or 20, 1981. He said that while he worked in Chicago he “sometimes” but “not always” made trips back to Rockford on the weekends but doubted that he made any trips back to Rockford during the week. Throughout the period in question his wife and children continued to reside at the Rockford address. Dohm testified that he was “absolutely not” separated from his wife in the “marital sense.” He said that his wife and children did not join him in Chicago at any time during this period.

Dohm testified that throughout the time that he was employed in Chicago his family’s household furniture remained in the Rockford house. He did not change the address on his Illinois driver’s license or his social security registration, nor did he have his personal mail forwarded to his Chicago address. He decided to change employment after a downturn in the commodities market, which by early December 1980 had made his job less remunerative. He therefor did not reside in Chicago at any time after January 20,1981.

Neither party had directed us to any Illinois case directly in point, nor have we found any. On the record before us the rulings in other jurisdictions on the question of “usual place of abode” do not support Dohm’s contention that although the home in Rockford remained his residence it was not his place of abode for service of summons.

A defendant’s “usual place of abode” is a question of fact. (Plonski v. Halloran (1980), 36 Conn. Supp. 335, 337, 420 A.2d 117, 118; Holtberg v. Bommersbach (1952), 236 Minn. 335, 338, 52 N.W.2d 766, 769.) No hard and fast definition of “usual place of abode” can be laid down and each case must turn on its particular facts. Karlsson v. Rabinowitz (4th Cir. 1963), 318 F.2d 666, 669; Capitol Light & Supply Co. v. Gunning Electric Co. (1963), 24 Conn. Supp. 324, 326, 190 A.2d 495, 496.

There is a rebuttable presumption that the house where a man’s wife and children reside is his “usual place of abode.” (A&S Manufacturing Co. v. Wetzler (1970), 110 N.J. Super. 565, 569, 266 A.2d 316, 318; Holtberg v. Bommersbach (1952), 236 Minn. 335, 338, 52 N.W.2d 766, 769.) Among the factors a court may consider to determine whether the presumption has been overcome are the state of the marriage at the time of service, the frequency of the husband’s contacts with the house in which the family has been residing, the defendant’s intent or lack of intent to abandon this residence permanently or to move his family elsewhere, whether the defendant has removed his personal belongings from this residence, the defendant’s address for voter registration, driver’s license, mail delivery and other purposes, and whether the wife and children continue to live at the residence. (A&S Manufacturing Co. v. Wetzler (1970), 110 N.J. Super. 565, 569, 266 A.2d 316, 318; see, e.g., Schlawig v. De Peyster (1891), 83 Iowa 323, 49 N.W. 843 (intent to move family permanently to new residence); Household Finance Corp. v. McDevitt (1973), 84 N.M. 465, 505 P.2d 60 (marital difficulties, no later return to residence).) The underlying consideration is whether substituted service at the chosen dwelling place is reasonably likely to provide the defendant with actual notice of the proceedings. Karlsson v. Rabinowitz (4th Cir. 1963), 318 F.2d 666, 668; VanBuren v. Glasco (1975), 27 N.C. App. 1, 5, 217 S.E.2d 579, 582; cf. White v. Primm (1865), 36 Ill. 416, 418 (hotel or boarding house where party is staying for a few days is not “his usual place of abode”).

In VanBuren, the defendant received substituted service in August 1973 at a North Carolina house owned by him and his wife and at which his wife and children resided at the time of service. In the spring of 1972 defendant had moved to South Carolina to organize and conduct a business. He had resided and worked in South Carolina since leaving North Carolina. He had returned to visit his family in North Carolina fairly regularly, though not an average of more than two weekends a month, in this period. The appellate court affirmed a trial court finding that defendant had received substituted service at his usual place of abode, emphasizing that the family’s continuous residence at the North Carolina house and the defendant’s regular visits there gave the defendant a close, enduring connection with the North Carolina residence and provided a reasonable probability that substituted service would reach him promptly.

In Husband v. Crockett (1938), 195 Ark. 1031, 115 S.W.2d 882, the defendant received substituted service by the sheriff’s delivery of a copy of the summons to her husband at the hotel where he resided and she had previously resided with him. The court, defining “usual place of abode” as “residence,” stressed that relations between defendant and her husband were not entirely severed at the time of the service, and that since moving away defendant had made several visits to her husband at the residence. It upheld the service to defendant.

In Lovin v. Hicks (1911), 116 Minn. 179, 133 N.W. 575, defendant lived in Thief River Falls with his wife until March 1910, when he left for Verndale to conduct a new business. The sheriff served the summons and complaint on his wife at the Thief River Falls residence. The appellate court upheld the service, noting that the presumption that the defendant's usual place of abode was the residence of his wife and family was reinforced by the fact that he had registered and voted there in the 1910 elections.

In Dorus v. Lyon (1917), 92 Conn. 55, 101 A. 490, the defendant moved to an apartment in New York City from Bridgeport, Connecticut, but continued to spend three days per week for much of the year at his Bridgeport residence and remained registered to vote in Bridgeport. The court affirmed a finding that the Bridgeport residence was his usual place of abode.

In Clegg v. Bishop (1927), 105 Conn. 564, 136 A. 102, the decedent owned and occupied a house in Brooklyn, New York, from 1910 to 1921. During this period he also owned a farm in Connecticut. From about April 1 until the fall of each year he lived on the farm with his wife, but from April 1 to August 1 he was generally there on weekends only, though his wife was there full-time during this period. Over the entire period some mail came to and from the decedent at his Connecticut address. The court found that the decedent had a usual place of abode at the farm from early April to the fall of each year from 1910 to 1921.

Other cases support a finding that merely by moving into a new residence a defendant does not necessarily prevent his previous dwelling from being his “usual place of abode.” Rich Products Corp. v. Diamond (1966), 51 Misc. 2d 675, 273 N.Y.S.2d 687; Minnesota Mining & Manufacturing Co. v. Kirkevold (D. Minn. 1980), 87 F.R.D. 317; Karlsson v. Rabinowitz (4th Cir. 1963), 318 F.2d 666.

Cases in which the presumption that the usual place of abode of one spouse is the residence of the other spouse and/or the family has been overcome have involved factors not present here, e.g., marital discord and permanent removal. Household Finance Corp. v. McDevitt (1973), 84 N.M. 465, 505 R2d 60; Holdberg v. Bommersbach (1952), 52 N.W.2d 766; Schlawig v. De Peyster (1891), 83 Iowa 323, 49 N.W.2d 843; A&S Manufacturing Co. v. Wetzler (1970), 110 N.J. Super. 565, 266 A.2d 316.

We conclude that defendant J. Patrick Dohm’s Rockford house was his “usual place of abode” and that the substituted service was thus sufficient. At the time of service, he had not been residing away from the Rockford house for long and would soon move back. His ties with the Rockford residence remained intimate, unbroken and substantial during the whole time he was working in Chicago. His wife and children resided at the Rockford address full time and there was no indication that the family intended to move out of the Rockford residence. Defendant retained his Rockford address for numerous purposes and remained in reasonably regular touch with his family. No marital separation was planned or threatened.

II

Defendants also argue that the defendant trustee was not properly served for the reason that “Barb Baxter” was not shown to be an officer or agent of the First National Bank & Trust Company of Rockford. Defendants rely on paragraph 2 — 204 of the Code of Civil Procedure, which provides that a private corporation may be served “by leaving a copy of the process with its registered agent or any officer or agent of said corporation ***.” Ill. Rev. Stat. 1981, ch. 110, par. 2 — 204.

We cannot agree. In an affidavit filed with the court, Barb Baxter swore that on October 8, 1980, she was employed as an agent of the Rockford bank as a clerk in the customer services department; that on that day at 3:50 p.m. she was personally served with summons in this case by a deputy sheriff of Winnebago County; it was one of her normal duties as a clerk in the customer services department to accept service of process and she had been authorized by and on behalf of the bank to accept process; she was informed and believed that the acceptance process was a duty which the bank had designated to customer service representatives, and the summons served on her was forwarded to the trust department of the bank on or about the date of service.

At the hearing Wendell Craft, an assistant vice-president of the bank, testified that it was longstanding bank policy, which he had established, to route summonses through the customer services department, where they would be handled by clerks such as Barb Baxter. On October 8, 1980, Barb Baxter was an employee of the bank and one of her duties was to accept service of process. Barb Baxter’s name was not on corporate lists of certified corporate officers and directors for October 1 through October 10,1980.

We are satisfied from the record that Barb Baxter was an agent of the Rockford bank for receipt of process and that she understood the purport of the service of summons and her duty to deliver the document. That she was a clerk rather than a registered officer of the corporation is not important. Megan v. L.B. Foster Co. (1971), 1 Ill. App. 3d 1036, 1038. See also Island Terrace Apartments v. Keystone Service Co. (1975), 35 Ill. App. 3d 95, 98-99.

In view of our holding, the motion of the defendants to supplement the relief sought in the notice of appeal which we ordered taken with the case is denied. The judgment of the circuit court of Winnebago County is therefore affirmed.

Affirmed.

UNVERZAGT and HOPE, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDOLPH P. SCRONCE, Defendant-Appellant.
    Third District
    No. 82—600
    Opinion filed June 10, 1983.
    Robert Agostinelli and Carroll J. King, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

After a bench trial in the circuit court of Peoria County the defendant, Randolph Scronce, was found guilty of unlawful use of a weapon (Ill. Rev. Stat. 1981, ch. 38, par. 24 — 1(4)) and possession of a firearm without the requisite firearm owner’s identification card (Ill. Rev. Stat. 1981, ch. 38, par. 83 — 2(a)). Concurrent sentences of 30 months’ and six months’ imprisonment respectively were imposed.

Two issues are raised on this appeal. First, did the trial court err in refusing to suppress evidence which, according to defendant, was discovered after an illegal search and seizure of his truck? Second, did the court err in imposing a 21/2-year sentence for his conviction of illegal use of a weapon?

A written motion to suppress evidence was filed and a hearing was held on it. At the hearing the defendant testified that on February 28, 1982, at about 1 a.m. he was driving his truck, an orange 1969 Chevy pickup truck. He came to the intersection of Caroline and Jefferson streets, stopped at the stop sign there and then continued down Caroline Street to the parking lot of the Peoria Battery Company. Defendant testified that he stays in the apartment above the battery shop. After pulling into the parking lot, defendant turned off the truck, opened a beer, and sat listening to the radio. Five or 10 minutes later, a police car pulled up behind him.

Defendant got out of his truck and walked back to the squad car. The officer asked him what he was doing there and defendant replied that he was going upstairs. The officer said “you almost ran a stop sign and your back license plate light is out.”

Defendant asked if he could check the plate light. The officer refused this request, and walked to the front of the truck to check the inspection sticker. Defendant saw the officer shine his flashlight into the truck cab, open the door and begin looking through the truck. The officer found defendant’s beer on the floor board and an unloaded rifle under the seat. Defendant was told to go to the back of the truck and put his hands on it. Defendant was patted down. A second officer arrived at the scene and defendant was placed in that squad car.

Officer Ron Shipp of the Peoria Police Department testified that at about 1:30 a.m. on February 28, 1982, he saw an orange pickup truck moving through the intersection of Caroline and Jefferson at a speed of 25 to 30 miles per hour. He thought the truck was traveling too fast to have stopped at the stop sign located at the intersection and began to follow the truck. As he followed, he noticed that the rear plate light was out. The truck pulled into a private driveway, where it stopped and the driver turned off the lights. The officer pulled in behind the truck, turned on his lights and shined a spotlight into the truck cab. Defendant walked back to the squad car and, at the officer’s request, produced his driver's license. Shipp denied that defendant ever asked to be allowed to check his rear plate light. Officer Shipp went to the front of the truck to check the inspection sticker. As he did so, he saw an open quart bottle of beer on the driver’s side floor board. Using a flashlight, Shipp was able to determine that the bottle was about half full. He then opened the truck door, searched the passenger compartment for other beer, and found an unloaded .22-caliber rifle wrapped in a pair of blue jeans, under the seat.

The officer testified that he then asked defendant whether he had a firearm owner’s identification card and that defendant answered that he did not. He patted defendant down for weapons and finding nothing, he handcuffed defendant and placed him in the second officer’s patrol car. A subsequent search of defendant produced three .22-caliber bullets.

Defendant moved the court to suppress the rifle on the grounds that the warrantless search of his truck was made without probable cause and in the absence of exigent circumstances. He sought suppression of all of his statements to the police officers on grounds that he had not been informed of his Miranda rights. The trial court denied the first motion finding the action of the officer reasonable because of the “inclemental [sic] fashion” in which the search was conducted. The second motion was granted as to the statements made after defendant was in custody.

A stipulated bench trial was conducted and defendant was found guilty on both counts. After a presentence report was submitted the trial court imposed concurrent sentences.

The principal thrust of defendant’s argument regarding his claim the trial court erred in refusing to suppress the evidence is his assertion the warrantless search of the defendant’s truck was not justified because exigent circumstances were not shown. According to the defendant, the warrantless search of automobiles exception incident to a legal arrest as authorized by such cases as People v. Smith (1983), 95 Ill. 2d 412, 447 N.E.2d 809, and People v. Loftus (1983), 111 Ill. App. 3d 978, 444 N.E.2d 834, only applies to moving vehicles. According to the defendant, where the vehicle has reached its final destination even though followed by police officers who have observed or who are observing some illegal conduct of the vehicle, nevertheless a search warrant is required.

Citing such cases as People v. Bayles (1980), 82 Ill. 2d 128, 411 N.E.2d 1346, and United States v. Chadwick (1977), 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476, the defendant argues the automobile exception does not authorize a warrantless search in this case. Since each of the foregoing cases involved the validity of inventory searches of luggage they are of little support to the defendant’s assertion. The issue they resolve is irrelevant to the one in this case.

According to the testimony of the police officers, they were following the defendant’s truck at the time it turned into the parking lot, and their attention was called to the truck because of its failure to have the proper license plate light. The defendant was in the truck as the police officers followed it, and he was still in the truck when they stopped behind it and flashed their spotlight. No claim is made that the following of the defendant’s truck on private property was a mere pretext to make a search thereof. See People v. Clark (1982), 92 Ill. 96, 440 N.E.2d 869.

After the police officers stopped behind the defendant’s truck and after the defendant emerged, one of the officers testified he saw an open quart bottle of beer sitting in plain view on the floor board of the defendant’s truck. The discovery of contraband was not rendered improper by the use of a flashlight (People v. Riggs (1978), 62 Ill. App. 3d 338, 379 N.E.2d 129), nor because the truck was situated on private property (People v. Bombacino (1972), 51 Ill. 2d 17, 280 N.E.2d 697). The discovery of the partially filled bottle of beer justified a further search of the passenger compartment for additional contraband thereby justifying the discovery of the concealed .22-caliber rifle. People v. Smith (1978), 67 Ill. App. 3d 952, 385 N.E.2d 707.

We have reviewed other cases cited by the defendant such as People v. Freeland (1981), 103 Ill. App. 3d 94, 430 N.E.2d 277, People v. Boyd (1980), 86 Ill. App. 3d 73, 407 N.E.2d 982, People v. Ledwa (1980), 81 Ill. App. 3d 276, 401 N.E.2d 298, and People v. Valdez (1980), 81 Ill. App. 3d 25, 400 N.E.2d 1096. We find such cases are inapposite, and with the exception of the Valdez case, they tend to support the result reached by the trial court. In Valdez, the issue was substantially different from that in the instant case because the defendant was arrested in a restaurant for possession of cannabis and his car was searched in' a parking lot under the claim of an inventory search, such claim later held invalid.

In our opinion the court properly denied the defendant’s motion to suppress evidence.

Next we consider defendant’s claim his sentence for the offense of unlawful use of a weapon is excessive. We agree with defendant’s assertion that appropriate principles of sentencing require the sentence imposed relate to the seriousness of the offense and the circumstances of the defendant’s background. Without detailing such evidence, we believe the record amply demonstrates the sentence is justified by defendant’s prior criminal record commencing when he was a juvenile and continuing while the defendant was an adult, with his most recent sentence having been concluded in the same month he was arrested for the current offense.

For the foregoing reasons the judgments of the circuit court of Peoria County are affirmed.

Judgments affirmed.

SCOTT and HEIPLE, JJ., concur.


text:
    VITTORE BOCCHETTA, Plaintiff-Appellant and Cross-Appellee, v. JAMES McCOURT, Defendant-Appellee and Cross-Appellant.
    First District (1st Division)
    No. 82—1934
    Opinion filed June 6, 1983.
    Rehearing denied July 11, 1983.
    Robert Handelsman, of Robbins, Coe, Rubinstein & Shafran, Ltd., of Chicago, for appellant.

      John Kneafsey, of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiff (Vittore Bocchetta) filed suit to recover $10,000 paid under an installment agreement for warranty deed (agreement). The circuit court of Cook County entered judgment in favor of defendant (James McCourt) and plaintiff appeals.

The following issues are presented by this appeal: (1) whether plaintiff’s default terminated the agreement; (2) whether defendant’s acts were sufficient to declare a forfeiture; (3) whether plaintiff was entitled to treat defendant’s actions of undertaking to sell the real property to a third party prior to perfecting the forfeiture as an offer to rescind the agreement; and (4) whether an offer to rescind the agreement would enable plaintiff to recover his downpayment plus post-judgment interest.

In his cross-appeal, defendant contends that the trial court erred in denying his petition for attorney fees.

We reverse and remand with instructions.

On February 1, 1978, plaintiff and defendant entered into an installment agreement for warranty deed (agreement). The agreement provided, in part, that plaintiff would purchase the real property (property) located at 833-839 North Dearborn Street, Chicago, for $320,000. Ten thousand dollars was payable immediately. Possession was to be delivered to plaintiff on February 28, 1978, upon payment of the second installment of $85,000. The remaining balance of $225,000 was due on or before February 27, 1981. The agreement further provided that if plaintiff failed to make the payments as required, such payments would be forfeited at defendant’s option. To perfect the forfeiture, defendant was required to file a written declaration of forfeiture with the recorder’s office.

Plaintiff made the initial payment of $10,000. However, he failed to tender the additional sums due under the agreement. After defendant sold the property to a third party, plaintiff filed this action to recover the $10,000 he had paid pursuant to the agreement.

At trial, the following evidence was produced. Defendant testified that he had received information concerning plaintiff’s inability to make the February 28, 1978, payment. He was prepared to deliver possession to plaintiff on that date and was present at the title company to close the transaction. However, plaintiff did not appear at the closing because he did not have sufficient funds to make the payments. Thereafter defendant placed the property on the market. He received an offer and entered into a contract for sale with a third party. The record indicates that on April 14, 1978, defendant sold the property.

Mr. Solomon represented plaintiff for the purpose of closing the real estate transaction. He testified that he received a copy of the notice of forfeiture. He then called defendant’s attorney, Mr. Kneafsey, and informed him that plaintiff was desirous of completing the contract. He further testified that Mr. Kneafsey replied that the property would be sold to another party and that defendant was intent on keeping the $10,000.

Mr. Kirkton, an attorney in the tract department of the Cook County Recorder of Deeds, produced certified copies of the documents which were recorded against the property from January 1, 1978, and May 1, 1978. The notice of forfeiture was not among the documents produced. Furthermore, Mr. Howard, a title examiner from Inter-county Title Company, searched the records at the recorder’s office and was unable to find the notice of forfeiture recorded between January 1, 1978, and May 1, 1978. After a bench trial, judgment was entered in favor of defendant.

In this appeal, we must first determine whether plaintiff’s default terminated the rights and obligations of the parties under the agreement. In the instant case, plaintiff’s failure to timely tender performance by paying the second installment due under the terms of the agreement clearly constituted a default. However, a purchaser’s default, absent a valid exercise of a seller’s option to declare a forfeiture, will not extinguish the parties’ duties to perform under the contract. (Brown v. Jurczak (1947), 397 Ill. 532, 74 N.E.2d 821.) It is not the default itself but rather the exercise of the option after purchaser’s default which serves to terminate the contract. (Lang v. Parks (1960), 19 Ill. 2d 223, 166 N.E.2d 10.) A seller must immediately exercise his contractual remedies for default in order to terminate his obligations under the contract. (Brown v. Jurczak (1947), 397 Ill. 532, 74 N.E.2d 821.) Otherwise, the contract remains in effect. (O’Malley v. Cummings (1967), 86 Ill. App. 2d 446, 229 N.E.2d 878.) Moreover, a seller’s right to declare a forfeiture might be deemed waived. (O’Malley; Forest Preserve Real Estate Improvement Corp. v. Miller (1942), 379 Ill. 375, 41 N.E.2d 526.) Under the foregoing authority it is clear that plaintiff’s default alone did not terminate the agreement. Defendant had to properly exercise his right to forfeiture to authorize his nonperformance and entitle him to retain the payment. Therefore, we must examine whether defendant’s actions were sufficient to declare a forfeiture under the contract.

When a party to an installment real estate contract attempts to declare a forfeiture, the proper method is to follow the provisions in the contract. (Tobin v. Alexander (1978), 63 Ill. App. 3d 397, 380 N.E.2d 45; Kelly v. Germania Savings & Loan Association (1963), 28 Ill. 2d 591, 192 N.E.2d 813.) In this case, the installment agreement specified the following forfeiture procedure:

“11. In case of the failure of Purchaser to make any of the payments, or any part thereof, or perform any of Purchaser’s covenants hereunder, this agreement shall, at the option of Seller, be forfeited and determined, and Purchaser shall forfeit all payments made on this agreement, and such payments shall be retained by Seller in full satisfaction and as liquidated damages by Seller sustained, and in such event Seller shall have the right to re-enter and take possession of the premises aforesaid.
12. In the event this agreement shall be declared null and void by Seller on account of any default, breach or violation by Purchaser in any of the provisions hereof, this agreement shall be null and void and be so conclusively determined by the filing by Seller of a written declaration of forfeiture hereof in the Recorder’s office of said County.”

It is firmly established that forfeiture provisions must be strictly and narrowly construed. (Allabastro v. Wheaton National Bank (1979), 77 Ill. App. 3d 359, 395 N.E.2d 1212; Miles Homes, Inc. v. Mintjal (1974), 17 Ill. App. 3d 642, 307 N.E.2d 724.) It is equally well established that the party seeking to enforce the forfeiture has the burden of proving that the right to forfeiture clearly and unequivocally exists and that no injustice will result in its exercise. (Aden v. Alwardt (1979), 76 Ill. App. 3d 54, 394 N.E.2d 716; Parenti v. Wytmar & Co. (1977), 49 Ill. App. 3d 860, 364 N.E.2d 909.) When a contract is one for payment of money, a purchaser will be afforded special protection against forfeiture to prevent wrong or injustice. Miles.

Paragraphs 11 and 12 of the instant agreement are substantially similar to provisions contained in the real estate contracts in Tobin v. Alexander (1978), 63 Ill. App. 3d 397, 380 N.E.2d 45, and Hartman v. Hartman (1971), 2 Ill. App. 3d 163, 276 N.E.2d 56. In those cases, the courts found that because the sellers therein failed to follow the procedure set forth in the contracts, their actions were insufficient to declare a forfeiture.

Our examination of the record below reveals that here, as in To-bin and Hartman, the seller failed to follow the proper procedure which the parties incorporated into their agreement. The action of filing the declaration of forfeiture with the recorder’s office was a condition precedent to invoking the remedy. Although there was evidence that the notice was recorded, it is clear that the recording took place after the sale of the property to a third party.

From the evidence in the record, the conclusion is inescapable that defendant did not file a notice of forfeiture in the recorder’s office as provided in paragraph 12, but instead only served notice upon plaintiff’s attorney. We find that the steps taken by defendant to enforce the forfeiture were insufficient. Hartman.

Finally, we must decide whether plaintiff was justified in treating defendant’s actions of reselling the property as an abandonment of the agreement or an offer to rescind. Abandonment of a contract may be deduced from circumstances or from conduct which clearly evidences an abandonment thereof. The acts relied upon must be positive, unequivocal and inconsistent with the existence of the contract to constitute abandonment. People v. Bristow (1980), 80 Ill. App. 3d 535, 400 N.E.2d 511.

In the instant case, there was no valid exercise of seller’s option to declare a forfeiture. Therefore, the agreement remained in effect when defendant undertook to resell the property. Thus, defendant manifested his intention to abandon the agreement by reselling the property while the agreement was still in effect. (Forest Preserve Real Estate Improvement Corp. v. Miller (1942), 379 Ill. 375, 41 N.E.2d 526.) Accordingly, we conclude that plaintiff was justified in treating defendant’s actions as amounting to an offer to rescind the agreement. Hockenbury v. Lorentz (1976), 35 Ill. App. 3d 983, 343 N.E.2d 90.

In conclusion, plaintiff’s default gave rise to defendant’s right to declare a forfeiture under the terms of the agreement. However, defendant’s sale of the property while the agreement remained in effect constituted an abandonment or offer to rescind the agreement. Under these circumstances, defendant could not claim a forfeiture of plaintiff’s payment. Plaintiff is, therefore, entitled to recover the $10,000 paid under the agreement with interest thereon from the date of the judgment.

Because of our decision, we need not address the merits of defendant’s cross-appeal.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with this opinion.

Judgment reversed; cause remanded.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. EUGENE SCHUBERTH, Defendant-Appellee.
    Second District
    No. 82—308
    Opinion filed June 2, 1983.
    Dallas C. Ingemunson, State’s Attorney, of Yorkville (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE NASH

delivered the opinion of the court:

The State appeals from a judgment of the circuit court of Kendall County after an implied consent hearing. The trial court found that defendant, Eugene Schuberth, did not refuse to complete a breathalyzer test when requested of him after having been charged with driving under the influence of intoxicating liquor. (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.) Defendant has not filed a brief in this court and, accordingly, we consider the issues under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Evidence was presented at the implied consent hearing (Ill. Rev. Stat. 1981, ch. 95^2, par. 11— 501.1) that on January 29, 1982, at 11:59 p.m., Officer Ronald Henson, a patrolman for the village of Oswego, was on routine patrol on Route 34 near Boulder Hill Pass. At that time Officer Henson, using hand-held radar, clocked a vehicle going 49 miles per hour in a 35 miles per hour zone. The officer proceeded after the car with his emergency lights in operation for approximately a mile before the car pulled to the side of the road. During the course of the pursuit Henson noticed that the car crossed the center line, went over the right side line and almost struck a mailbox.

Officer Henson identified defendant as the driver of the vehicle and stated that he noted an odor of alcohol on his breath and that he had difficulty producing his driver’s license; he did not appear well coordinated. Defendant stated he had consumed a couple of beers and Henson administered a field sobriety test with which defendant also experienced difficulty. At that time Henson issued a citation for driving under the influence of intoxicating liquor and transported defendant to a police station.

Defendant was admonished pursuant to the statute (Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 501.1(a)(2)) of his obligation to submit to a breath or chemical test and the consequences of his failure to do so. Defendant stated that he did not understand and that he wished to contact an attorney; when he was unable to reach his attorney defendant decided to take the breath test in any event. Trooper James Bolerjack of the Illinois State Police administered the test and instructed defendant to blow until requested to stop. Instead of blowing, however, the defendant sucked on the tube leading to the machine. Instructions were given a second time, but defendant failed to blow air into the machine. After a third instruction the green light went on for two or three seconds, but defendant then stopped blowing. On the fourth attempt, defendant continued to suck on the tube. No readings could be obtained from any of the test attempts. During these attempts the defendant stated “he was trying” and “doing best he could.” Defendant did not testify at the hearing and the trial court found that the State failed to prove he had refused to take the test. The sole question on appeal is whether defendant’s conduct constitutes a refusal to take a breathalyzer test for purposes of the Illinois implied consent law. Ill. Rev. Stat. 1981, ch. 95V2, par. 11 — 501.1.

Initially, we note that an implied consent hearing is civil in nature and an adverse final judgment in such a proceeding is appealable by the State in the same manner as other civil proceedings. (People v. Malloy (1979), 76 Ill. 2d 513, 519, 395 N.E.2d 381, 382-83.) In such a hearing the evidence must establish that the defendant was arrested for driving while intoxicated, that the arresting officer had reasonable grounds to believe that defendant was driving under the influence of intoxicating liquor, that defendant was advised orally and in writing that his refusal to complete an intoxication test would result in the suspension of his license and that after being so advised, the defendant refused to complete the test. (People v. Bafia (1983), 112 Ill. App. 3d 710, 445 N.E.2d 878; City of Rockford v. Badell (1975), 33 Ill. App. 3d 427, 431-32, 337 N.E.2d 200, 204, appeal denied (1976), 62 Ill. 2d 592; People v. Finley (1974), 21 Ill. App. 3d 335, 340, 315 N.E.2d 229, 232-33.) The State has the burden of proving these issues by a preponderance of the evidence (Village of Park Forest v. Angel (1976), 37 Ill. App. 3d 746, 753, 347 N.E.2d 278, 284, appeal denied (1976), 63 Ill. 2d 564), and a finding in favor of defendant will be overturned on appeal if contrary to the manifest weight of the evidence. People v. LaFrank (1982), 104 Ill. App. 3d 650, 653, 432 N.E.2d 1282, 1285; Village of Park Forest v. Angel (1976), 37 Ill. App. 3d 746, 756, 347 N.E.2d 278, 286, appeal denied (1976), 63 Ill. 2d 564.

In Illinois it is established that an initial refusal to submit to an intoxication test cannot be cured by a subsequent consent given several minutes later. (People v. Wierman (1982), 107 Ill. App. 3d 7, 12, 436 N.E.2d 1081, 1085; People v. Shorkey (1974), 23 Ill. App. 3d 662, 664, 321 N.E.2d 46, 48.) Similarly, an initial consent to submit to a test is nullified by a subsequent refusal to complete the test as instructed. (City of Rockford v. Badell (1975), 33 Ill. App. 3d 427, 431-32, 337 N.E.2d 200, 204, appeal denied (1976), 62 Ill. 2d 592.) We have not found, nor has the State cited, any Illinois cases addressing the question of whether a continuing verbal consent to submit to an intoxication test accompanied by a physical failure to complete the test as instructed may be deemed a refusal under the implied consent law.

Other jurisdictions, however, have considered such conduct in a similar context to be a refusal. Miles v. Alexis (1981), 118 Cal. App. 3d 555, 173 Cal. Rptr. 473 (must complete, not attempt all tests); Walker v. Goldberg (Mo. App. 1979), 588 S.W.2d 83 (consent accompanied by delay and lack of cooperation in performing test); Zinn v. Dolan (1978), 41 Colo. App. 370, 588 P.2d 389 (consented to blood test but refused to remove clothing for test and hid in ladies’ room); Woolman v. State Department of Motor Vehicles (1976), 15 Wash. App. 115, 547 P.2d 293 (failure to blow enough air into machine after consent); Turner v. State Department of Motor Vehicles (1975), 14 Wash. App. 333, 541 P.2d 1005 (failure to blow enough air into machine after consent); Spirer v. Commonwealth (1980), 52 Pa. Commw. 381, 416 A.2d 587 (failure to properly follow instructions as given); Commonwealth v. Kelly (1975), 18 Pa. Commw. 490, 335 A.2d 882 (declaration by defendant that he was unable to complete breath test does not justify refusal); Thacker v. State (Ind. App. 1982), 441 N.E.2d 708 (belligerent behavior after consent is refusal); In re Kunneman (Okla. App. 1972), 501 P.2d 910 (sucking on mouthpiece was refusal even with verbal consent); Wells v. State (Tex. CXrim. App. 1979), 578 S.W.2d 118 (pretending to blow into mouthpiece after consent is refusal); Brueck v. Melton (1977), 58 App. Div. 2d 1000, 397 N.Y.S.2d 271 (failure to blow air after consent); Howard v. Cofer (1979), 150 Ga. App. 579, 258 S.E.2d 195 (failed to inflate balloon after consent); Poag v. Powell (1979), 39 N.C. App. 363, 250 S.E.2d 93 (failed to give sufficient air sample after three attempts).

In light of the foregoing authority and the evidence presented, we conclude that defendant’s conduct constituted a refusal to submit to a breath test for purposes of the Illinois implied consent law and that the finding of the trial court to the contrary was against the manifest weight of the evidence. It is the purpose of the implied consent law to provide objective evidence of the offense of driving under the influence of intoxicating liquors. (People v. Malloy (1980), 83 Ill. App. 3d 344, 347, 403 N.E.2d 1221, 1224.) If a defendant may circumvent the requirements of the statute by failing to complete the test, although feigning consent, the purpose of the law would be emasculated. In the present case, the evidence establishes that defendant, although purporting to consent to the test, did not follow the instructions of the officer and failed to complete the test as required. Absent evidence defendant was physically unable to perform the simple task required of him, his conduct must be considered as a refusal to comply with the terms of the statute.

For these reasons the judgment of the circuit court of Kendall County is reversed and the case remanded to the court for the entry of a finding that the defendant refused to submit to the breathalyzer test.

Reversed and remanded.

SEIDENFELD, P.J., and LINDBERG, J., concur.


author: JUSTICE McGloon

text:
    DENNIS SCOT LEWIS, Petitioner-Appellee, v. VIRGINIA BELLE CANTY, Respondent-Appellant.
    First District (1st Division)
    No. 82—2114
    Opinion filed May 31, 1983.

      Jerome Marvin Kaplan, of Chicago, for appellant.
    Paul M. Tschirhart, of Arlington Heights, for appellee.
   JUSTICE McGloon

delivered the opinion of the court:

This is an appeal from an order denying respondent’s (Virginia Belle Canty) motion to vacate the order awarding temporary custody of the parties’ two minor children to petitioner (Dennis Scot Lewis).

On appeal, respondent contends that the order awarding temporary custody to petitioner is erroneous. We lack jurisdiction to entertain this appeal because no final and appealable order was entered by the trial court.

The parties were divorced in 1973. The judgment for dissolution of marriage awarded custody of the parties’ minor children, Stephanie and Stephen, to respondent. In the fall of 1979, the parties entered into separate agreements transferring the custody of the children to petitioner. The agreements, which were substantially similar, provided that petitioner should assume the children’s care and custody. The parties stipulated that the agreements would remain in effect for a minimum of two years. As a result of the agreements, the children moved to Elk Grove Village, Illinois, to live with petitioner.

On July 8, 1981, petitioner filed a petition to modify the judgment for dissolution of marriage in order to change the permanent custody award of the children. At the time the petition was filed, both children resided with petitioner; however, Stephanie was visiting respondent in Oregon. After respondent refused to return Stephanie and attempted to seize Stephen, petitioner sought and obtained a temporary restraining order to prevent respondent from removing Stephen from Illinois. The order also awarded petitioner temporary custody of the children pending a full hearing on the petition to change permanent custody. The order was entered August 20,1981.

After several continuances and three days of hearing evidence on transferring permanent custody, respondent renewed her motion to vacate the order of August 20,1981.

On August 25, 1982, the court denied respondent’s motion to dismiss the petition for change of custody and respondent’s motion to vacate the temporary custody order. Contained in the order was the trial court’s finding that serious questions of jurisdiction existed that should be resolved prior to the commencement of further hearings on the merits.

This court must determine whether the parties have properly invoked the jurisdiction of this court before addressing the merits on appeal. (Camp v. Chicago Transit Authority (1980), 82 Ill. App. 3d 1107, 403 N.E.2d 704.) An appeal to this court may be taken only from a final order, unless it comes within one of the exceptions set forth by Supreme Court Rules 306 through 308. (87 Ill. 2d Rules 306 through 308; Gutenkauf v. Gutenkauf (1979), 69 Ill. App. 3d 871, 387 N.E.2d 918.) This court has held that a denial of a motion to strike or dismiss of itself is not a final, appealable order. (Camp.) Therefore, the present appeal must be cognizable as an interlocutory order to invoke this court’s jurisdiction. We have examined the order of August 25, 1982, and find that it does not fall within any exception to the finality rule expressed in Supreme Court Rule 307 (87 Ill. 2d R. 307). Neither is the appeal cognizable under Supreme Court Rule 306(a)(1)(v) (87 Ill. 2d R. 306(a)(1)(v)) because appellant failed to file an application for leave to appeal.

Where a rule expressly outlines the procedure to be taken on appeal, as does Rule 306, said procedure must be followed exactly. (Hamas v. Payne (1969), 107 Ill. App. 2d 316, 246 N.E.2d 1.) We find that our jurisdiction was not properly invoked because leave to appeal was not granted as required by Rule 306.

Because of doubts expressed by the trial court concerning the jurisdiction of that court to entertain the suit, we choose to address the issue.

The Uniform Child Custody Jurisdiction Act (UCCJA) is made applicable to child-custody proceedings under part VI of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 601(a)). Section 4 of the UCCJA (Ill. Rev. Stat. 1981, ch. 40, par. 2104(a)) governs jurisdiction to render modification judgments as well as the initial custody dispute. (Ill. Rev. Stat. 1981, ch. 40, par. 601(a).) Where a court has proper jurisdiction under one of the provisions of section 4, it cannot be divested of jurisdiction by removal of the child from the State. Fleck, Child Snatching by Parents: What Legal Remedies for “Flee andPlea?'’ 55 Chi.-Kent L. Rev. 303 (1979).

Section 4 introduces the concept of the “home state” as a primary base for jurisdiction:

“(a) The circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if:
1. this State
(i) is the home state of the child at the time of commencement of the proceeding, or
(ii) had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; ***.” Ill. Rev. Stat. 1981, ch. 40, par. 2104(a).

In the instant case, Stephanie and Stephen had lived in Hlinois for over 18 months when the petition to transfer custody was filed. They attended school in Illinois. Thus, there was a significant connection with the State by the children and their parent. (In re Marriage of Weinstein (1980), 87 Ill. App. 3d 101, 408 N.E.2d 952.) The fact that Stephanie was in Oregon because respondent refused to return her to petitioner after her summer visit does not deprive Illinois of jurisdiction. Moreover, respondent submitted to jurisdiction of this court when she made a general appearance at the hearings on the petition for change of custody. In re Custody of Iverson (1980), 83 Ill. App. 3d 493, 404 N.E.2d 411.

We find the Illinois forum has proper jurisdiction under section 4 (Ill. Rev. Stat. 1981, ch. 40, par. 2104(a)(1)(i), (ii)). The hearings on the issue of permanent custody should be concluded expeditiously.

For the foregoing reasons, we dismiss the appeal and remand the cause for further proceedings.

Appeal dismissed; cause remanded.

BUCKLEY, P.J., and CAMPBELL, J., concur.