author: HANNAH, J.

text:
    Eugene L. Schreier and Ruby R. Schreier, Plaintiffs Counterdefendants-Appellants, v. Chicago and Northwestern Railway Company, a Wisconsin Corporation, Superior Coal Company, a Corporation, Ferdinand C. Meyer and Emma L. Meyer, His Wife, Herman Meyer and Mary Meyer, His Wife, Frances Lancaster and J. T. Lancaster, Her Husband, Lela H. Whitfield, and William Whitfield, Her Husband, John E. Weidner and Vida G. Weidner, His Wife, Charles Niebrand and Amanda F. Niebrand, His Wife, and Unknown Heirs, Legatees and Devisees of B. L. Dorsey or Any Persons Who Have an Interest Who Are Deceased and “Unknown Owners,” Defendants, Chicago and Northwestern Railway Company, a Wisconsin Corporation, Defendant-Counterplaintiff-Appellee.
    Gen. No. 10,937.
    Fourth District.
    July 9, 1968.
    Rehearing denied August 27,1968.

      McGrady and Madden, of Gillespie, for appellants.
    Denby & Dobbs, of Carlinville (Stuart Dobbs, of counsel), Gillespie, Burke & Gillespie, of Springfield, and Edward Warden, of Chicago, for appellee.
   HANNAH, J.

This is a suit brought by Eugene L. Schreier and Ruby R. Schreier, plaintiffs, against Chicago & Northwestern Railway Co. and Superior Coal Co., defendants, seeking to quiet plaintiffs’ title to the oil and gas under certain real estate owned by the plaintiffs, and to declare the defendants to have no right or title to such oil and gas under said premises, and seeking an injuction against the defendant railroad and its successors and assigns from asserting any claim to the plaintiffs’ possession and right to such oil and gas. The defendant, by counterclaim, seeks a determination that it is the owner of the oil and gas under the premises in question, together with the accompanying right to recover the same.

Plaintiffs claim to be the owners and in possession of the real estate here involved by virtue of purchase on October 2, 1953, from Charles Neibrand and Amanda Niebrand. The conveyance to plaintiffs was by warranty deed. There were no limitations upon the title in the deed taken by the plaintiffs. However, plaintiffs concede they have no title to the coal under the premises. The chain of title leading to the investment of title in the Niebrands does not appear, but it is apparently conceded that this conveyance to the plaintiffs was a valid one. The description of the premises involved is as follows:

The west half of the northeast quarter of the northeast quarter, and the northwest quarter of the northeast quarter, and the southwest quarter of the northeast quarter of Section Sixteen (16) and the east half of the southwest quarter of the southwest quarter of Section Ten (10), and five acres off the south end of the west half of the southeast quarter of Section Nine (9), all in Town Seven (7) Range Seven (7) west of the Third Principal Meridian, in Macoupin County, Illinois.

The dispute here emanates from four separate conveyances which are set forth in full in the supplemental abstract. While the chain of conveyances is not set forth, it appears that Ferdinand Meyer and Emma L. Meyer, his wife, and Herman Meyer and Mary L. Meyer, his wife, held title to the premises in question, together with other lands, as early as May 27, 1903, on which date the said owners conveyed and warranted unto B. L. Dorsey “all coal and other minerals beneath the surface” of the premises in question “together with the right to mine and remove the same and to conduct mining operations in, under and throughout the said premises.” By this deed the grantors did also “give, grant and convey to the said B. L. Dorsey for the consideration aforesaid, the perpetual right-of-way, underground, for the purpose of transportation across said land by such power and in such manner, and at, to and from such place or places, underground, as the grantees herein deemed best, any of the coal or other minerals it may mine under the above described lands or any other lands than that hereby conveyed.”

On the 29th of May, 1903, the said B. L. Dorsey and Frances J. L. Dorsey, his wife, conveyed and quit-claimed to H. S. Dorsey, E. M. Dorsey, B. L. Dorsey, R. W. Dorsey, Fannie M. Edwards and Amelia C. Dorsey all interest in and to “all coal and minerals beneath the surface” of the premises in question and other premises “together with the right to mine and remove the same, and to conduct mining operations in, under and throughout said premises”; and did also convey and quitclaim to the grantees, their heirs and assigns, for value “the perpetual right-of-way underground for the purpose of transportation across all of the lands hereinbefore described, by such power, and in such manner, and at, to and from such place or places, underground, as the grantees deemed best, any of the coal or other minerals they, their heirs or assigns may mine under the above described premises, or any other lands than those hereby conveyed.”

Again on the same day, May 29, 1903, H. S. Dorsey, widower, G. B. Dorsey and Moría J. Dorsey, his wife, E. M. Dorsey and Lily E. Dorsey, his wife, B. L. Dorsey and Frances J. L. Dorsey, his wife, R. W. Dorsey and Martha Dorsey, his wife, and Fannie M. Edwards and Frank W. Edwards, her husband, and Amelia C. Dorsey, a single woman, by a like conveyance, sold, conveyed and warranted to the defendant Superior Coal Co., a corporation, “all coal and other minerals beneath the surface” of the premises in question and other premises “together with the right to mine and remove the same, and to conduct mining operations in, under and throughout said premises,” and again included the same additional rights in the habendum clause.

Thereafter, on December 28, 1956, the Superior Coal Company assigned and conveyed all its interest in and to the premises in question, together with other premises not here involved, to the defendant, Chicago and Northwestern Railway Company.

It appears from the testimony of plaintiffs that on January 2, 1958, they executed an oil and gas lease to Joseph Waitukaitis. The lease is not a part of the record, nor is it known if it was recorded. Thereafter, sometime in April, 1958, oil was discovered in commercial quantities. Some four days later, according to plaintiffs, Waitukaitis advised plaintiffs he had learned that they had no title to the oil and gas, but that it was the property of the Chicago and Northwestern Railway Company. Thereafter on July 21, 1958, Waitukaitis procured an oil and gas lease from the railroad and proceeded with development under it. The record is very sketchy upon these happenings, but this is as it appears.

The ultimate question is, to whom does the oil and gas belong, the plaintiffs or the defendants? The answer to this question seems to rest with an interpretation of the three conveyances first above referred to. What the railroad received was that title vested in Superior Coal Company. The latter’s title is limited to that conveyed to it by virtue of the aforesaid three conveyances.

The primary object of construing a deed is to ascertain and give effect to the intention of the parties as disclosed by the instrument in question. In arriving at that intention the entire instrument must be considered together with all the language therein used. Patton v. Vining, 14 Ill2d 11,150 NE2d 606.

To avoid confusion in the construing of the two deeds, viz., Dorsey to Dorsey, et al., and Dorsey, et al., to the Superior Coal Company, it is important to observe that each of these instruments contains two separate conveyances. The first portion of the conveyance in each deed is to “all coal beneath the surface of the hereinafter described premises.” The premises thereafter described are not the premises in question. Then following these property descriptions, the deed continues, “also all coal and other minerals beneath the surface of the hereinafter described premises.” Then follows the description of the premises here involved, together with other premises not herein involved. Accordingly, we must not become confused with the language used with reference to premises with which we are not here concerned. Why this difference in language as to the several properties being conveyed, we do not know. But there must have been a reason. Every word and phrase is to be given a meaning if possible. The change of expression to “also all coal and other minerals” certainly indicates a change of intent as to the extent of the conveyance in the following described lands. It is a cardinal rule of construction that each and every word used must be given a meaning, if possible, and the instrument must be construed as a whole and within the limits of its four corners. There appears no ambiguity in the language used. The apparent deliberate choice of language used as to what was conveyed in the various tracts seems to indicate a definite intention upon the part of the grantor. In fact this express intention as to the premises in question begins with the deed from Meyer to Dorsey and continues through to the Superior Coal Company.

It is argued that the use of the words “mine and remove the same, and to conduct mining operations,” is inconsistent with “drilling for oil”; and that the grant of a right-of-way underground is likewise inconsistent with drilling for oil. It is further urged that at the time of the conveyances coal was the only mineral being or that had been produced in Macoupin County, and that oil was not in the contemplation of the parties. The terms and conditions of a deed of conveyance are not to be varied by oral testimony or evidence de hors the instrument, except and unless there be a mutual mistake or fraud disclosed. There is no such charge or evidence to support it. Our only problem is interpreting the deeds within their four corners.

The words “coal and other minerals” have, by the decisions of the Illinois Courts, been determined to have a settled legal meaning which includes oil and gas, with the incidental exploration, development and production rights. These words, together with the entire habendum clause here contained, cannot be construed otherwise by resort to extrinsic circumstances. Nance v. Donk Bros. Coal & Coke Co., 13 Ill2d 399, 151 NE2d 97. The latter case is almost identical with that here before the Court. As there stated:

“the enumeration of other and incidental mining rights in the habendum clause of a conveyance of ‘all coal and other mineral’ does not derogate from, but enlarges the express and implied rights included in the granting clause.”

Plaintiffs argue that the sustaining of the lease from the railroad will result in the irreparable damage to the plaintiffs’ beneficial use of the surface of the land. Plaintiffs admit they were furnished an abstract of title at the time of their purchase of the land, but that they did not then examine it. Had they examined it they would have discovered the existence of the mineral deeds in question. A party who finds himself in the slough of mistake by reason of his own failure to read the posted warning signs cannot hope to have the aid of the court in extricating himself therefrom.

The facts in this case are not in dispute. The conveyances in question are unambiguous. The language used, under the decisions of our courts of review, have a well settled and fixed meaning.

From what has been said it follows the decree of the Circuit Court of Macoupin County must be affirmed.

Affirmed.

CRAVEN, Acting P. J. and TRAPP, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE DAVIS

license: Public Domain

text:
    Homer Fitzgerald, Plaintiff-Appellant, v. James Van Buskirk and Sonja Van Buskirk, Defendants-Appellees.
    Gen. No. 67-164.
    Second Judicial District.
    July 22, 1968.

      Adamowski, Newey & Riley, of Chicago, for appellant.
    Looze & Kinne, of McHenry, and Albert J. Horrell, of Chicago, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff, Homer Fitzgerald, brought this suit against the defendants, James and Sonja Van Buskirk, to foreclose a mechanic’s lien against certain property owned by them. The trial court granted the defendants’ motion to dismiss the complaint on the grounds that it did not state a cause of action.

The plaintiff contends that his complaint was sufficient to state a cause of action under the Mechanics’ Liens Act (Ill Rev Stats 1967, c 82, par 1, et seq.). The complaint alleged that on October 1, 1965, the plaintiff and the defendants entered into an oral contract under which the plaintiff was to act as general contractor and supervise the construction of five buildings, containing four apartments each, and it set forth the legal description of the premises on which the improvements were to be constructed. It next alleged that the plaintiff commenced work under the contract and continued such work until the defendants notified him that they were repudiating the contract; that he was thereby dismissed without reason or justification; that the total value of the improvements was to have been $187,000, and the plaintiff’s fee for such work was to have been $20,000, none of which he had been paid; that the construction completed at the time of the repudiation had a value of approximately $60,000; and that a contractor’s lien had been filed in the Recorder’s office (a copy of which was attached to the complaint), which asserted that the sum of $20,000 was due the plaintiff. The complaint asked for an accounting of the amounts due to the plaintiff, and a lien decreed for the amount found to be due, and for other relief.

The motion attacking the complaint asserted in general terms that there were not any, or sufficient, facts asserted in the complaint to state a cause of action, and that the allegations were mere conclusions and were contradictory.

The parties disagree as to the manner in which the complaint should be construed. The plaintiff contends for the liberal construction called for by the Civil Practice Act (Ill Rev Stats 1967, c 110, pars 33(3), 42(3)). The defendants assert that under the Mechanics’ Liens Act, the complaint must be strictly construed.

Section 1 of the Civil Practice Act státes that the provisions of the Act shall apply to all civil proceedings, except certain enumerated ones, or other proceedings in which the procedure is regulated by separate statutes. ‘Tn all those proceedings the separate statutes control to the extent to which they regulate procedure, but this Act applies as to matters of procedure not so regulated by separate statutes.”

Section 33(3) of the Act provides that “(P) leadings shall be liberally construed with a view to doing substantial justice between the parties.” Section 42(2) adds that “(N)o pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet.” Section 4 of the Act states that the Act itself is to be liberally construed, “to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.” And, section 33(1) of the Act requires only that the pleading “shall contain a plain and concise statement of the pleader’s cause of action. ...”

These sections of the Civil Practice Act are designed and intended to permit controversies to be determined according to substantial justice between the parties, and not according to the technicalities or niceties of pleading. Under the Act, the test of the sufficiency of the complaint is whether it informs the defendant of a valid claim under a general class of cases. Fanning v. LeMay, 78 Ill App2d 166, 171, 222 NE2d 815 (1966).

In Hall v. Gruesen, 22 Ill App2d 465, 161 NE2d 345 (1959), at pages 468 and 469, the court pertinently stated:

“The averments are not in that precise language at one time required, but under the Practice Act, pleadings are liberally construed with a view to doing substantial justice between the parties. (Ill Rev Stats 1957, c 110, Par 33.) This is not an idle generality to which only lip service need be paid. It is the pronouncement of a burial service for the formalities of Chitty and the rigors of common law pleading. . . . The essential test of a complaint is that it inform the defendant of a valid claim.”

In Kita v. YMCA of Metropolitan Chicago, 47 Ill App2d 409, 198 NE2d 174, (1964), the court set forth at length an informative resumé of the development of pleading, with the conclusion that the Civil Practice Act requires only that a complaint, by reasonably intelligent allegations, be sufficient to advise the opposing party of the case which the plaintiff will seek to prove against it; and that the court, in determining whether a complaint is adequate to meet this test, judge the complaint with admonitions of liberal construction and reasonable information in mind.

Unless the Mechanics’ Liens Act provides to the contrary, the requirements of the complaint and the construction to be afforded it shall be governed by the provisions of section 1 of the Civil Practice Act. The Act does not contain any provisions suggesting that the sections of the Civil Practice Act referred to above should be inapplicable. Section 11 of the Mechanics’ Liens Act sets forth the necessary averments which must be stated in a complaint in order to assert a valid claim under this class of cases. It does not provide that the complaint must be tested by any other standard than that required by the Civil Practice Act. Sections 9 and 12 of the Act suggest the contrary.

Section 9 permits a determination of the merits of the litigation with even less formality in pleadings than that required by the Civil Practice Act. It states, in part:

“The plaintiff or petitioner, and all defendants to such complaint or petition may contest each other’s right without any formal issue of record made up between them other than that shown upon the original complaint or petition, as well with respect to the amount due as to the right to the benefit of the lien claimed:....”

Section 12 provides:

“The court shall permit amendments to any part of the pleadings, and may issue process, make all orders, requiring parties to appear, and requiring notice to be given, that are or may be authorized in other civil actions and shall have the same power and jurisdiction of the parties and subject matter, and the rules of practice and proceedings in such cases shall be the same as in other civil cases, except as is otherwise provided in this act.”

The defendants have urged that the Mechanics’ Liens Act should be strictly construed. Such construction properly has reference to compliance with the substantive provisions of the Act — those which specify the requirements upon which the right to a lien is based. The strict construction rule has no application to the pleadings in such proceeding. Charles A. Hohmeier Lumber Co. v. Knight, 350 Ill 248, 252, 253, 182 NE 715 (1932); Suddarth v. Rosen, 81 Ill App2d 136, 139, 224 NE2d 602 (1967).

In Suddarth, the court, in stating that mechanics’ liens must be strictly construed, referred to the fact that the subcontractor had failed to give to the owner the sixty-day notice required by section 24 of the Act, and that the Act specifically provided only two exceptions to this requirement, neither of which was applicable to the case. The complaint explicitly alleged the failure to give the required notice.

In Hohmeier, the court referred to the then requirement of section 33 of the Act (since repealed) that suit be commenced by a subcontractor within four months after final payment due him. The court, at pages 252 and 253, stated that “with respect to the requirement upon which the right to a lien depends, such statutes are strictly construed. . . .” The defendants contended that the original complaint did not state a cause of action and that the amended complaint, filed after the four-month period, did not relate back and, thus, was not filed within the time required by the Act. The original complaint did not contain any direct allegation that the land in question had been registered under the Land Titles Act or that the defendant held the certificate of title to the land. The court observed that unless the title were so registered, the allegation that the notice by the plaintiff was filed with the registrar of titles would not clearly indicate that the plaintiff had a lien.

Interestingly, however, in Hohmeier, the court referred to section 11 of the Act, and the matters stated therein, as the items to be set forth in a complaint. The court, at page 253, stated that the complaint contained a brief statement of the subcontract on which it was founded, the dates when such contract was made and completed, the amount due and unpaid, a description of the premises, and other facts necessary to a complete understanding of the parties. The court, while not asserting that it was giving the complaint a liberal construction under the then state of pleadings, certainly did so in reciting that “(A)lthough certain allegations should have been amplified and made more specific, it does not appear that a single requirement of a bill or petition prescribed by section 11 of the Mechanics’ Lien Act was wholly omitted.” The court held that the original bill stated a cause of action albeit in a defective manner, and the suit was thus filed within the necessary time limitation.

We conclude that the complaint to foreclose a mechanic’s lien must be examined, under the provisions of the Civil Practice Act, in light of the requirement that it be afforded a liberal construction. Whether or not a cause of action is properly stated depends on whether the prerequisites to a lien, as set forth in the Mechanics’ Liens Act, are met and so pleaded as required by section 11 of the Act.

Section 11 states, in part:

“The complaint or petition shall contain a brief statement of the contract or contracts on which it is founded, the date, when made, and when completed, if not completed, why, and it shall also set forth the amount due and unpaid, a description of the premises which are subject to the lien, and such other facts as may be necessary to a full understanding of the rights of the parties.”

As heretofore set forth, the complaint at bar contained a brief statement of the contract on which it was founded, the date thereof, the description of the property, the reason for the failure to complete the contract, the total value of the improvements under the contract, the amount to be paid to the plaintiff for his services, the amount of the work done at the time of repudiation, and the amount due to the plaintiff.

We believe that the plaintiff’s complaint adequately advised the defendants of a valid claim against them for a mechanic’s lien and that the requirements of section 11 with reference to the allegations to be contained in a complaint were met. A copy of the contractor’s lien, as filed in the office of the Recorder of Deeds of McHenry County on June 23, 1966, was attached to the complaint as “Exhibit A.” On motion to dismiss, the statements contained in “Exhibit A” with reference to defendants being the owners of the premises in question, the date and substance of the contract entered into between plaintiff and the defendants, the description of the work to be done by the plaintiff, the amount of work done at the time the defendants breached the contract, and the amount unpaid and owing the plaintiff, were required to be taken as true. Montgomery Ward & Co. v. United Retail, Wholesale & Department Store Employees of America, C. I. O., 330 Ill App 49, 65, 66, 70 NE2d 75 (1946), affirmed 400 Ill 38, 79 NE2d 46 (1948).

We cannot agree that the complaint was fatally defective in failing to set forth “such other facts as may be necessary to a full understanding of the rights of the parties.” If the plaintiff is wrong in the assertion that $20,000 is due him, his lien is not defeated in that section 7 of the Act provides in pertinent part:

“No such lien shall be defeated to the proper amount thereof because of an error or overcharging on the part of any person claiming a lien therefor under this Act, unless it shall be shown that such error or overcharge is made with intent to defraud;
99

The plaintiff prayed for an accounting of the amount due him. Such prayer is not consistent with an intent to defraud.

The complaint alleged that the defendants, without justification, repudiated the contract; and it stated the proportionate amount of the work completed. Under section 4 of the Act, the plaintiff is entitled to enforce his lien for the value of the work performed and the court is required to adjust the claim and allow his lien accordingly.

There are numerous avenues of discovery available to the defendants. We cannot accept their contention that it would be impossible to meet the plaintiff’s claim with reference to what services he had rendered under the contract. If the plaintiff were required, as the defendants suggest, to itemize and detail those services he claimed he rendered under his contract, the brief and simplified pleadings suggested by the Civil Practice Act and section 11 of the Mechanics’ Liens Act would fade and vanish from the realm of reality.

We hold that the complaint was sufficient to advise the defendants of a valid claim against them under this particular class of cases, and that the trial court erred in dismissing the complaint. The cause, accordingly is reversed and remanded for further proceedings consistent herewith.

Reversed and remanded.

SEIDENFELD and MORAN, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Clifford McAndrew, Defendant-Appellant.
    Gen. No. 67-155.
    Second Judicial District.
    July 29, 1968.

      Haye and Keegan, of Rockford, for appellant.
    Henry S. Dixon, State’s Attorney, of Dixon, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The defendant, John Clifford McAndrew, was charged with unauthorized possession of narcotic drugs, in violation of section 22-3 of the Criminal Code (Ill Rev Stats 1967, c 38, par 22-3). He entered a plea of guilty, was denied probation and was sentenced to a mrm’rmrm of two years and a maximum of three years in a state penitentiary. He appealed.

While courts have held that refusal to grant probation is not subject to review (People v. Hamby, 6 Ill2d 559, 563, 129 NE2d 746 (1955); People v. Denning, 372, Ill 549, 552, 25 NE2d 6 (1940)), the granting or revoking of probation is normally within the discretion of the trial court, but is subject to review to the extent of determining whether the trial court did, in fact, exercise discretion in its determination on probation or whether it abused such discretion and acted in an arbitrary manner. People v. Sims, 32 Ill2d 591, 596, 208 NE2d 569 (1965); People v. Molz, 415 Ill 183, 190, 113 NE2d 314 (1953); People v. Evrard, 65 Ill App2d 118, 128, 212 NE2d 305 (1965).

The scope of the judicial discretion vested in the trial court is set forth in section 117-1 of the Code of Criminal Procedure of 1963 (Ill Rev Stats 1967, c 38, par 117-1), which provides in part:

“(a) A person who has been found guilty of any offense except a capital offense, the sale of narcotics or rape may be admitted to probation when it appears that:
“(1) The defendant is not likely to commit another offense;
“(2) The public interest does not require that the defendant receive the penalty provided for the offense; and
“(3) The rehabilitation of the defendant does not require that he receive the penalty provided for the offense.”

It was stipulated that the hearing on probation and in aggravation and mitigation be held at the same time. The court, in this respect, heard the testimony of the police officers, a commissioner of public safety, the mother of the defendant, two physicians — one being the uncle of the defendant — , and the defendant; and the court interrogated the defendant at length. The court also had the benefit of a psychiatrist’s report obtained on behalf of the defendant; however, the record does not indicate that a probationary report was obtained or used at the hearing.

Briefly, the testimony indicated that the defendant was in need of psychiatric treatment which his mother and stepfather were willing and able to obtain at a recognized psychiatrical center; that he ranked high academically in high school; that presently he was a student at Antioch College and had come to Dixon with a female companion to work at the Dixon State School; that although unmarried, he and his female companion registered at a local motel as husband and wife and subsequently continued to live together. There was also testimony that the rooms of the apartment in which they were living at the time of the arrest, were littered with marihuana leaves in various stages of drying; that there were quantities of crushed packaged marihuana stored at various places throughout the apartment; and that the stove broiler contained marihuana leaves and apparently had been used as a dryer.

The defendant testified that he was twenty years of age and had started using marihuana during his first quarter at Antioch College; that he had also used other drugs; that he and his female companion had packaged the marihuana to sell it and they had a friend who dealt in it; and that he was acquainted with others in Dixon who used or dealt in marihuana. The defendant also testified that he sought to be identified as a “hippie.” The report of the psychiatrist also contained such statement. The totality of the testimony at the hearing would tend to justify the court in believing that the defendant might commit another such offense.

After completion of the testimony, the court denied probation and recited at some length its reflections and impressions on the use of marihuana, the attitudes of a certain segment of the youth of our society, the actions of this particular defendant and his possible harm to the community had he been able to peddle the marihuana he had gathered.

The defendant here contends that the statements of the court indicated that it acted in an arbitrary manner as a result of intellectual and emotional bias with reference to the denial of probation and the imposition of sentence; and that the court’s actions were arbitrary under the facts and circumstances of this case.

It is not within our discretion to determine whether or not the trial court should have granted probation. It is only for us to determine the narrow question of whether the trial court abused its discretion in denying probation. In considering the defendant’s contention, we will examine the remarks of the court.

At the conclusion of the morning hearing on September 27, 1967, the court commented upon the fact that the defendant wanted to be identified as a hippie. The defendant then stated that during the past two weeks he had seen that the identity of just being a hippie lacked reality and that he was renouncing his identity. Thereupon the court referred to a recent statement of President Johnson which read: “We cannot tolerate behavior that destroys what generations of men and women have built here in America — no matter what stimulates that behavior,” and asked the defendant what it meant. He replied: “I don’t really think I can say what he meant. I think probably ‘We are not going to tolerate behavior,’ he is talking about everything that is happening that has to do with the younger people, these drugs, black power people, radicals. I don’t know if he is talking politically or morally.” The court then asked: “You don’t think he was talking about hippies?” and the defendant replied: “He could have had hippie ideas in his mind.”

Following the arguments by counsel, the court stated: “I have spent a lot of time thinking about this case. . . . The State’s Attorney didn’t have much to say here today, he left it entirely up to the Court. I guess that’s right, that’s my responsibility. There are a few things I might disagree with the attorney for the defendant. Principally when he gets up here and says to this Court the court should bear in mind that this young man hasn’t damaged anybody but himself. I take exception to that, Mr. Merrick, I think he has damaged everybody that he has associated with. I certainly think that he damaged or was certainly in a position possibly of damaging little youngsters who were in a State mental institution placed under this man’s care where everybody now decides he is so sick. I think he was damaging somebody there. He has damaged a thousand students out at Sauk Valley College, he has damaged the possibility of a thousand students at Dixon High School because any one of them could have been exposed to his potential sale which he and this young lady had made very careful plans and by his own admission was about to be in the business of selling. I don’t believe it was the intention whatsoever that these packets, all of which were very carefully prepared, all of which were very carefully filled, all of which were very handy, with intention of taking these packets back to Antioch College to sell them because we have got testimony here this young man became acquainted with the individual who has the distribution of this type of thing in this particular area. ... I don’t think that he needed to take it back to Antioch because, by his own testimony, 75 percent of the student body at Antioch College were marihuana users. This to me is a shameful reflection on an educational institution and an educational institution which knew that this boy was using marihuana and did absolutely nothing about it and apparently hasn’t done anything about it yet. I would hate to think I had a son or daughter of mine attending a school like Antioch College and I am not going to let Sauk Valley College become an Antioch College, I will tell you that. . . .

“I trust and I hope, and when I say I, I mean this Court hopes, that this is as far as it will go in this community and in this county because we all have children living in this community, we all have children going to school in this community and there are others who have young people going to school in Sauk Valley. ... I just want to read you a little note here that I read the other day, written by a young person, too. It was in a Chicago paper. . . .

“ ‘They may be seen in the streets of our city, at Old Town and in deserted apartments off any college campus, smoking pot, living not within reality but in a universe of crimson hallucinations and having many anxieties that sooner or later may lead to serious brain damage.
“ ‘To become involved with marihuana will lead to impaired judgment and altered perceptions. Any impulsive risk you take from smoking grass is a dangerous hazard to your health.
“ ‘Some of the people we are talking about are known as hippies, some are innocent teen-agers who are lured into taking these drugs. Many of the hippies and teen-agers are rebelling against society. Most of them are trying to escape from the horror of wars and the problems of life, leaping into a world of beautiful flowers and different color light shades, wanting to remain there forever instead of facing reality. So they continue to consume these drugs. Each day and night they are trying to escape from the world.
“ ‘Teen-agers are also rebelling against rules of parents and society. They are easy prey for pushers of marihuana, who think only of how much profit they can make out of it. They give little thought to the welfare of the ones who take this drug and what it can lead to. Smoking pot becomes a habit that cannot be broken easily and will also destroy your mind. It leads to many crimes of self-destruction. The idea of grass smokers is to turn on, take off and then all your troubles are almost gone. Instead of alcohol, it’s the marihuana kick today that is sweeping over America.’ . . .

“Possibly some of our students in Dixon High School, because they are young teen-agers, could be easy prey, too, for a pusher of marihuana. Something to try out. Well, if it isn’t there in the package form and in the processed form maybe it wouldn’t be quite so easy for them to get.

“There’s something that no one has made a remark on here at all during the course of all this hearing, except by my questioning, and it seems to be something that apparently is acceptable but it isn’t acceptable to this Court, that we have reached the state in this country where we say it is perfectly alright for a young man and a young woman to go ahead and live together, not married. I wonder what we are beginning to condone in this society if we are saying it is alright to go ahead and smoke marihuana, you just get a lift, you just get a feel, you just get a hallucination, you just live on a cloud. I am beginning to wonder what’s happened to the morals of this society and, you see, it is the hippies that resent society, they want to be identified. I am not at all impressed by the emphasis that’s been placed in this courtroom of this young man’s superb intellect. I think I would have been more impressed if somebody had taken the stand and said he is a good boy, he has been a good boy, he tells the truth, we trust him. . . . In the first place this young man has indicated he is a liar, that he misrepresented facts to people. Oh, we may be farmers out here in this community but I think we still know right from wrong and I still don’t believe that we approve of everybody living together whether they are married or whether they are not. That’s not much of an example for the young people in this community and yet this young man and this young lady — and incidentally this young lady is just as involved as this young man — represented to different people here that they were married. Start right out, number 1 a lie. . . .

“There’s testimony here that perhaps you need some psychiatric care. Well, maybe there’s a lot of people who need psychiatric care, I don’t know. The Court didn’t have the opportunity to confront this psychiatrist who wrote this long report so I don’t know anything about the psychiatrist except that he has some qualifications, and I am sure that they are excellent qualifications. There are many disturbing things in this case as far as I am concerned.

“I might point out to you, ... I am reading from the Statute of the Laws of the State of Illinois — ‘before someone can be admitted to probation it must appear that the defendant is not likely to commit another offense.’ There hasn’t been a question asked by anybody, when this young man was on the stand or from anybody else, that would indicate to this Court whether or not this young man was likely to commit another offense. I . . . observed this young man testifying the Court is not convinced that this young man, at the present time, has any intentions of changing his type of life that he has been leading. It’s going to take a long time to change his philosophy of life, because by his own admission, whether it was in a report to me or on the witness stand, he doesn’t like the middle class society, none of the hippies like the middle class society, yet what is society generally composed of ? Most of us are middle class. . . . I hope when you have the time that maybe you will try to understand this middle class of society which is the class of society which has made this the greatest country in the world, but unless something is done pretty soon by the Courts or by law enforcement agencies or somebody else to see that the laws are enforced and to see that the laws are carried out, we are not going to have a very strong society because it is getting weaker every day and it is the hippies and it is a few other people who have a complete disregard for laws that are tearing down the very basis of this country. . . .

“The second basis on which you must establish in order to have probation is that the public interest does not require that the defendant receive a penalty. Well, I think the public interest does require that, because I think it is time the public and everybody in it understands we do have laws and if we don’t live and abide by them then this country is going to be completely demoralized. ... I feel it is this Court’s responsibility to see that the law is upheld. ... By doing what I am going to do today on the pretense that this young man needs psychiatric help, well I think I can find you about 1500 people in the next hour and a half that need a little psychiatric help, and he will get psychiatric help where he is going because they have plenty of psychiatrists. I have nothing here in evidence that establishes whatsoever that he is not likely to commit another offense, even by his own testimony, except he says he is starting getting off the smoking. . . .

“THE COURT: Please stand up here, young man. You have filed a petition for probation. The court is not satisfied — Alright, if you wish to say something I will be glad to hear it.
“DEFENDANT: First of all, Diane and I never had sexual intercourse.
“THE COURT: I didn’t say that. I said you slept together.
“DEFENDANT: We couldn’t afford to do it any other way.
“THE COURT: I don’t understand you when you say to me you couldn’t afford to do it any other way when your stepfather is a doctor.
“DEFENDANT: We didn’t want to come to our parents.
“THE COURT: Well, that’s tough. Then somebody missed some place along the road about who should see who and who to talk to.

“Stand up like a man. For once in your life be a man for your mother’s sake, because up to this time you haven’t established or shown too much manhood so I expect at this time for you to be a man. . . .

“You are going to get mixed up with the middle class society and some that isn’t quite middle class. You placed yourself in this position, the Court hasn’t placed you in this position, nobody here, the policemen or anybody else placed you in this position, you placed yourself in this position, nobody else. . . . This might be the making of a man out of you, I hope it is, and I hope I am not wrong but I am going to deny your petition for probation. I think that all the factors involved are such that you are not going to serve the best interests of the public and I don’t think you have satisfied this Court that you have any intention of changing your mind. For that reason I am denying the petition for probation. ff

In view of the foregoing statements, we cannot but believe that the court brought to this hearing for probation, its own prejudices and predilections as to the behavior of hippies as a class, and that the court had such a strong feeling on this subject that it could not accord to the defendant, who had sought to be identified as a hippie, the full and fair consideration of the factors which should be given careful thought in connection with the application for probation.

The court commented on the damage or harm which the acts of the defendant did to the children at the Dixon State Hospital, the students at Dixon High School and Sauk Valley College, even though there was no evidence of record pertaining to such matters. Earlier in the hearing, the court extensively examined the defendant with reference to the hippie movement, the defendant’s use of LSD and its effect on the youth of America. The LSD issue was totally irrelevant in this case.

The court commented on the fact that the defendant had lied concerning his marital status. However, the defendant did not lie in court, but rather, admitted his acts, and from the time of his arrest he cooperated fully with the court and the authorities.

Contrary to the statements of the court, the record indicated that the defendant had, until recently, been a boy of excellent character who received a commendation as a National Merit Scholar and had been accepted for attendance at Boys State by the American Legion. Also, the record indicated that this was the first time that the defendant had ever experienced any kind of trouble with the law; and that his mother and stepfather were ready and willing to furnish him excellent psychiatric care.

There was no attempt by the court to relate the sudden change in the defendant’s behavior and mannerisms to the testimony of record or the report of the psychiatrist. Also, there was no reference to the psychiatrist’s prognosis and recommended treatment, which the psychiatrist stated could not be pursued on behalf of the defendant while he was in prison.

In view of these circumstances, we do not believe that the court did, in fact, exercise discretion in its determination relative to the petitition for probation. Rather, we believe that it acted in an arbitrary manner in this respect and abused its discretion. The quality of justice which courts dispense in time of tension and stress is one of the indices of the capacity of a free society to survive. Therefore, courts must be certain that their judgments are firm but just; and that they are untainted by prejudice, predilections or arbitrariness.

The court imposed a sentence on the defendant of not less than two nor more than three years in a State Penitentiary. Such sentence was within the statutory limits authorized by law and was in the nature of a minimum (not maximum) sentence. (Ill Rev Stats 1967, c 38, par 24-40.) Such sentence should not be interfered with by a reviewing court unless it clearly appears that the penalty imposed constitutes a great departure from the fundamental law. People v. Smith, 14 Ill2d 95, 97, 150 NE2d 815 (1958); People v. Stevens, 68 Ill App2d 265, 273, 274, 215 NE2d 147 (1966) ; People v. Johnson, 68 Ill App2d 275, 282, 215 NE2d 144 (1966).

Under the power vested in us by Supreme Court Rule 366(a)(5) (Ill Rev Stats 1967, c 110A, par 366(a)(5)), we affirm the judgment of guilty and for the purpose of affording the defendant a new hearing on his petition for probation, we vacate the sentence which was imposed, reverse the denial of the application for probation and remand the cause to the trial court with directions to procure a probationary report and thereupon cause the action to be assigned to another judge of the 15th Judicial Circuit for a new hearing upon the application for probation. At such hearing, the probationary report should be made a part of the Report of Proceedings at The Trial, and the judgment on the application for probation should be determined pursuant to the judicial discretion vested in the Trial Court as set forth in section 117-1 of the Code of Criminal Procedure of 1963, and free, so far as humanly possible, from any prejudices or predilections which would tend to preclude a fair consideration of the petition on its merit.

After such hearing, the assigned judge should enter such order on the application for probation as may be proper under the evidence and the probationary report, all pursuant to the judicial discretion vested in the trial court as set forth in section 117-1 of the Code of Criminal Procedure. In event probation is granted, the court may impose such conditions in connection therewith as may be proper, pursuant to the provisions of section 117-2 of the Code of Criminal Procedure. In event probation is denied, the court should impose sentence, and, as a guide to the trial judge, but without limiting his discretion in the matter in any respect, we find that the sentence heretofore imposed did not constitute a great departure from the fundamental law.

Affirmed in part; reversed in part; and remanded with directions.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


author: SMITH, P. J.

text:
    Illinois Broadcasting Company, a Corporation, Plaintiff-Appellant, v. City of Decatur, a Municipal Corporation and General Electric Cablevision Corporation, Defendants-Appellees.
    Gen. No. 10,890.
    Fourth Division.
    June 12, 1968.

      Robert D. Owen and Edward Booth, Greanias & Owen, of Decatur, for appellant.
    Hilmer C. Landholt, Corporation Counsel, of Decatur, and Samuels, Miller, Schroeder, Jackson & Sly, of Decatur (Thomas W. Samuels and E. W. Schroeder, of counsel), for appellees.
   SMITH, P. J.

Some city ordinances involving community antenna television — CATV—are here for review. The attack upon their validity has been repelled. Proponent is defendant, General Electric Cablevision Corporation (General) and contestant is plaintiff, Illinois Broadcasting Company (Illinois), who effects this appeal. One of the ordinances grants or permits General to use the streets, alleys, etc. for CATV purposes — “the franchise ordinance”; a second, characterized as the “specifications ordinance,” sets forth technical criteria relative to such; and a third, the “criminal ordinance” precludes use of the streets, alleys, etc. by anyone not having a CATV franchise, and, indeed, one passage specifically forbade persons from engaging in the CATV business without a license. This latter provision has been repealed, and our consideration subsumes this excision.

Illinois’ standing with regard to the criminal ordinance is questionable, as it does not appear that the ordinance will impinge, mediately or immediately, on its principal activity — broadcasting—nor does it appear that there is any real threat that some peripheral activities— a mobile trailer — is within the ban, though if the trailer is really “mobile” it might be considered to be literally proscribed. But we shun so strict a reading, and in any event, its implementation vis a vis Illinois is neither present nor imminent. Ordinances like statutes should be given a reasonable construction and we conclude at best that Illinois’ standing to attack this ordinance is hazy. Accordingly, the dismissal of the counts apropos of the criminal ordinance is affirmed.

We can quickly dispose of the specifications ordinance. If the franchise ordinance is valid then it is too, because the franchise ordinance incorporates the specifications ordinance by reference. As its title implies, and as we have said, it sets forth minimum specifications for the construction and operation of CATV systems, and our perusal of it confirms just that — they seem to be all there.

The “franchise ordinance” grants to General the right, privilege, permission and authority to construct, erect, operate and maintain upon, along, across, above, over and under the streets, alleys and public ways, poles, wires, cables, conduits and other fixtures and to use the same for the purpose of transmitting television signals and “especially for the conduct of a community antenna television system, for the reception, sale, and distribution of television signals.” The right granted is “nonexclusive,” and the city reserves the right to grant similar rights to others. General is to pay $10,000 per year, or 6% of annual gross receipts, whichever is greater; to furnish without charge a connection or “ (drop) ” to each of the public and parochial schools; to each building of an existing university or any junior college in the future; and to such city buildings as the Council may from time to time direct; in addition, the schools are to receive, without charge, for use in distributing educations programs, a video tape playback machine and “necessary equipment”; to provide a system of not less than twelve channel capability; one such channel is to be used exclusively for the distribution of educational programs, and another is to be open from 8:00 a. m. to 4:00 p. m. for the use of the schools, but if not needed, “a cultural program may be substituted if available.” There is to be no discrimination between persons or between areas in the city and the system is to operate 24 hours a day, and within three years General is to have extended full service and access into every area, and “to every applicant for service in all parts and areas” of the city. New areas are to be fully serviced within two years from date of annexation. The ordinance ordains that General is to be law abiding, and not engage in any business competitive with renting, repairing, selling, or “installing television devices, or sets, antennae, radios or other electronic devices.” It is forbidden to recommend persons engaged in renting, repairing, etc., and it is to refrain from installing equipment for the reception of its services in exchange for removal of then existing television or radio installations or any part thereof, and General “shall discourage others from so doing” by including within its rules “denial of service, or otherwise.” General is to maintain an office in the city, not interfere with others in “the direct broadcast or reception of other signals,” and, as we have pointed out, conform with the specifications ordinance and with changes that time might bring, “to reflect improvements in the art.” In erecting poles “conductors, conduits and apparatus,” General is to do so in a way that it will not interfere unnecessarily with travel “on such streets, alleys, avenues, bridges or other public places, and shall be erected and placed under supervision.” There is a lengthy section as to poles, smacking of the specifications ordinance, and no poles are to be erected where an existent utility company has none. When the city improves its streets, avenues, alleys, etc., General is to accommodate the city, and while construction is under way, there is even a provision that any obstruction or opening “during periods of dusk and darkness shall be clearly designated by warning lights.” General is to have the authority to promulgate reasonable rules and regulations, but such are not to be in conflict with any future “federal, state or city law, ordinance, rule or regulation.” Charges are to be uniform and no discrimination is to exist between persons, firms or corporations for the same or similar services. The rates are then scheduled. Increases can be had, but only with permission of the city, and the parties and General are to “reasonably and in good faith endeavor to reach agreement.” General is to comply with the provisions of the Fair Employment Practices Act and shall “otherwise refrain from any discrimination between persons by reason of race, color, creed or national origin, either in the employment of persons or the furnishing of services, or otherwise.” A bond ($50,000) is required subject to forfeiture if General “fails to perform in accordance with any of the provisions of this ordinance,” and upon cessation of operations, “all poles, wires, cables, towers, facilities, equipment and appurtenances shall be removed.” The grant of the right or privilege “permission and authority” to General shall continue for fifteen years, “provided the company shall within thirty days after the passage of this ordinance file with the City Clerk its unconditional acceptance of the terms hereof in writing” and should General fail to file such acceptance, “then it shall be deemed a rejection hereof, and the rights, privilege, permission and authority herein granted shall immediately terminate and cease.”

General did file its acceptance in time and the ordinance thus became effective, assuming its initial validity, which is one of the things we are asked to decide. Of course, the “criminal” ordinance needed no acceptance as it had general applicability and therein lies a distinction of sorts. The specifications ordinance, while general too, only has applicability to those who have a franchise, and is thus quite different. As with the criminal ordinance, a preliminary question is Illinois’ standing to sue. It seems clear to us that Illinois does have standing. For one thing, public moneys would necessarily have to be spent to enforce, or rather, are involved in implementing this ordinance, and that being so, and Illinois being a taxpayer, it can at least get into court to question validity. Nordine v. Illinois Power Co., 48 Ill App2d 424, 199 NE2d 34.

At the time this ordinance was enacted there was no statutory authority which expressly dealt with the licensing or franchising of the business of CATV by municipalities. However during the pendency of this appeal, the following was enacted, being § 11-42-11 of chapter 24, Ill Rev Stats 1967:

“The corporate authorities of each municipality may license, franchise and tax the business of operating a community antenna television system as hereinafter defined.”

Notwithstanding this express grant, and without getting into the question of whether this section would validate an extant ordinance otherwise invalid, we are of the opinion that municipalities prior to the passage of this section had implied power in the very first instance to enact the franchise ordinance under attack. But the power to enact must be carefully distinguished from some of the conditions here imposed, as to which municipalities have no power to exact unless such exaction is agreed to.

Whence came this power of Decatur’s to enfranchise General. The power finds its source in the statutory grant permitting municipalities to regulate the use to be made of their streets, alleys and public ways — “over, above, beneath and across.” A parallel power with somewhat reverse English grants to cities the right to prevent obstructions. Specifically, § 11-80-2 of the Illinois Municipal Code (c 24, Ill Rev Stats 1965) accords to cities the right to regulate the use of its streets and other municipal property, and § 11-80-3 says that the “corporate authorities of each municipality may prevent and remove encroachments or obstructions upon the streets and other municipal property.” Curbs, gutters and crosswalks are provided for in § 11-80-11, and the space over the streets and public places in § 11-80-8. These are the sources from which Decatur derives the power to enact this ordinance.

A business whose product must travel by wire from house to house has to first obtain some type of permission from the city concerned, as wires cannot be strung from house to house without in some way making use of the streets and alleys — “over, above, beneath and across.” As we have seen, the franchise ordinance circumscribes with particularity this use, to the end of incurring a minimum of inconvenience to the public and a maximum of safety. If this is done and the use is reasonable, private use of streets is permissible. Withers v. City of Granite City, 23 Ill2d 156, 177 NE2d 181. There it was stated that the test of what use can be permitted upon or under the streets is measured by whether or not the encroachment is reasonable and in the public interest. In Sears v. City of Chicago, 247 Ill 204, 93 NE 158, it was said in this regard there is no limitation upon the power of a municipality except “that its exercise shall be reasonable and in a manner to safeguard the paramount right of the public to the free and unobstructed use of the streets.” Certainly the use here contemplated meets this test. If this is so then Decatur has the right to attach— but not impose or exact — conditions to such use, though unrelated to it, leaving it up to the person seeking the grant to either accept or reject them. Cast in this mold the ordinance becomes effective only upon acceptance. Rejection, and the ordinance is a dead letter. We see nothing wrong in the city saying in effect: You may use our streets for such and such a purpose as such purpose is reasonable and in the public interest yet before we will grant you this, you must in turn agree to certain conditions collateral to the specific use you desire.

That some of the conditions present here in the franchise ordinance and indubitably in the specifications ordinance do constitute regulation unrelated to use of the streets is to state the obvious. A quick perusal discloses that a great many are concerned solely with CATV aspects. However, these conditions are self-imposed. They are not imposed by Decatur. If General agrees to be so regulated who can complain ? If General accepts a condition to pay a given sum who cares, and if General pays, as we assume it will, who is hurt? If General discovers later on that some of the conditions it agreed to are onerous, it can assuage itself with the thought that surcease is but fifteen years away — a condition, too, it agreed to.

That ordinances of this kind find currency is best exemplified in City of Peoria v. Peoria Transit Lines, 11 Ill2d 520, 144 NE2d 609. This case involved a grant by Peoria to Transit to use the streets for purposes of operating a bus system, the ordinance providing that Transit should pay to Peoria a percentage of gross revenues. Transit agreed to do just that and when it reneged, Peoria sued. In defense, Transit attacked the validity of the ordinance, arguing that it could not be sustained under either Peoria’s regulatory or taxing powers. While the Court found it unnecessary to consider or to discuss the validity of the ordinance as a revenue measure, in holding that such ordinance was a valid exercise of the City’s regulatory powers, particularly under its authority “to regulate the use of the streets,” it did go on to say, “in any case the amount charged was that to which the defendant had agreed.” Apropos of some cases cited by Transit as authority for the proposition that a city lacks power to require a franchisee to pay a percentage of gross receipts, such were distinguished thusly: “Neither of those cases involved a franchise ordinance that had been accepted by the utility.”

Regardless of what might now be Decatur’s rights under the new CATV section to tax the business of CATV, the quid pro quo here, or whatever we call it, is certainly not a tax because a tax however welcome (if there is any such thing) does not take its being via agreement. Taxes are imposed not self-imposed. Taxes are imposts. No agreement is necessary to collect an impost from an impostee. Here, again, what General has to pay, General has agreed to, and if General can agree to this condition, we see no reason why it cannot agree to the others. Of course, nobody can agree to conditions that are against public policy but none of these bear that stigma — nor, for that matter, is such urged. That Decatur could not have exacted many of these conditions is immaterial. Exactions agreed to, like impositions, are not exactions. Accordingly, we find this to be a valid ordinance and the order appealed from is affirmed.

Affirmed.

CRAVEN and TRAPP, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    Kenneth A. Mueller, Plaintiff-Appellee, v. Marjorie F. Mueller, Defendant-Appellant, M. Lichter, Defendant.
    Gen. No. 68-19.
    Second Judicial District.
    July 22, 1968.
    Eloise Johnstone and Alton Sharpe, of Chicago, for appellant.

      Franz & Franz, and Perry L. Weed, of Crystal Lake, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant, Marjorie Mueller, appeals from an order denying her motion to dismiss for lack of jurisdiction over her person, and holding, among other things, that her special appearance became a general appearance.

Defendant contends that the court erred, in assuming jurisdiction of the divorce complaint of plaintiff filed in McHenry County when it appeared that process was first served on the subsequent complaint for divorce in Cook County; in denying an evidentiary hearing on defendant’s affidavit of nonservice; and in ordering defendant to cease prosecution of independent habeas corpus and criminal actions in Cook County.

Plaintiff filed his complaint for divorce in McHenry County on November 14, 1967. Defendant filed her complaint for divorce in Cook County on November 15, 1967. On November 17, 1967 summons was purportedly served on plaintiff here on the Cook County complaint. Defendant here was purportedly served with summons in the McHenry County action on November 28, 1967.

On December 1st defendant filed her special and limited appearance in the McHenry County case supported by affidavit of one of her attorneys, alleging the filing of the Cook County suit, and advising of a hearing in that suit set on notice for December 1st. On December 13th plaintiff herein appeared specially in the Cook County action asking its dismissal, on the basis of alleged defective process and on the basis that a prior action was pending. The record does not disclose a disposition of this special appearance.

On December 15th, plaintiff filed a petition in the McHenry County Court for discovery and injunctive relief. At the same time defendant moved to quash process. The record does not include a report of this proceeding, but the order entered on December 15th recited that “the court hearing fully arguments by counsel including evidence presented in open court, briefs and the contents of the court file and being otherwise fully advised in the premises . . . ,” and orders “that defendant’s motion to quash service of summons and process upon herself is denied and her special appearance becomes a general one . . . that defendant is directed to discontinue prosecution of proceedings in Cook County and this court takes full jurisdiction of this case . . . ,” and “that defendant submit to a discovery deposition.

On the issue of whether the Circuit Court in McHenry County properly assumed jurisdiction, plaintiff relies principally on People ex rel. Lehman v. Lehman, 34 Ill2d 286, 215 NE2d 806 (1966), as holding that the date upon which the complaint is filed determines the pendency of an action. In Lehman an order of the Circuit Court of DuPage County in a habeas corpus case was in issue. The wife had taken her children to DuPage County from South Carolina in violation of a custody order resulting from divorce proceedings there. She filed an action in Cook County on December 14th, asking that she be given custody on alleged change of circumstances, and the Cook County court issued an ex parte injunction restraining the father from interfering with custody. On December 30th summons in the Cook County action was served on the father. On December 29th the habeas corpus action was filed in DuPage County and summons served on December 30th. The record did not disclose which process was first served. The court assumed for the purpose of its ruling that the DuPage County process was served prior to that of Cook County. In reversing the order of the Circuit Court of DuPage County the Supreme Court held that the proper forum for the litigation was in Cook County. In Lehman, the court refused to distinguish the doctrine of prior jurisdiction in habeas corpus as opposed to divorce actions, and placed reliance on People ex rel. Bradley v. McAuliffe, 24 Ill2d 75, 179 NE 2d 616, in which the court in a mandamus action expunged an order of a Cook County court which purported to vacate a prior decree of divorce in Williamson County; and upon Leonard v. Bye, 361 Ill 185, 197 NE2d 546, which held that the constitutional objection to the validity of a statute could only be raised in the court in which the first action was pending.

Defendant seeks to distinguish Lehman as standing “for little more than that one court, which has concurrent jurisdiction with that of another, could not determine whether a party before it had previously filed a false and fraudulent allegation of residence in the other court.” We cannot agree. In Lehman, the court states, on pages 290-291:

“It does not appear from the documents before us which court’s process was served first, but for the purpose of this case we shall assume that personal jurisdiction over both litigants was first secured in the DuPage County action. We shall further assume that without personal jurisdiction of the parties, the Cook County court would have been unable to grant the relief that the mother sought. (See May v. Anderson, 345 US 528, 97 L Ed 1221.) Even under these hypotheses, however, we do not agree that the court in DuPage County could ignore the pendency of the Cook County action between the same parties.
“Section 48 of the Civil Practice Act provides for the dismissal of an action upon motion upon the ground that ‘there is another action pending between the same parties for the same cause.’ (Ill Rev Stats 1963, c 110, par 48(1) (c).) The purpose of the provision is to foster orderly procedure by preventing a multiplicity of actions. The pendency of an action might be determined by the date upon which the complaint is filed, the date upon which summons is issued, or the date upon which the court acquires jurisdiction over the parties. None of these alternatives is entirely satisfactory, but so long as both actions are brought in Illinois the choice between the competing rules was made in section 13 of the Civil Practice Act which provides: ‘Every action, unless otherwise expressly provided by statute, shall be commenced by the filing of a complaint.’ (Ill Rev Stats 1963, c 110, par 13.) If the plaintiff fails to show reasonable diligence to obtain service of process, Rule 4 of the Rules of this court provides for dismissal of the action upon motion of a defendant or on the court’s own motion. (Ill Rev Stats 1963, c 110, par 101.4; see Department of Public Works and Buildings v. Lanter, 413 Ill 581, 594; Vukovich v. Custer, 415 Ill 290, 294.) We are aware of no provisions' of statute or rule that would indicate that the pendency of an action is to be determined otherwise than by the filing of the complaint.” (Emphasis added.)

The suit in McHenry County court was pending before the Cook County action by the filing of the complaint in McHenry County first. All issues, including custody, which could be raised in the Cook County divorce or habeas corpus proceedings can be raised in the McHenry County action. There is no question here involved of lack of diligence to serve process out of the latter court. Therefore, the McHenry County court had acquired prior jurisdiction over the subject matter of the action and by diligent service of process would acquire personal jurisdiction over the parties defendant to that action.

The defendant cites a number of cases for the proposition that where two or more courts have concurrent jurisdiction of the same subject matter the court first acquiring it by service of process will retain it to the exclusion of the other. Emphasized are Plume & Atwood Mfg. Co. v. Caldwell, 136 Ill 163, 26 NE 599 (1891); and Olofsson v. Wood, 23 Ill App2d 32, 161 NE2d 681 (1959) in this district. In Plume the assignee of an insolvent debtor sought to invest the County Court with jurisdiction over claims to property which was before the Circuit Court as. the result of executions and attachments. The court conceded that the Circuit Court writs of levy would have given that court exclusive jurisdiction over the case if the parties in interest had not voluntarily invested the assignee to possession of the attached property. Under these circumstances the County Court could proceed to determine the validity and priority of liens and claims. We believe the case to stand for the proposition that where the proceedings are in rem and possession of the res is required in order to proceed, that the court which first acquires the res by valid process has priority of jurisdiction.

The court in Olofsson stated the proposition urged by the defendants in a personal injury suit, in personam, on the basis of the Plume decision. However, the parties, without objection, permitted both the Cook County and the Kane County actions with identical parties and identical issues to reach issue. The error complained of was in the trial court’s ruling in Kane County that the case there must proceed to trial on the day before it was set to be tried in Cook County and this court affirmed the judgment under the circumstances, including a delay of several months in notifying the court of the other pending action. Here, the objection was made to the Cook County proceedings in the form of a special appearance which raised the objection that a prior action was pending. While neither of the above decisions have been expressly overruled, we are of the opinion that if Plume and Olofsson stand for more than we have found in our interpretation of them, they have been impliedly overruled by the Lehman case, supra.

The defendant next urges that her affidavit of nonservice of process raised a question of fact which the court could not determine without a hearing. The service is evidenced by a return appearing on the summons in proper form. The order appealed from expressly recited that the court heard arguments and evidence and was fully advised in the premises. While the record contains no transcript of the hearing, it was the burden of defendant to preserve the record required on appeal to rebut by clear and convincing evidence the prima facie proof of service on the defendant from the sheriff’s return. Marnik v. Cusack, 317 Ill 362, 364-365, 148 NE 42 (1925); Acosta v. Burris, 47 Ill App2d 201, 204, 197 NE2d 757 (1964). The recital in the court’s order, there being an absence of any contrary indication in the record, sustains the conclusion that the court heard adequate evidence necessary to reach its decision. Canady v. Canady, 30 Ill2d 440, 446, 197 NE2d 42 (1964); Smith v. Smith, 36 Ill App2d 55, 59, 183 NE2d 559 (1962); Ill Rev Stats 1967, c 110, § 64(2).

The final contention of defendant is that the trial court could not properly enjoin prosecution of the independent habeas corpus and criminal actions in Cook County. First, we perceive that the trial court in enjoining defendant to “discontinue prosecution of proceedings in Cook County” was applying a bar to proceedings by the defendant before it as a moving party with reference to the issues which could be heard in the instant suit, that is, the habeas corpus and divorce proceedings and not any criminal proceedings wherein the State is the moving party. There is nothing in the record to advise us of the particulars of the habeas corpus action except general reference in pleadings and in arguments of counsel. But, again, we must conclude that the court heard adequate evidence to determine that the matter of child custody was involved which could be heard in orderly fashion in the McHenry County divorce suit, Smith v. Smith, supra. We find the order proper in that regard. People ex rel. Lehman v. Lehman, supra, at p 295; Greco v. Chicago Foundlings Home, 38 Ill2d 289, 291, 230 NE2d 865 (1967).

While neither party has questioned the appeal-ability of the trial court’s order, we have considered the issue and conclude that the order is appealable. While denial of a motion to quash summons is not normally appealable (Thomas v. Ritholz, 310 Ill App 166, 168, 33 NE2d 932 (1941), and see: Appealability-Service of Process, 30 ALR2d 287 Annotated), the trial court here also enjoined all proceedings in another county, thereby conferring jurisdiction on this court.

We therefore affirm.

Affirmed.

DAVIS and MORAN, JJ., concur.


author: GOLDENHERSH, J.

text:
    Eugene Littlefield, Plaintiff-Appellant, v. Alton and Southern Railroad, a Corporation, Defendant-Appellee.
    Gen. No. 67-42.
    Fifth District.
    July 16, 1968.

      O’Connell & Waller, of East St. Louis, for appellant.
    Pope and Driemeyer, of East St. Louis (W. Thomas Coghill, Jr., of counsel), for appellee.
   GOLDENHERSH, J.

Plaintiff appeals from the judgment of the Circuit Court of St. Clair County entered upon a jury verdict for the defendant in plaintiff's action for damages brought under the provisions of the Federal Employers’ Liability Act (Title 45, USCA, § 51 et seq.) and the Boiler Inspection Act (Title 45, USCA, §§ 22-29).

Plaintiff argues that the evidence was uncontroverted as to any material issue and the only legitimate inference from the evidence is that plaintiff was injured as the result of defendant’s violation of the Boiler Inspection Act. Plaintiff contends that the trial court erred in refusing to direct a verdict for plaintiff on the issue of liability, and submit the case to the jury solely for the assessment of damages.

Plaintiff was employed by defendant as a switch foreman. Defendant owned three engines which differed from the others it operated in that the doors to the switch-men’s compartment, as originally designed, were 15 inches shorter than on its other engines. Because of complaints made by the General Chairman of the union that the men were bumping their heads on the door frame, defendant sealed the short doors on the fireman’s side on each of the engines and cut a full-length door. There was no modification made on the engineer’s side, and there is a conflict in the testimony as to why those doors were permitted to remain in their original condition. There is testimony that it was difficult to enter or leave the engine by the short door.

Plaintiff testified that on December 21, 1962, he climbed up on defendant’s engine No. 43 in order to use the radio equipment to contact the yardmaster. The hand set for the radio is located immediately inside the short door. In entering by the short door he struck his head on the steel door frame, and a few minutes later, struck it again against a pipe which was part of the support for the radio equipment. On December 24 or 25 he noticed a “blur” in his eye. He had a cold and thought it might have settled in his eye. On December 26 he was bowling and when he looked down the alley “everything was just a big blur in my eye.” On January 2, 1963, he went to Dr. Szewczyk, an ophthalmologist. Dr. Szewczyk examined his eyes and inquired whether he had hit his head recently. He answered “I would say two or three weeks or a month ago” and also told him of being injured in an automobile accident ten or twelve years earlier. He was told that he had a detached retina, and was referred to doctors at Missouri Pacific Hospital in St. Louis.

When plaintiff spoke with Dr. Szewczyk and the doctors in St. Louis he was not certain of the exact date of the occurrence. He remembered with whom he had been working, and on what engine, and from that information was able to determine that it happened when he was working on engine 43 on December 21,1962.

William Stufflebeam, and William Duhr, plaintiff’s fellow crew members, testified that they saw plaintiff strike his head upon entering the engine. Neither could fix the exact date, but both stated that they had regularly worked with plaintiff from December 9 to December 23,1962, and to the best of their recollection, it was shortly before December 23,1962.

The Boiler Inspection Act imposes upon the carrier an absolute and continuing duty to maintain a locomotive and all of its parts in a condition safe to operate without unnecessary peril to life or limb. Lilly v. Grand Trunk Western R. Co., 317 US 481, 87 L Ed 411, 63 S Ct 347. Assuming, arguendo, that the maintenance of the short door was a violation of the Boiler Inspection Act as a matter of law, there still remained the issues of whether plaintiff suffered an injury, and whether the injury resulted from the alleged violation. From our review of the evidence, we conclude that these issues were properly submitted to the jury as the finders of fact, and the court did not err in refusing to direct a verdict on the issue of liability.

We have examined the cases cited by plaintiff, and while they are authority for the proposition that the evidence presents a jury question, they do not sustain the contention that he was entitled to a directed verdict.

Plaintiff contends that the court erred in admitting into evidence a memorandum prepared by defendant’s witness, Geraldine Majka.

Miss Majka testified that she was employed as secretary to defendant’s superintendent. In January 1963, she met plaintiff at a bowling alley, and noting that one of his eyes was partially closed, she inquired as to what had caused the condition. In response to her inquiry plaintiff stated that he did not know, his vision had become blurred and he decided to have it checked. He did not state that the condition had resulted from his striking his head on the door of a locomotive.

In cross-examination the witness stated that she had been employed by defendant for 5 years, and for 5 years prior to that time, had been employed by the law firm in which defendant’s trial counsel was a partner. She stated she made no searching inquiry as to what caused the condition since that was not her job; she inquired out of personal interest because she knew plaintiff. She did not report the conversation to anyone connected with defendant until some three months later when she learned he was suing defendant, claiming an injury while working on an engine. On cross-examination she stated that she had prepared a memorandum at that time, she did not have the memorandum in her possession, and assumed defendant’s trial counsel had it. She was interrogated as to whether there was a cocktail lounge in the bowling alley and whether she had had anything to drink prior to the conversation with plaintiff.

On redirect examination she was shown a paper which she identified as the memorandum which she made. She stated that when she told someone at the railroad office of her conversation with plaintiff, she was asked to prepare the memorandum, and did so. Over plaintiff’s objection, the memorandum was admitted into evidence.

Plaintiff contends that the memorandum is self serving, is merely corroborative of her testimony, and its admission was error.

Defendant contends that the cross-examination of plaintiff’s counsel tended to impute that the witness was testifying under the influence of a motive to make a false statement, or that her testimony was a fabrication of recent date; that plaintiff’s counsel opened the door for the admission of the memorandum by his cross-examination; that defendant was compelled to produce and offer the memorandum since its failure to do so would give rise to the presumption that the evidence was unfavorable to it; that the testimony of the witness, and her memorandum, were merely cumulative evidence, not contradicted by plaintiff, and its admission was not prejudicial to plaintiff.

In Lyon v. Oliver, 316 Ill 292, at page 303, 147 NE 251, the Supreme Court said: “As a general rule, proof of statements made by a witness out of court harmonizing with his theory is inadmissible, but where it is charged that his story is a recent fabrication or that he had some motive for testifying falsely, proof that he gave a similar account of the transaction when the motive did not exist or before the effect of the account could be foreseen is admissible.”

The cross-examination was sharp, and leaves little doubt that it was intended to create the impression that the testimony was the result of an improper motive, and a recent fabrication.

Counsel have cited numerous cases in support of their contentions but only one Illinois case, Stolp v. Blair, 68 111 541, cited by both parties, involves the specific issue here presented, i. e. under the above stated rule does cross-examination, without some impeaching evidence, make prior consistent statements admissible? As we read Stolp v. Blair, supra, the answer is in the negative.

We have examined the cases cited by defendant in support of its argument that plaintiff’s cross-examination of the witness opened the door for the admission of the memorandum and find them all distinguishable. Darling v. Charleston Community Memorial Hospital, 50 Ill App 2d 253, 200 NE2d 149, involved a telephone conversation; People v. Burage, 23 Ill2d 280, 178 NE2d 389, involved a conversation between the defendant and an informer; Smith v. City of Rock Island, 22 Ill App2d 389, 161 NE2d 369, involved an explanation by what was meant by a statement in the plaintiff’s deposition; the others involve answers elicited upon improper cross-examination.

We have considered defendant’s argument that it was compelled to produce the memorandum since its failure to produce evidence within its control would have given rise to a presumption that the evidence was unfavorable to it. We do not disagree with the abstract proposition of law as presented, but do not find it authority for the admission of evidence, otherwise clearly inadmissible.

The memorandum is not merely cumulative of the witness’ testimony since it includes several matters not covered in her testimony, either on direct or cross-examination.

The record does not support defendant’s statement that the testimony of the witness was not contradicted. Upon cross-examination, plaintiff testified that he told her the doctors had told him his eye injury was the result of a blow on the head.

The court erred in its ruling on the memorandum, and the grounds upon which defendant bases its arguments neither excuse its admission nor cure the error.

Plaintiff contends that the trial court erred in permitting defendant, over objection of plaintiff’s counsel, to cross-examine plaintiff with respect to the contents of a complaint filed in his behalf, by his mother as next friend, seeking to recover damages for injuries suffered while he was a minor.

The record shows that plaintiff, on direct examination testified that he sustained an injury to his head in an automobile accident in November 1950, but he did not sustain any injury to his eyesight. On cross-examination he stated he did not remember if he claimed to have suffered a fractured skull, but he “imagined” that if the lawyer put it in his complaint, he agreed to it, and that it was later found he had no fracture of the skull.

On redirect examination plaintiff testified that he never saw the complaint in the case arising from the 1950 accident, that he was a minor at the time, did not sign the complaint and did not know what was in it.

The record shows that defense counsel did not read from the complaint, and the only statement which purports to identify any document as a complaint is that of plaintiff’s counsel upon redirect examination. The complaint was not admitted in evidence. There is a statement by defense counsel made during cross-examination that “the lawyer said you were caused to sustain a fracture of the skull” to which plaintiff objected, and one question to which objection was made. The statement should not have been made, and the question was argumentative. The objections in both instances are on grounds different from those urged on appeal, and under the circumstances, the error, if any, was not preserved for review.

Defendant contends that the court erred in admitting, over objection, a certified copy of plaintiff’s application for renewal of his driver’s license. The application is dated June 17, 1964, and contains this question “To the best of your knowledge, do you have adequate vision to drive safely without glasses or contact lenses?”, to which plaintiff answered “Yes.”

The record shows that when plaintiff, on cross-examination, was asked about the application, no objection was made. On redirect examination, he stated that he did not remember that the application contained the question.

When the application was offered in evidence, plaintiff objected, on the ground, inter alia, that it had no impeachment value. Plaintiff, in his brief, has attacked the ruling on other grounds but since they were not included in the objection, cannot be considered here.

Although the cause of the condition of plaintiff’s eye is strenuously contested, there is no dispute that plaintiff, without glasses, is blind in his right eye. A search of the record fails to reveal any testimony which is impeached by the exhibit. Plaintiff testified that there is no restriction on his driver’s license which requires that he wear glasses when driving, and that he does, in fact, drive without glasses.

Assuming the statement in the application to be an admission against interest, it is not material to the issues since the extent of his injury is not an issue in the case, and the application should not have been admitted.

Plaintiff contends that defendant’s counsel, under the guise of laying a basis for impeachment improperly asked a question of plaintiff, and upon eliciting a denial failed to follow up with impeaching evidence. Citing Gordon v. Checker Taxi Co., 334 Ill App 313, 79 NE2d 632; Duff v. Ewing, 60 Ill App2d 382, 208 NE2d 320; Schoolfield v. Witkowski, 54 Ill App2d Ill, 203 NE 2d 460; and Miller v. Chicago Transit Authority, 3 Ill App2d 223, 121 NE2d 348, plaintiff argues that the effect was so prejudicial as to require reversal.

The record shows one question, asked and answered without objection. Defendant did not propound a series of questions and in the context in which the question was asked and answered, we fail to see that it became incumbent upon defendant to offer any testimony on the matter. The situation presented here is so clearly distinguishable from those presented in the cases cited, as to require no further discussion.

In Duffy v. Cortesi, 2 Ill2d 511, at page 517, 119 NE2d 241, the Supreme Court said: “Where error is shown to exist, it will compel reversal, unless the record affirmatively shows that the error was not prejudicial. (Crane Co. v. Hogan, 228 Ill 338.)”

In Both v. Nelson, 31 Ill2d 511, at page 514, 202 NE2d 494, the Supreme Court said: “It is not every error, of course, that will require a reversal. Where it appears that an error did not affect the outcome below, or where the court can see from the entire record that no injury has been done, the judgment or decree will not be disturbed. (Baker v. Baker, 412 Ill 511; Lindroth v. Walgreen Co., 407 Ill 121; Pease v. Kendall, 391 Ill 193.) But where the case is a close one on the facts, and the jury might have decided either way, any substantial error which might have tipped the scales in favor of the successful party calls for reversal. (Edwards v. Hill-Thomas Lime & Cement Co., 378 111 180; Chicago Burlington and Quincy Railroad Co. v. Warner, 108 111 538.)”

In addition to Miss Majka defendant called Harry Foley, its Director of Personnel, who testified to two conversations with plaintiff. The first of these occurred on January 9, 1963, while both plaintiff and Foley were patients in the Missouri-Pacific Hospital. He stated that plaintiff told him he was being prepared for surgery for a detached retina, he didn’t know what caused it, and the doctor said it could be caused from a blow on the head. He stated that plaintiff did not tell him he had struck his head on an engine.

The second conversation took place when Mr. Foley spoke with plaintiff about a notice received from the Railroad Retirement Board and a report which he wanted plaintiff to file. He stated that plaintiff said, “I told you at the hospital that my doctor told me that a detached retina can be caused from a blow on the head, so I am checking around with some of the fellows to see what I come up with. If I come up with anything, I will notify you.”

Defendant also called John Boswell, a crew dispatcher who testified to a conversation with plaintiff in the course of which plaintiff told him he had a detached retina, but he didn’t know how it happened.

From an examination of the record it becomes apparent that if plaintiff were to prevail in this case, it was essential that the jury believe his testimony with respect to the occurrence out of which he alleges his injury arose. The testimony of Miss Majka, Foley and Boswell serves no purpose except to attack his credibility. Under the circumstances, both parties litigant were entitled to have the jury consider the testimony and judge its credibility free of error which, as stated in Both v. Nelson (supra) might “tip the scales” in favor of one of the parties.

The erroneous admission of the Majka memorandum provided improper corroboration for her testimony. The application for renewal of plaintiff’s driver’s license, inadmissible because it was not impeaching of any testimony or relevant to any issue in the case, might well have created the impression in the minds of the jury that plaintiff was careless of the truth in answering the questions it contained, and caused them to conclude that his testimony was not worthy of belief.

This court is unable to measure the extent to which the erroneously admitted memorandum, corroborative of Miss Majka’s testimony, or the improper impeachment effected by the admission of the application for renewal of plaintiff’s driver’s license, affected the jury’s opinion of plaintiff’s credibility. Under the circumstances, we cannot say that “the record affirmatively shows that the error was not prejudicial” as required by Duffy v. Cortesi (supra) or as stated in Both v. Nelson, supra, that the error did not tip the scales in defendant’s favor. We conclude, therefore, that the error requires reversal of the judgment and remandment for a new trial.

For the reasons set forth the judgment of the Circuit Court of St. Clair County is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

EBERSPACHER and MORAN, JJ., concur.