author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Sidney Carver, Defendant-Appellant.
    Gen. No. 50,449.
    First District, Fourth Division.
    December 2, 1966.

      James C. Hardman, of Chicago (Singer and Hardman, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard T. Buck, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Offense Charged in the Indictment

Armed robbery. Ill Rev Stats, 1963, c 38, §§ 18-1 (a) and 18-2 (a).

Judgment

After a jury verdict finding defendant guilty, the court imposed a sentence of 30 to 50 years.

Points Raised on Appeal

(1) The charge was not proved beyond a reasonable doubt.

(2) Defendant was prejudiced by the State’s Attorney’s closing argument.

(3) Defendant was prejudiced by the admission into evidence of the codefendant’s confession.

(4) The sentence is excessive.

Evidence

The facts are essentially uncontroverted.

Defendant Carver entered the Fifth Avenue Grill at about noon on April 25, 1964 and seated himself on the stool nearest to the kitchen and farthest from the door. His order was taken by James Perkins, owner of the grill. A few minutes later, co-defendant Cook entered and sat down near the door, also placing an order with Perkins. The latter then went into the kitchen and, when he returned, was confronted by Carver who had a gun in his hand and was pointing it at Perkins. Cook had also drawn a gun and had stationed himself behind the curtain at the front door. Carver announced, “[t]his is a stick up” and ordered Perkins and several young children into a small office behind the grill, where he had them lie down on the floor. Perkins informed Carver that all the money he had was in a money bag on the couch. Carver, not satisfied with what he found in the bag, asked where the rest of the money was hidden. He then ripped open Perkins’ trouser pocket and extracted a wallet containing ten dollars.

At this point Cook called to Carver that one of the children had escaped the premises, but Carver told Cook that that was Cook’s concern. Carver then said to Perkins, “I am going to ask you one more time, where is that money?” When Perkins denied having any more, Carver cocked his gun and ordered Perkins to turn his head away. Perkins testified that he complied immediately and when he had done so he “heard the thing snap.” Just then Cook cried out, “[t]hey are coming” and the police arrived. Officer Guzzoffi entered and saw two men, whom he identified as Carver and Cook, standing in the back room with guns in their hands. Cook was apprehended at once and was identified by Perkins as one of the robbers.

Carver, not heeding the officer’s order to surrender, ran out the back door to the alley. Shortly before that moment, Officers Roney and Johnson, cruising the neighborhood, received a radio call that a robbery was in progress. Roney then saw Carver, wearing a three-quarter length black leather coat, black trousers and white shirt, and carrying a revolver and a money bag while running from the rear of the building. Roney’s order to halt was ignored, so he fired three shots at Carver, who then turned into a yard, seized another man and pushed him into the entrance of an apartment building. Roney followed and proceeded to the third floor where he was admitted to an apartment by Florence Vance who gave permission for a search of her premises. Carver was in the apartment, now dressed in a red sweater, and putting on an appearance of being at home. He said that he lived there with relatives and was eating his dinner, but he was breathing heavily and was identified by Roney as the man he had been pursuing. The police found a money bag, a gun and a black leather coat in the apartment. All these items were identified by Roney as the ones he had seen on Carver and in his possession.

When the gun was found by Roney it was fully loaded and the bullet in the firing position bore a dent on its primer indicating, according to police testimony, that it had been struck by the hammer but had failed to discharge.

Carver was arrested at the apartment and taken to the grill where Perkins made a positive identification of him as one of the robbers.

Walter Harris had been standing in the alley waiting for his girl friend, Florence Vance, who lived in the apartment building there, when he heard some shots and suddenly saw Carver running around the comer. Carver grabbed Harris and forced him into the building and to Miss Vance’s apartment. There Carver took her 17-year-old brother into a bedroom, stripped a red sweater from him and put it on himself. Then the police arrived. Harris identified the gun, the money bag, and the leather coat as having been in Carver’s possession, and they were all introduced into evidence. Florence Vance corroborated the testimony of Harris as to the happenings in her apartment.

Opinion

(1) Defendant complains that the facts in evidence did not prove him guilty of robbery beyond a reasonable doubt, but that he was found guilty only because from the testimony about snapping the gun, and the State’s Attorney’s comment thereon in argument, the jury looked upon him as a potential murderer. They no doubt did so; and this he no doubt was, as disclosed by the proof. But this was incidental to the proof of the crime charged, and we find no error in the way this feature of the case was presented as part of a continuing narrative encompassing the entire event. People v. Marose, 10 Ill2d 340, 343, 139 NE2d 735. “A party cannot by multiplying his crimes diminish the volume of competent testimony against him.” People v. Lenhardt, 340 Ill 538, 545, 173 NE 155, quoting with approval from State v. Adams, 20 Kan 311. As to the propriety of the State’s Attorney’s comment on the evidence and legitimate inference to be drawn therefrom, see People v. Smith, 24 Ill2d 198, 200, 181 NE2d 77, and cases there cited. We find no merit in defendant’s first point.

(2) Next, defendant contends that another part of the prosecutor’s closing argument was so prejudicial as to require reversal. The comment in question was:

They have both been represented by counsel, they have both been given every opportunity to present whatever they wished to present, if they wished to present anything. And you have not heard any concrete contradiction to this.

The alleged prejudice arises from the fact that the defendants had not testified, and it is claimed, therefore, that the argument quoted constitutes comment on that fact, in violation of the logical extension of an accused’s constitutional privilege against self-incrimination.

The State attempts to answer this point (in part) by suggesting that defense counsel had opened up the question in a way which permitted the State’s Attorney to respond in the manner quoted above. The record does not support the State in this regard. The argument of defense counsel merely asked the jury to consider that one of the State’s key witnesses, Officer Roney, had been impeached by his own testimony elicited on cross-examination. He also pointed out that the State had the burden of proof, and that the defense did not put on evidence because it was felt that the State had failed to meet this burden. Further, he mentioned that no inference or presumption of guilt was to be drawn from the failure of defendant to present testimony. These statements by defense counsel did not justify the State’s Attorney’s comment, quoted above, as coming within the rule which permits answering or retaliatory argument when it has been provoked or invited by the argument of opposing counsel. Thus, the cases cited by the State are not controlling. People v. Smith, 24 Ill2d 198, 200, 181 NE2d 77; People v. Brown, 30 Ill2d 297, 303, 196 NE2d 664; People v. McElroy, 30 Ill2d 286, 291-292, 196 NE2d 651.

For many years there has been a statute in Illinois providing that a defendant’s “neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.” Ill Rev Stats, 1963, c 38, § 155-1. Our decision on this point thus involves application of this statutory rule to the State’s Attorney’s comment in this case, and if the statute has been violated a reversal would be required. People v. Annis, 261 Ill 157, 103 NE 568.

Defendant argues that it is difficult to understand how a description of the State’s evidence as being uncontradicted, could be considered as anything other than a reference to or comment upon the fact that defendants had not testified; that this is especially true in this case since, from the testimony of the State’s witnesses, it appears that the only persons in a position to furnish contradictory testimony would have been the defendants themselves.

In Desmond v. United States, 345 F2d 225, 226-227 (1st Cir, 1965) a very similar situation was presented to the court, except that no federal statute pinpoints the right of the defendant as the Illinois statute does. The prosecutor’s statement was:

Those are the facts, the evidence. Incidentally, may I say to you that the evidence stands unimpeached and uncontradicted.

An objection was overruled, but the trial court did charge the jury that no inference should be drawn from the defendant’s failure to take the stand. The Court of Appeals did not consider this to have been a sufficient protection of the defendant’s rights in this regard, and reversed the conviction because of the resulting prejudice to the defendant’s case. That court said:

“No one but appellant (or his co-defendant, whom appellant could not put on the stand against his will) could have contradicted the government witness.”
“Unless it is apparent on the record that there was someone other than himself whom the defendant could have called, the comment of necessity pointed to the only person who could have offered the contradiction, the defendant himself.”
“The government made the argument because it thought it would be effective. We can think of no effect other than to invite the jury’s attention to the fact the defendants had not taken the stand.”

If the instant case were one of first' impression in Illinois we might be inclined to agree with the Desmond court, because it would seem that so vital a right or privilege should not be subjected to cancellation by the skill or adroitness of a prosecutor in skirting the obvious intent of the statute and the constitutional base from which it stems.

This is not a case of first impression, however, and we consider ourselves bound by the Supreme Court’s treatment of this problem in People v. Norman, 28 Ill2d 77, 80-81,190 NE2d 819.

In the Norman case the court said at page 81:

This court has held that a prosecutor could properly call the attention of the jury to the fact that the State’s evidence was uncontradicted even though the circumstances were such that the defendant was the only person who could have denied the People’s evidence. (People v. Keagle, 7 Ill2d 408; People v. Novak, 370 Ill 220; People v. Birger, 329 Ill 352.) Although the prosecutor emphasized the uncontradicted character of the People’s case, there was no evidence whatever presented by the defense, and statements pointing out the fact that the People’s case was uncontradicted are not a reference to the failure of the defendant to testify within the meaning of this statute.

For similar determinations see also People v. Baker, 53 Ill App2d 421, 203 NE2d 185; and People v. Jones, 33 Ill2d 357, 363, 211 NE2d 261.

It is our conclusion, therefore, that the comment of the State’s Attorney was not prejudicial.

(3) At the conclusion of Officer Roney’s testimony various State exhibits were offered into evidence, including a written confession signed by codefendant Cook. Over timely objection by defense counsel the entire confession, including incriminating references to defendant Carver, was read to the jury. Immediately before the reading of the confession the court orally instructed the jury as follows:

It is the statement of the defendant Cook only, and is to be regarded only as his statement. Even though the evidence up to now has placed the defendant Carver present when that statement was made by Mr. Cook, the defendant Carver, under the law, has a right to remain silent and make no utterances of any kind. Accordingly, the presence of Carver is not to be regarded as evidence against him and the statement has application only to the defendant Cook.

While this statement of the court was somewhat equivocal in its reference to the presence of Carver rather than to the confession of Cook as the thing to be disregarded as evidence against Carver, the statement in its entirety probably made the point correctly. In any event, at the close of all the evidence, the jury was properly instructed in writing that a confession “can only be considered against the person making and signing the same” and that in deliberating upon the case of one defendant, evidence admitted solely against the other defendant should not be considered. Defendant Carver now contends, however, that the admission of the Cook confession was so highly prejudicial to Carver that it requires reversal of his conviction.

The confession signed by Cook was in question and answer form. After preliminary information as to his age, marital status, residence, employment, etc., Cook stated in the document that he knew he was there in the police station because of a robbery for which he was under arrest. He was then asked if he knew anyone else in the room, and he replied that he did know Carver and another man named Slick and had been in their company that day prior to his arrest. The statement then went on:

Detective Roney: Do you care to tell us in your own words from the beginning what happened today?
Fred Cook: This morning this place was mentioned and I was told that this guy had about $1500.00 that he had won. Then I went to get it. In the process of the holdup I was captured, and put under arrest.
Detective Roney: Who were you with at the time of the holdup ?
Fred Cook: Carver and Slick.

Then followed more details of the robbery in which Cook stated that he and Carver had “stuck the place up” and Slick had driven the car; that the robbery had been planned at Slick’s apartment and Slick had furnished Cook with the pistol; that Cook had a nickel-plated .38 revolver and Carver had a .38 police special.

From the above recital it can readily be seen that the references to Carver were not inextricably imbedded in all parts of the statement which constituted the confession. There would have been no real difficulty in tailoring the statement to delete therefrom all mention of Carver, by omitting the last part of the statement altogether, without weakening the confession as to Cook. Carver, however, contends that Cook’s confession would have been inadmissible even in truncated form, and the State has joined issue on that basis.

Under the most recent Illinois decisions, we believe that the trial court was correct in admitting Cook’s confession. It was made in Carver’s presence, its admissibility was clearly limited by the instructions to Cook alone, and Carver had made no motion for a severance at any time. People v. Tyner, 30 Ill2d 101, 105-106, 195 NE2d 675; People v. White, 28 Ill2d 23, 26, 190 NE2d 817; People v. Vickery, 321 Ill 254, 258, 151 NE 870. That Carver knew of the confession, and of the State’s intention to use it, is clearly disclosed by the record in the report on Cook’s pretrial motion to suppress, which had been denied after full hearing. In this circumstance, Carver’s failure to ask for a severance forecloses him now from claiming prejudice resulting from a joint trial, since the court has no obligation to order a severance on its own motion. People v. Watt, 380 Ill 610, 44 NE2d 580; People v. Somerville, 71 Ill App2d 381, 219 NE2d 116.

(4) Finally, defendant contends that the sentence is excessive, and asks this court to exercise its power to reduce it. Ill Rev Stats, 1963, c 38, § 121-9 (b) (4). The

The issue here is whether, under all the circumstances, the court’s instructions to the jury provided petitioner with sufficient protection so that the admission of Whitley’s confession, strictly limited to use against Whitley, constituted reversible error. The determination of this issue turns on whether the instructions were sufficiently clear and whether it was reasonably possible for the jury to follow them.

The court decided that it was reasonably possible for the jury to follow the limiting instructions, saying:

It is a basic premise of our jury system that the court states the law to the jury and the jury applies the law to the facts as the jury finds them. Unless we proceed on the basis that the jury will follow the court’s instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense.

Further rationalization for the rule is found in People v. Buckminster, 274 Ill 435, 445, 113 NE 713. The statement there made by the court has been quoted many, many times in subsequent Illinois cases. The Buckminster statement was that the courts recognized the evil of admitting a codefendant’s accusatory confession, and would do so, only “when two were being tried jointly, because there seemed no practical way of reaching a right result, under the law, as to the person who made the confession, without admitting it; that the injury to the co-defendant might be less than the evil that would arise in the enforcement of the criminal law if the confession were shut out entirely.”

We wonder whether this position would be sustained in the future. More specifically, we wonder whether the ruling in Belli Paoli would survive another review of the same question by the United States Supreme Court. The dissenting opinion of Justice Frankfurter, in which he was joined by Justices Black, Douglas and Brennan, contained much of practical wisdom. He said: essence of his argument is that he thinks the trial court did not apportion the sentence to the crime of armed robbery as charged, but rather to the crime of murder which the court thought had been precluded only by the operation of chance.

One of the most recurring of the difficulties pertains to incriminating declarations by one or more of the defendants that are not admissible against others. The dilemma is usually resolved by admitting such evidence against the declarant but

The statutory penalty for armed robbery is imprisonment “for any indeterminate term with a minimum of not less than one year.” Ill Rev Stats, 1963, c 38, § 18-2 (b).

At the hearing in mitigation and aggravation, the court was informed of defendant’s criminal record consisting of four felonies dating back to 1941 and concluding in 1958. In 1941 defendant was sentenced to 5 years for burglary in Texas. Released in 1943, he was again before the court in 1945, receiving a sentence of 5 to 10 years on another burglary conviction. Paroled in 1950, defendant in 1951 was given 5 to 10 year concurrent sentences on two charges of robbery. Finally, after release in 1958,

cautioning the jury against its use in determining the guilt of the others. The fact of the matter is that too often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors. The admonition therefore becomes a futile collocation of words and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell.
The Government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds.

By quoting the last part of this language in a footnote to its opinion in Jackson v. Denno, 378 US 368, 388 (decided since the most recent Illinois decision on this subject to which we have been referred), under circumstances which were different, but not much different, the United States Supreme Court has already raised a question as to the validity or life expectancy of the rule. It may well be that the whole situation here presented may be larded internally with constitutional questions not yet recognized or, at least, not fully explored. defendant in that same year was convicted of three charges of robbery and sentenced to concurrent 4 to 8 year terms. The present conviction followed swift on the heels of defendant’s release from this latter sentence.

Defendant’s criminal history affords little comfort to his complaint that the sentence imposed was excessive. With that as a backdrop and under the facts of this case we cannot say that the trial court abused its discretion in the matter of sentencing. People v. Miller, 33 Ill2d 439, 444-445, 211 NE2d 708; People v. Heise, 35 Ill2d 214, 218-219,220 NE2d 438.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER, P. J. and McCORMICK, J., concur.

       This appeal is by Carver only. Cook filed a separate appeal which is also decided this day under No. 60,446.

       Perkins testified that he had won $1,500 gambling the evening before, but had deposited the money in a bank that morning.
      In Cook’s confession, referred to later in this opinion, he stated that he had been told Perkins had won $1,500.

       Of interest on this subject, generally, are the opinions in Griffin v. California, 380 US 609, striking down a California constitutional provision authorizing such comment by court and counsel. Such procedure was held to be forbidden by the Fifth Amendment to the United States Constitution, as made applicable to the states by the Fourteenth Amendment.

       The leading case in support of the admissibility of such a confession is Delli Paoli v. United States, 352 US 232, 239, 242, 247, 248 (1957), a five-to-four decision on essentially similar facts insofar as they relate to the admission of a codefendant’s accusatory confession. Justice Burton, speaking for the court, stated the problem:


source: Caselaw Access Project

license: Public Domain

text:
    Applicolor, Inc., Plaintiff-Appellee, v. Surface Combustion Corporation and Midland-Ross Corporation, Defendants-Appellants.
    Gen. No. 50,675.
    First District, Fourth Division.
    December 2, 1966.

      Mayer, Friedlich, Spiess, Tierney, Brown & Platt, of Chicago (Patrick W. O’Brien and William A. Wineberg, of counsel), for appellants.
    Arvey, Hodes & Mantynband, of Chicago (George L. Siegel and Jack H. Oppenheim, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiff brought an action at law to recover $125,000 damages for breach of warranty on a contract for the purchase and sale of a glass lehr. Defendants have appealed from denial of their motion to stay proceedings in the trial court pending an arbitration of the claim, which arbitration defendants assert was required by the contract.

Plaintiff’s motion to dismiss the appeal was taken with the case. We now deny that motion. In our view, the order appealed from may properly be classified as an order refusing an injunction, and an appeal is therefore authorized by Supreme Court Rule 31. Ill Rev Stats (1965), c 110, § 101.31; Valente v. Maida, 24 Ill App2d 144, 149-150, 164 NE2d 538; Markel Elec. Products v. United Electrical, Radio & Mach. Workers of America, 202 F2d 435, 437 (2nd Cir, 1953).

The contract in question was in writing, and there is no dispute over the fact that it contained the following arbitration clause:

Any controversy or claim arising out of or relating to the contract resulting from the acceptance of this proposal and the approval thereof by Surface or the breach of said contract shall be settled by arbitration to be held in Toledo, Ohio, in accordance with the Rules, then obtaining, of the American Arbitration Association and judgment upon the award rendered by the Arbitrator (s) may be entered in any court, state or federal having jurisdiction.

While plaintiff questions the validity of this provision in Illinois as of the date of the contract (May 9, 1958), we do not decide that point, since we agree with defendants that, as briefed in this court, the decisive issue is whether defendants waived their right to require arbitration of plaintiff’s claim. Plaintiff maintains that they have, and the trial court so found. A good many moves were made by both sides after the filing of suit, and it is on the basis of these maneuvers that the issue of waiver must be determined.

Before any defense pleading was filed, defendant Midland-Ross presented a petition for removal of the cause to the United States District Court. In that petition it was alleged that the “controversy” involved diversity of citizenship, etc., and prayed that “this cause proceed in this court as an action properly removed thereto.” Plaintiff moved to remand, and, in opposition thereto, defendant asserted that the allowance of a remand would deny to defendant its privilege “to elect the forum best calculated to enforcement of its substantive rights.” Plaintiff’s motion was allowed and the case was remanded to the Superior Court of Cook County where the original complaint had been filed.

Prior to remand, however, defendants filed a motion for summary judgment, alleging that they were “entitled to judgment as a matter of law.” The motion was not ruled upon. In none of the papers filed in the federal court did defendants make any mention of the arbitration clause in the contract.

Back in the Superior Court, defendants again filed a motion for summary judgment supported by affidavits, again claiming that they should have “judgment as a matter of law.” Plaintiff also filed a motion for summary judgment with affidavits in support, and defendants filed a supplemental affidavit. In none of these papers did defendants seek to assert any right to arbitration.

After a hearing two years later, both motions for summary judgment were denied, and defendants filed an answer to the complaint in which, for the first time in the litigation, they sought to invoke the arbitration clause of the contract. In point of time, this was four years after the complaint had been filed. Within a few days after filing answer, defendants moved to stay the proceedings pending arbitration, and from denial of that motion this appeal has been taken.

Defendants’ principal contention is that they did not waive their arbitration rights because, until they raised issues of fact by the filing of their answer, they were not called upon to make their election to arbitrate. In the absence of Illinois decisions, defendants rely chiefly upon Haupt v. Rose, 265 NY 108, 191 NE 853. There, the court held that the defendant had not waived its contractual right to arbitration by first testing the sufficiency of the complaint on motion to dismiss. The motion to dismiss was denied and defendant was then permitted to raise the question of arbitration by answer.

In the instant case defendants argue, by analogy, that they had the right to try out the summary judgment procedure without being held to have waived their right to insist on arbitration. We cannot agree, because we perceive a vast difference between the principles involved in a motion to dismiss and a motion for summary judgment. In the former, a party asks the court to excuse him from answering a complaint which he considers not to state a cause of action; while, in the latter, a party invokes the jurisdiction of the court to enter judgment in his favor as a matter of law on a complaint which admittedly does state a cause of action. The basis for decision in summary judgment need not be limited to the pleadings, but may, and usually does (as in the instant case), include supporting affidavits, counteraffidavits, etc.

Defendants take a narrow view of the purpose of summary judgment, in order to draw a closer parallel to a motion to dismiss. They say that the purpose of summary judgment procedure is merely to determine whether a material issue of fact exists, citing Precision Extrusions, Inc. v. Steward, 36 Ill App2d 30, 45, 183 NE2d 547; Gribben v. Interstate Motor Freight System Co., 18 Ill App2d 96, 103, 151 NE2d 443. We concede that such a statement of purpose is to be found in literally dozens of opinions. ILP, Judgments, § 71; SHA ch 110, § 57, and cases there cited. It is our belief, however, and we respectfully declare, that these judicial expressions were probably never intended as definitive declarations of a rule to be controlling in a case such as this; that they are somewhat imprecise as statements of the purpose of the summary judgment procedure, and that, in any event, they are importantly incomplete. As well might it be said that the purpose of an appeal is to determine whether the ruling complained of constitutes an appealable order. Instead of its being the end-purpose for the court to find that an issue of fact does, or does not, exist, such a determination is, rather, only the prerequisite or preliminary decision to commencement of the summary judgment hearing itself. If an issue of fact exists, all that should then be decided is that the procedure has been improperly invoked; that the motion has been inappropriately made, and must therefore be denied. However, if there is “no genuine issue as to any material fact,” then the court must proceed to determine whether or not the moving party is entitled to judgment as a matter of law. Ill Rev Stats (1963), c 110, § 57. Surely, therefore, the important purpose of summary judgment procedure is the disposition of litigation through the trial or determination of cases in which the disputed issue is exclusively one of law. See Barkhausen v. Naugher, 395 Ill 562, 70 NE2d 565. Summary judgment is a proceeding on the merits of the case just as much as when the disputed issue is one of fact, or a mixed question of law and fact.

We have discussed what we consider to be the nature of summary judgment procedure, because we believe that it bears importantly on the proper solution to the instant appeal. Plaintiff and defendants are in practical agreement that a contractual right to arbitration may be waived by a party through conduct inconsistent with the arbitration clause, which would thus indicate that he had abandoned his right to avail himself thereof. Thus, the only question is whether the actions of defendants in this case constituted such conduct, and, therefore, such a waiver. We conclude that they did.

It will be recalled that the subject of the arbitration clause was “ [a]ny controversy or claim arising out of or relating to the contract ... or the breach of said contract.” We fail to see in these words the limitation which defendants urge restricting their application to factual disputes. We are sure that defendants would concede, as they do inferentially, that if, instead of requesting summary judgment, they had submitted an issue of fact to the court, they would have waived their arbitration rights. In our view, they waived those rights just as effectively when they submitted an issue of law to the court, since a ruling in defendants’ favor would have completely disposed of plaintiff’s claim to breach of warranty. Either issue, fact or law, would have presented for court decision a “controversy or claim” arising out of the contract or its breach.

Reviewing, then, the history of this litigation, we have no doubt that defendants did submit to both federal and state courts the “controversy” between the parties in the light in which they saw it — as an issue of law. And in so doing, they did, in our opinion, waive their right to have that controversy decided pursuant to the arbitration provisions of the contract. Other cases cited by defendants do not convince us to the contrary. They are: Trubowitch v. Riverbank Canning Co., 30 Cal 2d 335, 182 P2d 182; Almacenes Fernandez, S. A. v. Golodetz, 148 F2d 625, 627 (2nd Cir, 1945); American Locomotive Co. v. Chemical Research Corp., 171 F2d 115 (6th Cir, 1948).

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

Affirmed and remanded.

DRUCKER, P. J. and McCORMICK, J., concur.

       Defendant Midland-Ross Corporation is the successor in interest to the contracting party Surface Combustion Corporation.

       Pertinent parts of this section of the statute read:
      § 67. Summary judgments and decrees. (1) For plaintiff. Any time after the opposite party has appeared or after the time within which he is required to appear has expired, a plaintiff may move with or without supporting affidavits for a summary judgment or decree in his favor for all or any part of the relief sought.
      (2) For defendant. A defendant may, at any time, move with or without supporting affidavits for a summary judgment or decree in his favor as to all or any part of the relief sought against him.
      Ill Rev Stats (1963), c 110, § 57.

       In Barkhausen, the court said at page 567:
      Where, as here, it is apparent that a controversy does exist, the entry of a summary judgment is improper. The provisions of the statute and the rules were intended to facilitate litigation and to expedite trial procedure through the use of the summary judgment. This, however, cannot be employed where it is shown that there is an actual dispute as to the facts and that there exists a triable issue. (Emphasis supplied.)


author: MR. JUSTICE DAVIS

text:
    Mamie Gundersen, Plaintiff-Appellee, v. Rainbow Cleaners and Laundry, Inc., Defendant-Appellant.
    Gen. No. 66-52M.
    Second District.
    December 8, 1966.

      Winston, Strawn, Smith and Patterson, of Chicago, for appellant.
    Kenneth Moy, of Elmhurst, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal by the defendant, Rainbow Cleaners and Laundry, Inc., from the order of the magistrate court of DuPage County denying defendant’s motion to vacate the default judgment entered against it.

The plaintiff, Mamie Gundersen, filed a small claims complaint for $200 to recover for cleaning lost and damaged by the defendant. The suit was filed on October 14, 1965, and the summons was served on the defendant on Saturday, October 16, 1965, commanding it to appear in court at 9:30 a. m., on Monday, October 25, 1965.

The defendant did not forward the summons to its attorneys until October 25, and the record does not reflect whether the defendant advised its attorneys of the existence of the summons prior to this date. Upon receipt of the summons, the attorneys called the clerk of the court to obtain a continuance and were advised that a default judgment, as prayed, had already been entered.

Thereafter, on the same day, defendant’s attorneys called plaintiff’s attorney, who agreed that no action would be taken on this judgment until the defendant had an opportunity to talk to plaintiff regarding the claim. The defendant, subsequently, had several inconclusive conversations with the plaintiff regarding the claim and, on December 8, 1965, plaintiff’s attorney called defendant’s attorneys and stated that he intended to enforce plaintiff’s judgment. There had been no further contact between the respective attorneys since their conversation on October 25.

On December 14, 1965, defendant filed a motion asking that the default judgment be vacated. This motion was filed more than thirty days after the entry of the default judgment and must be treated as a petition under section 72 of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 72). The magistrate denied the motion and the defendant then prosecuted this appeal.

The plaintiff failed to file an appearance or brief before this court. Under the circumstances, we would be justified in reversing the matter without a consideration on the merits. Ogradney v. Daley, 60 Ill App2d 82, 208 NE2d 323 (1965); East Side Health Dist. v. Village of Caseyville, 38 Ill App2d 438, 442, 187 NE2d 534 (1963); Eckells v. City Council of East St. Louis, 23 Ill App2d 360, 362, 163 NE2d 107 (1960). However, the application of this rule lies within the court’s discretion, and we may elect not to invoke it. Mutual Truck Parts Co., Inc. v. Nelson, 69 Ill App2d 30, 34, 216 NE2d 301 (1966).

Because of the limited amount involved, we can understand the reluctance of the plaintiff to incur the expense involved in defending the appeal. While we do not condone the plaintiff’s failure to appear before this court and defend the judgment which it induced the lower court to enter and uphold, we will consider the case on the merits for the reason indicated. However, the court’s discretion in this respect is not an indication that in a subsequent case, under similar circumstances, we would necessarily follow the same course of action.

Defendant’s motion to vacate was neither verified nor supported by affidavit. Its basis for vacating the judgment was that the defendant had a meritorious defense. It stated no reason for the defendant’s failure to promptly present the complaint served on it to its attorneys, or to appear before the magistrate to present its defense in apt time. In addition, it offered no explanation for the defendant’s failure to file a motion seeking to vacate the judgment within thirty days; and it contained no hint as to the nature of the meritorious defense.

Section 72 (2) of the Civil Practice Act provides in part: “The petition must be supported by affidavit or other appropriate showing as to matters not of record.” Since the defendant neither filed an affidavit in support of its motion nor presented any evidence at the hearing to support its motion, its failure to sustain the motion is obvious.

A petition under section 72 is the filing of a new action and must be supported by competent evidence. Brockmeyer v. Duncan, 18 Ill2d 502, 505, 165 NE2d 294 (1960); Wilson v. Wilson, 56 Ill App2d 187, 194, 205 NE2d 636 (1965). In order to be entitled to relief under section 72, the petitioner must allege and prove that adequate grounds for relief exist; and that it was through no fault or neglect of its own that the grounds claimed for relief were not made to appear to the trial court. Such motion or petition is not intended to relieve a party from the consequences of his own mistake or negligence. The People v. Lewis, 22 Ill2d 68, 70, 71, 174 NE2d 197 (1961); Brockmeyer v. Duncan, supra.

The purpose of the petition or motion is to bring before the court which rendered the judgment, matters of fact not appearing in the record, which if known to the court at the time the judgment was entered, would have prevented its rendition. Glenn v. The People, 9 Ill2d 335, 340, 137 NE2d 336 (1956). The solitary conclusion in defendant’s petition that it had a meritorious defense is not an adequate basis for the relief it seeks.

The defendant has directed our attention to several recent decisions, including one of this court, wherein it was stated that the setting aside of a default judgment should be tested by the principle of fundamental fairness and should be an exercise of the court’s discretion, wherein it seeks the prevention of injury and the furtherance of justice. We do not depart from this theory. It should be noted, however, that in all of the cases cited by defendant, including Mieszkowski v. Norville, 61 Ill App2d 289, 209 NE2d 358 (1965) decided by this court, the defendant sought to set aside the particular judgment in question by motion brought within thirty days after its rendition. Under such a motion, a judgment may be set aside “upon any terms and conditions that shall be reasonable.” (Ill Rev Stats 1965, c 110, par 50(6).) However, even in cases under section 50(6), as noted in Mieszkowski, the court, in exercising its discretion in determining whether a default judgment should be set aside in the furtherance of justice, must ascertain whether some reason exists for the failure to present the defense in apt time and whether some meritorious defense does exist. Mieszkowski v. Norville, supra, 298.

There were neither allegations nor proof to show any just cause why defendant did not heed the commands of the summons served on it and present its defense. Thereafter, defendant was notified of the judgment the day it was entered and, notwithstanding, took no steps to vacate it within thirty days. There is a complete absence of either pleading or evidence to explain how such action evidenced due diligence on the part of the defendant. Likewise, there is neither pleading nor evidence to indicate what, if any, meritorious defense existed.

Under such conditions, it would have been error for the court to have entered an order vacating the prior judgment. Stowell v. Satorius, 413 Ill 482, 490, 109 NE2d 734 (1953); Wilson v. Wilson, supra, 194; Larson v. City of Loves Park, 48 Ill App2d 191, 193, 198 NE2d 525 (1965). Consequently, the judgment of the trial court is affirmed.

Judgment affirmed.

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


text:
    J. C. Field, Wallace E. Monier, John H. Kirkpatrick, Named as Trustees in and Under the Last Will and Testament of Clement V. Field, Deceased, Plaintiffs-Appellees, v. Louis Dunn, William G. Clark, Attorney General of Illinois, Objector-Appellant.
    Gen. No. 66-11. (Abstract of Decision.)
    Third District.
    December 9, 1966.
    William G. Clark, Attorney General of the State of Illinois, of Chicago (Lawrence W. Reisch, Jr., Assistant Attorney General, of counsel), and Louis P. Walter, Jr., of Ohio, for appellant; Peterson, Johnson & Martin, of Princeton, for appellees.
   Opinion by JUSTICE ALLOY. Not to be published in full.


author: ALLOY, J.

text:
    Geneva Olson, Plaintiff-Appellee, v. Sara Weingard and Walter Dziarnowski, d/b/a Paddy’s Lounge, Glen W. Herrcke, et al., Defendants-Appellants.
    Gen. No. 65-72.
    Third District.
    December 9, 1966.

      Zwanzig, Thompson, Lanuti, Bower & Zwanzig, of Ottawa, for appellants.
    Peter F. Ferracuti, of Ottawa, for appellee.
   ALLOY, J.

This cause is on appeal from a judgment against defendant Walter Dziarnowski, d/b/a Paddy’s Lounge, in the sum of $25,000 and costs in favor of plaintiff Geneva Olson. Other defendants in the cause were dismissed on motion.

The action was instituted to recover for injuries plaintiff suffered in a fall which occurred in the premises leased by defendant and operated as a tavern. There was a dance floor in the premises and the evidence disclosed that plaintiff sustained a fall apparently by reason of catching the left heel of her shoe in a raveled carpeting tacked along a metal strip which projected above and along the west edge of the dance floor. Plaintiff sustained severe injuries as a result of such fall.

On appeal in this court, defendant contends that the plaintiff, in the course of her testimony, made a judicial admission by stating she was on the dance floor at the time she fell and was not dancing on the rug and to that extent she has contradicted the allegations of negligence made in her amended complaint; that the dance floor was a wooden floor with a metal strip which held a carpeting at the border of the floor and that since there was no evidence that the wooden portion of the dance floor was not in good condition and safe for dancing that, therefore, plaintiff was not entitled to recover on a showing that she fell by reason of catching her foot on the metal strip or raveled rug at the edge of the floor. It is contended also that plaintiff presented no evidence showing the exercise of due care and caution for her own safety. It is further contended that the trial court erred in refusing to allow defendant to cross-examine plaintiff as to the various grounds of negligence alleged in her pleadings and also that the court erred in the giving of certain instructions which placed before the jury as alleged grounds of negligence that defendant (1) failed to keep the dance floor in a condition suitable and safe for dancing; (2) negligently failed to inspect the dance floor for the purpose of determining that it was reasonably safe and suitable for dancing; and (3) negligently failed to properly and adequately light the dance floor so that plaintiff could detect the presence of any faulty condition of the floor.

The evidence disclosed that the defendant Walter Dziarnowski was operating the tavern known as Paddy’s Lounge in the city of LaSalle. In the premises was a wooden dance floor and around the dance floor was a metal edging strip which held down the carpeting which surrounded the dance floor in the rest of the room. On April 7, 1962, plaintiff and her husband drove to LaSalle to go to the tavern. Music was provided for dancing at the lounge and plaintiff and her husband went out and danced on the dance floor. While plaintiff was dancing at the southwest corner of the dance floor (she stated) she caught her left heel on something and fell to the dance floor. She was wearing a walking heel type of shoe at the time of the accident. Evidence was introduced in the form of photographs showing the conditions which existed on the night of the incident which showed a metal strip along the west edge of the dance floor with a raveled carpet bordering the floor tacked by the metal strip. The raveled carpet projected above the metal strip and above the level of the dance floor along its west side. The defendant had personally laid the carpet and nailed the metal strip although he had never been in the business of laying carpet prior to this time. There was corroborating evidence that the carpet was frayed and jagged. There was also evidence that the lighting in the area was dim. Defendant had also testified that he trimmed the carpeting; that it was worn; and he observed when he vacuumed it that it would pull up the thread. One of the waitresses working in the tavern also stated that the carpeting at the west edge of the dance floor was raveled and that whenever drinks were served on that side she had to be careful so that she did not trip on it. This was the area in which plaintiff fell. After plaintiff had fallen she was on the edge of the dance floor partially on the carpeting.

Defendant, on appeal in this court, emphasizes the fact that plaintiff maintained that she danced on the dance floor only and not on the surrounding area. It is apparent from the record and the photographs introduced in evidence, that at the edge of the dance floor was a jagged, worn and raveled carpet and that a person dancing on the dance floor could have caught her heel in this portion of the carpet particularly under dim lighting conditions which existed. This would not be inconsistent with the evidence as actually presented and her dancing upon the dance floor and at the edge of the dance floor, on the basis of the record, would not bar her from recovery. While it is true that a party may by his own testimony conclusively bar his claim or defense, the determination of whether he has done so depends on an evaluation of all of his testimony and not just part of it (McCormack v. Haan, 20 Ill2d 75, 169 NE2d 239). The testimony of a party must also be considered in the light of the testimony of all other witnesses and a consideration of their respective opportunities to observe the facts about which they testify.

On the basis of the record, defendant apparently knew of the raveled condition of the carpeting at the edge of the dance floor and also of the dim lighting in the dance floor area. He had the obligation of using ordinary care in maintaining the dance floor and the area surrounding the dance floor in a reasonably safe condition for the benefit of plaintiff and other business invitees (Ryan v. Harry’s New York Cabaret, Inc., 293 Ill App 534, 12 NE2d 905; Olinger v. Great Atlantic & Pacific Tea Co., 21 Ill2d 469, 173 NE2d 443). From the record, it is apparent that the court properly concluded that plaintiff did not bar herself of her claim on the basis of her testimony that she danced on the dance floor and her further testimony as to catching her heel on something which caused her to fall.

It is also apparent from the record that the question of whether plaintiff was guilty of contributory negligence was a question of fact for the jury. Plaintiff testified that she was wearing shoes with walking heels and was dancing in an ordinary and proper manner. She had never been in defendant’s premises prior to the time of the injury. The evidence showed that plaintiff had no prior knowledge of the condition and while dancing she felt her left heel catch on something at the edge of the floor as a result of which she fell. Under the record, the determination of whether or not plaintiff was guilty of contributory negligence was one for the jury to determine (Swenson v. City of Rockford, 9 Ill2d 122, 136 NE2d 777).

Defendant also contends that the trial court erred in refusing to permit the defendant to cross-examine plaintiff concerning the various allegations of negligence made in her amended complaint. The asserted purpose of defendant was to show the jury that plaintiff had at various times adopted several different theories of negligence, that is, that there was a crack or hole in the dance floor; a metal strip improperly maintained; metal strip With frayed rug; or that plaintiff stumbled. The trial court sustained plaintiff’s objection to the efforts of defendant to cross-examine plaintiff on her pleadings. There was no offer of the pleadings in evidence. The alternative fact allegations, as is common in negligence cases, were made apparently in good faith and based upon a genuine doubt as to the cause of the injury. As such, they would not be admissible as against the pleader as admissions. The plaintiff did not actually see what caused her to fall and allegations in the alternative as to the cause of the fall were justified. Alternative fact allegations made in good faith and based on genuine doubt are not admissions against interest so as to be admissible in evidence against the pleader (McCormick v. Kopmann, 23 Ill App2d 189, 161 NE2d 720). There was no reversible error in the ruling of the court on this subject.

The further contention of defendant was that the court, by permitting an instruction to be given on the issues, placed before the jury three alleged grounds of negligence, that is (1) failure to keep the dance floor in a safe condition; (2) failure to inspect the dance floor to determine that it was reasonably safe for dancing; and (3) failure to properly and adequately light the dance floor. The contention is vigorously made that such instruction was at complete variance with the allegations in the amended complaint and with plaintiff’s obvious theory of negligence that the fall was caused by reason of the existence of the metal strip and the raveled rug referred to.

As we have indicated, the use of the dance floor area would include the bordering strip and raveled rug since a person dancing on the floor could catch a heel or part of a shoe on an improperly installed and maintained metal strip or rug or other obstruction. The record discloses that there was evidence supporting the charges of negligent maintenance of the dance floor, negligent inspection thereof, and negligent lighting which would preclude the detection of the condition at the edge of the dance floor which apparently caused the fall. We have examined such instruction in light of the evidence presented and find no reversible error therein.

On the basis of the record before us, we must conclude that the rulings of the trial court did not constitute reversible error and should be affirmed. The judgment of the Circuit Court of LaSalle County will, therefore, be affirmed.

Affirmed.

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


author: CRAVEN, P. J.

text:
    William J. Chestnut, et al., Plaintiffs-Appellees, v. William T. Lodge, Director, Department of Conservation of the State of Illinois, Maude Myers, Director, Department of Personnel of the State of Illinois, Michael J. Howlett, Auditor of the State of Illinois, and Francis Lorenz, Treasurer of the State of Illinois, Defendants-Appellants.
    Gen. No. 10,632.
    Fourth District.
    December 13, 1966.

      William G. Clark, Attorney General of the State of Illinois, of Chicago (Richard A. Michael, John J. O’Toole, and A. Zola Groves, Assistant Attorneys General, of counsel), for appellants.
    Giffin, Winning, Lindner & Newkirk, James M. Drake, and Horsley, Vespa & Lott, all of Springfield (G. William Horsley, of counsel), for appellees.
   CRAVEN, P. J.

The circuit court of Sangamon County, by its order in this mandamus and declaratory judgment proceeding, ordered the plaintiffs restored to positions as Park Supervisor I and Park Supervisor II in the Department of Conservation from the date of August 21, 1961. The order further provided for the payment of certain back salaries, and as a declaratory judgment determined that the layoff of the plaintiffs as a result of job abolition was illegal and void and that the plaintiffs were entitled to wages and salaries from the date of discharge to the date of ordered reinstatement.

An appeal was perfected to the Supreme Court on the ground that state revenue was involved. That Court caused the appeal to be transferred here. Our holding (62 Ill App2d 27, 210 NE2d 336 (1965)), that the Administrative Review Act provided plaintiffs with an ex-elusive remedy, was reversed by the Supreme Court of Illinois. Chestnut v. Lodge, 34 Ill2d 567, 216 NE2d 799 (1966). On remandment from that Court we now consider the merits of the controversy.

The plaintiffs, employees of the Department of Conservation of the State of Illinois in the job classifications of Park Supervisor I and Park Supervisor II, held positions under and subject to the provisions of the Personnel Code. (Ill Rev Stats 1961, c 127, pars 63b101 et seq.)

In July of 1961 the Director of the Department of Conservation, by a letter addressed to the Director of the Department of Personnel, recommended the abolition of the above positions. That letter was as follows:

“In accordance with Rule 24.2 of the Personnel Manual of Rules, I would like to recommend that the following positions in our Division of Parks and Memorials be abolished.
“The position of Park Supervisor II, including any unassigned job allocations, is to be discontinued. Present employees working on those particular job classifications are Mr. Robert Emmings, who was certified September 2, 1958, and Mr. James MeMillen, who was certified May 24, 1961.
“This Department also recommends that the position of Park Supervisor I, including any unassigned position allocations, is to be abolished. Those presently employed in this category are:
Louis Grampp
Certified 8/8/58
William Chestnut
Certified 4/16/59
Davis Garner
Certified 8/8/58
Leonard B. Brantley
Certified 8/8/58
Mike McClatchey
Certified 8/8/58
John Jerome
Certified 8/8/58
William A. Watts
Not Certified
“The above recommendations are made as a result of a personnel survey made at the request of Governor Kerner and in accordance with the recommendations of the survey committee, the Department concurs in the recommendation of the survey group and would recommend that the classifications mentioned be permanently abolished. The committee determined that geographic assignment of these various positions and the manner in which the supervisors were functioning did not contribute to an efficient administration of the State Parks system. The job descriptions on these positions are obviously misleading in that at the present time a $150.00 per month increase is recommended for the Supervisor I level and a $210.00 per month increase for the Supervisor II level. It is obvious that the present supervisor structure in the Division of Parks is improperly classified and the assignment by geographic areas is unsound.
“The Survey Committee consisted of Mr. Rhodell E. Owens, Director, Peoria Pleasure Driveway and Park District; Mr. Kenneth R. Cougill, Director of the Division of State Parks, State of Indiana; Mr. David H. Fritz, Superintendent of Parks, Highland Park, Illinois; and Mr. Arthur L. Janura, a Technician from the Cook County Forest Preserve District organization. This Committee made other recommendations other than the abolishment of these positions but they were emphatic in their recommendation pertaining to the unstable supervisory organization within the Division of Parks.
“It is my recommendation, and I request your approval, to abolish the present positions of Park Supervisor I and II, and I am attaching Personnel Forms 103 and request your approval of the layoff of the personnel involved.
(Signed) WILLIAM T. LODGE
Director”

This recommended abolition was approved by the Director of Personnel and the plaintiffs were each notified of their layoff because of the abolition of their positions.

The action taken by plaintiffs to contest their layoffs has been described in the previous opinions of both this Court and the Supreme Court. We now consider defendants’ contention that the writ of mandamus was improvidently granted because the reorganization of the Department of Conservation resulted in actual abolition of the job categories formerly held by plaintiffs. Their position is that since there are no existing jobs with descriptions similar to those describing the former positions of the plaintiffs, the applicable statutes and rules of the Department of Personnel have been complied with and plaintiffs are without remedy.

The record conclusively demonstrates that the duties formerly assigned to the position of Supervisor I were not transferred to any other position but were eliminated; the duties formerly assigned to the position of Supervisor II were divided between the Park Custodian, certain categories of foremen within the individual parks, and a newly created position at the Department level, Executive II. The job description for Executive II includes some duties described for Supervisor II but supervisory responsibility for the newly created position encompasses the State of Illinois and is not limited to one geographic area as was formerly true with Supervisor II. This reorganization, therefore, resulted in the elimination of one level of supervisory employees between the Director’s Office and the Office of the Park Custodian and a vast change in the duties of supervisors at the remaining level. The number of field supervisory personnel responsible to the Director’s Office was diminished from ten to three.

Plaintiffs, in their brief, concede that the above-described changes reorganized the Department and resulted in the abolition of their former positions.

“The facts proved by the plaintiffs . . . showed that the Director of Conservation initiated and carried out the abolition of plaintiffs’ positions and the layoff of plaintiffs. . . .” (Brief of Plaintiffs, p 6.) (Emphasis added.)
“The plaintiffs’ proof of bad faith in abolishing the plaintiffs’ position. . . .” (Brief of Plaintiffs, p 12.) (Emphasis added.)

Plaintiffs contend, however, that the existence of a political motive taints this result with bad faith and thereby makes void an otherwise valid reorganization. Neither bad faith nor political motive is conceded by the defendants.

Plaintiffs cite several cases in which “bad faith” appears to be an issue relevant to the inquiry concerning the reality of the abolition of a position through a reorganization of a governmental department. Those cases do not support the proposition that the existence of a political motive alone is sufficient to void an otherwise valid and effective reorganization. In each cited case the factual situation demonstrated that the job position formerly held was still in existence subsequent to its purported abolition.

Typical of these are the cases of People ex rel. Fleming v. Geary, 322 Ill App 338, 54 NE2d 247 (1st Dist 1944), and McArdle v. City of Chicago, 216 Ill App 343.

Fleming and others who were employed as Hoisting Engineers under civil service in the city of Chicago were discharged upon the ground that their jobs were abolished. The work formerly done by them was assigned to five newly created positions which were filled by others, which were titled “Chauffeurs (when active as Hoisting Engineers on Air Compressors).” The description of duties assigned to the newly created Chauffeur position and the position formerly occupied by Fleming and the others was the same.

McArdle was employed as a Cement Tester in the city of Chicago under civil service. In the ten years in which he held the position the duties assigned to this position included the testing of all oils used for pumping machinery, the testing of brass and cast-iron castings, the testing of brick, sand, paints, varnishes and all other materials used in construction and the supervision of others who performed this type of work. In his eleventh year of employment his salary was reduced and he was discharged eventually for “lack of work” after he refused to resign under threat that charges could be brought against him. Some five years later he was notified that he was reinstated to his- former position of Cement Tester, which he refused because the offered position was in a lower grade, it involved lesser duties and it carried a lesser salary than his former position. He was reinstated by the court which found that the duties he had formerly performed in the job title of “Cement Tester” had been continuously performed subsequent to his discharge by an individual who had received a title of “Chief Tester in Charge of the Testing Division” upon employment. This latter job was described as carrying the same duties and responsibilities which had theretofore been performed by McArdle under the title of “Cement Tester.”

The above two fact situations are immediately distinguishable from the fact situation at hand and it is readily apparent that the circumstances of discharge in those cases were improper regardless of motivation.

Plaintiffs also cite discharge cases which involve charges of misconduct or incompetence. Where there was evidence of actual incompetence or misconduct, the court sustained the order. Hacker v. Myers, 33 Ill App2d 322, 179 NE2d 404 (1st Dist 1961). Where there was claimed incompetence or misconduct, but no proof, the court reinstated the employee. Thornberry v. Civil Service Commission, 49 Ill App2d 22, 199 NE2d 436 (4th Dist 1964).

None of these cases was determined solely upon the existence or nonexistence of a political motive for discharge.

We agree that motive is relevant to an inquiry concerning the propriety or actuality of job abolition under civil service law. Where such motive is determined to exist, its effect is to reduce the amount of evidence required to establish an arbitrary or capricious discharge of an employee purportedly “for cause” or the continued existence of a job purportedly abolished. We hold, however, that the existence of political motive alone is not such evidence of “bad faith” as that phrase is used to make void an otherwise valid and legal discharge or abolition of position. “Bad faith” is a mixture of motive and result and exists where an imperfect discharge or layoff, which fails to meet the statutory tests or the requirements of the rules, appeared to be politically motivated.

There is no imperfection in the procedure used to accomplish the layoff of these plaintiffs. There has been compliance with the statutes and the regulations. The positions are concededly abolished and the reorganization is not only apparent but real. The proof of political motive, without more, is insufficient to overcome the existing presumption that the abolition is made in good faith. O’Neill v. Fitzsimmons, 114 Ill App 168, aff’d, Fitzsimmons v. O’Neill, 214 Ill 494, 73 NE 797 (1905).

The legislature has adopted machinery which provides that civil service employees may be discharged or laid off in an attempt to obtain a more efficient government. The judicial test of the validity of a reorganization is neither the desirability of the change in organization, nor is it the motive which prompted such change.

Plaintiffs themselves have established by their proof that the statute was complied with and that the rules of the civil service commission have been obeyed. In the absence of evidence to the contrary, the writ of mandamus cannot be sustained.

The declaratory judgment of the Circuit Court of the Seventh Judicial Circuit, Sangamon County, Illinois, is reversed. This cause is remanded with directions to dissolve the writ of mandamus and enter declaratory judgment in favor of the defendants.

Reversed and remanded with directions.

TRAPP and SMITH, JJ., concur.


author: SMITH, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lowell Crouch, Defendant-Appellant.
    Gen. No. M-10,720.
    Fourth District.
    December 13, 1966.

      Ryan & Heller, of Mattoon (Harlan Heller and John W. Huffman, of counsel), for appellant.
    Omer T. Shawler, State’s Attorney of Clark County, of Marshall, for appellee.
   SMITH, J.

Defendant was convicted in a bench trial of knowingly damaging the personal property of another without his consent. Ill Rev Stats 1965, c 38, § 21-1 (a). The defendant was placed on probation for a period of two years with the first three months thereof to be served in the county jail. In his appeal, he contends (a) that the complaint fails to charge a crime, (b) that there is no proof of the ownership of the damaged property and (c) that the evidence is insufficient to prove defendant’s guilt beyond a reasonable doubt.

We have taken with the case a motion by the People suggesting a diminution of the record and for leave to file a supplemental report of proceedings. Tendered with the motion is the proposed supplemental report of proceedings duly certified by the presiding magistrate. The defendant presents no objections or exceptions to the motion. The evidence in the case was not reported verbatim. In conformity with Supreme Court Rule 36-1(3) (c), Ill Rev Stats 1965, c 110, § 101.36-1(3) (c), the appellant presented a proposed report of proceedings and within 10 days thereafter the appellee submitted his proposed amendments and additions thereto. Through error or inadvertence the amendments and additions so filed were not included in the original record filed in this court on December 9. The affidavit of the magistrate so states. The amendments and additions show that the prosecuting witness testified that she was the owner and operator of the beauty parlor, an issue material to the disposition of this case. In our judgment the motion to file the supplemental record should be and is allowed and it is ordered that the supplemental record be filed. The material thus supplied was patently before the magistrate in conformity with Rule 36-1 but was inadvertently omitted by him from his settlement of the report of proceedings. Under such circumstances, substantial justice ought not be emasculated through such a happenstance.

Appellant urges that the complaint fails to state a crime in that it does not charge the ownership of the beauty shop equipment in the prosecuting witness. The complaint reads as follows:

“ ‘That on the 16th day of July, 1965, in said County, Lowell Gene Crouch committed the offense of damage and trespass to personal property in that on the said 16th day of July, 1965, shortly prior to the hour of 11:00 P. M. at 15 West Main Street, in the City of Casey, without any right or authority, entered the Marty Beauty Shop, belonging to the complainant, and then and there broke and knowingly damaged a desk, three chairs, two hair driers, without the consent of complainant in violation of Paragraph 21-1, Chapter 38, Illinois Revised Statutes.’ ”

The term “belonging to the complainant” is sufficient allegation of ownership. “Belonging to” connotes title to or ownership. People v. Lake Forest University, 367 Ill 103, 10 NE2d 667; People v. Gordon, 5 Ill2d 91, 125 NE2d 73; In re Ostrowski’s Estate, 3 Ill App2d 431, 122 NE2d 596. The word “belong” means “to be the property of: the book belongs to him.” The American College Dictionary, Random House, Inc., 1963. Surely the term “Marty Beauty Shop” carries with it the property, paraphernalia and fixtures adequate and sufficient to operate a beauty shop and the term “belonging to the complainant” is an adequate allegation of ownership. The complaint is sufficient.

The contention that ownership of the property was not established is laid to rest with the testimony of the complaining witness that “she was the owner and operator” of the beauty shop.

It is further contended that the evidence is insufficient to connect the defendant with the crime. The defendant and the complaining witness met in a tavern, and he invited her to accompany him to a neighboring town. She declined. He left the tavern and returned in about 15 minutes and, as he and the complaining witness both testified, said “I think somebody has wrecked your beauty shop.” On investigation by a third person this was confirmed. Another witness testified that the statement made by the defendant was “I wrecked your God damn beauty shop.” The defendant denied making this statement or that he was ever in the beauty parlor. Defendant relies on People v. La Coco, 406 Ill 303, 94 NE2d 178 and People v. Hobbs, 400 Ill 143, 79 NE2d 202, for the proposition that an admission standing alone without corroborating circumstances is not sufficient to sustain a conviction. There are further and additional circumstances in this record. The complaining witness and the defendant had been keeping company. She testified that she had talked with the defendant since the night in question and had some doubts about his guilt. She came to the trial with him. The magistrate cross-examined her about statements made to him at the time the complaint was signed and the warrant issued. The evidence does not suggest that this was done in a caustic, inflamed, biased or prejudiced manner; otherwise we would be confronted with another and more serious question. The examination of witnesses by the judge in the trial of a case should always be with restraint and circumspections. The results were not successful impeachment, but suggests that the magistrate viewed the trial testimony of the complaining witness with a jaundiced eye. She had signed and sworn to a complaint charging the defendant with the crime. It is difficult to believe that the complaint was signed and the warrant issued on the mere statement that “somebody wrecked your beauty shop.” There is some probative value in the fact that it was the defendant who brought the news of the damage to the complaining witness. Under the circumstances shown in this record, it was not unreasonable for the magistrate to believe the testimony of the disinterested witness that the statement made by the defendant was “I wrecked your God damn beauty shop.”

It is the province of the trial court to determine the credibility of witnesses, to resolve the conflicting testimony and to appraise the weight to be given such evidence. It is only where the evidence of the prosecution is improbable, unconvincing or contrary to human experience that a reversal by us is justified. People v. Dawson, 22 Ill2d 260, 174 NE2d 817; People v. Stevenson, 25 Ill2d 361, 185 NE2d 199. We find none of these disabling elements in this record. In fact the circumstances here shown import the contrary and support the finding of guilt beyond a reasonable doubt.

In People v. Crouch, 77 Ill App2d 304, 222 NE2d 44 in which an opinion in this day filed, we take judicial notice of the fact that this same defendant has been sentenced to the Illinois State Farm at Vandalia. The sentence here was to the County jail. In our judgment, the sentence here should be to the same institution with both sentences to run concurrently. Substantial justice requires it. Under the authority granted us in Ill Rev Stats 1965, c 38, §121-9 (b)(1) to “reverse, affirm or modify the judgment or order from which the appeal is taken,” it is accordingly ordered that the probation order entered in this cause is hereby modified to commit the defendant to Illinois State Farm at Vandalia for a period of 90 days with such sentence to be served concurrently with the sentence imposed by the trial court in M-10783. In all other respects, the judgment of the trial court is affirmed.

Judgment modified and conviction affirmed.

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


text:
    Sharon Lou Sharpe, Plaintiff-Appellant, v. Jean Clarence Sharpe, Defendant-Appellee.
    Gen. No. 10,737.
    Fourth District.
    December 13, 1966.

      James N. Keefe and Howard L. Snowden, of Quincy, for appellant.
    Schmiedeskamp, Jenkins, Robertson & House, of Quincy, for appellee.
   SMITH, J.

The unhappy saga we have to relate begins on April 11, 1963, when the circuit court of Adams County divorced the parties and gave custody of their only child, Keith, age 5, to the mother, with the right to “take said child out of the jurisdiction of the court.” She did just that on January 28, 1965, and in so doing, she argues, the court lost jurisdiction to further modify custody. The father, assuming the law to be otherwise — that “out of the jurisdiction” was not synonymous with “ousting jurisdiction” — petitioned for a change of custody. A hearing was held and he was directed to notice the mother to appear on May 10,1965, and show cause why his various custodial requests should not be granted. Notices were sent to her, as per direction, to her last Illinois address, and to her parents’ residence in Missouri. On May 10, she did appear, but limited her appearance to challenging the court’s jurisdiction on the ground that Keith was now a resident of Texas, and subject to its jurisdiction. Indeed, an affidavit recited the intelligence that Texas had taken jurisdiction of Keith on a proceeding being appositely entitled, “Application for Modification of Visitation and Custody.” On June 21 (or maybe June 23), the father’s petition was granted, custody was transferred to the grandparents (paternal) and the mother was ordered to return Keith to the “jurisdiction of the court” so that the changeover could be effected. Apparently, on the same day, Texas, in the proceedings noted, gave the mother “exclusive custody” and barred the father from “all visitation rights” until further order. This part of the Texas proceedings comes into the record via her petition for a rehearing, which, needless to say, was denied, as she now appeals.

To a limited few, a tug-o-war such as this, may have its intriguing aspects, but surely they are the only ones edified by this spectacle of courts of sister states, as the expression has it, going in opposite directions on a very touchy matter indeed. That such happenstances are something of a commonplace to lawyers, unavoidable in our federal system, provides little solace to the parties involved, and even less to the children caught in the cross fire. It is a grotesquery. To paraphrase Mr. Justice Jackson’s statement in Estin v. Estin, 334 US 541, if there is one thing the people, are entitled to expect from their lawmakers, it is rules of law that will enable children, or those acting for them, to tell to whom they belong, and if they don’t know, where they can find out.

We can narrow their respective contentions to this: The mother’s, that domicile controls jurisdiction, Keith is domiciled in Texas, ergo, Texas has exclusive jurisdiction, vis-a-vis the father’s, that the court first acquiring jurisdiction retains it, Illinois first acquired jurisdiction, ergo, Illinois has jurisdiction today.

For our purposes, we can assume that Keith’s domicile (using the term loosely) is in Texas, because we assume the mother’s is, and yet not be inexorably drawn to her conclusion. Of course, we can accept as fact, that Illinois first acquired jurisdiction of Keith, and again we need not be inexorably drawn to the father’s conclusion. The major premises of both are not, as it were, dictated by logic, the laws of nature, or nature’s God. Both have their appealing aspects. “Domicile” rings of “home,” and it is pleasant to think that perhaps the courts of the home state are in the best position to determine the child’s home. So, too, with the father’s “continuing or single jurisdiction” theory — a child should grow up with one court, after all, the “home courts” might theoretically number as many as fifty, without even leaving the country.

The mother cites a plethora of cases for her theory, in the main, opinions of courts of sister states, which do hold as she contends. The father, on the other hand, directs us to § 19 of the Divorce Act: “The court may, on application, from time to time, make such alterations ... in the custody ... of the children, as shall appear reasonable and proper.” Ill Rev Stats 1965, c 40, § 19. There are cases, including Illinois cases, that support this view.

There is, too, a seeming simplicity to the “domicile theory,” but our use of the pejorative is merited, we think, when we realize that “domicile” is, in the words of Walter Wheeler Cook, “an ambiguous verbal symbol” that has “varied with the nature of the problem presented.” See The Logical and Legal Basis of the Conflict of Laws, Walter Wheeler Cook, Harvard University Press, 1942. Furthermore, this “domicile theory” presents highly technical questions involving the conflict of laws. For instance, here, if we adopt the “domicile theory” does the forum determine the mother’s domicile by its law or by the law of Texas? The “single jurisdiction” theory is, of course, simplicity itself. But, these aspects are not controlling, assuming we are not otherwise bound. As between them, both are on a par as to what must be the overriding concern, and hence the law’s — the welfare of the child. The “home court” theory has propinquity, the “single court” theory continuity— both desiderata. It would be nice if we could have both, but in the nature of things, at least here, we can’t. The above might indicate that we could opt between them, but as we have hinted, we feel that we are bound by not only § 19, but by precedent, but even if not bound, we would hold with the father’s “single court” concept. To put it simply, we conclude that parents ought to be bound by the custodial features of a decree to which they were both parties, that is, if the court rendering the decree had jurisdiction of the subject matter and of them.

This, indubitably, the circuit court of Adams County had on April 11, 1963, and therefore, it also had the same jurisdiction on June 21 (23), 1965. Our adoption of the father’s theory, forecloses “forum shopping.” It seems to us highly irregular that one parent can avoid a decree by the simple expedient of leaving the state. Giving a child a single court to grow up with, so to speak, not only has the boons already noted, but it contributes to the stability of courts and their decrees. “Forum shopping” is at war with this notion.

Section 19, in our opinion, accords with a proper grant of power to courts, or rather, it articulates an inherent power, and by so doing, points with greater force to the correctness of our choice. Richton v. Richton, 45 Ill App2d 128, 195 NE2d 265, we view as reaching in essence the same result achieved here. We might note, too, that in the reverse situation, Illinois recognizes foreign decrees relative to custody, even though the child is physically present in Illinois. We add the caveat, that if the foreign decree is not final as to conditions existing at the time, but can be amended, absent material changes, such need not be recognized. People ex rel. Stockham v. Schaedel, 340 Ill 560, 173 NE 172.

Section 19, and our conclusion, is certainly not dictated by an empty chauvinism. Quite on the contrary, in a proper case, such as People ex rel. Koelsch v. Rone, 3 Ill2d 483, 121 NE2d 738, we would accord to a Texas decree the same virtues we ascribe to the present one, assuming absence of the caveat we have mentioned.

Other matters are raised, but we can dispose of them quickly. The mother raises the issue of notice. Our answer is simply that the notice given, under the circumstances was adequate. What is more, she is hardly in a position to complain as her decampment and anonymity were certainly volitional. It is a fairly simple matter to keep people and courts advised of one’s whereabouts.

The father raises the issue of plaintiff violating the injunction. That issue is not before us, as it was not a part of the order appealed from. Furthermore, the correctness of the order is not argued, but rather its propriety as a matter of the circuit court’s power to issue the decree in the first instance. Whether or not the court considered the mother to be in violation — and to what extent, if any, it was taken into account in coming to the conclusion that it did, is beside the point. We affirm the order appealed from.

Affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Franklin Allin Harris, Defendant-Appellant.
    Gen. No. 10,780.
    Fourth District.
    December 13, 1966.

      John Unger, Public Defender of Vermilion County, of Danville, for appellant.
    John P. O’Rourke, State’s Attorney of Vermilion County, of Danville, and Larry L. Lessen, Assistant State’s Attorney, for appellee.
   SMITH, J.

In a bench trial defendant was found to be a sexually dangerous person and was committed to the custody of the Director of Public Safety and incarcerated in Illinois State Penitentiary, Menard Branch. He was then 17 years old. We granted leave to appeal over the State’s answer and motion to dismiss the petition for leave to appeal for the reason that there appeared to be merit in the appeal and the defendant was not guilty of culpable negligence in failing to appeal in the normal 30-day period. His appeal is bottomed on the proposition that there was no criminal charge pending against him at the time the petition to find him a sexually dangerous person was filed and in its absence, the proceedings are a nullity.

Defendant was arrested on a criminal charge of battery. This was dismissed on June 14, 1965, when it was found that he was then only 16 years of age, and it was ordered that he be processed as a juvenile. Two days later a petition was filed charging him with being a male delinquent child by reason of the commission of the criminal battery. Apparently both the delinquency petition and the sexually dangerous person complaint came on for hearing together on October 20, 1965. After evidence was heard, the sexually dangerous complaint was dismissed by the State’s Attorney with leave to reinstate. Defendant was then found to be a delinquent and was committed to the custody of the Illinois Youth Commission. On December 10, the State’s Attorney moved to reinstate the sexually dangerous person complaint. It was granted, defendant appeared in person and by counsel. The court took judicial notice of the testimony previously taken and the admission of the psychiatric reports of the Diagnostic Division of the Illinois Youth Commission was stipulated. Defendant testified he had seen one psychiatrist in Joliet, that he understood they recommended that he be committed as a sexually dangerous person and that he preferred the Kankakee State Hospital. He was then found to be a sexually dangerous person and was committed to the care of the Department of Public Safety.

The State’s Attorney concedes that the statute requires and the cases hold that a person must be charged with a criminal offense before a petition can be filed against such person under the Sexually Dangerous Persons Act. Ill Rev Stats 1965, c 38, § 105-3; People v. Nastasio, 19 Ill2d 524, 168 NE2d 728; People v. Redlich, 402 Ill 270, 83 NE2d 736. It is his position, however, that the petition charging the delinquency alleged that “Harris, who is under the age of 17 years, is a male delinquent child in that, he, on June 7, 1965, committed the offense of battery, to-wit: dragged Diane Smith about and threw her on the ground causing her bodily harm in violation of sec 12-3 of the Criminal Code.” Ill Rev Stats 1965, c 38, § 12-3, and that this is sufficient charge of a criminal offense upon which to base a petition under the Sexually Dangerous Persons Act.

We cannot agree. The thrust of the Family Court Act, Ill Rev Stats 1965, c 23, § 2001 et seq., is indubitably noncriminal. Paragraph 1 of the Act provides that a child adjudicated to be a delinquent shall not be “denominated a criminal by reason of such adjudication, nor shall such adjudication be denominated a conviction” and such individuals shall “as far as practicable ... be treated not as criminals but as children in need of aid, encouragement and guidance.” The petition under the Act is to determine the status of the defendant not his criminality. It is further observed that under § 9 of the Sexually Dangerous Persons Act when an order of discharge is entered “every outstanding information and indictment, the basis of which was the reason for the present detention, shall be quashed.” Here none was pending. It had long since been dismissed. There was nothing upon which a reinstatement of the sexually dangerous person charge could be predicated. That Act by its own terms is grounded upon the existence of an information or indictment for a criminal offense and neither was then pending.

We would further observe that the delinquency petition had been tried, judgment entered, sentence to the Illinois Youth Commission imposed and defendant discharged. It was at an end. In People v. Redlich, 402 Ill 270, 83 NE2d 736, 740, it is stated:

“. . . Hence, when there has been a trial of the criminal offense and the defendant has been convicted and sentenced without his mental condition having been previously determined in accordance with the provisions of the act, the object of the statute is destroyed as applied to that defendant and any proceeding pending under the statute for a determination of his mental condition, including all orders entered in said proceedings, would necessarily become null and void. . . .”

We necessarily conclude that there was nothing upon which a reinstatement of the Sexually Dangerous Persons Act would be properly predicated. The judgment of the trial court must be and it is hereby reversed.

Reversed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lowell Gene Crouch, Defendant-Appellant.
    Gen. No. M-10,783.
    Fourth District.
    December 13, 1966.

      Ryan and Heller, of Mattoon (Harlan Heller and John Huffman, of counsel), for appellant.
    Omer T. Shawler, State’s Attorney of Clark County, of Marshall, for appellee.
   CRAVEN, P. J.

The defendant was convicted of driving a motor vehicle after revocation of his driver’s license contrary to the provisions of par 6-303 of c 951/2, Ill Rev Stats 1965. Trial was before the court, the defendant having waived jury trial. Sentence in this case was incarceration for a period of 90 days in the State Penal Farm.

On this appeal defendant contends the evidence was not sufficient to sustain a conviction and that the trial court erred in taking into consideration the fact that defendant failed to call a certain person as a witness.

The defendant was arrested on August 11, 1965, on a warrant issued August 7, 1965. The evidence of the State was the testimony of one Glenn Roberts, a police officer of Casey, Illinois. This officer testified that on the day in question he observed the defendant driving an automobile in Casey, Illinois. The defendant and one Dale Owens testified that Owens, not the defendant, was the driver of the- car. The details relating to the opportunity of the policeman to observe, and cross-examination as to relevantly insignificant matters testing the accuracy of the observation need not here be set forth in full. It is sufficient to say that the record shows positive identification by the officer, the denial by the defendant and an alibi witness. The trial court, sitting as the trier of the fact, is free to judge the credibility of witnesses and to accept the testimony of the officer to the complete exclusion of the testimony of the defendant and Owens. This he apparently did, and we find no error. Positive identification by a single witness is sufficient for conviction and precise accuracy in describing details need not exist in order to have positive identification. See People v. Solomon, 24 Ill2d 586, 182 NE2d 736 (1962); People v. Prochut, 27 Ill2d 298, 189 NE2d 290 (1963); People v. Donald, 29 Ill2d 283, 194 NE2d 227 (1963).

We find no merit in the contention that the trial court erroneously considered the fact that the defendant failed to call a certain person as a witness. One Martha Glide-well was the owner of the car being driven on the date in question. Officer Roberts testified that he observed the defendant driving the automobile to her residence. In announcing the decision, the trial court observed that Martha Glidewell was not called by the defendant. Such was the fact. Neither was she called by the State. Either had the privilege of calling this witness. The fact that one witness was not before the court whose testimony may have been helpful is immaterial to this appeal. A careful review of the record convinces us that it was likewise immaterial to the trial court.

The trial court was the trier of fact and as such is peculiarly situated to determine questions of credibility and truthfulness. This court will not substitute its judgment in these areas for that of the trial court in the absence of a showing that the proof of guilt was so unsatisfactory as to justify a reasonable doubt as to guilt. We entertain no such doubt in this case, and the judgment and sentence appealed from are affirmed.

Affirmed.

TRAPP and SMITH, JJ., concur.


text:
    Jennie J. Bruckert and Jennie J. Bruckert, Administrator of the Estate of Clarence K. Bruckert, Deceased, Plaintiff-Cross Defendant-Appellee, v. National Home Life Assurance Co., a Corporation, and Citizens Savings and Loan Association of East Alton, a Corporation, Defendants. National Home Life Assurance Co., a Corporation, Defendant-Cross Plaintiff-Appellant.
    Gen. No. 10,768. (Abstract of Decision.)
    Fourth District.
    December 13, 1966.
    Roberts & Kepner, of Springfield (Maurice Kepner, of counsel), for appellant; McGrady & Madden, of Gillespie, for appellee.
   Opinion by JUSTICE SMITH. Not to be published in full.


text:
    John E. Robinson, Plaintiff-Appellant, v. City of Geneseo, Illinois, Defendant-Appellee.
    Gen. No. 66-40.
    Third District.
    December 15, 1966.

      Stewart R. Winstein and Dorothea O’Dean, of Rock Island, for appellant.
    Andrews & Andrews, of Kewanee, for appellee.
   ALLOY, J.

This cause is before us on appeal by plaintiff John E. Robinson from an order entered by the Circuit Court of Henry County granting the motion of City of Geneseo, Illinois, to dismiss plaintiff’s complaint. The complaint sought a declaratory judgment that plaintiff was entitled to serve as chief of police of the City of Geneseo until November 14, 1966, in accordance with a contract dated December 26, 1963, for a three-year term and for other relief. The order entered in the trial court from which this appeal is taken, ordered specifically that the complaint be stricken and further ordered that plaintiff have leave to amend his complaint within 20 days.

Defendant has filed in this Court a motion to dismiss the appeal on the ground that such order was not a final order from which an appeal can be taken.

As we have said in another case determined at this time, our jurisdiction is limited to reviewing appeals from final judgments of the trial courts except in those specific cases where appeals from interlocutory orders are permitted by Supreme Court Rule. The judgment or order must terminate the litigation between the parties so that, if affirmed, the trial court has only to proceed with the execution of the judgment (Village of Niles v. Szczesny, 13 Ill2d 45, 147 NE2d 371). As we indicated, the purpose of the rule is to prevent a multiplicity of suits and piecemeal appeals. We concluded that trial orders which simply dismiss or strike the complaint, which if affirmed might result in a filing by plaintiff of a new suit or an amended complaint arising from the same transaction, are not deemed to be final and appealable basically because they have not terminated the litigation between the parties. We pointed out that if a plaintiff desires to stand by his complaint after its dismissal he should so indicate to the trial court so that words indicating the finality of the judgment can be entered for the defendant. Such judgment, if affirmed, can be used in bar of future suits by plaintiff as against defendant arising out of the same transaction (Aetna Plywood & Veneer Co. v. Robineau, 336 Ill App 339, 83 NE2d 896; Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill 200, 75 NE 473).

In the objections to the motion to dismiss filed in this Court, plaintiff has indicated that he has moved for a nunc pro tunc order in the trial court seeking to make the order of the trial court a final order. So far as the record before us discloses, no such final order has been entered pursuant to the provisions of chapter 110, section 92(1) (e) of Illinois Revised Statutes. Under the record before us, therefore, we feel we should follow the precedent of Ariola v. Nigro, 13 Ill2d 200, 148 NE2d 787, in which our Supreme Court determined that the procedure which is more desirable and more equitable would be to dismiss the appeal with a specific declaration that if the trial court, upon application of appellant, sees fit to enter a judgment which is final and conclusive, this Court on appeal from such judgment would deem it unnecessary to have the parties reprint their briefs and will decide the appeal on the record as thus supplemented and on the briefs filed in this cause.

The motion to dismiss the appeal will, therefore, be granted with the understanding that should the trial court enter a final order in this cause upon application of the parties hereto, and if there should be an appeal from that order, this court would deem it unnecessary to have the parties reprint their briefs and will decide such appeal upon the record, the abstracts and briefs as submitted in this cause as thus supplemented.

Appeal dismissed with directions.

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

       See Callaghan’s Illinois Digest, same topic and section number.


text:
    Robert Kaske and John Kaske, a Minor, By His Parent and Next Friend, Robert Kaske, Plaintiffs-Appellants, v. School District No. 112, Winnebago County, Illinois, and Chester Lloyd Bloom, Defendants-Appellees.
    Gen. No. 65-144. (Abstract of Decision.)
    Second District.
    December 13, 1966.
    Rehearing denied February 9, 1967.
    Berry and Simmons, of Rockford, for appellants; Raphael E. Yalden and Thomas A. Keegan, both of Rockford, and Isador I. Katz, of Rock Island, for appellees.
   Opinion by JUSTICE ABRAHAMSON. Not to be published in full.