text:
      In re MARRIAGE OF SUSAN ANN ALLISON, Petitioner-Appellee, and CHARLES F. PETER ALLISON, Respondent-Appellant.
    Fifth District
    No. 5—83—0405.
    Opinion filed July 19, 1984.

      Charles F. Peter Allison, of Centralia, for appellant, pro se.

    No brief filed for appellee.
   JUSTICE JONES

delivered the opinion of the court:

The respondent, Charles E Peter Allison, appeals from a judgment granting dissolution of marriage and related relief entered by the circuit court of Lawrence County. From the time of the filing of the petition for dissolution to the time of filing of his appellant’s brief, the respondent has been in the custody of the Illinois Department of Corrections as a convicted felon and incarcerated in the penitentiary at Centralia. On appeal respondent contends (1) he was denied his right to procedural due process when he was not allowed to appear in court during the dissolution proceedings, and (2) petitioner did not prove grounds for dissolution of the marriage.

Petitioner has failed to file a brief in this court. We find, however, that the issues presented can be decided by this court without the aid of a brief by petitioner. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

On July 1, 1982, petitioner filed a petition for dissolution of marriage which alleged that respondent was an inmate of the Centralia Correctional Center. The alleged grounds for dissolution were that respondent had been guilty of extreme and repeated mental cruelty toward the petitioner. The petition alleged that the parties had not acquired any marital property during the marriage, but that the petitioner had acquired both prior to and during the marriage certain non marital property which should be assigned to her. The petition contained no list or description of such property. It concluded with a prayer for dissolution of the marriage, for custody of a minor child of the parties, for maintenance, child support and attorney fees and for assignment of petitioner’s nonmarital property.

On July 19, 1982, respondent filed a petition for a writ of habeas corpus ad testificandum. On July 27, 1982, respondent filed a motion to proceed in forma pauperis, a motion for appointment of counsel, a motion for discovery and an answer to the petition.

In his answer, respondent denied that he had inflicted any extreme and repeated mental cruelty and affirmatively alleged that the parties had acquired marital property during the marriage. Respondent’s answer also asked that custody of the minor child be awarded to him. Petitioner filed a “Response to Answer” in which she denied that the parties had acquired any marital property during the marriage, but asserted that “if Respondent has knowledge of any property acquired during the marriage of the parties, and considered by Respondent as marital property, that Petitioner should have your [sic] proportionate part or share of said marital property.” On July 30, 1982, the court granted the motion to proceed in forma pauperis and the motion for discovery but denied the motion for appointment of counsel.

On August 27, 1982, petitioner filed and served 18 written interrogatories upon the respondent. Interrogatories 13 through 15 were:

“13. Do you claim you and petitioner own marital property? If your answer is in the affirmative state what property you consider as marital property.
14. Do you claim any of the property in any of the proceedings as non-marital property.
15. If you claim any property mentioned by you is your own and separate property, please list such property claimed as separate property, and state the facts upon which you base your claim.”

The interrogatories were otherwise concerned with respondent’s employment, earnings, occupation and proposed arrangements for child care in the event he would be awarded custody. Respondent filed answers to all the interrogatories, in which he stated that the car, kitchen appliances, TV, clock-radio, sewing machine and household appliances were marital property. His answer to interrogatories also contained a list of both specific and generally described personal property, all of which he claimed as his non-marital property by reason of his ownership of it prior to the marriage.

By a record sheet entry on November 16, 1982, the case was set for trial on December 15, 1982. On December 10, 1982, respondent again filed a petition for writ of habeas corpus ad testificandum. On December 15, 1982, the case was continued to December 30, 1982. On December 21, 1982, respondent sent a letter to the clerk of the court inquiring whether his December 10 petition for a writ of habeas corpus ad testificandum could be used for the new court date or whether he would have to file another petition. The clerk replied by stating that she did not know and could not advise respondent. Subsequently the cause was again continued to January 20, 1983, and respondent filed another petition for writ of habeas corpus ad testificandum.

On January 26, 1983, the court denied respondent’s petition for writ of habeas corpus ad testificandum, and a trial was held on the petition. Respondent, of course, did not appear, and he was not represented.

The transcript of the proceedings at trial consists of but three pages. The questions asked of and answered by the petitioner related to the marriage, the birth of the child, the marital discord, which was described in general terms, respondent’s conviction of the crime of indecent liberties with a minor and petitioner’s need for $25 per week as child support. Petitioner’s attorney asked no questions regarding the property of either of the parties, marital or otherwise, nor was any evidence of any nature offered that would address the issues raised by the property claims contained in respondent’s answer and answer to interrogatories.

On January 26, 1983, the date of the trial, the court rendered a judgment that disposed of all issues. It contained findings generally responsive to the allegations of the petition. Although no express findings regarding property of the parties was made, there was a general finding that “[t]he Plaintiff has proved the material allegations of her Petition for Dissolution of Marriage by substantial, competent and relevant evidence ***.” The dispositional portion of the judgment granted petitioner a dissolution of marriage, awarded her the custody of the minor child and ordered respondent to pay $25 per week child support. Petitioner was assigned “her non-marital property, including all property now in her possession.” The respondent was directed to pay certain enumerated debts, and each of the parties was barred from any claim to the property of any kind of the other party. Respondent’s motion for a new trial was denied, and respondent’s pro se appeal ensued.

In his brief the respondent takes the position that the due process clauses of both the Federal and State constitutions assure him the right to be present in court throughout proceedings to which he is a party, whether those proceedings be civil or criminal. Defendant’s assertion is correct insofar as it states the general rule, but it is not to be taken as an absolute. It is well established that a party to an action has the right to be present at trial. (Hubbard v. Hubbard (1980), 84 Ill. App. 3d 761, 405 N.E.2d 1362; Village of Elmwood Park v. Keegan (1975), 26 Ill. App. 3d 925, 326 N.E.2d 92.) In Village of Elmwood Park v. Keegan the court speaks of the rule as one of fundamental fairness that applies to both civil and criminal cases. But other cases have held that the right of a party to be present throughout the whole of a trial is protected by the due process clause. Grant v. Paluch (1965), 61 Ill. App. 2d 247, 210 N.E.2d 35; In re Estate of Hoffman (1964), 49 Ill. App. 2d 436, 200 N.E. 2d 37; Gross v. Johnson (1928), 248 Ill. App. 531.

It should be emphasized that none of the foregoing cases involved the right of an inmate of a penal institution personally to attend a trial of a civil case in which he is a party. It is obvious that conviction of a crime and incarceration serve to alter drastically the constitutionally protected status of inmates. Although the very purpose of imprisonment is to deprive persons of many of the rights possessed by citizens, the loss is not total. Chief among the rights that prisoners lose is, of course, the right to freedom of travel and movement. Accordingly, prisoners are not free to attend upon trials in civil cases, even though they may be a party to the proceeding. Section 5 — 5—5 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005— 5 — 5) is concerned with the loss of rights by those imprisoned. It takes the approach that “conviction and disposition” shall not entail the loss of civil rights except as specified. Neither the freedom of movement nor the attendance upon trials by prisoner-parties are among the specified exceptions. Imprisonment, then, in and of itself, is a deprivation of the right to attend a trial as a matter of choice.

But the matter cannot end there. Factors other than isolation of a prisoner from society must be considered. Oftentimes prison inmates have knowledge of transactions that may be essential to a proper adjudication of rights of other parties-litigant before a court in either a civil or criminal case, or a prisoner’s testimony may be essential to a proper resolution of disputes involving the propriety of his own conviction and continued detention. It may also be that a prisoner’s legally protected civil interests in property or status can be properly adjudicated in a civil case only by resort to the testimony of the prisoner.

In Moeck v. Zajackowski (7th Cir. 1976), 541 F.2d 177, the court considered the issue of whether a lawfully incarcerated state prisoner was entitled to be personally present at the trial of a civil action that did not relate to the terms of his confinement. The prisoner had filed an action for damages against a police officer in the district court. At the instance of the prisoner, the district court at first issued, but later withdrew, a writ of habeas corpus ad testificandum, electing instead to enjoin the prison warden “from interfering in any way with the presence of [the prisoner] in the courtroom of this court [on the stated date and time].” The district court held that the prisoner, in bringing an action pursuant to 42 U.S.C. sec. 1983 (1976), had a fundamental interest of access to the courts for a judicial determination of Federal constitutional rights and that that access included the right of personal attendance at trial. The Circuit Court of Appeals reversed.

“We do not agree with the district court as to the content to be ascribed to the fundamental interest of a prisoner in access to the courts. We accord greater weight to the interest of the state in maintaining the confinement of persons serving sentences at the place and institution chosen by the state, in avoiding risks of escape, and in economical administration of custody without incurring expenses which the state reasonably deems unnecessary. ***
We find no support in the Constitution or in judicial precedent for the proposition that a prison inmate has a fundamental interest in being present at the trial of a civil action to which he is a party, sufficient to outweigh, as a matter of course, the interest of the state in avoiding expense. The due process requirements of the Fifth and Fourteenth Amendments, which guarantee access to the courts, do not grant a prisoner the right to attend court in order to carry on the civil proceedings which he initiates.” (Moeck v. Zajackowski (7th Cir. 1976), 541 F.2d 177, 180.)

The court in the Moeck case noted that in Johnson v. Avery (1969), 393 U.S. 483, 21 L. Ed. 2d 718, 89 S. Ct. 747, the Supreme Court had extended to prisoners access to law libraries and jailhouse lawyers to enable them to establish legal claims and to provide them the means to file suits. The court also noted that in Wolff v. McDonnell (1974), 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963, the Supreme Court had declined to extend the right of access to the courts to include personal attendance at trials or hearings. (See also Bounds v. Smith (1977), 430 U.S. 817, 52 L. Ed. 2d 72, 97 S. Ct. 1491.) The court concluded its discussion of the issue with an acknowledgment that in the proper circumstances the fulfilment of the right of access to the courts may require the personal attendance of a prisoner-party.

“It can be granted that the right of a prisoner to file a civil action may have little meaning if success is reasonably dependent on his immediate presence in court, and such presence is denied. But we would not accord him an automatic right to be present, and thus present the state, as was done by the relief granted here, with the choice of releasing him from custody, or bringing him to court at substantial expense.
We suggest, although it will be seen that it may not be strictly necessary to this decision, that the determination whether a prisoner’s interest in being present in court outweighs the state’s relevant interests, is a discretionary one. Some of the relevant considerations would seem to be: How substantial is the matter at issue? How important is an early determination of the matter? Can the trial reasonably be delayed until the prisoner is released? Have possible dispositive questions of law been decided? Has the prisoner shown a probability of success? Is the testimony of the prisoner needed? If needed, will a deposition be reasonably adequate? Is the prisoner represented? If not, is his presence reasonably necessary to present his case?” (Moeck v. Zajackowski (7th Cir. 1976), 541 F.2d 177, 181.)

The Moeck court remanded the case to the district court for that court to exercise its discretion in making a determination whether presence of the prisoner at the trial was reasonably necessary or not and for further proceedings consistent with the opinion.

We have determined that the approach of Illinois courts to the matter of attendance of prisoners at court proceedings to which they are a party is similar to that expressed in Moeck v. Zajackowski, although never so succinctly stated in any Illinois authority. Illinois has a statute that empowers circuit courts to obtain the attendance of prisoners “to testify” at trials, either civil or criminal. That statute (Ill. Rev. Stat. 1981, ch. 65, par. 34, subsequently transferred to ch. 110, par. 10 — 135) is, in the Illinois Revised Statutes, entitled “Habeas Corpus to testify,” and parallels the common law writ of habeas corpus ad testificandum.

Whether the testimony of a prisoner is sought for a civil or a criminal case, and whether or not the prisoner is a party to the case, it is a matter that lies within the sound discretion of the court whether to issue an order of habeas corpus ad testificandum. (By virtue of ch. 110, par. 2 — 1501, “writs” are abolished. Accordingly we use the term “order” of habeas corpus ad testificandum.)

Where hearings are held pursuant to the post-conviction law (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 1 et seq.), the court is expressly-granted the right to exercise discretion to obtain the presence of the petitioner before the court. (Ill. Rev. Stat. 1981, ch. 38, par. 122 — 6; People v. Stovall (1970), 47 Ill. 2d 42, 264 N.E.2d 174.) Presence, where required, is obtained by an order of habeas corpus ad testificandum. People v. Ashley (1966), 34 Ill. 2d 402, 216 N.E.2d 126; People v. Adams (1954), 4 Ill. 2d 453, 123 N.E.2d 327.

As might be expected, there is far less resort to orders for habeas corpus ad testificandum to secure the presence of prisoners in the trial of civil cases than in criminal cases. Two Illinois cases, while acknowledging the necessity of prisoner presence to be a matter that lies within the discretion of the court, nevertheless seem to narrow that discretion considerably, almost to the point that only compelling circumstances will excuse the issuance of the order when sought. Van Vlissingen v. Van Vlissingen (1912), 173 Ill. App. 124, was, like the one under consideration, a divorce case. The petitioner-wife alleged as grounds that the respondent had been convicted of a felony. Respondent retained an attorney who filed an answer and appeared at trial on behalf of respondent-prisoner. The trial court denied respondent’s petition for a writ of habeas corpus ad testificandum and granted the petitioner a divorce and other relief. The appellate court reversed, finding that the trial court had erred in refusing the writ of habeas corpus ad testificandum.

“While the disposition of such a petition is within the discretion of the court, yet we are inclined to hold that a prisoner confined within the jurisdiction of the court is in most cases entitled to the aid of the court in obtaining his presence at a trial where he is a defendant. (Church on Habeas Corpus, 2nd Ed., Sec. 94, p. 151.) It is not a sufficient answer to say that opposing counsel will admit that if present defendant would testify as set forth in the petition. His presence in court to face the complainant and the witnesses and to assist his counsel during the trial, are rights of which he should not be deprived except under extraordinary circumstances.” Van Vlissingen v. Van Vlissingen (1912), 173 Ill. App. 124, 127.

Vachata v. Vachata (1965), 58 Ill. App. 2d 78, 207 N.E.2d 129 (abstract of decision), was a decision of this court rendered in an action in which the plaintiff-wife sought to annul her marriage to the defendant, a prisoner at the time of trial. Defendant filed an answer pro se and a petition for a writ of habeas corpus ad testificandum. The application for the writ was denied. The trial court entered a decree annulling the marriage. Defendant took an appeal pro se, assigning as error the refusal of the trial court to grant the writ of habeas corpus ad testificandum. This court referred to Van Vlissingen v. Van Vlis-singen and People v. Adams, and concluded:

“After a careful examination of the record before us, including the many petitions and motions filed both in the trial court and this court, we conclude that this is the rare instance in which defendant’s presence would not have affected the result and will not say that the trial court abused its discretion in failing to issue the writ.” (Emphasis added.) Vachata v. Vachata (1965), 58 Ill. App. 2d 78, 207 N.E.2d 129.

More extensive consideration was given the issue in a more recent case from this court, Odom v. Odom (1971), 133 Ill. App. 2d 869, 272 N.E.2d 272, in which a divorce proceeding was initiated by a complaint that alleged as grounds that the defendant-husband had been convicted of a felony. Defendant filed an answer and, through an attorney, appeared on the date for trial and asked for a continuance to permit the issuance of a writ of habeas corpus ad testificandum. The motion was denied, and the plaintiff-wife was granted a divorce and custody of a child. Defendant appealed, contending that it was improper for the court to proceed with the divorce hearing in his absence. In affirming the trial court, we stated:

“A writ of habeas corpus ad testificandum is not the high prerogative writ of the more familiar writ of habeas corpus whose great object is deliverance from unlawful imprisonment. Its issuance lies rather in the sound discretion of the court and its purpose is merely to bring a prisoner into court to testify. (In re Thaw, 166 Fed. 71; 39 Am. Jur. 2d, Habeas Corpus, Sec. 2.) In the case before us, apart from the obvious reasons of distance, expense and the ever present danger in transferring a prisoner to court, there were other pertinent reasons militating against issuance of the writ.” (Odom v. Odom, 133 Ill. App. 2d 869, 871, 272 N.E.2d 272, 273.)

We found in the Odom case that since defendant had been represented by an attorney, and since even if he had been present he would have been unable to refute plaintiff’s case, the trial court had not committed a breach of discretion in denying the writ of habeas corpus ad testificandum. The Odom case did not cite either Van Vlissingen v. Van Vlissengen or Vachata v. Vachata.

In In re Estate of Richardson (1972), 7 Ill. App. 3d 413, 287 N.E.2d 534, the court held, without discussion, that a prisoner had no constitutional right to a writ of habeas corpus ad testificandum to enable him to appear personally in court to present and argue his pro se motion to set aside an order approving a settlement in a dramshop action in which he was the nominal plaintiff in an action for damages for loss of support of his children.

Upon consideration of the foregoing authorities, we think prudence and policy dictate our adoption of the rule and reasoning of Moeck v. Zajackowski, such course being especially indicated by Odom v. Odom. We do not reject Vachata v. Vachata or Van Vlissingen v. Van Vlissingen, for they stand for the proposition that it lies in the discretion of the court to grant or deny a request for an order of habeas corpus ad testificandum to secure the presence of a prisoner for the purpose of giving testimony in the trial of a case. But beyond that, if it be thought that the scope of the discretion accorded the court is limited by the particular language used in those cases, they should not be taken as authoritative. The scope of the discretion possessed by the trial court in these instances is more broad, as properly indicated in Moeck v. Zajackowski.

In the case under consideration there is a petition which prays for dissolution of marriage, child custody, maintenance, child support, attorney fees, costs and assignment to petitioner of her nonmarital property. Respondent-prisoner filed an answer in which he denied causing petitioner any extreme and repeated mental cruelty and averred that the parties acquired marital property. In addition to his answer, the respondent filed answers to interrogatories which listed property claimed by him, all as detailed in the above stated facts. On the day set for hearing, respondent’s petition for order of habeas corpus ad testificandum was denied, with the following record sheet entry:

“Motion [sic] application for writ of Habeas Corpus ad Testifi-candum denied.”

The application for an order of habeas corpus ad testificandum was not otherwise mentioned, either in the transcript of the hearing or in the judgment of dissolution.

The judgment granted dissolution of marriage, custody of the child, $25 per week child support, attorney fees and costs. With regard to the property of the parties, the judgment assigned to the petitioner “her non-marital property, including all property now in her possession.” No description or listing of this property was given. The judgment next ordered respondent to pay six stated items of debts although there was no evidence whatsoever touching the origin, purpose or amount of any of them. The judgment concluded on the matter of property disposition with:

“7. Any right, claim, demand or interest of the parties in and to the property of the other, whether real, personal or mixed, of whatsoever kind and nature and wheresoever situated, including but not limited by homestead, succession and inheritance, arising out of the marital relationship or any other relationship existing between the parties hereto is forever barred and terminated.”

It can be seem that the judgment entered by the trial court was well beyond the purview of the evidence offered by petitioner at the hearing. We have particular concern with the treatment of the property and debts of the parties because ownership was specifically placed in issue by respondent’s answer and answer to interrogatories that listed several specific items of property that ostensibly would be of more than nominal value. Despite this state of the record and the total absence of evidence, the judgment awarded to the petitioner “all property in her possession,” ordered the respondent to pay six items of indebtedness and barred him from ever making any further claim against anything awarded to petitioner. It thus appears that a serious miscarriage of justice may have occurred in the form of a summary seizure of respondent’s property.

Had respondent been present at the hearing through the office of an order of habeas corpus ad testificandum, his interest could have been advanced to and protected by the court. The plain indication is, however, that scant, if any, consideration was given to the habeas corpus application. The trial court simply failed to exercise its discretion in the matter. If it had done so, it could have led to proper inquiry into defendant’s claims and spawned further evidence touching the matters in issue, especially those relating to the disposition of property and the payment of debts. There then could have been no necessity for respondent’s presence. As a minimum, the court could have balanced the interests of the State against the interests of the respondent in being present at the trial and could have made a reasoned exercise of its discretion in the matter.

While the evidence adduced upon the issues of dissolution of marriage, child custody and support and the payment of plaintiff’s attorney fees was minimal, we think the judgment was correct as to those matters, and as to them the judgment is affirmed. However, that portion of the judgment that disposes of the property and orders payment of debts is reversed and remanded for further hearing. Also, the order that denied respondent’s application for an order of habeas corpus ad testificandum is reversed. In connection with the rehearing, the trial court should exercise its discretion with regard to the granting of defendant’s application for an order of habeas corpus ad tes-tificandum, considering those factors and interests as they are set forth above from the case of Moeck v. Zajackowski. It may well be that after hearing petitioner’s evidence regarding the various property interests and claims of the parties, the presence of the respondent will be unnecessary, or at least, the interests of the State will be found to outweigh the need for respondent’s testimony in resolving the property issues, and the order of habeas corpus ad testificandum can be denied. But if the court feels that respondent’s interests are not being protected, or that he is being denied fundamental fairness, then the court should, in its sound discretion, order defendant brought to the hearing.

Affirmed in part; reversed in part; and remanded.

EARNS AND EASSERMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    MICHAEL K. ALBRIGHT, Plaintiff-Appellant, v. RAY PARR et al., Defendants-Appellees.
    Fifth District
    No. 83—28
    Opinion filed July 31, 1984.

      Paul Thomas Austin & Associates, of Marion, for appellant.
    William Kent Brandon, of Mitchell, Brandon & Schmidt, of Carbondale, for appellee Ray Parr.
    James B. Bleyer, of Marion, for appellee Smoot Oil Company.
    Bryan P. McGary, of Mitchell & Armstrong, of Marion, for appellee Shell Oil Company.
   JUSTICE HARRISON

delivered the opinion of the court:

Michael Albright, plaintiff, appeals from summary judgments entered in the circuit court of Johnson County in favor of Ray Parr, Shell Oil Company, and Smoot Oil Company, Inc., on plaintiff’s third amended complaint. Plaintiff does not appeal from the entry of summary judgment in favor of an additional defendant, Chuck Keller, d/b/a Keller Oil. For the reasons which follow, we affirm in part, reverse in part and remand.

Plaintiff’s third amended complaint alleged that defendant Smoot Oil Company was the owner of certain land in Johnson County, that defendant Parr leased this land and operated a service station upon it, and that Shell Oil Company distributed its products through Smoot and Parr. It was further alleged that on July 17, 1980, plaintiff, while rising from a chair in the waiting area of the station, fell through a plate glass window and was injured, and that these injuries were caused by negligence on the part of the defendants, in that they (1) failed to provide a safe waiting area for customers; (2) placed the chair on which plaintiff sat in an area not large enough to hold the chair; (3) failed to warn plaintiff of the unsafe condition of the waiting area; (4) used a glass window on the premises which was unsafe in that it was constructed of single plate glass capable of shattering into fragments, and of insufficient strength for the purposes for which it was installed; (5) used a plate glass window without subjecting it to polariscopic examination in attempt to ascertain defects in the glass; (6) permitted chairs to be set against the plate glass window; (7) permitted use of chairs which were not safely constructed; and (8) failed to protect plaintiff from assault by a patron known to be “rowdy and making threatening gestures toward others.”

During the discovery deposition of plaintiff, plaintiff testified, in essence, that Allen James, apparently not an employee of any of the defendants, caused the fall in question by pushing plaintiff:

“Q. You didn’t feel any contact between you and Allen James?
A. He could have, yes.
Q. Where would the contact have been?
A. It would be right in here.
Q. You are pointing to the left side of your chest?
A. Yes.
Q. About where your pocket is right now, right?
A. Yes.
Q. Could you tell whether he had an open hand or a closed hand?
A. I would say it would have probably been open.
Q. He had never struck you before with a closed fist had he?
A. No sir.
Q. So as best you could tell it was an open hand?
A. Yes sir.
Q. How would you describe the force of that contact between his open hand and your left chest?
A. Well we were pretty close. See it was close you know.
Q. You made a gesture, just kind of a push type gesture?
A. Yes.
Q. Is that the way he did it?
A. Yes sir.
Q. Did he push you forcefully enough to move your body backwards?
A. Yes sir.
Q. To propel you backwards?
A. Yes sir.
Q. And when he did that did you hit some part of the chair?
A. I landed in the chair.
Q. You landed in the chair. So you were half way up as you described and the hand pushed you in the left chest and you went back into the chair, is that what happened?
A. Yes sir. And right on through the window.
Q. And then you just went on back through the window?
A. Yes.
Q. Did you go on out of the chair when he pushed you backwards?
A. I was still in the chair when it hit the floor.
Q. When you went through the window you were still in the chair?
A. Still in the chair.
Q. And did his push cause you to lose your balance?
A. I would say so.
* * *
Q. Now if I understand your answers to the questions on [sic] Mr. Brandon, the chair itself did not give way or have anything to do with the actual accident in and of itself? In other words the chair didn’t fail in any way did it?
A. It didn’t collapse, no.
* * *
Q. Actually what caused you to fall was when Allen James pushed you, is that correct?
A. Yes.
Q. And you didn’t fall off the ledge or you didn’t tip off the ledge, you were getting up in a normal manner and would have gotten up as far as you know had he not pushed you back through the glass, is that correct?
A. That’s about the way it goes.
Q. That is correct isn’t it?
A. Yes.”

After defendants filed motions for summary judgment, plaintiff filed an affidavit in which he stated that Allen James swung at plaintiff as if to hit him “and may or may not have made actual physical contact with plaintiff” and that plaintiff then fell backwards due to “the narrow ledge the chair was sitting on, the wobbly chair and being startled or pushed by Allen D. James’.actions.” The court subsequently granted the motions for summary judgment.

In analyzing plaintiff’s contentions that summary judgment in favor of defendants Parr, Shell and Smoot should not have been granted, we note initially our agreement with defendants’ assertions that plaintiff’s admissions in his deposition conclusively establish that neither the condition of the chair itself nor the existence of the ledge in any way contributed to the occurrence of the accident. When admissions in pre-trial depositions are deliberate, detailed and unequivocal, they will conclusively bind the party-deponent (Haskell v. Siegmund (1960), 28 Ill. App. 2d 1, 11, 170 N.E.2d 393), and we are compelled to conclude that plaintiff’s admissions, as quoted above, unequivocally establish that neither the condition of the chair itself nor the fact of the existence of the ledge caused or contributed to his injuries. Moreover, plaintiff’s subsequent affidavit did not operate to return to disputed status the facts removed from contention by plaintiff’s admissions. Smith v. Ashley (1975), 29 Ill. App. 3d 932, 935, 332 N.E.2d 32.

Notwithstanding these admissions on the part of plaintiff, we believe that the court erred in granting summary judgment for defendants. While it appears from plaintiff’s deposition testimony that a push from Allen James caused him initially to fall, it does not follow, however, that plaintiff’s admissions operated to remove from issue those allegations of negligence concerned with defendants’ use of and failure to inspect the plate glass window through which plaintiff fell, or those allegations regarding placement of the chair near the window. Although James’ push was certainly a proximate cause of plaintiff’s injury, it may not have been the only such cause:

“What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act. [Citations.] An intervening efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury. [Citations.] The intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such forces was itself probable or foreseeable. [Citations.] What is the proximate cause of an injury is ordinarily a question of fact to be determined by a jury from a consideration of all of the evidence. [Citation.]” Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366, 380-81, 50 N.E.2d 497.

It is axiomatic that there may be more than one proximate cause of an injury (Bentley v. Saunemin Township (1980), 83 Ill. 2d 10, 17, 413 N.E.2d 1242), and we cannot say as a matter of law that such is not the case here. Given the public nature of defendants’ business and the proximity of the waiting chair to the glass, the trier of fact might well be justified in concluding that the use of single plate glass, or the placing of the chair near that glass, was the type of action which the ordinarily prudent person ought to have foreseen would cause injury. (Compare Kiser v. Shelly Oil Co. (1933), 136 Kan. 812, 18 P.2d 181 (affirming verdict for plaintiff partially based on insufficient tensile strength of glass in filling station door slammed on plaintiff).) While defendants may not have specifically foreseen that Allen James would push plaintiff, it is not incumbent on plaintiff to establish that defendants should have foreseen precisely what would occur as a consequence of their allegedly negligent actions or omissions; it is enough that the intervening cause of the injury “ '*** is of such nature as could reasonably have been anticipated.’ ” (Bak v. Burlington Northern, Inc. (1981), 93 Ill. App. 3d 269, 271, 417 N.E.2d 148.) Whether defendants’ actions were a proximate cause of plaintiff’s injuries is a question for the trier of fact (Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 394-95, 356 N.E.2d 93), and plaintiff’s admissions did not operate to remove from issue the questions regarding the adequacy of the glass and the placement of the chair near it.

In an additional argument in support of affirmance of the summary judgment in its favor, Shell Oil Company asserts that the record establishes no basis on which to hold it liable for the actions of the other defendants. We agree. The record discloses that Shell does not own, lease or operate the Ray Parr service station, has never entered into a contractual relationship with the Ray Parr station, and merely sells petroleum products to Smoot Oil Company pursuant to an agreement between Shell and Smoot. While Illinois courts have not addressed the precise question presented by these facts, it has been held in at least one other State that an oil company “does not confer apparent authority, subjecting itself to vicarious liability for negligence, upon a retail service station by allowing the use of its trade name and selling its products to the station.” (Sydenham v. Santiago (Fla. App. 1981), 392 So. 2d 357.) We deem it appropriate to follow Sydenham here, as apparent agency was neither pleaded nor argued on appeal, the record establishes that Shell had no actual control over operation of the station, and there is nothing to suggest that plaintiff came to the station in reliance on or in response to any actions on the part of Shell. See Crittendon v. State Oil Co. (1966), 78 Ill. App. 2d 112, 118-19, 222 N.E.2d 561.

For the foregoing reasons, the summary judgment entered by the circuit court of Johnson County in favor of Shell Oil Company is affirmed. The summary judgments entered in favor of Ray Parr and Smoot Oil Company, Inc., are reversed, and this cause is remanded for further proceedings not inconsistent herewith.

Affirmed in part, reversed in part and remanded.

EARNS and EASSERMAN, JJ., concur.


text:
    E. CHARLES GEITTMANN, Petitioner and Counterrespondent-Appellant, v. NELL D. GEITTMANN, Respondent and Counterpetitioner-Appellee.
    Fifth District
    No. 5-83-0516
    Opinion filed July 13, 1984.
    Rehearing denied August 23, 1984.

      E. Charles Geittmann, of Metropolis, for appellant, pro se.

    Thomas F. Crosby, of Winters, Garrison, Brewster, Permar, Speroni & Murphy, of Marion, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

E. Charles Geittmann (petitioner) appeals three orders entered on June 30, 1983, in the circuit court of Massac County. The first order denied Mr. Geittmann’s petition to modify an order of May 11, 1973, dissolving his marriage to Nell D. Geittmann (respondent). The proposed modification would have relieved petitioner of his obligation to pay alimony to respondent. The second order found petitioner in contempt of court by reason of his failure to pay maintenance to respondent, and directed petitioner to pay $5,000 to respondent within 30 days. The third order directed petitioner, an attorney, to assign to respondent’s trustee all of his shares in E. Charles Geittmann, P.C., a professional corporation, and directed the trustee to make installment payments to respondent from the corporate proceeds in order to satisfy a judgment for unpaid maintenance.

The marriage of petitioner and respondent was dissolved by the aforementioned decree of divorce on May 11, 1973. The decree ordered petitioner to pay respondent $1,000 per month. The amount was reduced to $800 by an order modifying the divorce decree, entered on August 8,1973.

On February 13, 1981, respondent filed a petition for rule to show cause why petitioner should not be held in contempt for his failure to make payments ordered in the divorce decree. Petitioner, on August 11, 1981, filed his petition to modify the divorce decree, praying for termination of his obligation to pay alimony. On August 14, 1981, respondent filed a motion for summary judgment and a motion to strike the petition to modify the divorce decree. After a hearing on August 28, 1981, the court found that petitioner had failed to make timely payments pursuant to the divorce decree, but that his failure had not been wilful or contemptuous. The court thus ordered the contempt petition dismissed, while granting respondent’s motion for summary judgment. Judgment was entered for respondent in the amount of $34,200 for alimony accruing to the date of July 15, 1981. Following the same hearing, the court dismissed for failure to state a cause of acton Mr. Geittmann’s petition to modify the divorce decree, granting petitioner 35 days in which to amend the petition. An amended petition was filed on October 2, 1981, and an amendment to the amended petition was filed on March 11,1982.

Respondent sought to enforce the judgment against petitioner by filing, on April 15, 1982, a citation to discover assets; on April 23, 1982, a petition for sequestration; on April 26, 1982, a petition for rule to show cause why petitioner should not be held in contempt; and on May 7, 1982, a wage deduction summons. On June 30, 1983, the court entered judgment in the form of the three aforementioned orders. Petitioner’s motion to modify the divorce decree and to be relieved of his obligation to pay maintenance was denied. Petitioner was found in contempt of court and ordered to pay $5,000 within 30 days. Respondent’s petition for sequestration was granted. From these orders, petitioner appeals.

A court may modify a maintenance award if the conditions and circumstances of the parties have materially changed since the entry of a prior decree. (Ill. Rev. Stat. 1981, ch. 40, par. 510.) Just as no single criterion is controlling in determining the propriety of an initial maintenance award, no single criterion is controlling in determining the propriety of a modification. (Gorman v. Gorman (1979), 72 Ill. App. 3d 658, 662, 391 N.E.2d 70.) The decision to modify or terminate maintenance payments rests within the sound discretion of the trial court, and such a decision will not be disturbed on review absent an abuse of discretion. (Shellene v. Shellene (1977), 52 Ill. App. 3d 889, 890, 368 N.E.2d 153.) In the instant case, the evidence of record does not support petitioner’s contention that the trial court’s decision not to modify maintenance payments was so unreasonable as to constitute such an abuse. To the extent that petitioner’s ability to pay maintenance has actually been impaired, it is largely the result of indebtedness incurred by petitioner either personally or in the capacity of E. Charles Geittmann, P.C. Where a change of circumstances is not fortuitous, but rather is brought about by the party seeking a reduction or eradication of maintenance obligations, the moving party may not claim an entitlement to modification on equitable grounds. (Cf. Shellene v. Shellene (1977), 52 Ill. App. 3d 889, 890-91, 368 N.E.2d 153.) Moreover, due to illness, respondent’s need for maintenance has increased substantially since the entry of the divorce decree. The trial court’s denial of modification was proper in light of the parties’ circumstances.

A trial court’s finding of wilful contempt, together with the imposition of appropriate sanctions, is a matter similarly within the discretion of the trial judge. Absent a clear abuse of discretion, such a finding will not be disturbed on review. (Shive v. Shive (1978), 57 Ill. App. 3d 754, 764, 373 N.E.2d 557.) The failure of petitioner to make any payments from February 7, 1977, until the date the contempt order was issued, together with evidence of petitioner’s assets and ability to earn income, adequately supported the trial court’s conclusion that petitioner’s failure to make payments “was considered and calculated, and was wilfully, understandingly and purposefully done,” thus causing petitioner to be in contempt of court.

Petitioner contends that the remedy fashioned by the trial court in its third order of June 30, 1980, is beyond the court’s authority. The order contained the following mandate:

“That Petitioner-Counterrespondent shall, within 35 days of the date hereof, assign, set over, and deliver to NELL D. GEITTMANN, or her nominee as trustee, all shares in E. Charles Geittmann, P.C., or any other successor, substitute or substantially similar corporation heretofore or hereafter formed or, if none such, he shall transfer, assign and set over all assets, including income from day-to-day, of any substitute, successor or substantially similar business entity heretofore or hereafter formed of which E. CHARLES GEITTMANN is an owner, beneficiary or recipient in any way of THIRTY-FIVE PERCENT (35%) or more of the net profits of such entity, and such trustee shall pay or cause to be paid to NELL D. GEITTMANN the sum of FIVE HUNDRED DOLLARS ($500.00) each month to apply on the Judgment entered herein on September 14, 1981 and accrued interest thereon at the rate of NINE PERCENT (9%) per annum, and to pay, or cause to be paid, the balance of such assets or income from such corporation or other entity to E. CHARLES GEITTMANN, or his designees, and the employees and creditors of such corporation or entity; any and all expenses of such trustee shall be paid by such corporation or entity, including a per diem of ONE HUNDRED DOLLARS ($100.00) for any time reasonably spent in administering the trust in excess of eight hours per month, payable for each eight hours or fraction thereof in excess of eight hours so spent.”

The order was granted in response to a petition for sequestration brought by respondent pursuant to section 392 of the old Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 392). Section 392 was in effect at the time respondent filed her petition; however, at the time the court entered its order, section 392 had been repealed, and its provisions incorporated with modification into section 2 — 1402 of the new Civil Practice Law (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1402). Section 392 of the old act read as follows:

“When a defendant is defaulted, or upon hearing, the court may enter such order as may be just, and may enforce such order, either by sequestration of real and personal estate, by attachment against the person, by fine or imprisonment, or both, by causing possession of real and personal estate to be delivered to the party entitled thereto, or by ordering the demand of the plaintiff to be paid out of the effects or estate sequestered, or which are included in such order; and by the exercise of such other powers as may be necessary for the attainment of justice.” (Ill. Rev. Stat. 1979, ch. 110, par. 392.)

The essential question is whether the modifications of the new statute precluded the remedy of sequestration explicitly authorized under the former statute. Section 2 — 1402 provides the following:

“(b) When assets or income of the judgment debtor not exempt from the satisfaction of a judgment, a deduction order or garnishment are discovered, the court may, by appropriate order or judgment:
(1) Compel the judgment debtor to deliver up, to be applied in satisfaction of the judgment, in whole or in part, money, choses in action, property or effects in his or her possession or control, so discovered, capable of delivery and to which his or her title or right of possession is not substantially disputed.
(2) Compel the judgment debtor to pay to the judgment creditor or apply on the judgment, in installments, a portion of his or her income, however or whenever earned or acquired, as the court may deem proper, having due regard for the reasonable requirements of the judgment debtor and his or her family, if dependent upon him or her, as well as any payments required to be made by prior order of court or under wage assignments outstanding. The court may modify an order for installment payments, from time to time, upon application of either party upon notice to the other.
(3) Compel any person cited, other than the judgment debtor, to deliver up any assets so discovered, to be applied in satisfaction of the judgment, in whole or in part, when those assets are held under such circumstances that in an action by the judgment debtor he or she could recover them in specie or obtain a judgment for the proceeds or value thereof as for conversion or embezzlement.
(4) Enter any order upon or judgment against the person cited that could be entered in any garnishment proceeding.
(5) Compel any person cited to execute an assignment of any chose in action or a conveyance of title to real or personal property, in the same manner and to the same extent as a court could do in any proceeding by a judgment creditor to enforce payment of a judgment or in aid of the enforcement of a judgment.
* * *
(c) All property ordered to be delivered up shall, except as otherwise provided in this section, be delivered to the sheriff to [be] collected by the sheriff or sold at public sale and the proceeds thereof applied towards the payment of costs and the satisfaction of the judgment.”

Petitioner argues that subsection (c) effectively prohibits the remedy of sequestration fashioned in the trial court’s order. If the stock were properly to be delivered in satisfaction of the judgment, petitioner contends, it. would have to be sold, and not held in trust. This argument presupposes the legal fiction that petitioner is three persons — (1) corporation, (2) corporate shareholder, (3) corporate employee — and that petitioner’s pecuniary interest in his own professional efforts accordingly fall into distinct categories of stock (“property” under subsection (1) of section 2 — 1402) and salary (“income” under subsection (2) of section 2 — 1402). This, however, is not a valid presupposition.

The general rule that a corporation is presumed to be separate and distinct from its shareholders is subject to the broad exception that separate identities may be disregarded in situations in which it would otherwise pose an obstacle to protection or enforcement of private or public rights. (Froehlich v. J.R. Froehlich Manufacturing Co. (1981), 93 Ill. App. 3d 179, 182, 416 N.E.2d 1134.) The legal fiction that petitioner in the instant case is a separate entity from the corporate person of E. Charles Geittmann, P.C., and that E. Charles Geittmann as shareholder is distinct from E. Charles Geittmann as employee, serves only to confuse an otherwise obvious state of affairs. Petitioner’s argument that the court was precluded from ordering petitioner’s stock held in trust because of subsection (c), which states that all property delivered to the court must be held for sale, is, in our judgment, untenable, and the language of subsection (b)(2) sufficient to enable the court to fashion such a remedy under the peculiar circumstances where corporation, corporate shareholder, and corporate employee are one and the same human being.

Subsection (b)(2) empowers the court to “[cjompel the judgment debtor to pay to the judgment creditor or apply on the judgment, in installments, a portion of his or her income, however or whenever earned or acquired *** as well as any payments required to be made by prior order of court or under wage assignments outstanding.” (Emphasis added.) The court’s act of placing petitioner’s stock in trust in order to satisfy the judgment owed to respondent did nothing more than this. It is apparent that a simple wage deduction order would prove inadequate, since petitioner would invariably be in a position to manipulate or avoid the effect of such an order by lowering his own salary. Under these circumstances, the court properly disregarded the separate identities of petitioner as corporation, shareholder, and employee, and fashioned a remedy which would insure that a portion of petitioner’s income regularly would be paid in satisfaction of the outstanding judgment. The record discloses that the installments the trustee was ordered to pay from the corporate proceeds were reasonable in amount.

The order denying the petition to modify the marriage decree is affirmed; the order finding petitioner in contempt of court is affirmed; the order placing petitioner’s stock in his professional corporation in trust is affirmed.

Affirmed.

KASSERMAN and EARNS, JJ., concur.


author: JUSTICE KARNS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY S. GRIGGS, Defendant-Appellant.
    Fifth District
    No. 83—167
    Opinion filed August 8, 1984.
    Randy E. Blue and Kim G. Noffke, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KARNS

delivered the opinion of the court:

Defendant, Gregory S. Griggs, was charged by indictment in the circuit court of St. Clair County with murder. A jury, after more than nine hours of deliberation, returned a verdict finding him guilty of the lesser offense of voluntary manslaughter. Defendant was sentenced to the Department of Corrections for a term of six years’ imprisonment. Defendant alleges reversible error in that the trial court coerced and unduly hastened a verdict by inquiring of the jury its numerical division after eight hours of deliberation and, after learning that seven of the jurors thought that no verdict could be reached, nevertheless returned the jury to deliberation and refused the State’s request for a deadlocked jury instruction in accordance with the supreme court’s directive in People v. Prim (1972), 53 Ill. 2d 62, 71-77, 289 N.E. 2d 601, 607-10, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731. Defendant also contends that the trial court abused its discretion in sentencing.

The underlying facts pertinent here are stated simply. Griggs returned home and found there his cousin, Barbara Davis, and the Chandlers, Gene, Harvey and Luther. Gene Chandler approached Griggs. Hostile words were exchanged, tempers flared and a fight broke out between them. Harvey, Luther and Davis intervened. The fighters were separated for a very short time, then shots were fired. Gene Chandler died from a gunshot wound in the chest. Some evidence tended to establish self-defense.

The jury was instructed about the applicable law and retired to deliberate its verdict at 1:25 p.m.

At 9:45 p.m. the court called counsel into chambers and proposed to call the jury into the courtroom to ask its members the following questions:

“Without giving the results of any vote, approximately how many votes have been taken; ***.
Second, without giving the results of any votes, guilty or not guilty, what was the numerical breakdown on the last vote, ***.
Third, if the Court was to ask you to continue your deliberations, do you feel there is a reasonable probability you might yet be able to arrive at a verdict.
If the foreperson answers no to that question, I will ask each juror, if the Court was to ask you to continue your deliberations, do you feel there is a reasonable probability you might be able to arrive at a verdict, I will ask them to respond to that question, yes, no, or maybe.”

The State voiced no objection but requested that the instruction mandated by Prim be given first. The State’s request was denied. Defense counsel objected “to giving any further questions or instructions at this point.” When asked how long the court should allow the jury to deliberate, the State suggested “another hour or two” if a majority thought a verdict could be reached. Defense counsel suggested no time limit be imposed. The court concluded: “If there is an indication they can, or that there is a reasonable probability they can reach a verdict, I will give them [from 10:20 p.m.] until midnight to make a decision, and at that time I will declare a mistrial.”

The jury was called in. The foreman responded to question one, “Well, one written and quite a few hand votes.” The foreman responded to question two, “About seven to five.” The foreman responded to question three, “I doubt it.” Then the court asked question three to each juror. Seven jurors responded “no,” two jurors responded “yes,” and three jurors responded “maybe,” including the foreman. The court addressed the jury: “In view of the fact you are divided on the question of whether you can or cannot reach a verdict, I will ask you to continue your deliberations. So, court will be in recess.”

Approximately V-U hours later, without further instruction, the jury returned its verdict guilty of voluntary manslaughter. Defendant refused the court’s offer to poll the jury.

Essentially we must determine whether the trial court interfered with the deliberation of the jury to defendant’s prejudice. We will not consider defendant’s position on appeal regarding the necessity of a Prim instruction for two reasons. First, his position on appeal is inconsistent with his argument at trial, where counsel insisted that no further instruction of any kind be given. Second, the decision of whether to give the supplemental instruction to a deadlocked jury rests within the sound discretion of the trial court. (People v. Thompson (1981), 93 Ill. App. 3d 995, 1008, 418 N.E.2d 112, 122.) It is not at all clear that this is a case where the jury was in fact deadlocked, for it is clear that at least five jurors thought that a verdict might yet be reached. While the instruction can be given even if the jury is not deadlocked (see People v. Wilson (1976), 37 Ill. App. 3d 560, 346 N.E.2d 161), here it does not appear to have been required. We will, therefore, limit our review of the proceedings to an examination of the actual dialogue claimed to be prejudicial and not whether a supplemental Prim instruction should have been given.

Defendant relies on People v. Golub (1929), 333 Ill. 554, 165 N.E. 196, People v. Duszkewycz (1963), 27 Ill. 2d 257, 189 N.E.2d 299, People v. Rohwedder (1967), 78 Ill. App. 2d 211, 223 N.E.2d 1, and People v. Santiago (1982), 108 Ill. App. 3d 787, 439 N.E.2d 984.

The supreme court in Golub said:

“A verdict should express the deliberate judgment of the jury. The juror, as well as the judge, has an independent duty to perform, and he ought to be left free to pronounce his own conviction. A verdict hastened by the action of the judge, however worthy the motive, cannot be the result of that deliberation which the law guarantees. Remarks by a trial judge calculated to effect the rendition of a verdict without affording the jury an opportunity for careful consideration are unwarranted and often lead to great abuse. Whether the error is harmless or prejudicial depends upon the facts of the case.” People v. Golub (1929), 333 Ill. 554, 561, 165 N.E. 196, 199.

In Golub, the trial court had proceeded in much the same way as the trial court here. The foreman replied, “Nine to three.” The court then said, “You ought not to have any difficulty in reaching a verdict on this evidence.” The jury retired a second time and later, a period of time not reported, returned a verdict finding both defendants guilty. The supreme court held that the trial court’s remarks “did not, either expressly or by implication, indicate that the jury should reach a particular conclusion. *** The remarks should not have been made, yet it cannot be said that they interfered with the deliberations of the jurors to the prejudice of plaintiff in error or that they hastened the verdict.” 333 Ill. 554, 561,165 N.E. 196,199.

In Duszkewycz, the trial judge asked the foreman for the vote. He replied, “Eight-four, sir,” without indicating how the jurors were divided. The judge asked whether the jury could reach a verdict within one hour. The foreman replied negatively, whereupon the court sent the jury back to deliberate for one hour and told the jurors, “[s]ee if you can’t reach a verdict.” An hour later the jury was recalled and sent to dinner, after which it continued deliberations. Later that night, after a further interval of unknown duration, the jury returned verdicts of guilty. As in Golub, the court found no evidence that the verdicts had been coerced.

In Rohwedder, the court held that the defendant had a right to be present when the court summoned the jury before it for inquiry, as this was a stage of his trial. In this regard, the appellate court’s remarks concerning prejudice to the defendant resulting from certain communications between the jury and the court outside of his presence must be viewed in context;. Rohwedder is not applicable here.

In Santiago, the jury sent a note to the court stating that it was deadlocked. The jury was called in for its numerical division and the foreman responded, “Eight and four.” The court then gave a Prim instruction and the jury retired for further deliberations. The jury was repeatedly called into court over a period of four days of deliberation. At one point the numerical division was eleven and one and the court returned the jury to deliberate further. Finally, the jury returned its verdict guilty. The appellate court distinguished Golub and Duszke-wycz and found that the trial court coerced the minority of the jurors into returning a verdict of guilty. The court said:

“[T]here were a number of factors present in the case before us which, taken together, suggest that prejudicial error occurred. Twice the trial judge improperly asked for the numerical division of the jury and the second inquiry, which reflected an eleven to one split, was made after the judge already knew that the jury had divided eight to four in favor of returning a verdict of guilty; immediately after he first discovered that the jury was divided in favor of a verdict of guilty, the trial judge gave the jury a Prim instruction which, inter alia, urged the jurors to reach an agreement; on the fourth day of deliberations the jury was called into court three times at the insistence of the judge who repeatedly questioned the foreman regarding the state of deliberations; over the course of the deliberations the foreman indicated that the jury was deadlocked and that further deliberations might not help. By virtue of the trial court’s actions in this case, the jury may well have believed that the court concurred with the majority and that deliberations would continue until a unanimous verdict of guilty was returned. Such a verdict cannot be said to have been reached without improper prodding from the trial court and should not be allowed to stand.” (People v. Santiago (1982), 108 Ill. App. 3d 787, 806-07, 439 N.E.2d 984, 997-98.)

In one of its footnotes the court quoted the Supreme Court of California, which stated that “ ‘[m]ost cases wherein adjuratory remarks of the court have been held coercive are those in which the court, either through its own questioning or through volunteered statements of jurors, has become informed not only as to the numerical division of the jury but also as to how many stand on each side of the ultimate issue of guilt. The urging of agreement in such circumstances of course creates in the jury the impression that the court, which has also heard the testimony in the case, agrees with the majority of the jurors. Coercion of the jurors in the minority clearly results.’ ” 108 Ill. App. 3d 787, 807 n.4, 439 N.E.2d 984, 997-98 n.4, quoting People v. Carter (1968), 68 Cal. 2d 810, 816, 442 P.2d 353, 357, 69 Cal. Rptr. 297, 301.

In the instant case we do not find the same compelling reasons for reversal that the court found in Santiago. Rather, the facts before us are more closely related to those found in Golub and Duszkewycz where harmless error was found. While it is error for the trial court to inquire into the numerical division of the jury (People v. Sanchez (1981), 96 Ill. App. 3d 774, 422 N.E.2d 58), it is not per se reversible error in Illinois. (People v. Santiago (1982), 108 Ill. App. 3d 787, 439 N.E.2d 984.) Unless the defendant can show that the inquiry into numerical division interfered with the deliberations of the jury to his prejudice or hastened the verdict, such error is not reversible. (People v. Kirk (1979), 76 Ill. App. 3d 459, 394 N.E.2d 1212, cert. denied, (1980), 447 U.S. 925, 65 L. Ed. 2d 1118, 100 S. Ct. 3019. See also People v. Green (1980), 91 Ill. App. 3d 1085, 415 N.E.2d 595.) The defendant has not shown either.

Here, the hour was getting late and the trial court was obviously concerned about whether the jury might have reached an impasse. The foreman assessed the situation and concluded it was unlikely that a verdict could be reached. Each juror was then polled with the same, rather ambiguous question: “If you were to continue your deliberations, do you think you would be able to reach a verdict [?] ***.” An examination of the record does not disclose whether each juror was representing his or her own personal vote or representing a personal assessment of the collective probability of reaching a verdict. The trial court had no idea about which position the majority represented. Also, there is no basis in the record for us to conclude that the majority vote at that time turned out to be the verdict reached. The trial court received no assurance that a verdict could not be reached but instead discovered that the 12 jurors could not agree on whether they could agree on a verdict. Thus, the situation after eight hours of deliberation was not much different than the situation was when the jury first retired. Consequently, they were returned to deliberation without further instruction. As noted previously, it was a matter of discretion whether to give a Prim instruction and this discretion was not abused. The court had indicated beforehand, unknown to the jury, that deliberations would end at midnight and a mistrial would be declared if the jury failed to return by then. In short, we find no coercion or undue hastening of the verdict under these facts.

Defendant contends that the trial court abused its discretion in sentencing defendant to a term of six years’ imprisonment for his voluntary manslaughter conviction. He prays for a reduction of his sentence “to reflect his rehabilitative potential” or alternatively a new sentencing hearing. Defendant has not offered a specific alternative disposition here, but we note that he argued for probation in the trial court. The State recommended 12 years’ imprisonment.

Voluntary manslaughter is a Class 1 felony. (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 2(c).) A period of probation is an authorized disposition option for a Class 1 felony conviction under these circumstances. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3(b).) The trial court clearly rejected this option after considering the nature and circumstances of the offense and the history, character and condition of the offender. The court concluded that imprisonment was necessary for the protection of the public and that probation would deprecate the seriousness of the offender’s conduct and would be inconsistent with the ends of justice. (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 6—1(a).) The record does not support defendant’s contention that the trial court “ignored several factors raised in mitigation.” The court stated that it considered the factors in aggravation and mitigation brought to its attention.

Also, the court stated that it made an independent consideration of all factors, including but not limited to the one factor in mitigation specifically mentioned: defendant’s age, 18 years. Thus it appears that proper consideration was given to defendant’s argument that he did not contemplate that his criminal conduct would threaten or cause serious physical harm to another; that he acted under strong provocation; that there were substantial grounds to excuse his conduct; that he has no history of prior convictions; that his criminal conduct was the result of circumstances unlikely to recur; that he is unlikely to commit another crime; and that he is likely to comply with the terms of probation. It also appears that proper consideration was given to the State’s argument that the defendant’s conduct caused serious harm; that there was no serious provocation involved; that a sentence of imprisonment was necessary to deter others from committing the same crime; that he has a history of juvenile delinquency; and that he is unlikely to comply with the terms of probation.

Where there are factors present both in mitigation and aggravation it is the duty of the trial court to weigh these factors and reach a decision as to an appropriate sentence. The range of imprisonment for conviction for a Class 1 felony extends from a possible minimum term of 4 years to a possible maximum term of 15 years. Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-l(a)(4).

We do not find that the sentence imposed upon the defendant constitutes a great departure from the law, its spirit and purpose, or that it violates the intent and mandate set forth in article I, section 11 of the Constitution of the State of Illinois. The trial court’s decision in regard to sentencing is entitled to great deference and weight. Absent an abuse of discretion a sentence may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) We find no abuse of discretion and therefore affirm the sentence imposed.

For all of the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

JONES and HARRISON, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TREACIL FREY, Defendant-Appellant.
    Fifth District
    No. 5—83—0623
    Opinion filed July 18, 1984.

      Randy E. Blue and Rita K. Peterson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Randy Patchett, State’s Attorney, of Marion (Kenneth R. Boyle, Stephen E. Norris, and Karen L. Stallman, all of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KARNS

delivered the opinion of the court:

Defendant, Treacil Frey, was found guilty of burglary and theft after a bench trial in the circuit court of Williamson County. The sole question raised on defendant’s appeal is whether the Illinois burglary statute (Ill. Rev. Stat. 1983, ch. 38, par. 19 — 1(a)) applies to his unauthorized act of knowingly entering the open bed of a pickup truck with the intent to steal therefrom a sledgehammer.

In this case of first impression, the facts are simple and undisputed. Lowell Hartwell’s pickup truck was parked unattended in the public parking lot in Marion. Robert McCoskey, an off-duty Marion patrolman, was painting windows in a building above the parking lot and observed defendant walk to the back of the pickup truck, put on gloves and take a sledgehammer from the open bed. Defendant left with the sledgehammer.

The defendant was apprehended a short time later and taken to the police station where McCoskey identified him and Hartwell identified his sledgehammer. Hartwell testified that he did not know the defendant nor did he authorize him to remove the sledgehammer from the track.

Section 19 — 1(a) provides in relevant part:

“Sec. 19 — 1. Burglary, (a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft. ***.”

Defendant principally relies on In re E.S. (1981), 93 Ill. App. 3d 171, 416 N.E.2d 1233. In that case the court was concerned with whether an adjacent fenced-in area may be considered as part of a building within the meaning of the burglary statute. The court held that it may not and drew a sharp distinction between a “building,” “shelter,” “structure,” or “edifice” which protects either persons or property and a fenced-in area adjacent to it. The building and adjacent lot were considered separate physical entities. Entry into the lot was not entry into the building. Defendant here urges us to apply the same analysis and find the open bed of the pickup track like the fenced-in area and the cab of the pickup truck the equivalent of the “building” or “structure.” Thus, while the cab could be burglarized, the open bed could not be.

In re E.S. can be distinguished on the facts. The instant case involves a motor vehicle, not a building. Section 19 — 1(a) prohibits unauthorized, knowing entry into a “motor vehicle *** or any part thereof, with intent to commit therein a *** theft.” We would have to conclude that the bed of a pickup truck is not “any part thereof” and that entry into the bed is not entry into a motor vehicle. The bed of a pickup truck is as much a part thereof as is, for example, the passenger cab or the truck compartment. We conclude that an unauthorized, knowing entry into the bed of a pickup truck with intent to steal something therefrom is an act properly characterized and chargeable as burglary. Accord, State v. Cloud (S.D. 1982), 324 N.W.2d 287; People v. Romero (1972), 179 Colo. 159, 499 P.2d 604; People v. Banuelos (1977), 40 Colo. App. 267, 577 P.2d 305.

That the bed was not sheltered, protected, covered, closed or sealed, or in some other manner completely enclosed, is no defense to an unlawful entry under this statute. (Cf. People v. Baynes (1980), 87 Ill. App. 3d 1000, 410 N.E.2d 894, rev’d on other grounds (1981), 88 Ill. 2d 225, 430 N.E.2d 1070 (entry of auto through already-broken window); People v. Blair (1971), 1 Ill. App. 3d 6, 272 N.E.2d 404, aff’d (1972), 52 Ill. 2d 371, 288 N.E.2d 443 (open-bay car wash a “building”).) A common law breaking is no longer an essential element of the crime of burglary (see People v. Weaver (1968), 41 Ill. 2d 434, 242 N.E.2d 245, and Ill. Ann. Stat., ch. 38, par. 19 — 1, Committee Comments, at 569 (Smith-Hurd 1961)); an unlawful entry may be accomplished by “breaking the close” defined by the four sides, the bottom, and the imaginary plane extending atop the. sides and parallel to the bottom. As the State suggests, if defendant’s argument were to be accepted then open convertibles, motorcycles, small fishing boats, railroad flatcars and the like could never be burglarized. We do not believe this result was contemplated by the legislature. The statute was designed to deter unauthorized entry into any part of a motor vehicle.

Defendant has not taken issue with the severity of his sentence. Nevertheless, the imposition of an extended-term sentence of 11 years under these facts has caused us to determine what factors in aggravation set forth in paragraph (b) of section 5 — 5—3.2 (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3.2) were found to be present.

The trial court is not permitted to impose an extended term unless it finds present these factors therein listed: (1) a previous felony of the same class conviction, or (2) the present offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, or (3) the present offense was committed against a person under 12 or over 60 years of age or physically handicapped. (See Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—2(a)(4).) The single factor in aggravation found under section 5 — 5—3.2(b) was that the defendant had been previously convicted in Illinois of the same class felony within 10 years. The defendant entered negotiated pleas of guilty in two burglary cases consolidated in 1977.

Section 5 — 8—2(a)(4) permits an extended term; it does not require one. While we have no doubt that under a multitude of sentencing circumstances this single factor would be a sufficient reason for imposing an extended term, we have serious doubt as to the propriety of defendant’s severe sentence in the instant case. After careful review of the sentencing hearing transcript we are not convinced that the trial court informed itself of the full range of incarceration alternatives in order to assure defendant a fair sentence. Nor are we convinced that this single factor, in this case, was given appropriate weight.

The record is replete with comments from the sentencing judge indicating that he had reservation about imposing an extended term. The court explained the law. It was quick to add, “I didn’t make that law but the Legislature apparently felt that would be one way they could help prevent repeaters, prevent people from repeating the commission of crimes.” The court explained,

“Must have been their intent to punish more severely those people who commit second offenses than those who commit the first offense. The offense that was committed here was a misdemeanor theft along with the ruling that it was burglary. The theft is not of any great importance. Really it is a misdemeanor, only a sledgehammer.
* * *
There is one thing for sure he has previously been convicted of burglary. And he stands convicted at this time and the Legislature says if a person comes before you under those circumstances he is subject to serve an extended term.
* * *
I am just an instrument of the law and I don’t make law. I am just an instrument of it. And I would like to see that there be no crime in this country but I know that this one case won’t make the difference but it might have a deterrent effect upon the public because the people need to know you can’t steal and get by with it forever.”

The court did consider probation but this was ultimately rejected:

“If I felt that Mr. Frey would live up to probation and not be guilty of violating any criminal laws I would be more than happy to put him on probation because he has never had a sentence in court, because he has never had the appearance in court of being a man you don’t like.
Nothing about Mr. Frey would cause you to dislike him. He is a remarkable sort of person to get along with. Probably wouldn’t mind living next door to him if he didn’t steal. There is not a thing about him that is obnoxious ***.”

The court apparently felt that since it found present one of the factors listed in section 5 — 5—3.2(b) it was required to impose the extended term. The court did not of record consider the sentencing alternatives available under section 5 — 8—1. We believe this ought to have been done.

It is obvious that the court considered a deterrent factor and a past criminal activity factor (see sections 5 — 5—3.2(a)(3) and (7)) in arriving at its conclusion that an extended term was to be imposed. These factors were improperly considered for this purpose. The only factor to be given weight for such a determination under these facts is the factor listed in section 5 — 5—3.2(b)(1). On remand, the factors listed in sections 5 — 5—3.2(a)(3) and (7) could be used just as effectively for purposes of setting a sentence within the range permitted for burglary, a Class 2 felony, of not less than three years, nor more than seven years. Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—l(aX5).

For these reasons the judgment of conviction of the circuit court of Williamson County is affirmed. The sentence is vacated and this cause is remanded for resentencing.

Conviction affirmed; sentence vacated; remanded.

HARRISON and JONES, JJ., concur.


author: JUSTICE KASSERMAN JUSTICE JONES,

text:
    ACTION LEASING AND RENTAL, INC., Plaintiff-Appellee, v. LONNIE SHEPARD, Defendant-Appellant.
    Fifth District
    No. 5—83—0133
    Opinion filed July 23, 1984.
    JONES, J., dissenting.
    William L. Broom III, of Barrett, Twomey, Morris & Broom, of Carbon-dale, for appellant.

      James R. Moore, of Carterville, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

In litigation in Mississippi arising out of certain agreements for the lease of vehicles, the plaintiff, Action Leasing and Rental, Inc., obtained a default judgment in October of 1980 against the defendant Shepard Emergency Service, Inc., a corporation, and against the defendant Lonnie Shepard individually. Upon plaintiffs petition for registration of a foreign judgment in the circuit court of Jackson County, the defendants challenged the personal jurisdiction of the Mississippi court over them. Following a hearing, the court in Illinois granted the petition as to Lonnie Shepard individually, entering judgment in the amount of $11,173.91, but, for reasons that are of no importance to this appeal, denied the petition as to Shepard Emergency Service, Inc. Lonnie Shepard brings this appeal, contending that the Mississippi court lacked personal jurisdiction over him and that the judgment of the Illinois court that the Mississippi court had such jurisdiction is against the manifest weight of the evidence. We agree.

The applicable Mississippi long-arm statute (Miss. Code Ann. sec. 13 — 3—57 (1972)) provides for the appointment of the Secretary of State of the State of Mississippi as the agent, for service of process, of a nonresident person doing business in Mississippi, specifying that service of process upon the Secretary of State is to be as “provided by law for service on nonresident motorist defendants under section 13 — 3—63 ***.” Section 13 — 3—63 (Miss. Code Ann. sec. 13 — 3—63 (1972)) provides for such service of process in pertinent part as follows:

“*** Service of such process or summons shall be made *** by serving two copies of the process or summons for each nonresident defendant, with a fee of five dollars ($5.00) for each such defendant on the secretary of state or by leaving two copies of said process or summons with the fee in the office of the secretary of state, and such service shall be service upon said nonresident defendant with the same force and effect as if such nonresident had been personally served with such process or summons within the State of Mississippi. One of the copies of such process or summons shall be preserved by the secretary of state as a record of his office. Notice of such service, together with a copy of the process or summons, shall be mailed forthwith as certified or registered mail, restricted for delivery to addressee only and "with postage prepaid, by the secretary of state to each such nonresident defendant at his last known address ***, or notice of such service and copy of process or summons actually shall be delivered to the said defendant. The defendant’s return receipt or evidence of defendant’s refusal to accept delivery of such certified or registered mail, in case such notice and copy of process or summons are sent by certified or registered mail, or affidavit of the person delivering such notice and copy of process or summons *** actually are delivered, shall be filed in the court where such action is pending before judgment can be entered against such nonresident defendant. * * *>>

At the hearing in Illinois the sole witness was Lonnie Shepard, who testified that the signature of Rebecca Scherben, spelled “Shier-baum” in the briefs, appears on the receipt for registered mail sent by the Secretary of State of the State of Mississippi to Lonnie Shepard at the address of his residence in Carbondale. The receipt, which is in evidence, bears the date of July 21, 1980, and is marked for restricted delivery. Also in evidence is the receipt, bearing the same date, for registered mail sent by the Secretary of State of the State of Mississippi to Shepard Emergency Service, Inc., at the same address in Carbondale. The signature of Rebecca Scherben likewise appears thereon. Shepard testified that Rebecca Scherben had resided with him at that address at the time in question and had subsequently married him. He is the president and sole shareholder of Shepard Emergency Service, Inc. At the time in question Rebecca Scherben was the corporate secretary. As secretary, she picked up mail from the mailbox. The corporate office was located in the remodeled garage of his residence, and home and office bore the same address. Shepard indicated that he had never received the registered mail in question and testified that he had first learned of the cause of action in Mississippi and the judgment against him in April of 1981 when he was served by the sheriff of Jackson County, apparently with the summons and petition to register the foreign judgment.

It is elementary that if the defendant has not been served with process as the law requires and has entered no appearance, the court lacks jurisdiction over the defendant, and a default judgment against such a defendant is void. (First Federal Savings & Loan Association v. Brown (1979), 74 Ill. App. 3d 901, 905, 393 N.E.2d 574, 577.) In State Farm Mutual Automobile Insurance Co. v. Stewart (Miss. 1968), 209 So. 2d 438, 439-40, the Supreme Court of Mississippi discussed the ways by which the long-arm statute in question confers jurisdiction upon Mississippi courts over nonresidents:

“It is not sufficient, however, merely to serve summons upon the Secretary of State. The statute provides that when it is served upon the Secretary of State, he shall mail as certified or registered mail to the last known address of the defendant (to be shown in the summons) notice that summons has been served upon him. There is to be enclosed with this letter a copy of the service. It is further required that a return receipt be requested and that the envelope be stamped for delivery to addressee only. If the defendant signs a receipt for the letter, the receipt is forwarded by the Secretary of State to the clerk of the court which issued the summons and is evidence of the fact that the defendant has had actual notice of the suit.”

After discussing the other two ways of effecting service of process upon a nonresident, defendant’s refusal of delivery of a certified or registered letter and personal service of summons with an affidavit filed to that effect, neither of which are of concern here, the court continued:

“These are the three methods provided by the statute for the service of process upon a nonresident. It is essential to due process that a defendant have notice of an action against him. The three instances above are the ones provided by this statute for conferring jurisdiction upon the local courts over a nonresident. This statute is strictly construed and the provisions thereof must be followed to give the court jurisdiction.” 209 So. 2d 438, 440.

In both Stewart and Nationwide Mutual Insurance Co. v. Tillman (1964), 249 Miss. 141, 160, 161 So. 2d 604, 611, the Mississippi Supreme Court held that the statutory provision which is presently section 13 — 3—63 of the Mississippi Code 1972 Annotated is in derogation of the common law and, therefore, is required to be strictly construed. A strict construction of such statute, which is also the prescribed method of personal service on nonresidents under the Mississippi long-arm statute, obviously anticipates that if the return receipt is filed to establish service of process, it must be signed by no one other than the addressee in order for jurisdiction to be obtained over a nonresident defendant. This statute, permitting service upon nonresident motorists by certified or registered mail “restricted for delivery to addressee only,” provides an alternative method of service in the event that defendant’s return receipt or evidence of his refusal to accept delivery of such certified or registered mail are not available for filing.

An identical result was reached by the court in State ex rel. Les-liy v. Aronson (Mo. App. 1962), 362 S.W.2d 61, where the Missouri appellate court considered a factually similar situation. In Aronson the court considered the Missouri nonresident motorist statute, which provided that the Missouri Secretary of State mail notice of pending litigation by “restricted, registered mail” with the endorsement “deliver to addressee only,” and held that the statute would not permit the return receipt to be signed by one other than the addressee. 362 S.W.2d 61, 64-65; See generally Annot., 95 A.L.R.2d 1033, 1053-54 (1964).

In view of the Mississippi Supreme Court’s mandate to strictly construe the applicable statute, we are persuaded that the circuit court of Jackson County, Illinois, incorrectly decided that the service of process on the defendant in this case was effected. As stated by the Mississippi Supreme Court in Stewart: “It is essential to due process that a defendant have notice of an action against him.” (209 So. 2d 438, 440.) In the case at bar, the return receipt was signed by someone other than the addressee, and it is uncontradicted that the defendant never, in fact, received notice that he was being sued in Mississippi. We find, as did the Missouri Appellate Court in Aronson, that there was no service of process in the instant case. Therefore, the Mississippi court failed to acquire jurisdiction over defendant Lonnie Shepard and the judgment it purported to have entered against him is void. In so holding we note that there is a policy consideration which supports our determination. If service of process on someone other than the addressee were permitted, there can be no assurance that the person receiving the process sent by the Mississippi Secretary of State would notify the defendant. The statutory language utilized by the Mississippi legislature in section 13 — 3—63 indicates that it intended that personal service of process upon the addressee and no other is required. In the absence of express statutory authority to the contrary, we decline to assume that the Mississippi legislature intended to expand service of process in the case at bar by permitting delivery to the world at large of certified or registered mail which is designated to be delivered to the addressee only.

For the foregoing reasons, the judgment of the circuit court of Jackson County is reversed.

Reversed.

HARRISON, J., concurs.

JUSTICE JONES,

dissenting:

I respectfully dissent.

The Mississippi statute in question here (Miss. Code Ann. sec. 13 — 3—57 (1972)) is the Mississippi equivalent of Illinois long-arm and substituted service of process statutes found in sections 2 — 208 and 2 — 209 of the Civil Practice Law (Ill. Rev. Stat. 1983, ch. 110, pars. 2— 208, 2 — 209) and section 10 — 301 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95V2, par. 10 — 301). The standards for substituted service of process and for assurance of notice to a defendant found in the Illinois statutes, particularly section 10 — 301 of the Illinois Vehicle Code, are noticeably less stringent than the standards imposed by the Mississippi statute. Notwithstanding, the Illinois scheme affords notice to nonresident defendants that is sufficient to comply with due process requirements of both the Illinois and United States constitutions. In view of this, I fail to see why the majority applies an excessively stringent and overly technical interpretation to the Mississippi statute.

The majority states that they are strictly construing section 13— 3— 63 of the Mississippi Code. In doing so, they have read into that statute requirements that are not there.

Several presumptions are indulged in the area of the law regarding substituted service of process, and they are indulged in every jurisdiction. They are a necessity to prevent easy evasion of service of process by scofflaws. In the case under consideration, only the defendant testified that he had no notice of the Mississippi proceeding. Yet, the facts of the matter, as related by the majority, very strongly indicate that he did have notice. In any event, the procedure followed in this case would pass constitutional due process muster in any jurisdiction in the country, and, furthermore, is in compliance with the Mississippi statute in question.

The majority agrees that the Secretary of State of Mississippi sent a copy of the summons to defendant’s address and that it was marked for restricted delivery. That is as far as the Mississippi statute goes in its requirements. It does not require that the letter that is mailed for restricted delivery be receipted for by the addressee and no other. The latter requirement was unnecessarily read into the statute by the majority. Illinois statutes do not require such, the Mississippi statute does not require it, the Mississippi cases do not require it and due process does not require it.

In this case, the person who signed the return receipt for registered mail, Rebecca Scherben, not only resided with the defendant and later married him but also served as corporate secretary for the corporation of which defendant was president and sole shareholder, the office of which corporation was located at the same address as the residence she shared with defendant. As secretary of the corporation, she picked up mail for the corporation, and on the same day she signed not only the receipt for the registered letter addressed to defendant individually but also a receipt for a registered letter addressed to the corporation, both of which had emanated from the office of the Secretary of State of Mississippi. Receipt of the registered letter addressed to the defendant individually by a person in the position of Rebecca Scherben could reasonably be expected to provide the defendant with actual notice of the proceedings against him in Mississippi and an opportunity for him to be heard. Providing for service of process upon a defendant by the receipt of registered mail by a person in the position of Rebecca Scher-ben may be said to be reasonably calculated to give a defendant actual notice of proceedings against him and an opportunity to be heard. This procedure certainly accords with the requirements of reasonableness that are a part of court decisions on due process.