author: JUSTICE NASH

text:
    NORBERT M. LISK, Plaintiff-Appellant, v. GEORGE BENJAMIN et al., Defendants-Appellees.
    Second District
    No. 81-520
    Opinion filed March 25, 1982.

      Peter F. LoMonaco, of Rawles, Katz & McKeown, Ltd., of Waukegan, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan, and Rudolph F. Magna, Jr., of Magna, Brown and Hauser, Ltd., of Round Lake (David Weidenfeld, Assistant State’s Attorney, of counsel), for appellees.
   JUSTICE NASH

delivered the opinion of the court:

Petitioner, Norbert M. Lisk, appeals from an order of the circuit court of Lake County dismissing his petition challenging the election of defendant, George Benjamin, to the office of village president of Hainesville. He contends that (1) the trial court considered improper evidence in denying the petition and (2) errors and omissions of the official conducting the election require that it be voided or that petitioner be declared the winner.

An election was conducted by the Lake County clerk on April 7, 1981, to determine the office of village president of Hainesville, and other offices. Petitioner and defendant Benjamin were each candidates for that office. Prior to the election the county clerk’s office received applications for absentee ballots from Florence Lisk, Ralph Lisk and James Lisk, who were, respectively, petitioner’s daugher-in-law and sons and also from Marvin Rogers, his son-in-law. Each of the applications listed these prospective voters’ address as “Rte 1, Box 21B, Grayslake, Illinois.” The clerk referred to a street address index kept for that purpose in order to determine the voting precinct represented by the address given, then changed that address to read “121 E; Belvidere Road, Grayslake, Illinois” and noted the voting precinct as “8D.”

The street index, however, was in error and the correct precinct for the address listed on the applications for ballot should have been precinct 8A; precinct 8D was, in fact, in the adjoining Village of Grayslake while precinct 8A, where the applicants were alleged to have resided, was in the Village of Hainesville. As a result of this error ballots to be voted in the Grayslake election, also being held at that time, were sent to the four applicants.

The absentee ballots sent to Florence, Ralph and James Lisk were duly returned to the county clerk with the name “Norbert Lisk” entered as a writein candidate for “Mayor” and were delivered to the Grayslake polling place for precinct 8D where they were counted. The absentee ballot sent to Marvin Rogers was not returned to the county clerk for voting. The canvass of the election for the office of village president of Hainesville determined that petitioner received 33 votes, defendant Benjamin received 36 votes, and Benjamin was declared the winner. The returns of the Grayslake election disclosed that petitioner there received three writein votes for the office of mayor of Grayslake.

Petitioner challenged the Hainesville election on the ground that the three absentee ballots voted in the Grayslake election should be counted in Hainesville and he declared the winner or that a tie resulted; he alternatively alleged that the Hainesville election for the office of village president be declared null and void because of errors by the county clerk in conducting it.

Hearings were held on the petitions at which the ballots cast in both elections, the applications for absentee ballots, the canvass of the elections and the street index used by the county clerk were offered by petitioner and admitted into evidence by the trial court. They had all been in the custody of the clerk until produced in court. Attorney Rudolph Magna, who represented Benjamin at the hearing, apparently noticed a similarity in the handwriting on the three absentee ballots as in his cross-examination of petitioner he inquired:

“Q. Looking at the ballots in your hand, Group Exhibit Number 13, does that handwriting that appears on those ballots bear any resemblance to the handwriting of your daughter-in-law Florence?
A. It could be.
Q. And when you say it could be, you looked at all three of these ballots?
A. Yes.
Q. Do you have any personal knowledge of whether or not Florence cast the ballots, those three ballots in Group Exhibit 13?
A. No, I don’t.”

On one of the days the hearing was being conducted, but at a time when the other parties were not present, Weidenfeld appeared ex parte before the trial judge and requested permission to remove petitioner’s exhibits (the applications for ballots and the writein ballots cast) for a hand-writing analysis by an examiner at the Northern Illinois Police Crime Laboratory. His motion was granted and Weidenfeld -placed the exhibits in the custody of Joseph J. Lesk, a document examiner for the crime laboratory. They were returned to court on the next day when the hearing reconvened. Subsequently, Lesk testified to his opinion that the three ballots were written in the same hand and that based upon examples of her handwriting that Florence Lisk was the best suspect for having executed all of them. Lesk also testified that the ballots were in the same condition as when he received them, except for identification marks he had placed upon them.

The trial court found that the examination of the ballots under the court’s direction did not cause them to become invalidated, but that it was apparent from the evidence and a look at the ballots they had been voted by the same person and were invalid on that ground. The court further found that the clerk’s error in sending the wrong ballots had not affected the outcome of the election under these circumstances as the invalid ballots could not be counted in any event.

An election contest is governed by article 23 of the Election Code (Ill. Rev. Stat. 1979, ch. 46, par. 23 — Í.1 et seq.). Section 23 — 22 of the Code provides that “[e]vidence may be taken in the same manner and upon like notice as in other civil cases” and, after the hearing provided by section 23 — 23, the court “shall confirm or annul the election according to the right of the matter 9 9 (Ill. Rev. Stat. 1979, ch. 46, par. 23 — 26.) It has been said that election contests are limited to a determination of the election result. People ex rel. Meyer v. Kerner (1966), 35 Ill. 2d 33, 38, 219 N.E.2d 617, 619; Breslin v. Warren (1977), 45 Ill. App. 3d 450, 453, 359 N.E.2d 1113,1114.

Petitioner contends first that the trial court erred in considering evidence of the contents of the three questioned ballots (that each was written in the same hand) as a basis for dismissing the petition. He argues that in an election contest ballots may be received as the best evidence of the results of the election only if they have been preserved from access by unauthorized persons and from tampering, citing Rogers v. Meade (1936), 363 Ill. 630, 2 N.E.2d 924, and Sibley v. Staiger (1932), 347 Ill. 288, 179 N.E. 877, and as these ballots had been turned over to the assistant State’s Attorney and others their evidentiary value was destroyed and the court could look only to the returns of the election as evidence of the results (Armbrust v. Starkey (1954), 3 Ill. 2d 131, 133, 119 N.E.2d 910, 911).

The cases relied upon by petitioners are inapposite, as the courts there considered circumstances wherein ballots were not protected from unauthorized access before being received in evidence. In the present case petitioner agrees the ballots were properly protected until after they had been admitted in evidence, but asserts that after these exhibits were withdrawn for testing purposes they lost their status as authentic ballots and may not be considered by the court.

Once ballots are admitted in evidence for counting, the sole question before the court becomes whether those ballots are legal or illegal. (Wood v. Hartman (1942), 381 Ill. 474, 480, 45 N.E.2d 864, 867.) The questioned ballots in this case were received into evidence without restriction and became general evidence for the benefit of all parties and petitioner cannot be heard to complain that they were not evidence of the facts therein. (Dill v. Widman (1952), 413 Ill. 448, 452, 109 N.E.2d 765, 767; Wilkinson v. Mullen (1975), 27 Ill. App. 3d 804, 808, 327 N.E.2d 433, 436.) In judging the competency of the ballots the trial court could consider all facts in evidence tending to prove or disprove the matter and to allow the ballots to be submitted to handwriting analysis at the request of a party. See generally Ill. Rev. Stat. 1979, ch. 51, par. 50.

We note that the ex parte hearing of the motion made by the assistant State’s Attorney was improper. The trial court should have required that notice be given to the other parties; however, petitioner has failed to establish any prejudice from this oversight or that the outcome below was affected and the error is harmless. Hartigan v. Robertson (1980), 87 Ill. App. 3d 732, 739, 409 N.E.2d 366, 371; County of Cook v. Patka (1980), 85 Ill. App. 3d 5, 15, 405 N.E.2d 1376, 1382.

Having determined that the trial court did not err in its consideration of the questioned ballots and their validity, we turn to petitioner’s further argument that the admitted error of the county clerk in sending the wrong ballots to the four absentee voters requires that the election be set aside.

Errors or omissions by election officials in carrying out the duties imposed by the Election Code can cause an election to be invalidated. (Hester v. Kamykowski (1958), 13 Ill. 2d 481, 485, 150 N.E.2d 196, 199.) Irregularities which do not affect the outcome of the election, however, will not be considered in an election contest. People v. City of Paris (1942), 380 Ill. 503, 516, 44 N.E.2d 154, 161.

In this case, one of the erroneous ballots was not voted at all and the evidence established that the other three ballots were cast by a single voter. When a voter has voted more than once in the same election all of his ballots must be rejected (Widmayer v. Davis (1907), 231 Ill. 42, 51, 83 N.E. 87, 91), and that consequence necessarily obtains here. The conduct of a voter who cast three ballots, two of them in the names of other persons, may not provide the basis to invalidate the election. Petitioner understanding^ does not suggest that voter cast three ballots because of the clerk’s error, and would not have done so if the correct ballots had been provided. That voter could at best, if provided with the correct ballot, vote once for petitioner; if so, the result of the election would have been 34 votes for petitioner and 36 for his opponent and would not change the results of the election.

We conclude that as the error by the county clerk in conducting the election did not affect its outcome, the trial court correctly dismissed the petition challenging the election.

Accordingly, the judgment of the circuit court of Lake County will be affirmed.

Affirmed.

HOPE and LINDBERG, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    ROSANNE WEINERT, a/k/a Rosanne Huster, Respondent-Appellee, v. WALTER WEINERT, Petitioner-Appellant.
    Second District
    No. 81-658
    Opinion filed March 25, 1982.

      DeSanto and Goshgarian, Ltd., of Waukegan (James J. DeSanto, of counsel), for appellant.
    Jeffrey C. Ericksen and William G. Rosing, both of Rosing, Carlson and Magee, of Waukegan, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Petitioner, Walter Weinert, by his conservator, appeals from an order of the circuit court of Lake County which dismissed, without an evidentiary hearing, his petition to modify a decree for divorce. We reverse.

The amended petition alleged that petitioner and respondent, Rosanne Huster, were married in 1965, two children now ages 15 and 12 years were born to them and they were divorced in 1972. During the marriage petitioner suffered injuries to his brain resulting in the appointment of a conservator to manage his affairs. The parties entered into a property settlement agreement in the subsequent divorce proceeding, and the decree provided that a trust of $65,000 be established for the benefit of the minor children with respondent to receive monthly payments from the trust income of $175 for each child until their emancipations, with the corpus then to be paid to petitioner. Petitioner was granted reasonable visitation with the children and was also to be responsible for any extraordinary medical expenses.

The petition further alleged that substantial changes had occurred in the lives and conditions of the parties which warranted modification of the decree. It alleged petitioner had complied with all obligations imposed by the decree, although the corpus of the trust had since been reduced by one-half and is inadequate to pay child support from income alone; that petitioner is now employed as a factory worker with a limited income from which to support himself; that since the divorce respondent attended college and is now a registered nurse capable of earning sufficient income to provide for the support of the children; and that in 1975 respondent remarried to James Huster, who is employed. The petition also alleged that both children have been enrolled in school by respondent under the name of Huster and are so known in the community; that petitioner’s efforts to visit with the children have been frustrated by respondent and they are either not allowed by her to see him or refuse to acknowledge him as their father on their own initiative.

As relief, petitioner sought termination of his child support obligation and, alternatively, that the children be required to resume use of their surname of Weinert and that a specific visiting schedule with petitioner be established. Respondent filed a general motion to dismiss the petition as insufficient to modify or terminate support which was granted by the trial court. Petitioner’s alternate prayer that the children use his name and that support be abated until they do so was denied. The trial court did establish a specific visitation between petitioner and the children for July 5, 1981, and suggested other visits on holidays be agreed upon between the parties. With respect to the name used by the children, the court made a finding that it would not be in their best psychological interest to return to use of their father’s name.

Courts have the power to modify child support provisions in a judgment of dissolution of marriage even if they were also incorporated in the parties’ separation agreement. (Ill. Rev. Stat. 1979, ch. 40, par. 502(f); Powers v. Powers (1979), 69 Ill. App. 3d 485, 488, 388 N.E.2d 76, 78.) Nevertheless, any modification of child support is dependent upon a showing that there has been a material change in the circumstances of the parties since entry of the order sought to be altered. (E.g., Waggoner v. Waggoner (1979), 78 Ill. 2d 50, 55, 398 N.E.2d 5, 8.) For purposes of review of an order granting a motion to strike a petition, the well-pleaded allegations therein are taken as true (e.g., Lucchetti v. Lucchetti (1980), 82 Ill. App. 3d 630, 632, 402 N.E.2d 854, 855), and the motion should not be granted unless it clearly appears that no set of facts can be provided which will entitle the pleading party to recovery (Newberg-Krug-Brighton v. Illinois State Toll Highway Authority (1978), 63 Ill. App. 3d 780, 782, 380 N.E.2d 1029, 1031).

Petitioner contends the court erred in striking his petition, thereby precluding him from offering evidence of the changes in circumstances upon which he sought modification. These allegations, if established by the evidence, might constitute material changes in circumstances requiring modification of the child support responsibilities of the parties. This court has stated that substantial economic reverses resulting from employment or investments are proper areas of inquiry in determining whether child support might be reduced or terminated. (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 132, 416 N.E.2d 785, 790.) Petitioner has a right to offer evidence as to his income-producing ability and the reduced amount of the corpus of the trust fund. Furthermore, he alleged respondent has a new career, and the extent she is now able to support the children is a matter to be explored in an evidentiary hearing. See Addington v. Addington (1977), 48 Ill. App. 3d 859, 865, 363 N.E.2d 151, 155; Hursh v. Hursh (1975), 26 Ill. App. 3d 947, 951, 326 N.E.2d 95, 97-98; Edwards v. Edwards (1970), 125 Ill. App. 2d 91, 96, 259 N.E.2d 820, 823.

Petitioner’s further allegations that the children refused to visit with and acknowledge petitioner as their father, and the unfortunate possibility respondent may have interfered with petitioner’s visitation rights so to keep the children and her new husband as a family unit to the exclusion of petitioner, may also establish substantial changes in circumstances warranting modification of petitioner’s obligation. The allegations of the amended petition set forth much more than that respondent has denied petitioner his visitation rights, which alone might not be sufficient grounds for termination of support. (See Huckaby v. Huckaby (1979), 75 Ill. App. 3d 195, 393 N.E.2d 1256; Slavis v. Slavis (1973), 12 Ill. App. 3d 467, 299 N.E.2d 413.) Here the allegations directed to the financial self-sufficiency of respondent and her choice to preclude the children from visiting petitioner and acknowledging him as their father. On nearly identical facts the court in Cooper v. Cooper (1978), 59 Ill. App. 3d 457, 375 N.E.2d 925, reversed an order granting a mother’s motion to strike her former husband’s petition to extinguish support. See also Annot., 32 A.L.R.3d 1055 (1970), and cases cited therein.

We turn finally to the matter of the use by the children of their stepfather’s surname. Respondent argues the children have a common law right to take any name they may choose, citing Reinken v. Reinken (1933), 351 Ill. 409, 184 N.E. 639. However, the court there noted this right is not absolute and must not interfere with the rights of others (351 Ill. 409, 413, 184 N.E. 639, 640). The interest of petitioner that his sons bear his surname would appear to qualify their right to use their stepfather’s surname where the latter has not adopted them and is not legally burdened with an obligation of support. (See Solomon v. Solomon (1955), 5 Ill. App. 2d 297, 125 N.E.2d 675; Hall v. Hall (1976), 30 Md. App. 214, 351 A.2d 917.) Respondent also relies upon Niesen v. Niesen (1968), 38 Wis. 2d 599, 157 N.W.2d 660, as authority that a child does not become emancipated merely because he chooses to bear his stepfather’s surname, and that factor would be insufficient grounds alone for terminating the father’s support obligation. Again, we perceive more than a name change is here alleged and consider Warshaw v. Ginsburg (1966), 245 Cal. App. 2d 513, 53 Cal. Rptr. 911, as persuasive. There a natural father’s support obligations were altered because his teenage sons adopted their stepfather’s name, became incorporated into his family and expressed no interest whatsoever in their natural father except to demand support payments from him.

We conclude the amended petition is sufficient to require an evidentiary hearing of its allegations. While the trial court did find that the interests of the children would best be served by allowing them to use the stepfather’s surname as they have for the past few years, that determination should be reached only after a hearing where evidence, rather than allegations, can be adduced by both parties. (Lawrence v. Lawrence (1980), 86 Ill. App. 3d 810, 816, 408 N.E.2d 330, 335; Solomon v. Solomon (1955), 5 Ill. App. 2d 297, 301-02, 125 N.E.2d 675, 678; see also In re Marriage of Schiffman (1980), 28 Cal. 3d 640, 647, 620 P.2d 579, 583, 169 Cal. Rptr. 918, 922-23; Annot., 92 A.L.R.3d 1091 (1979).) We do not intend by our comments to suggest what conclusion should be reached by the trial judge after a hearing.

For these reasons, the orders of the circuit court of Lake County are reversed and the cause is remanded for a hearing of the amended petition.

Reversed and remanded.

HOPF and LINDBERG, JJ., concur.


author: JUSTICE MILLS JUSTICE TRAPP,

text:
      In re ESTATE OF BLANCHE HAYDEN, Incompetent.—(RICHARD E. GEPPERT, Petitioner-Appellant, v. GERTRUDE EDDINGTON, Conservator of the Estate of Blanche Hayden, et al., Respondents-Appellees.)
    Fourth District
    No. 17183
    Opinion filed March 25, 1982.
    Rehearing denied April 27, 1982.

      TRAPP, J., concurring in part and dissenting in part.
    Charles R. Douglas, of Granite City, for appellant.
    John P. Madden, of Gillespie, for appellees.
    Phelps, Carmody & Kasten, of Carlinville (Carl E. Kasten and Brent A. Cain, of counsel), guardian ad litem.
   JUSTICE MILLS

delivered the opinion of the court:

Conservatorship — of person and estate.

Conservatorship terminated.

Who now has standing to question the actions of the conservators?

No one — other than the now-competent former ward.

In 1976, Blanche Hayden was declared an incompetent; her sister, Gertrude Eddington, was appointed conservator of her estate, and her daughter, Sylvia Williams, was appointed conservator of her person. On July 14,1980, Richard Geppert — Blanche’s grandson — filed a petition seeking, inter alia, revocation of the conservatorship. Gertrude and Sylvia filed a general denial of the matters alleged in the petition, and the matter was set for hearing on September 18, 1980.

At that hearing, the conservators’ attorney stated that both Gertrude and Sylvia agreed that a conservatorship was no longer necessary and that Blanche was competent. Blanche’s guardian ad litem stated that he, too, had reached the conclusion that Blanche was competent.

Since all parties agreed that the conservatorship should be terminated, the court so ordered and directed that an accounting be filed within 45 days. Geppert’s attorney reminded the court that the petition also alleged various acts of malfeasance by the conservators and asked that he be allowed to pursue discovery. The court stated that any discovery that it would allow should certainly not occur until after the conservators’ final accountings were filed.

Subsequently, Sylvia filed her final report as conservator of the person, and Gertrude filed a “preliminary report” as conservator of the estate. Thereafter, discovery depositions were taken of both Sylvia and Gertrude. On April 8, 1981, a hearing was held in this matter, and Judge Howard Lee White immediately demanded to know what interest Geppert had in Blanche’s estate that would allow him to continue as a party. In the discussion that ensued, the court learned that Blanche’s estate owed Geppert $992.10 as a result of prior litigation. The court ordered this sum to be paid within five days. Geppert’s attorney argued that Geppert should be allowed attorney fees for proceedings that occurred before the time when Gertrude and Sylvia conceded that a conservatorship was no longer needed. He testified that $1,800 was owed him for services during that time.

. Judge White ruled that Geppert had no interest in the estate except as a creditor. As such, he could have filed a claim for $992.10 and along with that claim could have alerted the court that Blanche was competent. Had he followed that procedure, concluded the court, he would have been entitled to approximately $300 in attorney fees. Thus, the court ordered the estate to pay Geppert the $992.10 plus $300 attorney fees but went on to find “that Mr. Geppert has no further interest in this proceeding and the court on its own motion restrains him from filing anymore proceedings in this case.” Judge White assured Geppert’s attorney that this ruling also precluded his filing a citation petition.

I

Geppert initially argues that the court erred in not holding an evidentiary hearing on his petition on September 18, 1980. As authority he cites section 11a — 21(a) of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 11a — 21(a)):

“The court shall conduct a hearing on a petition filed under Section 11a — 20 [dealing with, inter alia, petitions to revoke letters of guardianship] ” °

Geppert, however, has waived any error the court may have committed. His attorney not only failed to ask for a hearing on that date; he also specifically agreed to the court’s revocation of the conservatorship without holding a hearing as to Blanche’s present condition:

“THE COURT: Gentlemen, I have before me, again, a petition to revoke the letters of conservatorship, setting up the reasons why they should be revoked and the guardian ad litem agrees it should be allowed and the conservator agrees it should be allowed.
Petition is allowed and the conservator will account to this court within 45 days for their actions.
[Conservators’ attorney]: Fine.
[Geppert’s attorney]: Your Honor, that’s fine ” *

Under these circumstances, it can hardly be said that Geppert has preserved this issue for appeal. Furthermore, where all the parties obviously agreed that Blanche was competent and that the conservatorship was no longer necessary, it would not serve any useful purpose for the court to go through the motions of holding a hearing. Also, section 11a — 21(a) does not entitle Geppert to a hearing as to the allegations of malfeasance contained in his petition. That section calls for a hearing only upon a petition filed under section 11a — 20, which does not provide for petitions alleging impropriety by guardians.

II

Geppert next attacks the trial court’s conclusion that following the revocation of the conservatorship on September 18, 1980, he no longer had any interest in the litigation. It should initially be observed that Geppert clearly had standing to file his revocation petition:

“Upon the filing of a petition by or on behalf of a disabled person or on its own motion, the court may terminate the adjudication of disability of the ward, revoke the letters of guardianship of the estate or person, or both, or modify the duties of the guardian * # e ” (Emphasis ours.) (Ill. Rev. Stat. 1979, ch. 110/2, par. 11a — 20(a).)

But we conclude that following the revocation of the conservatorship, Geppert had no further interest in the estate, except as a creditor for the $992.10.

Once Blanche was declared competent, it was her decision alone whether to proceed against Gertrude and Sylvia for any alleged improprieties committed while they were in office. After September 18, Blanche was, as a matter of law, capable of representing her own interests; Geppert had no basis for attempting to represent those interests. It was up to Blanche, therefore, based upon her personal feelings and convictions, to decide whether Gertrude and Sylvia should be required to answer for any alleged improper conduct.

Although we are unable to find any Illinois case which involves the precise question as to whether a person in Geppert’s position retains party status following an adjudication of competency, we find that not only common sense but also various statutory and case law authority points inexorably to the conclusion that Geppert lost standing to represent Blanche’s interests once the conservatorship was revoked. Section 24 — 11 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110M, par. 24 — 11) provides that within 30 days after the termination of his office, the representative of a ward’s estate must file a verified account of his administration of the estate. Notice of the hearing on this final account must be given to the ward (if he is living) and to any other person to whom the court directs. This provision suggests that a former conservator is accountable only to his former ward and the court, and not to persons who themselves seek to intervene in the proceedings and protect the former ward’s interests.

Also relevant is section 24 — 18 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110K, par. 24 — 18):

“A representative and the surety on his bond are liable to a successor representative, to a co-representative or to any person aggrieved thereby for any mismanagement of the estate committed to his care. The successor representative, the co-representative or the person so aggrieved may institute and maintain an action against the representative and the surety on his bond for all money and property which have come into his possession and are withheld or may have been wasted, embezzled or misapplied and no satisfaction made therefor.”

This provision is not necessarily exhaustive in its list of persons to whom a former representative is liable; indeed, it does not state that a former representative is liable to his former ward although that is obviously the law. In re Estate of Ekiss (1963), 40 Ill. App. 2d 1, 188 N.E.2d 348; Bennett v. Bennett (1960), 27 Ill. App. 2d 24, 169 N.E.2d 172.

However, it would seem that the legislature, by using the expression “any person aggrieved,” intended to put some limitation upon who could require a former representative to answer for his actions. Geppert is clearly not a “person aggrieved” by the mismanagement of this estate. The record indicates that he has been paid the $992.10 owed him; his relationship with the estate as a possible future heir of Blanche is too attenuated to put him within the scope of a “person aggrieved” by the conservators’ actions.

Hoff v. Meirink (1957), 12 Ill. 2d 108, 145 N.E.2d 58, also lends some support to our conclusion that Geppert lacked standing following revocation of the conservatorship. Meirink was adjudged mentally incompetent, and Hoff was appointed as her conservator. Hoff obtained court permission to sell Meirink’s mineral rights, and the sale was held. The following sequence of events then occurred:

(1) The court found Meirink competent to manage her property.
(2) The court approved the sale.
(3) The court revoked the letters of conservatorship.

The supreme court concluded that Meirink should have been allowed to vacate the court’s order approving the sale. The court said that following the restoration to competency, the probate court no longer could exercise its usual supervisory power over Meirink’s property. The court said that the Probate Act could not be construed to authorize a court to interfere with the property rights of a restored ward and that the order approving the sale had deprived Meirink of such rights. Although this case is not directly on point because it deals with a court’s authority to enter an order concerning a former incompetent’s property, it is authority for the general proposition that a restored ward becomes reinvested with the rights he lost when adjudicated an incompetent. Prior to Blanche’s adjudication of incompetency, Geppert would have had no standing to proceed against a third party who had committed some wrong against Blanche. Blanche’s restoration to competency returned matters to that state of affairs and again made it impossible for Geppert to assert Blanche’s rights and represent her interests in court.

Cases from other States support the conclusion we reach today. In Poling v. City Bank & Trust Co. (Fla. App. 1964), 167 So.2d 52, Poling was adjudicated incompetent in 1959. On January 9,1960, the attorney for his guardian filed a Workmen’s Compensation claim. On July 22, 1960, Poling was declared competent. The attorney for the guardian continued to pursue the Workmen’s Compensation action, and eventually an award was obtained. In 1963, the guardian and its attorney were awarded fees in connection with pursuing the claim. On appeal this award was reversed, for the court concluded that no statutory basis could be found for allowing fees for services rendered in behalf of a ward after the ward has been declared competent. “Upon Poling’s being declared competent he was free to make any arrangement he desired, either with the attorney who had represented the Guardian or with other counsel, or to abandon said efforts if he so elected.” 167 So.2d 52, 53.

Similarly, Blanche had the sole decision — following the hearing of September 18, 1980 — whether to pursue the possible claim against Sylvia and Gertrude. See also People ex rel. Smith v. County Court (1940), 106 Colo. 95, 102 P.2d 476, wherein the court said that following restoration to competency, the county court lacked any further jurisdiction to enter orders controlling the former incompetent’s property, and Tipton v. Tipton (Tex. Civ. App. 1940), 140 S.W.2d 865, in which the court stated that once an incompetent has been restored to sanity, the guardian no longer has power to represent the estate.

Ill

Geppert also contends that the trial court erred in ruling that he could not file a citation petition in this matter. We agree. Section 16 — 1(a) of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110%, par. 16 — 1(a)) provides:

“Upon the filing of a petition therefor by the representative or by any other person interested in the estate or, in the case of an estate of a ward by any other person, the court shall order a citation to issue 6 e (Emphasis ours.)

Thus, although in other kinds of estates a person must be “interested” in order to file such a petition, the rule is otherwise as to the estate of a ward. In such a matter, any person may file a petition. Thus, the lack of interest in Blanche’s estate could not be a ground for precluding Geppert from filing a citation petition.

We conclude, however, that under the circumstances of this case the court committed harmless error in “restraining” Geppert from filing a citation petition. Shortly after the April 8,1981, hearing at which the court concluded that Geppert no longer had standing in this matter, Blanche died. There now exists a decedent’s estate, and the conservators and guardian ad litem both concede that Geppert is sufficiently “interested” in that estate to be a party in it, whether this status arises from his being a legatee under a possible will, an intestate heir, or a person who will file a will contest.

Geppert’s standing in the decedent’s estate in fact gives him all the relief he has sought in this proceeding and the standing he was properly denied following the finding that Blanche was competent. If the representative of the decedent’s estate fails to act in the best interests of the estate (e.g., by unreasonably failing to proceed against Sylvia and Gertrude for improprieties committed as conservators), then Geppert can file a citation petition, and “the court may appoint a special administrator to represent the estate.” (Ill. Rev. Stat. 1979, ch. 110%, par. 16 — 1(c).) The conservators formerly owed an accounting only to Blanche and to the court. Now they owe the accounting to her decedent’s estate, wherein Geppert has standing. Thus, Geppert has not been harmed by the trial court’s ruling that he could not file a citation petition in the guardianship estate, and we therefore find it unnecessary to reverse this case because of that erroneous ruling.

IV

Prior to the April 8, 1981, hearing, Geppert filed a motion for attorney fees covering the expenses incurred prior to revocation of the conservatorship on September 18,1980. At the April 8 hearing, Geppert’s attorney, Charles R. Douglas, testified that Geppert’s expenses for legal fees prior to the revocation were $1,800. He testified as to the number of hours he had spent in preparation for what was expected to be a contested hearing and the time he had spent in court prior to — and at the time of— the hearing. Douglas was not cross-examined as to these facts, and the conservators made no effective objection to the claim.

The trial court, however, allowed only $300 in attorney fees, concluding that Geppert should have simply filed a claim with the estate for the $992.10 owed him. Had he done that, said the court, Geppert would likely have incurred approximately $300 in attorney fees, and he was therefore allowed only that amount. The record on appeal indicates that soon after the April 8 hearing, checks for $992.10 and $300 were sent to Geppert and his attorney, respectively, and that both checks have been negotiated and paid.

We conclude that under these circumstances Geppert has waived the right to assert error as to the sufficiency of attorney fees allowed in the trial court. In United Typesetting Co. v. Congress Trust & Savings Bank (1934), 278 Ill. App. 224, the receiver of the bank had sufficient funds to pay all the bank’s creditors. Thereafter the receiver had around $25,000 left, to be used to pay costs and fees. An order was entered on the receiver’s final account providing for $10,000 receiver’s fees; $4,839.66 receiver’s attorney fees; and $10,000 creditors’ (appellants’) attorney fees. The receiver subsequently filed cancelled checks showing payment of these amounts. After the creditors’ attorneys had cashed their $10,000 check, they filed a notice of appeal from that portion of the order fixing attorney fees and receiver’s fees. The court said that the creditors’ attorneys (who were the real parties in interest) had waived their right to allege error in the decree by accepting the benefits of the order appealed from by negotiating their check.

The reasoning of United Typesetting is directly applicable to this case: attorney fees were allowed, the attorney negotiated a check in the amount specified in the trial court’s order, and this check was paid upon presentment. When the benefits of an order have, in this manner, been reaped, a party cannot argue on appeal that its harvest was inadequate.

Geppert calls our attention to the following language from United Typesetting Co.-.

“[Ojne cannot avail himself of that part of a decree which is favorable to him, accepting its benefits, and then prosecute an appeal to reverse such portion of the decree as is against him when the acceptance of the benefit from the one part of the decree is totally inconsistent with the appeal from the other part.” (Emphasis ours.) (278 Ill. App. 224, 226-27.)

Geppert contends that the case at bench falls within the “exception” to United Typesetting Co. which is suggested by the emphasized language above. His position is that the $300 allowed to him was for pursuit of the $992.10 claim against the estate and that the acceptance of the $300 was not “totally inconsistent” with his assertion that he should have received $1,800 for attorney fees incurred in connection with obtaining revocation of the conservatorship.

Geppert, however, misconstrues the nature of the order allowing $300 in attorney fees. The trial court measured Geppert’s attorney fees on the basis of the costs he would have incurred in pursuing the claim. However, it did not allow fees for pursuit of the claim; indeed, the court would have acted improperly had it required the estate to pay the attorney fees of its creditor. Rather, the trial court allowed the $300 attorney fees for work done in seeking revocation of the conservatorship. Thus, the acceptance of the $300 was totally inconsistent with the argument that this amount was insufficient, and this argument has therefore been waived.

V

We cannot — without comment — overlook certain improprieties contained within the briefs filed in this case. Geppert’s attorney in particular has repeatedly used intemperate and vituperative language which in no way furthers his client’s cause and is totally unsuitable in a document filed in any court. For example, he has described the conservators as pursuing a “greedy and hateful conspiracy against Richard Geppert,” has characterized them as having “greedy palms,” and has labeled them as “frequent and incessant liars.” Perhaps goaded by such remarks, conservators’ attorney has stated that “the hallmark of [Geppert’s] position throughout this matter has been greed. * * * This estate should not be kept open in order for [Geppert] and his attorney to vent their spleen.” The guardian ad litem, however, has commendably refrained from engaging in any such objectionable and counterproductive remarks.

Although the Anglo-American system of jurisprudence relies upon strong advocacy as the best means of arriving at truth and justice, it is totally improper for an advocate to make the kinds of remarks recited in the preceding paragraph. Such statements detract from the logic and reasoning of the party making them and naturally cause a court to be initially repulsed by that party. It is then necessary for the court to attempt to ignore the statements in an effort to be fair to the party in whose behalf they were made, without at the same time bending over so far backward as to be unfair to the other party. It is simply not good practice of law to put a court into such a position. Webb v. Quincy City Lines, Inc. (1966), 73 Ill. App. 2d 405, 219 N.E.2d 165.

Mercifully, such excessive verbal assaults as we have been forced to read here are rare in appellate briefs. We trust they remain so.

Affirmed.

GREEN, P. J., concurs.

JUSTICE TRAPP,

concurring in part, and dissenting in part:

I concur in parts I, II, and III of the opinion and concur in the results reached in part IV.

In addition to seeking termination of the conservatorship, Geppert made a series of allegations of improper conduct in administering the ward’s estate. A claim for $1800 for attorney fees is based upon his alleged preparation to “prosecute” those allegations by taking depositions and otherwise. It appears that neither the statute nor the case law support such claims. I dissent from part IV of the opinion insofar as it turns upon waiver of the claim and so implies that Geppert may have been entitled to any fees for such work.

The statute does not support the claim. Sections 11a — 20 and 11a — 21 of the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. IIOJ2, pars. 11a — 20, 11a — 21) provide the procedure. The former section authorizes “the filing of a petition by or on behalf of a disabled person” to terminate adjudication of a disabled person, revoke letters of guardianship, or modify the duties of the guardian.

Section 11a — 21(a) provides that “the court shall conduct a hearing on a petition” so filed. The section continues to provide that the court may appoint counsel for the ward, and if the latter’s interest will be best served shall appoint counsel upon the ward’s request, and provides that the court may allow the guardian ad litem and counsel so appointed reasonable compensation.

The provisions of the latter section rationally require that the attorney, or guardian ad litem, appointed by the court, shall conduct the proceedings necessary to resolve matters raised in the petition so filed. Taken together, the two sections reasonably mean that while a person “acting in behalf of a disabled person” may petition the court, that section does not bestow the status of a plaintiff or prosecutor upon that person to conduct the litigation and to be allowed fees therefor.

In In re Estate of Freund (1978), 63 Ill. App. 3d 1, 3, 379 N.E.2d 935, 936-37, the court stated:

“ ‘The duty of protecting estates is cast by the law upon those whom the law designates as their proper representatives, and it can not be tolerated that other parties shall involve them in the costs and expenses of litigation, under the pretext that the estate will thereby be benefited’ (Ex parte Allen (1878), 89 Ill. 474, 475, 476.)”

Upon this record, Geppert had not established that he had procured any benefit or enhanced the value of the ward’s estate within the context of In re Estate of Freund (1978), 63 Ill. App. 3d 1, 379 N.E.2d 935. There, the respective estates of a husband and wife were without funds for closing. Attorneys acting for a co-executor of the husband’s estate, who was also a daughter concerned with the wife’s estate, had liquidated assets and procured the closing of the two estates. The trial court found that the services had benefited each of the estates, and ordered payment to the attorneys “its portion of the fees to be awarded from the estate.” It thus appears that the particular services established were to be paid as a part of all of the attorney fees awarded for administering the estates. The court said:

“Where legal services are not in the interest of the estate, counsel fees must be rejected. (In re Estate of Lipchik (1975), 27 Ill. App. 3d 331, 326 N.E.2d 464; In re Estate of Breault (1965), 63 Ill. App. 2d 246, 211 N.E.2d 424.) However, where the heirs’ action against the executors and trustees of an estate enhance the value of the estate, the heirs are entitled to have their attorneys’ fees paid from the estate; the sum saved being an important factor to be used in determining the amount of the award. (See Levi v. Stern (1944), 324 Ill. App. 82, 57 N.E.2d 228 (abstract).) The amount of the award is not an issue here and therefore we offer no opinion on it.” 63 Ill. App. 3d 1, 3, 379 N.E.2d 935, 937.

While Geppert has filed allegations of misconduct by the respective conservators, this record does not disclose any attorney fees fixed for services to that estate, and would result in a piecemeal consideration of fees by the court. There is a complete absence of proof of the alleged misconduct, and nothing of record establishes enhancement of value, or other benefit, to the estate by reason of such allegations. In such context, an award of fees to Geppert is premature, at best.

I would affirm for such reasons.


author: JUSTICE JONES

text:
    HAROLD GLASGOW, Plaintiff-Appellant, v. MILTON A. BRUEGGEMANN, Sheriff of Monroe County, Defendant-Appellee.
    Fifth District
    No. 81-146
    Opinion filed March 12, 1982.
    C. Glennon Rau and Judith A. Rau, both of Rau and Rau, of Columbia, for appellant.
    Floyd E. Crowder, of Crowder, Traughber & Scroggins, Ltd., of Columbia, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

The plaintiff, Harold Glasgow, was discharged as a deputy sheriff by the defendant, Milton Brueggemann, the sheriff of Monroe County. Alleging that defendant had “unlawfully and illegally discharge[d]” him, plaintiff brought suit approximately years later for damages in the amount of $10,000, suffered “as a direct and proximate result of the unlawful firing” of plaintiff in breach of defendant’s “duty” to him.

We are concerned with plaintiff’s first amended complaint, in which he alleges that he was discharged in violation of certain rules and regulations of the Monroe County Merit Commission. However, at no time did plaintiff attempt to enforce the rights he claims to have derived from the commission by appealing to that body to enforce its own rules.

Defendant, in his answer to plaintiff’s first amended complaint, denied plaintiff’s allegation that the commission was lawfully created. In response to defendant’s amended motion for judgment on the pleadings, the trial court entered judgment against plaintiff because he had failed to commence his cause of action within two years, as provided by section 8 — 101 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 8 — 101), and because plaintiff failed to show that he had given notice to defendant of the accrual of his cause of action within one year, as provided by section 8 — 102 (Ill. Rev. Stat. 1979, ch. 85, par. 8 — 102). In a subsequent order entered in response to plaintiffs motion to reconsider, the trial court entered judgment in favor of defendant for the additional reason that plaintiff failed to allege facts to show that he had exhausted his administrative remedies under the alleged merit system prior to instituting the action in court.

On appeal plaintiff argues that the time periods in question do not apply because his complaint is one sounding in contract and not in tort. Plaintiff also maintains that because the question of the legitimacy of the commission and, hence, its jurisdiction, was raised by defendant in his answer, his case falls within one of the exceptions to the doctrine which requires the exhaustion of administrative remedies before resort may be had to the circuit court. Defendant has on appeal moved to strike and expunge certain items plaintiff included in the appendix to his reply brief. Plaintiff has filed an answer to that motion.

We need not decide the procedural question of whether the appended materials to which defendant objects are properly a part of the record on appeal since the outcome is the same whether or not we do so. Assuming that we did consider them, they would, at best, establish merely that the sheriff and two persons with whom he consulted, namely, the State’s Attorney of Monroe County and the chairman of the Board of County Commissioners, believed that the commission, because of a procedural error, was not validly created. The materials do not suggest that the plaintiff knew of these beliefs or that he acted in consequence of them. These materials, like the record when it is examined without them, do not suggest that as a result of the beliefs of defendant and others as to the legitimacy of the commission, plaintiff concluded it would be futile to seek redress from the commission itself and therefore failed to exhaust his administrative remedies before seeking the aid of court. Neither these materials nor the record apart from them indicate that in the face of a “demonstrated attitude” (see Van Laten v. City of Chicago (1963), 28 Ill. 2d 157, 159, 190 N.E.2d 717, 718) on the part of the commission, plaintiff sought relief from the courts instead of the commission in order, for example, to diminish costs, to prevent circuitry of action or to avoid delay in the administration of justice. In fact, with respect to the last of these possible reasons, plaintiff did nothing at all for nearly years, when he filed his complaint in circuit court. Although the question of the validity of the commission might have brought the parties into court early in the administrative proceedings, the plaintiff will not be permitted to initiate an action in court at a time when he can show no knowledge of any need to do so.

To prevail in this lawsuit plaintiff would have to show that the commission was legal, for the contract rights he seeks to enforce are derived solely from the commission. If the commission was not legally established and its rules and regulations were therefore of no validity, the sheriff possessed the authority to terminate plaintiff’s employment. While the invalidity of the commission might relieve plaintiff of any obligation to exhaust an administrative remedy, it would defeat plaintiff’s cause of action in contract, for without the commission there could be no enforceable “contract.” If the commission was, in fact, legally established, plaintiff might have had a meritorious claim, but he was obliged either to seek relief from the commission or to show why he should not be expected to do so. Plaintiff did neither.

We deem it unnecessary to determine whether the first amended complaint sounds in contract or in tort, though in our opinion it sounds without question in tort. All of the pertinent terminology contained in it is that which is ordinarily used to plead negligence, such as “duty,” “knew or should have known” and “direct and proximate result.” Although there are fewer instances of this kind of terminology in the first amended complaint than in the complaint, no terminology ordinarily used in the pleading of a contract action may be found in either of the two complaints. If the first amended complaint is deemed to be one sounding in tort, judgment must be entered against plaintiff because of the two statutory provisions with respect to time. If, on the other hand, the first amended complaint is deemed to be one sounding in contract, judgment must likewise be entered for defendant because of plaintiff’s unjustified failure to exhaust his administrative remedies.

Affirmed.

WELCH and KASSERMAN, JJ., concur.


author: JUSTICE MEJDA JUSTICE MEJDA

text:
    MATERIAL SERVICE CORPORATION, Plaintiff-Appellee and Cross-Appellant, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant and Cross-Appellee.
    First District (5th Division)
    No. 80-2966
    Opinion filed February 19, 1982.
    Supplemental opinion filed on denial of rehearing April 23, 1982.
    Tyrone Fahner, Attorney General, of Chicago (Russell C. Grimes, Jr., Assistant Attorney General, of counsel), for appellant.
    Richard R. Elledge, of Gould & Ratner, of Chicago, for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

An assessment of $25,301.58, including penalties and interest, covering the period from July 1973 through December 1976, was made by the Department of Revenue of the State of Illinois (Department) against plaintiff, Material Service Corporation, under the Retailers’ Occupation Tax Act. (Ill. Rev. Stat. 1979, ch. 120, par. 440 et seq.) On administrative review the circuit court of Cook County (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) held that the “minimum load charges” collected by plaintiff from its customers were not lawfully excludable from gross receipts under the Act, but that the court’s decision would not be applied to plaintiff retroactively. Accordingly, the court set aside the final assessment against plaintiff and enjoined the collection thereof. The Department appealed from the latter portion of the order and plaintiff cross-appealed, challenging the portion of the order which held that the charges at issue are not excludable from gross receipts.

The essential question raised by the Department’s appeal is whether under the circumstances presented here, the State is estopped from collecting a tax, held to be lawfully owing under the Retailers’ Occupation Tax Act, because of plaintiff’s reliance upon a prior erroneous letter ruling issued by the Department to the plaintiff.

Plaintiff is engaged in the business of manufacturing and selling concrete. It supplies ready-mix concrete to its customers utilizing ready-mix trucks fitted with rotating drums to insure the concrete is properly mixed when poured at the job site. Plaintiff’s selling price for a cubic yard of concrete is the same whether the sale is for one yard or many yards. In any sale of less than five yards of concrete, however, plaintiff charges its customer a flat “minimum load” fee of $27. Plaintiff also charges its customers a waiting time charge in the event that delivery trucks are delayed at the job site prior to pouring the concrete.

In 1966, plaintiff addressed an inquiry to the Department regarding the includability of the minimum load and waiting time charges under the Retailers’ Occupation Tax Act. (Ill. Rev. Stat. 1979, ch. 120, par. 440 et seq.) The Department responded in April 1966 in the form of a letter ruling addressed to plaintiff stating in part:

“In reply to your request for a ruling concerning minimum load charges and waiting time which are separately contracted for and separately charged, please be advised that they are excludable in the computation of retailers’ occupation tax.”

To the present date, this letter ruling remains unrescinded by the Department by means of written notice to plaintiff, by bulletin or any form of public notice.

On December 8,1977, the Department issued a notice of tax liability against plaintiff for Retailers’ Occupation Taxes in the amount of $22,947.95, including penalties and interest, computed for the period of July 1973 through December 1976. The deficiency assessment covered minimum load charges collected by plaintiff from its customers during this period.

Pursuant to plaintiff’s request, a hearing was held on November 1, 1978. The Department’s hearing referee concluded that the Department was not bound by the letter ruling. A final assessment was issued in the amount of $25,301.58, including interest through February 28, 1979.

On May 9,1979, plaintiff filed a complaint for administrative review in the circuit court.

On January 11, 1980, a final order was entered sustaining the tax assessment and entering judgment in favor of the Department in the amount of the assessment plus accrued interest. In the memorandum of judgment incorporated therein, the court deduced that the minimum load charge was functionally part of the selling price of the quantities of less than five cubic yards of concrete, and therefore part of the gross receipts of the sale.

On February 7, 1980, plaintiff filed its motion to vacate the final order on the grounds that the Department was bound by its prior letter ruling, and was therefore estopped from collecting the instant assessment. This motion was denied, and the judgment confirmed, on September 17, 1980. In denying the motion the court ruled that plaintiff could not invoke the protective mantle of the instant letter ruling where it had failed to comply with the conditions of said letter ruling. The court noted that plaintiff had not shown that the minimum load charge was for a service “separate and apart from the transfer” of concrete as required by the letter ruling.

Then, on October 17, 1980, upon plaintiff’s motion to reconsider the September 17 ruling, the court entered an amended final order holding the minimum load charges includable in gross receipts for determining tax liability under the Act, but also reversing and vacating the final assessment due to plaintiff’s reliance upon the prior letter ruling.

The court found that the Department was bound by the letter ruling until the interpretation expressed therein was changed by the final order dated January 11,1981. Accordingly, the court ruled that the tax could be imposed only prospectively from that date.

Opinion

I

The Department has appealed the October 17, 1980, order to the extent that it set aside the final assessment against plaintiff. Plaintiff cross-appealed from the portion of the October 17,1980, order holding that the minimum load charges were not excludable in computing gross receipts for purposes of the Retailers’ Occupation Tax. In its appellee’s brief, however, plaintiff has withdrawn its cross-appeal based upon its conclusion that a cross-appeal is not necessary to preserve its contentions challenging that portion of the amended final order. Plaintiff has not moved for withdrawal of its cross-appeal, nor has this court entered an order dismissing the cross-appeal. It is settled, however, that where one party to a decree appeals from a portion of the decree, absent a cross-appeal, other matters contained in the decree are not properly before the reviewing court. (People ex rel. Southfield Apartment Co. v. Jarecki (1951), 408 Ill. 266, 96 N.E.2d 569; City of Wilmington v. Industrial Com. (1972), 52 Ill. 2d 587, 289 N.E.2d 418.) In such a situation where appellee has failed to prosecute a cross-appeal, the reviewing court will be confined to issues raised by appellant and will not consider those urged by appellee except where they are related to appellant’s issues. (Cleys v. Village of Palatine (1980), 89 Ill. App. 3d 630, 411 N.E.2d 1161; National Football League Properties, Inc. v. Dallas Cap & Emblem Manufacturing, Inc. (1975), 26 Ill. App. 3d 820, 327 N.E.2d 247.) With these principles in mind we examine plaintiff’s contention.

Plaintiff contends that the minimum load charge is not part of the selling price of quantities of less than five cubic yards of concrete, and therefore not includable in gross receipts for purposes of computing the Retailers’ Occupation Tax. In the amended final judgment order the court specifically found that such minimum load charges were added to regular prices upon sales of ready-mixed concrete and that the charges were “not lawfully excludable from gross receipts of Plaintiff in the computation of said Retailers’ Occupation Taxes.” Plaintiff does not seek to sustain the trial court’s ruling but attempts to reverse an adverse ruling of the trial court without a proper cross-appeal. Rased upon the foregoing authorities, it is clear that the finding is not properly before us and we cannot consider this issue.

II

Turning to the merits of the appeal, the Department contends that it may not be estopped from collecting the assessment for the period in question because of its previous erroneous written letter ruling addressed to plaintiff. The plaintiff cites article 9 of the Department’s Rules and Regulations, which provides:

“Art. 9. When Opinions From the Department are Binding. Taxpayers must not rely on verbal opinions from Department employees, but will be protected only if the opinion from the Department is in writing. Even then, the opinion ceases to have any effect if the law is changed in any pertinent respect by the General Assembly, or if a pertinent change in the interpretation of the law is made by a Court of decision or by some change in the Department’s rules, whether such change is accomplished by means of a new rule or by means of a revision of an existing rule.” (Emphasis added.) [1981] 2 All State Sales Tax Rep. (CCH) par. 34 — 509.

Plaintiff contends that under this provision it had a right to rely upon the letter ruling until such a time as the ruling was rescinded in some manner which would give notice of pertinent changes. We point out initially that the authority to collect the tax derives from the tax statute and not the regulations. (Terrace Carpet Co. v. Department of Revenue (1977), 46 Ill. App. 3d 84, 360 N.E.2d 153.) The Department has no legal authority to limit or extend the statutory definition by these rules and regulations. (Gapers, Inc. v. Department of Revenue (1973), 13 Ill. App. 3d 199, 300 N.E.2d 779.) It is the plaintiff’s position that having issued the 1966 letter ruling excluding the minimum load charges in computing the instant tax, under the protection of article 9, the State should be estopped from collecting the assessment in question.

Generally, public policy opposes the application of an estoppel against the State where public revenues are involved. (See Austin Liquor Mart, Inc. v. Department of Revenue (1972), 51 Ill. 2d 1, 280 N.E.2d 437; Peoria Hotel Co. v. Department of Revenue (1980), 87 Ill. App. 3d 176, 408 N.E.2d 1182; Mr. Car Wash, Inc. v. Department of Revenue (1975), 27 Ill. App. 3d 931, 327 N.E.2d 88.) This is true even where detrimental reliance is present. (Clare v. Bell (1941), 378 Ill. 128, 37 N.E.2d 812; Mr. Car Wash, Inc. v. Department of Revenue.) Thus, it has been held that the government is not estopped by previous acts or conduct of its agents with reference to the determination of tax liabilities or by failure to collect the tax, nor will the mistake or misinformation of its offices stop it from collecting the tax. (Austin Liquor Mart, Inc. ; Mr. Car Wash, Inc.) We find these authorities to be persuasive in the instant case. However, we need not decide whether the protection of the Department’s letter ruling might, under these circumstances, create an equitable estoppel against the State because the facts here would not warrant such a result.

We have reviewed the record and have found no basis for concluding that plaintiff complied with the instant letter ruling. In our opinion plaintiff has not clearly shown at any stage during these proceedings that the minimum load charge was separately contracted for by its customers as required by the letter ruling.

At the administrative hearing, the plaintiff relied upon the prima facie correctness of the statement of facts contained in its motion to quash and dismiss the notice of tax liability, and upon the affidavits of its general sales manager, and offered no evidence to rebut the testimony of the Department’s sole witness. This witness, a supervising tax auditor, testified that the statement of facts was consistent with his observations except that he could not determine if the minimum load charges were actually separately contracted for from the invoices or from the statement of facts. Nonetheless, the hearing officer found the facts to be undisputed and that the minimum load charges were separately contracted for. Generally the findings and conclusions of an administrative agency on questions of fact are prima facie true and conclusive on reviewing courts. (Illinois Liquor Control Com. v. Illinois Civil Service Com. (1980), 80 Ill. App. 3d 647, 400 N.E.2d 518.) On review, the court’s function is to ascertain whether the agency’s findings were contrary to the manifest weight of the evidence. Cox v. Daley (1981), 93 Ill. App. 3d 593, 417 N.E.2d 745.

There is nothing in this record to indicate that the minimum load charges were separately contracted for, and they appear on the record to be a mandatory charge invariably charged to purchasers of less than five cubic yards of concrete. The fact that the charge is separately stated on the invoices is not necessarily indicative of the true nature of the transaction. (See generally Terrace Carpet Co. v. Department of Revenue (1977), 46 Ill. App. 3d 84, 360 N.E.2d 153.) The burden of proving that a transaction involving the sale of tangible personal property under the Retailers’ Occupation Tax Act is nontaxable is on the taxpayer. (Terrace Carpet Co.; Ill. Rev. Stat. 1979, ch. 120, par. 446.) Plaintiff was not prevented from showing evidence, if possible, that each transaction was in effect two transactions. From the record it is evident that plaintiff has not shown that the minimum load charges were separately contracted for by its customers. We find the opposite conclusion to be clearly required under the facts presented here. Such being the case, plaintiff cannot be heard to set up an estoppel argument grounded upon detrimental reliance upon the instant letter ruling.

For the reasons stated we reverse the judgment of the circuit court and affirm the decision of the Department of Revenue.

Reversed.

SULLIVAN, P. J., and LORENZ, J., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff has filed a petition for rehearing challenging this court’s conclusion that the hearing officer’s finding that the minimum load charges were separately contracted for was against the manifest weight of the evidence, and also challenging this court’s determination with respect to plaintiff’s cross-appeal. We find it necessary to address only the contention that the hearing officer’s finding that the transaction at issue had been separately contracted for was supported by a “de facto stipulation” of the parties, and therefore binding upon this court.

A stipulation is an agreement between the parties or their attorneys with respect to business before the court. (Kazubowski v. Kazubowski (1968), 93 Ill. App. 2d 126, 235 N.E.2d 664, cert. denied (1969), 393 U.S. 1117, 22 L. Ed. 2d 122, 89 S. Ct. 993.) Contrary to plaintiff’s contention, we do not find any such agreement between the parties arising from the testimony adduced from the Department’s tax auditor. Moreover, this testimony expressly excepted the conclusion that the minimum load charges were actually separately contracted for. After a further careful review of the record, we are convinced that plaintiff has not met its burden in showing that the transactions here were nontaxable.

Accordingly, we adhere to our original opinion, and the plaintiff’s petition for rehearing is denied.

SULLIVAN, P. J., and LORENZ, J., concur.

       Since the instant deficiency assessment did not cover “waiting time” charges, these charges are not at issue in this case.


author: JUSTICE O’CONNOR

text:
    FRANK J. MORGAN, Plaintiff-Appellant, v. MORGAN M. FINLEY, Clerk of the Circuit Court of Cook County, et al., Defendants-Appellees.
    First District (1st Division)
    No. 80-2110
    Opinion filed March 15, 1982.
    Larry D. Drury, Ltd., of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Ronald P. Stake, Assistant State’s Attorneys, of counsel), for appellees Morgan M. Finley, John M. Murphy, and Edward J. Rosewell.

      Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Jerome A. Siegan, Assistant Corporation Counsel, of counsel), for appellee City of Chicago.
    Ancel, Glink, Diamond, Murphy & Cope, P. C., of Chicago (Ronald S. Cope and Adrienne Levatino-Donoghue, of counsel), for amici curiae Village of Bridgeview et al.

   JUSTICE O’CONNOR

delivered the opinion of the court:

Section 5 — 6—1(c) of the Unified Code of Correction (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—1(c)) with reference to persons who are charged with offenses which are not felonies, that “[t]he court may, upon a plea of guilty or a stipulation by the defendant of the facts supporting the charge or a finding of guilt, defer further proceedings and the imposition of a sentence, and enter an order for supervision of the defendant 6 ” No “judgment of guilt” is entered unless defendant violates the terms of the supervision. If the defendant successfully completes the supervision, the defendant is discharged and the charge is dismissed. Otherwise, the court may enter a “judgment of guilt” and proceed as otherwise provided.

Plaintiff Frank Morgan filed a class action against defendants Morgan Finley, clerk of the Circuit Court of Cook County, John M. Murphy, a judge of the Circuit Court of Cook County, Edward J. Rosewell, county treasurer, Cook County, Illinois, and the City of Chicago. This action was filed on behalf of both Morgan and persons who allege that they were defendants placed on supervision in the above type of proceedings. They seek injunctive and other relief, alleging the improper and unconstitutional imposition of fines and costs pursuant to section 5 — 6—3.1(c)(2) of the Unified Code of Corrections. Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—3.1(c)(2).

The trial court denied plaintiff’s motion for certification of the class and dismissed the complaint finding that, because plaintiff had neither raised the issue of the propriety of imposing fines and costs as an incident of supervision in the proceeding in which he had been ordered placed on supervision nor had appealed that order, the principles of collateral estoppel barred him from maintaining this action.

On appeal, plaintiff contends that (1) he is not collaterally estopped or barred by the doctrine of res judicata from challenging the supervision statute in an independent proceeding in equity, (2) fines and costs cannot be constitutionally imposed upon a defendant who has not been convicted of any offense, and (3) the trial court improperly denied plaintiff’s motion for class certification.

The first issue is whether plaintiff is barred by the doctrines of res judicata and collateral estoppel from challenging the supervision statute in this independent proceeding.

Plaintiff contends that neither collateral estoppel nor res judicata bars this action because a supervision order is not a final order from which an appeal can be taken. Therefore, plaintiff contends, it is proper to raise the constitutionality of section 5 — 6—3.1(c) in this action.

Defendants Finley, Murphy, Rosewell and the City of Chicago contend that, because the order of supervision was final for purposes of appeal pursuant to section 5 — 6—3.1 (i) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—3.1(i)) and because plaintiff did not appeal that order, he is barred by the doctrines of res judicata and collateral estoppel from raising the issue in this proceeding.

The Village of Bridgeview, the Village of Hazel Crest, the Village of Lincolnwood, the Village of Maywood and the Village of Rosemont filed a brief as amicus curiae. Their position on this issue is identical to that of the defendants.

To resolve this issue, we find it helpful to review the cases dealing with the imposition of costs and fines in a probation proceeding under former sections 10 of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 710) and 410 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 502, par. 1410). Section 10 provided for probation which would be subject to “reasonable terms and conditions” as the court may require. Section 410 provided for probation which would be subject to “terms and conditions.” However, no reference was made in either section as to what constituted proper terms and conditions. In People v. DuMontelle (1978), 71 Ill. 2d 157, 374 N.E.2d 205, a section 10 probationer ordered to pay a fine and costs as a condition of probation appealed from that order. The supreme court held that the probation procedure authorized was in the nature of a continuance, negating any authority to order a fine or costs to be paid as a condition thereof.

After the decision in People v. DuMontelle, the General Assembly amended sections 10 and 410 (Ill. Rev. Stat. 1979, ch. 56 1/2, pars. 710 and 1410), effective June 30, 1978, to expressly authorize requirements for defendants to pay fines and costs as a condition of probation. In Roth v. Yackley (1979), 77 Ill. 2d 423, 396 N.E.2d 520, plaintiffs brought two separate class action suits seeking return of fines and costs paid as conditions of probation. The trial court dismissed the complaints and on direct appeal the supreme court reversed. The majority opinion did not address the issue of whether plaintiffs’ suits were an impermissible collateral attack on the judgments imposing terms and conditions of probation after failing to object or appeal at the time they were imposed. However, the dissenting opinion of Justice Underwood viewed that issue as dispositive of the case. He stated that “[p]laintiffs here could have objected to the imposition of the fines as a condition of probation. If their objections had been overruled, they could have appealed. Having failed to do so, they have allowed the trial court judgments to become res judicata and cannot now attack them.” Roth v. Yackley (1979), 77 Ill. 2d 423, 433 (dissenting opinion).

The plaintiffs in Sanner v. Champaign County (1980), 88 Ill. App. 3d 491, 410 N.E.2d 656, decided by the appellate court in the Fourth District, brought suit seeking reimbursement for fines and costs which they claimed to have previously been required to pay as a condition of probation. The court there was faced with the question of whether collateral attacks may be made upon erroneous orders for payments of fines and costs as a condition of probation granted pursuant to former sections 10 of the Cannabis Control Act (Ill. Rev. Stat. 1977, ch. 56%, par. 710) and 410 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56%, par. 1410). The court in Sanner adopted the theory of the dissent in Roth that the orders were not subject to collateral attack except by proceedings (1) under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72); (2) for writ of habeas corpus (Ill. Rev. Stat. 1977, ch. 65, par. 22); or (3) under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1977, ch. 38, par. 122 — 1 et seq.). To justify its reliance on the dissent in Roth, the Sanner court pointed out that the dissent in Roth is in an unusual posture because the points discussed in the dissent are not discussed by the majority and neither opinion gives any indication that the points were argued. The Sanner court relied on the rule that a decision of a court of review creates no precedent on points not argued to it nor discussed in its opinion. (Sanner v. Champaign County (1980), 88 Ill. App. 3d 491, 495.) Sanner found that the silence of the majority upon the theory of the dissent did not demonstrate a rejection of that theory. Therefore, Sanner found that collateral attacks could not be made upon erroneous orders for payments of fines and costs as a condition of probation.

The Sanner court also found that the proceedings in that case would constitute a collateral attack if the judgment orders requiring the payment of fines and costs were final orders appealable by plaintiffs as a matter of constitutional right under article VI, section 6, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VI, §6). The court added that if the probation orders under sections 10 and 410 were appealable under Supreme Court Rule 604(b) (Ill. Rev. Stat. 1979, ch. 110A, par. 604(b)), the proceedings in the Sanner case would constitute a collateral attack on those orders.

We agree with the reasoning of the Sanner court and find that the instant proceedings would constitute a collateral attack if the judgment orders requiring the payment of fines and costs were final orders appeal-able by plaintiffs. Section 5 — 6—3.1(i) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 6—3.1(i)) provides: “A disposition of supervision is a final order for the purposes of appeal.”

In People v. Tarkowski (1981), 100 Ill. App. 3d 153, 426 N.E.2d 631, the court found that subsection unconstitutional, stating that it was an attempt by the General Assembly to regulate appellate jurisdiction. Therefore, the order placing defendant on supervision is not a final judgment appealable as a matter of constitutional right under article VI, section 6, of the Illinois Constitution of 1970. However, in People v. Tarkowski the court also found that the order placing the defendant on supervision was appealable as an interlocutory appeal because an appeal from a disposition of supervision is encompassed within the meaning of Supreme Court Rule 604(b) (Ill. Rev. Stat. 1979, ch. 110A, par. 604(b)), which provides for interlocutory appeals in cases where a defendant is sentenced to probation, conditional discharge or periodic imprisonment. Because the order placing defendant on supervision was appealable as an interlocutory appeal, we find that the instant proceeding constitutes an impermissible collateral attack on that order.

Therefore, we affirm the judgment of the circuit court of Cook County. Because of our resolution of this issue, we do not reach the other issues.

Affirmed.

GOLDBERG and McGLOON, JJ., concur.


author: PRESIDING JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MILTON SMITH, Defendant-Appellant.
    First District (1st Division)
    No. 80-2394
    Opinion filed March 15, 1982.

      Ralph Ruebner and Phillip J. Zisook, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Martin D. Reggi, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the

court:

Defendant Milton Smith was found guilty of attempt robbery after a jury trial and was sentenced to a term of seven years. On appeal, defendant contends that: (1) he was deprived of his right to a fair trial because the trial court permitted the prosecution to question him about his prior heroin addiction and his general knowledge of drugs and permitted the prosecution to comment upon this during closing argument; (2) he was deprived of his sixth amendment right to confront witnesses where the trial court precluded him from cross-examining a State’s witness concerning the witness’ previous conviction for robbery; and (3) the trial court erred in sentencing defendant to a term of seven years where the maximum term for such an offense is not less than two years and not greater than five years.

Prior to trial, the defense made a motion in limine to prevent the prosecution from impeaching defendant with a 1975 theft conviction and a 1978 aggravated battery conviction. The State also made a motion in limine to preclude the defense from impeaching its chief witness with a 1977 robbery conviction. Defendant opposed the State’s motion because the jury should be able to consider all factors which weigh on the credibility of the witness. The court granted both motions in limine and stated that the danger of prejudice in interrogating either defendant or the State’s witness about prior convictions outweighed the probative value of the testimony.

The prosecution’s first witness was Gregory Kowalski. He stated that on the evening of September 5, 1979, at 7:30 p.m., he was working at a service station on Fullerton Avenue in Chicago. He testified that he was the sole employee on duty that evening and that he was in possession of approximately $200 to $300. When Kowalski returned from attending to a customer, defendant was in the office of the station. Another customer who had been in the office left, and Smith then purchased a package of cigarettes. He stated that he removed the money from his pocket to make change for Smith’s purchase, defendant put a gun to his side and said,

“Give me the money or else I’ll kill you.” Kowalski stated that he then ran from the station with the money. According to Kowalski, he stopped a passing police car in the intersection of Fullerton and Pulaski. While he was stopping the police car, he stated that he looked back and saw defendant throw the weapon onto the roof of the station. He testified that he told the officer about the weapon on the roof. According to the witness, the police officer requested Smith to approach him. Other police officers who subsequently had arrived asked Kowalski if there was a way to retrieve the gun from the roof. Kowalski stated that he climbed onto the roof, found the gun and dropped it to the ground. Upon being shown the weapon in court, he identified it as being the gun which was used by Smith. It was determined that the weapon was a toy. On cross-examination, he testified that the police did not tell him to avoid getting his fingerprints on the weapon when he retrieved it from the roof.

Officer Salvatore Tenuta testified that on the evening of the incident, he received a call over his radio about a man with a gun and that at the time he received the call, he was about four or five blocks from the service station. Tenuta stated that when he arrived on the scene, he saw Kowalski standing in the middle of the street. He stated that he searched Smith and then asked, “Where’s the gun at?” According to Tenuta, Kowalski told him that defendant threw the weapon on the roof. Tenuta then called for assistance and after other officers arrived, he left the scene and returned to his patrol.

Officer Joseph Drasutis was the final witness presented by the State during its case-in-chief. Drasutis stated that when he arrived on the scene, Officer Tenuta was speaking with Kowalski and Smith. Drasutis testified that when he searched Smith, he was unarmed. Drasutis stated that Kowalski climbed onto the roof of the station, found a plastic gun and threw the weapon at the officer’s feet. On cross-examination, Drasutis stated that he did not anticipate any problems with fingerprints because the weapon was plastic. He stated that an evidence technician was not called to examine the toy gun for fingerprints. Finally, Drasutis testified that it was not common police practice to permit civilians to participate in the recovery of evidence.

Defendant Milton Smith testified on his behalf. He stated that on the evening in question, he went to the service station to purchase marijuana from Kowalski. According to Smith, he had met Kowalski a few weeks earlier and had purchased a quarter pound of Columbian marijuana from him for $125. Smith said that he still owed $20 to Kowalski for his purchase. Smith stated that he had agreed to procure amphetamines for Kowalksi and that he had planned to purchase marijuana from Kowalski. Smith stated that on the evening of September 5, he went to the service station to purchase marijuana. Smith stated that he had $56, eight Talwin and eight parabenzamine tablets on his person. Smith testified that as he exited the bus near the station, he had noticed a number of police vehicles across the street in a restaurant parking lot. Smith stated that he then went into the station and asked Kowalski about purchasing marijuana. According to Smith, Kowalski declined interest in purchasing any pills from Smith. After the conversation concluded, Smith stated that Kowalski ran out of the station. Smith then left the station. He stated that he threw a soft drink can into the alley on his way back to the bus stop. He testified that he noticed that Kowalski was running toward a police car which was across the street.

Defendant stated that he was on the premises of the service station when he saw Kowalski conversing with a police officer. He stated that he stopped and subsequently was accused by Kowalski of attempting to rob Kowalski, which Smith denied. Defendant testified that the police permitted Kowalski to climb onto the roof of the service station and Kowalski discovered a plastic gun. Smith was subsequently arrested. Smith told the officer that he had come to the station to purchase marijuana from Kowalski and he pointed to an envelope which was lying near one of the gasoline pumps. Defendant stated that he told the officer that the envelope contained marijuana. Smith also claimed that he told the officer that he could be fingerprinted to prove that he did not handle the plastic gun.

On cross-examination, Smith denied that he was a heroin addict, but admitted that at one time he had been a heroin addict. Smith stated that he was aware that “T’s and Blues” (Talwin and parabenzamine) were used as a heroin substitute. When asked if he was familiar with drugs, Smith stated that he was familiar with marijuana. Counsel’s objection to questioning defendant about his familiarity with heroin and “T’s and Blues” was overruled, and Smith replied that he was acquainted with those drugs. The State then asked whether Smith could describe the fashion in which most drugs are packaged and he stated “Not as well as marijuana.” An objection to a question concerning the packaging of heroin was sustained. Finally, Smith stated that he recalled a prior conversation with Assistant State’s Attorney Steven Farone where he told Farone that he threw a soft drink can. He stated that he could not remember whether he told Farone if he threw the can into the alley or onto the roof.

In rebuttal, the State called Farone and he testified that defendant told him that defendant threw a soft drink can onto the roof of the service station. Officer Drasutis was recalled and he stated that Smith never mentioned anything about an envelope containing marijuana. He also stated that defendant never mentioned anything about fingerprints on the gun. Drasutis testified that a search of Smith did not disclose any “T’s and Blues.”

During closing argument, the prosecutor stated, “[W]hat this case is about [is] who is lying and who is telling the truth.” Objection was overruled to comments about defendant’s former heroin addiction and present marijuana use. Counsel objected to the State’s noting that Smith stated that he was going to trade marijuana for “T’s and Blues” which are a heroin substitute. The court overruled the objection. On rebuttal, the State commented that the credibility of witnesses was a crucial factor in the case and that the issue narrowed to which witness did the jury believe. The prosecution told the jury that they could tell that Smith was an ex-addict and that it was apparent that he was familiar with the drug environment.

The jury found defendant guilty of attempt robbery. (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 4.) During the sentencing hearing, the State informed the court that defendant had been convicted of aggravated battery and theft and that Smith could be sentenced under the extended-term provisions of the sentencing statute. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2.) In sentencing defendant to a term of seven years, the court noted that he had been on parole for three or four months when the crime was committed. On two occasions, the court mentioned that this conviction was defendant’s third felony conviction.

Defendant first contends that the trial court erred in permitting the State to cross-examine him about his prior drug use and familiarity with drugs and that the court erred in permitting the prosecution to comment about this testimony during closing argument. Defendant argues that evidence concerning a defendant’s use of narcotics is inadmissible in a prosecution for an offense that does not involve narcotics. (See People v. Dzambazovic (1978), 61 Ill. App. 3d 703, 377 N.E.2d 1077.) Defendant urges that the facts presented in this case warrant reversal under People v. Novak (1965), 63 Ill. App. 2d 433, 211 N.E.2d 554. In Novak, a reference to narcotics was made during direct examination of defendant. On cross-examination, the prosecution questioned defendant about his use of drugs on the day of the crime. He denied that he used drugs on the day of the crime, and there were no objections concerning that question. During rebuttal, the State called a police officer who testified that he observed needle marks on defendant’s arm when the officer was at the scene of the crime. On appeal, the appellate court reversed defendant’s conviction because the testimony of the police officer was deemed to be immaterial in a prosecution for burglary and was deemed to be highly prejudicial and inflammatory. Defendant argues that the instant case presents a stronger case for reversal than does Novak. First, defendant claims that the use of drugs in Novak was a contested matter, whereas here, defendant was forced to admit his prior addiction on cross-examination. Second, in Novak, the testimony involved drug use on the day of the crime, whereas in this case, the testimony concerned defendant’s past drug use. Third, the testimony in this case was more extensive than the testimony in Novak. Finally, the prosecutor in this matter repeated and emphasized defendant’s prior addiction and knowledge of drugs in his closing argument as did the prosecution in Novak, but also the State made reference to defendant herein as an ex-addict. Defendant asserts that the statements made during the State’s closing argument require reversal because they were improper and must have contributed to his conviction. See People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880.

Initially, the State urges that defendant has waived our consideration of this issue by failing to make a timely objection and to move to strike the testimony. (See People v. Haywood (1978), 60 Ill. App. 3d 236, 376 N.E.2d 328, cert. denied (1979), 440 U.S. 948, 59 L. Ed. 2d 637, 99 S. Ct. 1427.) The State also contends that the defense opened the area concerning defendant’s drug use on direct examination and that it was proper for the prosecutor to question defendant about this matter on cross-examination. (See People v. Stevens (1976), 40 Ill. App. 3d 303, 352 N.E.2d 352; People v. McClaine (1971), 132 Ill. App. 2d 669, 270 N.E.2d 176.) The State argues that it is proper for the State to comment upon relevant evidence and to draw legitimate inferences from that evidence. (See People v. Carr (1969), 114 Ill. App. 2d 370, 252 N.E.2d 912.) In the instant case, the State claims that defense counsel’s questions concerning defendant’s alibi that he was at the service station to complete a drug transaction with Kowalski provided a basis for the prosecutor to interrogate defendant about his drug habits and knowledge. The State also urges that the testimony was the result of defendant having placed at issue the defendant’s drug use and that, therefore, the testimony was material and relevant.

As a general rule, testimony concerning a defendant’s use of or addiction to drugs is not admissible in a prosecution that does not involve drugs. (See People v. Smith (1967), 38 Ill. 2d 237, 231 N.E.2d 185; People v. Dzambazovic (1978), 61 Ill. App. 3d 703, 377 N.E.2d 1077.) However, in the instant case, defendant testified on direct examination that he went to the service station in possession of “T’s and Blues” and was intending to complete a transaction involving marijuana. Defendant cannot complain that it was error to permit the State to question defendant about his use of and familiarity with drugs where it was defendant himself who raised the issue and “opened the door” on direct examination. (See People v. Stevens (1976), 40 Ill. App. 3d 303, 352 N.E.2d 352.) We also do not find that it was error for the prosecution to comment during closing argument upon defendant’s familiarity with and use of drugs since it was done in the context of commenting upon the defense proffered by defendant and is, therefore, a legitimate inference which the State drew from the evidence. See People v. Wright (1974), 56 Ill. 2d 523, 309 N.E.2d 537.

Defendant next argues that the trial court erred in refusing to permit his attorney to cross-examine Gregory Kowalski about Kowalski’s 1977 robbery conviction. In support of his contention, defendant relies upon People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695, and argues that Montgomery requires that the trial court balance the probative value of eliciting testimony concerning prior convictions versus the prejudicial value of such testimony. Defendant asserts that such testimony would have been a factor which the jury would consider in evaluating the credibility of Kowalski’s testimony and that, therefore, the trial court erred in barring counsel from questioning the witness. (See People v. Thomas (1978), 58 Ill. App. 3d 402, 374 N.E.2d 743.) The State urges that the admission of a prior conviction for impeachment purposes rests within the sound discretion of the trial court (People v. Warfel (1979), 67 Ill. App. 3d 620, 385 N.E.2d 175), and that the trial court is given wide latitude in making such a determination. (See People v. Martinez (1978), 62 Ill. App. 3d 7, 377 N.E.2d 1222.) The State argues that the trial court used its discretion in applying the Montgomery balancing test and that a reviewing court should assume that the court gave appropriate consideration to all relevant factors even though the trial judge did not set forth his rationale for his decision on the record. See People v. Fought (1980), 85 Ill. App. 3d 732, 407 N.E.2d 231.

We believe that the trial court erred in refusing to permit counsel for defendant to attack the credibility of the State’s witness through questioning about a prior conviction. Montgomery sets forth the rule concerning impeachment of a witness by a prior conviction. The rule requires that the conviction be for an offense punishable by imprisonment of a term greater than one year or that the conviction be for a crime involving dishonesty or false statement regardless of the punishment. Robbery, being a species of theft, is an offense which involves dishonesty (People v. Spates (1979), 77 Ill. 2d 193, 395 N.E.2d 563), and which also is punishable by a term in excess of one year (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 1). Since Kowalski’s 1977 robbery conviction is a proper subject with which to impeach his credibility, we now turn to the Montgomery balancing test.

When defendant presented his motion in limine to prevent the State from impeaching defendant with his prior convictions, the State countered with a similar motion to prevent impeaching its witness with his prior conviction. Defendant argues that this presented the appearance that the two motions were to be balanced against one another as highlighted by the statement by the court during its ruling on the two motions. The court first indicated that it could grant the defendant’s motion and deny the State’s motion. The court then stated:

“Certainly one [motion] doesn’t outweigh the other. But it seems the same theory applies. Two witnesses that may testify in this Court may have prior convictions of felonies in this State within the last ten years, and if the jury would be so prejudiced by hearing prior convictions, if it would in any way affect their thinking or prejudice them against the party, and if it did in fact outweigh the probative value of the testimony, it would seem to apply to all witnesses in the case.”

This statement would seem to support defendant’s contention that the court applied a uniform standard to defendant and the State’s witness in its application of Montgomery. Montgomery requires the court to balance the probative value of the impeachment with prior convictions against the prejudicial value of such impeachment. In doing so, the trial court must consider the respective interests of the witnesses when applying Montgomery. In the instant case, the State’s witness was not on trial for any offense and the only effect of permitting the impeachment with a prior conviction would be the credibility of the witness. Defendant, however, may be affected through this method of impeachment because the jury may consider his prior convictions in determining his guilt or innocence, rather than the evidence of the present charges against him. (See People v. Cox (1981), 100 Ill. App. 3d 272, 426 N.E.2d 1050; People v. Thomas; People v. Jacobs (1977), 51 Ill. App. 3d 455, 366 N.E.2d 1064.) Unlike the situation in Cox where there was more than one eyewitness to the offense, this case involved the repeated pitting of the testimony of defendant versus the testimony of the State’s witness. This matter was further brought to the attention of the jury in the State’s closing argument during which the State characterized the case as being about “who is lying and who is telling the truth.”

We believe that the trial improperly limited the cross-examination and impeachment of the State’s chief witness and that counsel for defendant should have been permitted to attack the credibility of the witness with his prior robbery conviction since it is a matter for the jury to consider the effect of this evidence on the reliability and credibility of the witness. (See People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526; People v. Rufus (1982), 104 Ill. App. 3d 467, 432 N.E.2d 1089.) Therefore, this matter must be remanded to the trial court for a new trial. People v. Thomas; People v. Jacobs.

Since we have determined that defendant is entitled to a new trial, we need not reach the issue of whether defendant’s sentence exceeded the statutory maximum.

Accordingly, this matter is hereby reversed and remanded to the circuit court of Cook County for a new trial.

Judgment reversed and remanded.

GOLDBERG and O’CONNOR, JJ., concur.