text:
    STANLEY MAGIC-DOOR, INC., Plaintiff-Appellant, v. THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (4th Division)
    No. 81-1021
    Opinion filed February 4, 1982.

      Maurice J. McCarthy, of Chicago, for appellant.
    Daley and George, of Chicago (John J. George and Timothy J. Joyce, of counsel), for appellees.
   JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff, the second lowest bidder on a city contract, filed a declaratory judgment action seeking a declaration that the city of Chicago awarded the contract to an ineligible bidder. Initially the trial court dismissed the suit for want of standing and because the complaint was based on information and belief. This court reversed and remanded in Stanley Magic-Door, Inc. v. City of Chicago (1979), 74 Ill. App. 3d 595, 393 N.E.2d 535. Thereafter, after full discovery, both sides filed motions for summary judgment. The trial court denied plaintiff’s and granted defendant’s motion. We affirm.

The questions in issue under the particular circumstances of the case are set forth in and limited by the allegations set forth in plaintiff’s complaint which is binding on the plaintiff. Plaintiff alleged that on April 22, 1977, the city of Chicago opened bidding on a five-year contract for the maintenance of the automatic doors at the two principal Chicago airports (O’Hare International and Midway). The contract defined a qualified bidder as follows:

“Bidders shall be familiar and experienced with, and regularly engaged in the maintenance, installation repairing, and servicing of automatic doors and related equipment of type and design similar to the equipment covered under this contract. Bidders shall be required to provide proof of having successfully maintained an amount of equipment equal to three times in number, the equipment covered under this Contract within the last five years. No bidder will be considered acceptable in the consideration of award of this work unless he shall have already in force and operating, the following elements of a maintenance procedure to insure regular coverage of all preventive maintenance operations and possible sources of operating troubles [elements omitted].”

Plaintiff was a qualified bidder as defined by the contract. Plaintiff was the second lowest bidder. The contract was awarded to Builders Chicago Company, which submitted the lowest bid. Plaintiff alleged that Builders was not a qualified bidder as defined by the contract in that Builders had at no time within the last five years maintained any equipment other than the equipment covered by the contract. Plaintiff further alleged that Builders had not successfully maintained said equipment in that there were legal actions pending against the city based on the defective maintenance of the equipment.

As previously mentioned the complaint was originally dismissed by the trial court for want of standing and because the complaint was based on information and belief. This court reversed the trial court on both issues. This court remanded the case to the trial court, noting that the city had not denied Builders was not a qualified bidder and that “[b]ecause discovery has not yet been obtained, the evidence has not yet been developed to the degree necessary to permit this court to determine if this is an area where the city may properly exercise its discretion in determining who is a responsible bidder * * * or whether specific nondiscretionary requirements set forth by statute, ordinance, regulation or bid specification must be complied with, and if they must, whether there has been such compliance.” 74 Ill. App. 3d 595, 599, 393 N.E.2d 535, 538.

After remand, the city and Builders filed their answers in which they denied that Builders was not a qualified bidder. Full discovery was had by plaintiff. Thereafter both sides filed for summary judgment; the defendants’ motion was granted.

I

In its complaint one of the two bases for plaintiff’s contention that Builders was not a responsible bidder was that lawsuits for personal injuries arising out of defective maintenance had been filed against the city. This point has not been raised on appeal and therefore is waived. (84 Ill. 2d R. 341(e) (7).) We do note, however, as the trial court did, that there was nothing in the bid specifications requiring an absence of lawsuits. In any event, at best such suits would only be some indication of the success or lack of success with which the doors had been maintained in the past.

The only other issue raised in the complaint was whether since Builders had serviced only the doors at the two airports over the last five years, it had maintained “an amount of equipment equal to three times in number, the equipment covered under this contract within the last five years.” Plaintiff contends that the number of doors could not properly be counted three times although they had been maintained by Builders for several years. Plaintiff also contends in its brief that proof of compliance was not properly submitted because the only proof of Builder’s work was in a letter submitted not with the bid but two weeks after the bids were opened.

The evidence in the record discloses that the equipment covered by the contract was 583 units. Builders maintained at the airports 289 units in 1972, 297 units in 1973, 585 units in 1974,561 units in 1975, and 579 units in 1976. In March 1977 the contract for the maintenance of the doors from April 1977 to March 31, 1982, was announced and bids solicited. The due date of the bids was April 22,1977. On March 30,1977, Builders wrote the city’s purchasing agent and asked if it was considered to be a qualified bidder. It pointed out that it had had a series of contracts for this maintenance work for the past seven years. The letter further stated that “in previous conversations and meetings with your Department, the Department of Aviation and C. F. Murphy and Associates [which drew up the specifications] it was established and agreed upon by all parties present, that we were performing above and beyond the scope of the existing contract and specifications for the maintenance of these doors at O’Hare Field.” The purchasing agent replied by letter on March 31 agreeing that Builders had been performing in a very satisfactory manner and the city would like to see the company bid on the contract. Builders in submitting its bid did not set forth in the bid the information as to the number of doors previously worked upon. Plaintiff immediately protested the award to Builders, contending Builders had not maintained the proper number of doors. Thereafter in a letter to the purchasing agent dated May 5,1977, Builders did set forth these numbers, pointing out that if the agent wished to take 1972 through 1976 inclusive, Builders had maintained 2,317 units. Builders also reminded the purchasing agent of the correspondence of March 30 and 31. On May 13, 1977, Russ B. Dhondy of C. F. Murphy and Associates wrote the purchase agent stating that their interpretation of the clause was that “the amount of equipment covered under this contract is a total of 583 units. In order for a bidder to be qualified, he has to show that he has successfully maintained a minimum of 1749 units (583 x 3) within a period of the last five years.”

We agree with plaintiff that the specification could be interpreted to require the maintenance of 1749 different units during the five year period. But, particularly since the specifications did not expressly require that 1749 different units be maintained, although it would have been easy to so provide, the city’s interpretation that the same units could be counted each year is also proper. Under the contract the purchasing agent was given the power to interpret the contract. While this would not give him the power to ignore or alter clear and unambiguous provisions of the contract, his construction here in favor of Builders was reasonable and authorized. Any other interpretation would be contrary to the intentions of the parties since it is clear from the evidence that Builders had been doing the work to the satisfaction not only of the city and the Department of Aviation but also of the company which drew up the present specifications. It would be unreasonable to find that, under those circumstances, those entities would intentionally draw up specifications which would exclude a company with which they were pleased and which they wished would bid on the new contract.

The plaintiff’s contention that the award is void because Builders only submitted proof of compliance after the bid was opened is also without merit. It is true that Builders’ letter of May 4 setting forth its prior experience was written after the bids were opened. And it was established in Leo Michuda & Son Co. v. Metropolitan Sanitary District (1981), 97 Ill. App. 3d 340,422 N.E.2d 1078, that a bid may not be corrected to make it responsive after the bids have been opened and it would be improper to permit a bidder to submit required forms after the close of bidding. This, however, was not done here. The specifications merely required the bidder to provide proof of having successfully maintained the required amount of equipment. There was no requirement as to the form the proof had to take. Here the city and its purchasing agent had full knowledge at the time of the close of the bidding, as evidenced by the correspondence of March 30 and 31, that the specifications had been met. Under section 8 — 10—11 of the Illinois Municipal Code (Ill. Rev. Stat. 1977, ch. 24, par. 8 — 10—11), the purchasing agent could properly take into account past records of transactions with the bidder. At most, Builders’ failure to set forth in its bid its work experience already known to the purchasing agent was an informality in the bid which under the contract the agent was entitled to disregard. Unlike Michuda, any delay in submitting a written summary of experience did not create an unfair advantage. In Michuda the construction company was permitted to file, after the close of bidding, a document regarding affirmative action goals. This meant, as the court pointed out, that that company, unlike the other bidders, was able to negotiate with minority subcontractors with knowledge that it had submitted the apparent low bid. In this case, however, there was no way Builders could alter its past experience or benefit by the delay in submitting formal written proof.

II

In its brief plaintiff also contends that Builders was not a qualified bidder because various other documents required by the specifications were not submitted with the bid, namely, a disclosure of ownership interests form, a contractor’s financial statement and contractor’s experience questionnaire dated not earlier than January 1 of the current year (1977), insurance policies or certifications and a “Program of Preventive Maintenance.” As to the disclosure of ownership, Builders did submit a blank disclosure of ownership interests form with the words “as previously submitted” written over it. We agree with the trial court that this is sufficient since Builders had previously been a party to contracts with the city and had previously filed ownership affidavits with it. The specifications do not actually require the submission of a document showing a program of preventive maintenance. Rather, the specifications provide that no bidder will be considered acceptable unless he shall already have in force and operating specified elements of a preventive maintenance program. And finally the contract only provides that failure to submit a contractor’s financial statement and experience questionnaire “may be” cause for rejection of the bid. More importantly, however, none of these contentions were raised in plaintiff’s complaint. As stated in 2 Nichols Illinois Civil Practice §874, at 89 (1979), “[ijssues in a case are formed by the pleadings and allegations, and the proof must correspond to such. A plaintiff may recover only on the case made in his complaint. He cannot make one case by his allegations and recover on a different case made by the proof. He cannot have relief under proof without allegations or under allegations without proof and support.” See Tonchen v. All-Steel Equipment, Inc. (1973), 13 Ill. App. 3d 454, 300 N.E.2d 616, appeal denied (1973), 54 Ill. 2d 599; Hemingway v. Skinner Engineering Co. (1969), 117 Ill. App. 2d 452, 254 N.E.2d 133; Seaburg v. Williams (1959), 23 Ill. App. 2d 25, 161 N.E.2d 576, appeal denied (1960), 18 Ill. 2d 628.

III

It is clear from the foregoing that the trial court properly denied plaintiff’s motion for summary judgment. Plaintiff’s contention that in any event the trial court erred in granting defendants’ motion for summary judgment as the documents showed a nonconforming or deviating bid by Builders is without merit. The burden was not on defendants to prove in the first place that Builders was a qualified bidder. Rather, the burden was on plaintiff, who brought the action, to plead facts showing it had a cause of action and to introduce evidence tending to support its contention. This, as this court has previously discussed, plaintiff failed to do, since the sole contentions pleaded, that Builders was unqualified as it had not serviced the required number of doors and lawsuits had been filed against it, are without merit. Since there was no evidence from which a jury could have found for the plaintiff, and the court at trial would have been required to direct a verdict for the defendant, the trial court properly entered summary judgment for the defendant. (Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 272 N.E.2d 497, cert, denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847; White v. United States Fidelity & Guaranty Co. (1974), 21 Ill. App. 3d 588, 316 N.E.2d 131, appeal denied (1974), 57 Ill. 2d 606.) Accordingly, the judgment of the trial court is affirmed.

Affirmed.

JIGANTI and LINN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT WASHINGTON, Defendant-Appellant.
    First District (5th Division)
    No. 80-1215
    Opinion filed February 5, 1982.

      Thomas F. Geraghty, of Northwestern University Legal Clinic, of Chicago, and Eric Nelson and Martin Diestler, law students, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr and Warren A. Zimmerman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant was convicted of rape and deviate sexual assault, and he was sentenced to 10 years imprisonment. On appeal he raises the following issues:

(1) whether the trial court abused its discretion in conducting the examination of prospective jurors;

(2) whether the trial court committed reversible error by denying a challenge for cause of a prospective juror;

(3) whether the trial court erred by not passing upon and accepting jurors in panels of four;

(4) whether foundational questions asked of the complainant were sufficient to permit impeaching her with evidence of a prior inconsistent statement;

(5) whether the trial court improperly restricted the direct examination of the defendant;

(6) whether the evidence is sufficient to prove defendant guilty beyond a reasonable doubt; and

(7) whether the trial court abused its discretion in sentencing defendant.

The following evidence is material to our decision.

Cecelia E. testified that on March 4,1979, at about 3:15 a.m., she and Alton Ratcliff left a tavern near 68th and Halsted, in Chicago, and started walking north on Halsted to a restaurant. On the way to the restaurant they encountered three men, and Alton asked them if the restaurant was open. One of the men said that the restaurant was closed, so Cecelia and Alton turned around and started walking south on Halsted. The three men followed as they walked to 67th and then over to Emerald. Cecelia also testified that while they were following her and Alton, “They were cussing and they were making jokes and stuff about me.”

Cecelia further testified that when the group turned the corner at 67th and Emerald, on the west side of Emerald, defendant knocked Alton to the ground, and one of the other men knocked her to the ground and started ripping her clothes off. While defendant struggled with Alton, the man who ripped her clothes off raped her. When one of the men “hollered” that they couldn’t rape her out in the open, defendant helped one of the other men drag her across the street to a church on the east side of Emerald. Defendant raped her while she was lying in the snow in front of the church and, at the same time, the other men forced her to engage in oral sex. When defendant finished raping her, one of the other men raped her, and then, “All of a sudden, I noticed they started running, the police was there.”

Defendant testified that he did not rape or commit deviate sexual assault on Cecelia. Although defendant admitted that he was highly intoxicated on the night of the attack, he testified that he was simply following some friends when he saw his friend Andre Tylon swing at Alton. Defendant started hitting Alton because Alton was bigger than Tylon, and when Alton fell to the ground defendant started kicking him.

Defendant testified that he saw his friend Farrell Hunter pulling Cecelia off the curb, and he also admitted seeing that her blouse was torn. But defendant said that he fell on top of Alton and they struggled for several minutes until Alton got up and ran away. When Alton ran away, defendant heard Cecelia screaming on the other side of the street. When he crossed the street, defendant saw his friend Hunter raping Cecelia and his friend Tylon kneeling at her head. Although defendant denied raping Cecelia, he admitted standing two or three feet from her for “about ten or fifteen seconds” while she was being attacked by his friends. After defendant stood there for “about ten or fifteen seconds,” the police arrived, and he ran away.

Additional evidence is discussed below where pertinent.

Opinion

I

The initial question is whether the trial court abused its discretion in refusing to ask proposed questions which the defense submitted for the voir dire of prospective jurors. The trial court conducted examination of the prospective jurors, and the defense argues that the court abused its discretion by refusing to ask the defense’s proposed questions in the following instances:

(a) Although the trial court asked prospective jurors about their present jobs, and the jobs of the members of their immediate families, the court did not ask the proposed question “What other types of jobs have you had?”

(b) Although the trial court questioned prospective jurors about prior jury experience, they were not asked a proposed question about how they felt about their prior jury experience and whether it left them “with any prejudices or cynicism regarding the judicial system.”

(c) Although the trial court asked prospective jurors if they, or any close friends, or relatives had been the victim of any crimes, the court did not ask a proposed question about whether any of the prospective jurors knew anyone (e.g., a neighbor who might not be a close friend) who had been the victim of a crime similar to the crimes involved in this case.

(d) Although the court asked the prospective jurors if there was anything about the crime charged which would prevent them from being fair and impartial jurors, the court did not ask a proposed question about whether they had ever worked in a hospital emergency room or a rape counseling service.

(e) Although the court asked prospective jurors whether they had any bias or prejudice against people who drink alcoholic beverages, and whether they had “any bias or prejudice against a person simply because he may be charged with a crime or because of his race, creed, color, nationality or religion,” the court did not ask proposed questions about attitudes towards teenagers, and towards people with defendant’s background.

(f) Although the court recited the applicable principles of law concerning the presumption of innocence and the prosecution’s burden of proof, and asked the prospective jurors whether they agreed with the rules of law, the court did not ask the more extensive series of proposed questions concerning these legal principles. Additionally, the court did not ask the proposed questions about attitudes towards accountability, and identification evidence.

It is unquestionably true that one of the most priceless safeguards of individual liberty is the right to trial by a panel of impartial jurors. (Irvin v. Dowd (1961), 366 U.S. 717, 721, 6 L. Ed. 2d 751, 755, 81 S. Ct. 1639, 1642.) “The purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.” (Taylor v. Louisiana (1975), 419 U.S. 522, 530, 42 L. Ed. 2d 690, 698, 95 S. Ct. 692, 698.) And the purpose of voir dire examination is to filter out prospective jurors who are unable or unwilling to be impartial. United States v. Liddy (D.C. Cir. 1974), 509 F.2d 428,434, cert, denied (1975), 420 U.S. 911, 42 L. Ed. 2d 842, 95 S. Ct. 833.

In every case it can be argued that the effectiveness of voir dire examination, as a procedure for filtering out partial jurors, increases with the extensiveness of the voir dire questioning. But there is no precise technical test for determining whether a prospective juror will have the appropriate degree of impartiality. (United States v. Wood (1936), 299 U.S. 123, 145-46, 81 L. Ed. 78, 88, 57 S. Ct. 177, 185.) Thus, both Illinois Supreme Court Rule 234 (Ill. Rev. Stat. 1979, ch. 110A, par. 234), made applicable to criminal cases by Rule 431 (Ill. Rev. Stat. 1979, ch. 110A, par. 431), and Federal Rule of Criminal Procedure 24(a) give trial courts broad discretion in determining the voir dire questions and procedures which are appropriate in a particular case. Because of this similarity, we find it instructive to examine Federal cases which have considered whether there has been an abuse of discretion in the conduct of voir dire.

“The standard for evaluating the district court’s exercise of its discretion is whether the means employed to test impartiality have created a reasonable assurance that prejudice would be discovered if present.’ ” (United States v. Delval (5th Cir. 1979), 600 F.2d 1098, 1102.) “At a minimum, when requested by counsel, inquiry must be made into matters where the likelihood of prejudice is so great that not to inquire would risk failure in assembling an impartial jury.” United States v. Dellinger (7th Cir. 1972), 472 F.2d 340, 368.

When fairness requires voir dire examination in a particular area of potential prejudice, it can be sufficient to ask a brief, general question which focuses the attention of the prospective jurors on the area of potential prejudice. (See Ham v. South Carolina (1973), 409 U.S. 524, 527, 525 n.2, 35 L. Ed. 2d 46, 50, 49 n.2, 93 S. Ct. 848, 850-51, 849-50 n.2.) And it has been held proper for a trial court to use a procedure which involves general questions addressed to the entire group, and then follows up with individual questions of potential jurors who indicate that they might not be impartial. See United States v. Liddy (D.C. Cir. 1974), 509 F.2d 428, 436-37.

There is no reasonable likelihood that potential jurors will have fixed opinions or biases concerning either identification evidence or the law of accountability. The court’s decision to preclude voir dire examination on these topics did not risk failure in assembling an impartial jury. (Compare the present case with People v. Murawski (1954), 2 Ill. 2d 143, 147, 117 N.E.2d 88 (voir dire question about attitudes towards abortion required in an abortion prosecution) and People v. Moore (1972), 6 Ill. App. 3d 568, 571, 286 N.E.2d 6 (voir dire question about attitudes towards the insanity defense required where the defense was going to be raised).) Moreover, we find that the questions asked by the trial court concerning the other areas of potential prejudice were sufficient to provide reasonable assurance that prejudice would have been discovered if present. We therefore conclude that the trial court did not abuse its discretion in the present case.

II

The defense contends that the trial court committed reversible error by not excusing a potential juror for cause. The potential juror, Venireman Padera, said that he believed that he could be a fair juror, but he also admitted, “I haven’t sorted it out. I have very strong opinions about sexual offenders.” The court continued with further questioning at side bar, and Padera admitted that he honestly didn’t know if he could be a fair juror; he didn’t know if his opinions about sex offenders would affect his judgment. After additional questioning by the court, Padera again said he believed he could be fair; but in response to a question from defense counsel, Padera admitted that, “I’m not sure I can be fair, no.” In addition, when the trial court asked if he agreed that the prosecution should have the burden of proving guilt beyond a reasonable doubt, Padera equivocally answered that he “generally” agreed with that principle of law. Responding to that answer, the trial court explained the significance and importance of the differences between the criminal justice systems in the United States and in Iran. Despite this explanation, Padera did not unequivocally state that he would be an impartial juror who would faithfully apply the applicable principles of law. Based on these facts, we find that it was manifestly erroneous for the trial court to conclude that this potential juror would be an impartial trier of fact.

It is argued that the error is reversible because the defense was forced to use a peremptory challenge to keep this potential juror from sitting on the jury. This seems to be the implicit holding of Baxter v. People (1846), 8 Ill. 368, where the supreme court held that it would consider the propriety of a ruling denying a challenge for cause, even though the record did not show whether the challenged individual actually sat on the jury, because the defense “may have been compelled to use a peremptory challenge to exclude him.” (8 Ill. 368, 376.) However, in a more recent case the supreme court held that “[w]e can not reverse [a] judgment for errors committed in the lower court in overruling challenges for cause to jurors, even though [the] defendants exhausted their peremptory challenges unless it is further shown that an objectionable juror was forced upon them and sat upon the case after they had exhausted their peremptory challenges.” Spies v. People (1887), 122 Ill. 1, 258, 12 N.E. 865; accord, United States v. Tweed (7th Cir. 1974), 503 F.2d 1127, 1129.

In the present case, the defense exhausted its peremptory challenges, but it did not indicate to the trial court that it was being forced to accept an objectionable juror because of the error in overruling the prior challenge for cause. Notifying the trial court of this fact would have served the salutary purpose of giving the court a final opportunity to cure the alleged error by exercising its inherent power to grant the defense an extra peremptory challenge. Because the defense in the present case did not indicate that it was being forced to accept an objectionable juror as a result of the trial court’s error, we hold that the error in denying the challenge for cause was waived.

Ill

The defense argues that the trial court erred by not passing upon and accepting jurors in panels of four as required by section 21 of “An Act concerning jurors ° * *” (Ill. Rev. Stat. 1979, ch. 78, par. 21). However, we find that this issue was waived because the defense never informed the trial court that it objected to the court’s practice of using panels of 12.

It is argued that the use of panels of 12 was announced by the trial court as a “fait accompli” and that it would have been useless to inform the court that there is a statutory right to insist on panels of four. We disagree because we find no reason for concluding that the trial court would not have used panels of four if its attention had been directed to section 21 by an appropriate and timely objection.

IV

The defense contends that the trial court prevented it from asking all the foundational questions which would have permitted it to impeach the complainant with evidence of a prior inconsistent statement. According to the offer of proof concerning the allegedly inconsistent statement, Cecelia told a police officer, soon after the attack, that she had been dragged across the street, forced to perform an act of oral sex, and then raped. It is argued that the officer’s written summary of her prior statement is inconsistent with her trial testimony that she was raped while on the west side of the street and was raped again on the other side of the street while being forced to perform an act of oral sex at the same time. Even if this prior statement is inconsistent, the record shows that the defense simply abandoned its line of foundational questions when the court sustained an objection to a question that was not impeaching. Nothing in the record indicates that the court would have precluded further development of a proper foundation.

The defense refers us to People v. Henry (1970), 47 Ill. 2d 312, 265 N.E.2d 876, but Henry did not eliminate the requirement of asking foundational questions as a prerequisite of impeachment by prior inconsistent statement. Instead, the court in Henry merely held that there was sufficient compliance with the foundational requirements when a witness testified that she did riot remember talking to the impeaching witnesses about a statement she had given to the police. Under the circumstances of that case, it was not necessary to ask the witness about the exact substance of the prior inconsistent statement.

Unlike Henry, the witness in the present case acknowledged that she made a statement to the impeaching witness, and we find no reason for excusing compliance with the requirement of asking the witness whether she made the allegedly inconsistent prior statement.

We also conclude that the trial court did not err by not recalling the complainant on its own motion.

V

The defense argues that the evidence is not sufficient to prove guilt beyond a reasonable doubt for the following reasons:

(a) According to the defense, “The record reflects that both complaining witnesses had been in a tavern drinking for four and one-half hours prior to this incident.” The page in the trial transcript cited in support of this statement shows that Alton admitted that he was in a tavern for 4)i hours. And the next page in the transcript shows that Alton testified that he only had two beers and a shot of gin. This portion of the record does not even support a claim that Cecelia had anything at all to drink the night of the attack.

(b) Although Cecelia testified at trial that she and Alton were attacked by three men, a police officer testified that soon after the attack she said that she and Alton were approached by five men.

(c) At trial Cecelia testified, on direct examination, that Hunter raped her while on the west side of the street; that Hunter and defendant dragged her across the street; and that she was then raped twice while being forced, at the same time, to engage in oral sex. But on cross-examination she stated that she was raped three or four times while on the east side of the street.

(d) Alton testified that he was struggling with defendant while Cecelia was being dragged across the street by the other two men. This, of course, is inconsistent with Cecelia’s testimony. However, the jury could have rejected part of Alton’s testimony as inaccurate. In fact, we note that defendant was also charged with armed robbery based on Alton’s testimony, but the jury rejected this portion of Alton’s testimony, and returned a verdict of not guilty on the charge of armed robbery.

(e) Cecelia testified that she closed her eyes while she was forced to engage in oral sex, and she testified that, while on the east side of Emerald, she only saw defendant for three or four seconds. But in prior testimony, Cecelia estimated the time span for this observation as only two seconds. And, according to the defense, “No testimony was offered concerning [Cecelia’s] ability to observe and identify [defendant] during the time of the walk from Halsted Street to Emerald. Thus, [Cecelia’s] identification testimony is based on an alleged five second view of [defendant].” However, Cecelia testified that as the three men followed her, “They were cussing and they were making jokes and stuff about me.”

(f) It is argued that the testimony Cecelia gave at the preliminary hearing was inconsistent with her trial testimony that defendant helped drag her across the street. At the preliminary hearing, Cecelia gave the following testimony:

“Q. [D]o you know which man knocked Mr. Ratcliff down?
A. The one in the red jacket.
Q. Mr. Washington?
A. Yes.
Q. What was the other man doing as Mr. Ratcliff was knocked down?
A. The one in the black jacket is the one who started tearing off my clothes, and he’s the one that helped another young man drag me across the street.” (Emphasis added.)

Since Cecelia had just referred to defendant as “[t]he one in the red jacket,” it is argued that she would not have referred to defendant as “another young man” if he had helped drag her across the street.

(g) Finally, it is argued that Cecelia’s credibility was impeached because, on cross-examination, she testified that the police pulled one of the rapists off of her. According to one of the arresting officers, the police did not pull any of the rapists off of her. However, we note that during her direct examination Cecelia testified that, “All of a sudden, I noticed they started running, the police was there.” This, of course, was consistent with the allegedly impeaching testimony of the arresting officer. The “inconsistent” statement was elicited on cross-examination when Cecelia answered affirmatively to a leading question: “[W]hen the police arrived, did they pull one of the men who was on top off of you?”

As an appellate tribunal which did not have an opportunity to hear the witnesses testify, or to observe their demeanor, we are authorized to reverse a conviction only when the evidence is so palpably contrary to the weight of the evidence, or so unreasonable, or improbable, that we would be justified in disregarding the judgment of the jury and concluding that there is a reasonable doubt about defendant’s guilt. People v. Lobb (1959), 17 Ill. 2d 287, 294, 161 N.E.2d 325.

In the present case, defendant was captured at the scene of the crime, and the victim identified him as one of the men who attacked her companion, helped drag her away, and who raped her while other attackers forced her to engage in oral sex. She testified that these men had followed her for several blocks, and she had reason to notice them because they swore and made jokes about her.

We find that the victim’s testimony is not improbable, unreasonable, or palpably wrong. The fact that the victim of a gang rape did not repeat her testimony with the accuracy of a tape recorder does not necessarily create a reasonable doubt about defendant’s guilt. The jury had an opportunity to determine whether the alleged impeachment of the complainant was actually impeaching and, if so, whether it was significant. The jury could have concluded that the victim was not absolutely accurate in every detail of her testimony but that, nevertheless, defendant was still guilty beyond a reasonable doubt.

Moreover, the jury was not obligated to believe defendant’s testimony that he was only an innocent bystander. We recognize that defendant could not be held accountable if, as he testified, he merely stood by as an innocent bystander for “ten or fifteen seconds” while his friends attacked a screaming woman. But, even though it is not a crime to refuse to summon help for a crime victim, and even though it is not a crime to decline to try to stop a forcible felony, the jury was entitled to weigh the reasonableness of defendant’s testimony when evaluating his credibility.

We conclude that the prosecution’s evidence is sufficient to.prove beyond a reasonable doubt that defendant raped complainant and is accountable for the deviate sexual assaults which were committed during the rape.

VI

The defense argues that the trial court erred in refusing to permit defendant to testify about whether he intended to rape Cecelia and whether he knew she was going to be assaulted. This issue was not raised in the post-trial motion, and we find that it was waived. See People v. Irwin (1965), 32 Ill. 2d 441, 443, 207 N.E.2d 76.

VII

Although defendant was only 17 at the time the offense was committed, and had led an exemplary life, we find that, in light of the brutal nature of the attack in this case, the trial court did not abuse its discretion in sentencing defendant to 10 years in prison.

As the trial court stated, “If it had not been [such] a revolting offense he would have come in on the ground floor. It’s so revolting that the court cannot sentence him to the ground floor and justify other sentences being [imposed] on other people. I haven’t had a more aggravated rape in this court again in terms of brutality against the victim as I have had in this case. The court thinks the court is being considerate and had the witnesses not come in to testify [on behalf of defendant at the sentencing hearing] even without a background [i.e., a criminal record] the court would assure you he would not have received ten years. He would not have received a sentence as low as ten years.”

We do not find that the trial court was predisposed to impose a sentence which exceeded the minimum. The brutal manner in which the crime was committed was sufficient to justify a sentence of imprisonment which is more than the minimum of six years imprisonment.

Based on the preceding reasons, the judgment of the circuit court is affirmed.

Affirmed.

SULLIVAN, P. J., and MEJDA, J„ concur.


author: PRESIDING JUSTICE SULLIVAN

text:
    DOROTHY GRIFFIN et al., Plaintiffs-Appellees, v. HAROLD GOULD et al., Defendants.—(HAROLD GOULD, Defendant-Appellant; APRIL ISAACSON CAMP, Defendant-Appellee.)
    First District (5th Division)
    No. 81-320
    Opinion filed February 5, 1982.
    Samuel H. Young, P. C., of Skokie (Samuel H. Young, of counsel), for appellant.
    Reinwald & Sostrin, of Chicago (Lester Reinwald and Morris Sostrin, of counsel), for appellees.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant Harold Gould (defendant) appeals a finding that certain statues passed under the residuary clause of a will. He contends that the trial court erred (1) in holding that article one of the will, disposing of “house furniture and furnishings and articles of household or personal use or ornament of all kinds” was unambiguous and did not operate to pass the statues; and (2) in ruling that extrinsic evidence could not be considered to clarify the testator’s intention.

Plaintiff’s, co-executors of the estate of Benjamin J. Kulp (testator), petitioned for a construction of his will which, in article one, gave his residence and all “house furniture and furnishings and articles of household or personal use or ornament of all kinds” to defendant, and in article two gave the residue of his estate to the trustees of testator’s trust. The beneficiaries of the trust were named as parties defendant.

The bill of appraisement filed with the court by plaintiffs listed 284 items of tangible personal property, including the six statues in question — of which four depict Abraham Lincoln, one is a bronze bust of an unidentified person, and the sixth is a bronze sculpture entitled “The Woodcarver.” Following distribution to defendant of the tangible personal property, including the six statues, it appears that two beneficiaries, Griffin and Camp, took the position that one of the statues, which depicted a seated Lincoln appraised at $30,000 and located at testator’s club, passed as part of the residue of the estate under article two of the will. Plaintiff then petitioned for a construction of the will and instructions as to the proper distribution of the statues. Defendant moved to strike and dismiss on the grounds that article one unambiguously included all the statues.

Following a hearing on the petition, the trial court on January 16, 1981, denied defendant’s motion to strike and dismiss and, in ruling that all the statues passed as part of the residuary estate under article two, the court found that there was no ambiguity in the terms of the will — stating that the statues were not mentioned in the will and that the absence of unequivocal descriptive language meant that the testator did not intend to include them in article one. The court also ruled that it did not “need extrinsic evidence to clarify the question” and, although it permitted defendant to make an offer of proof concerning the testator’s intention, it stated that such evidence would have no bearing on its decision. The trial court then denied a motion for reconsideration which included a request by defendant to present pictures of the items under consideration showing “their location and surroundings in the home of the decedent” and “offers of proof of non-interested persons” concerning the intention of the testator as to the statues. This appeal is from the order of January 16, 1981.

Opinion

Defendant essentially contends that the trial court erred in finding that article one was unambiguous and did not include the statues or, alternatively, that extrinsic evidence should have been admitted to determine the intention of the testator. Plaintiffs contend, on the other hand, that article one is unambiguous and, since it does not specifically describe and bequeath the statues to defendant, the trial court properly found that they passed as part of the residuary estate under article two.

The relevant provisions of the will are as follows:

“ARTICLE ONE
I give and devise:
(a) All jewelry, wearing apparel, silver, silverware, china, pictures, paintings, books, house furniture and furnishings and articles of household or personal use or ornament of all kinds owned by me at my death to my nephew, HAROLD GOULD * * *.
ARTICLE TWO
All the rest of my estate, real and personal, wherever located, but expressly excluding any property over which I now or hereafter may have power of appointment, I give and devise to the acting trustee of that certain trust created by me known as the Benjamin Kulp Trust, Dated January 6,1966, as heretofore amended by me on April 30, 1973, and Oct. 7th, 1975, of which The First National Bank of Chicago, of Chicago, Illinois, now is acting as trustee, to be held and disposed of after my death as provided in the said trust agreement as so amended.”

The interpretation of wills is governed by certain general principles, preeminent of which is to ascertain and give effect to the intention of the testator (Krog v. Hafka (1952), 413 Ill. 290,109 N.E.2d 213), which is to be determined from the will itself (Cahill v. Michael (1943), 381 Ill. 395, 45 N.E.2d 657), but where its language leaves doubt as to such intention, as where an ambiguity or uncertainty exists, the court considers the circumstances surrounding the testator when the will was made as stated in O’Connell v. Gaffney (1962), 23 Ill. 2d 611, 614, 179 N.E.2d 647, 649:

“In construing a will the pole star or guiding light is the intention of the testator as gathered from the language contained in the will and, if ambiguous, the circumstances surrounding the testator at the time of its execution.”

Our reading of the present will leaves uncertainty as to the intention of the testator with respect to the statues. Although in determining the testator’s intention the words used in the will are given their ordinary meaning unless a different usage readily appears from the will (Lavin v. Banks (1950), 406 Ill. 605, 94 N.E.2d 876), it is our view that under article one there is a choice of possible meanings concerning whether the words “house furniture and furnishings and articles of household or personal use or ornament of all kinds” were intended to include any or all of the statues. As all or none of them might possibly answer to the general description in article one, it is necessary to consider extrinsic evidence in order to determine the testator’s precise intention.

The positions advanced by the parties on this point are unpersuasive. Defendant argues that under article one the statues can be considered either house furniture, furnishings, or articles of household or personal use or ornament of all kinds and, in effect, asserts that the testator classified the statues in several ways. Although it is undisputed that the testator greatly admired Lincoln, defendant fails to explain the absence of specific reference to the statues despite such interest. Moreover, acceptance of one category as including the statues renders the others surplusage and meaningless with respect to the statues, and defendant does not indicate what other items were intended to be included within the other categories. While defendant maintains the statues in question fit within these categories generally, such view being reinforced by the testator’s use of the phrase “of all kinds,” this reading fails to account for the particularity with which jewelry, silver, pictures and paintings are designated. It appears to us that the fluidity of the categories suggested by defendant imparts such indefinite character to the disputed portion of article one as to render uncertain the testator’s intention. It is thus difficult to reconcile the inclusion of such specific categories for objects, which none of the parties claim to have been of special value to the testator, with the vague designation of one or more categories to include the statues, which were admittedly of great importance to him.

The interpretation of article one urged by defendant also isolates individual terms and is thereby not in keeping with the rule that the will should be read in its entirety. The intention of the testator cannot be taken from a single expression viewed in isolation, but must instead be taken from the whole instrument and its parts, considering the testator’s plan as expressed therein (Whitmore v. Starks (1959), 17 Ill. 2d 202, 161 N.E.2d 254), and no words of a will are to be ignored in determining such intention, as every word is presumed to serve some purpose (Davidson v. Davidson (1954), 2 Ill. 2d 197,117 N.E.2d 769).

Turning to plaintiffs’ contrary argument regarding article one, we find no basis from which to conclude that the testator intended to exclude the statues therefrom. It is their position that since the testator had such great admiration for Lincoln, he would immediately have noticed the absence of such a bequest had he intended to include them, especially since he singled out other categories of art objects such as pictures and paintings. They further assert that, as a consequence, the testator intended to exclude the statues from article one. We note, however, that this argument overlooks the fact that two of the statues do not have Lincoln as their subject and that no assertion is made as to their importance to the testator. Beyond this, we believe that what follows from the absence of explicit reference to statuary is that the will is silent as to such disposition. In addition, we see no merit to plaintiffs’ contention that even if article one were read as passing the five statues in the testator’s home to defendant, the sixth statue — at the testator’s club — could not pass in like manner, since as asserted in their petition, it was never in his home during his lifetime, leaving doubt as to whether it was an article of “household or personal use or ornament.” This reading of plaintiff does not, however, account for the use of the phrase “of all kinds” which, depending upon the evidence adduced hereafter, could be construed as encompassing all the statuary. To say that the testator unambiguously intended to exclude the statues is to ascribe to him an intention not sufficiently demonstrated in the record.

Furthermore, it is our view that the cases relied upon by defendant for the proposition that the statues in question are properly regarded as furniture do not govern the present controversy. As stated in Ickes v. Ickes (1944), 386 Ill. 19, 31, 53 N.E.2d 585, 591:

“[C]ases upon the construction of wills do not have the controlling force as precedents that they do in other cases for the reason that the form of a will does not follow a common standard but is a writing found in a great variety of forms and executed under circumstances peculiar to each individual case. [Citations.] Unless a will case cited is in all respects directly in point and agrees in every circumstance with the case before the court, it will have little or no weight. [Citations.]” (Also see Cahill v. Michael (1943), 381 Ill. 395, 45 N.E.2d 657.)

Accordingly, while we deem it unnecessary to discuss in detail the cases relied upon by defendant, we note that in Richardson v. Hall (1878), 124 Mass. 228, the provision of the will in question, a bequest of “all the household furniture,” did not contain more than one category into which certain statuary, bronzes and pictures, could reasonably be placed and, unlike the present case, was unambiguous. Similarly, in Case v. Hasse (1914), 83 N.J. Eq. 170, 93 A. 728, the court found that the wording of the will read in the light of the testimony presented below disclosed the intention of the testatrix to include among her “furniture and personal belongings” the art objects located in her apartment at the time of her death and that an intention to divide the objects according to whether they were useful or ornamental was not apparent. In the present case, as we have indicated, it is not apparent whether the testator intended that the statues be considered as furniture or that they be placed in some other category. We do not believe that the authorities cited by defendant accord with the present case and are, therefore, not controlling.

Finally, we consider plaintiffs’ reliance on the doctrine of ejusdem generis as one of the bases for their position that the statues were excluded from the bequest to defendant under article one. That doctrine was formulated in Strickland v. Strickland (1916), 271 Ill. 614, 617, Ill N.E. 592, 593, as follows:

“In construing statutes, contracts and other instruments it is frequently stated that when there is a general description, coupled with an enumeration of specific things or kinds of property, the general description is commonly understood to embrace and include only those things of a like kind with those enumerated.” (Also see In re Estate of Lindsey (1973), 13 Ill. App. 3d 717, 300 N.E.2d 572.)

The operation of the ejusdem generis doctrine is subject to the principle of ascertaining the intention of the testator; consequently, it does not assist in resolving the ambiguities in article one of the instant will. (Strickland v. Strickland.) Thus, even if the general terms of article one were limited in their application to persons or things of the same kind or class as those specifically named, the context of the testator’s intention must first be manifest, as such intention could be contrary to and supersede this rule.

It is our conclusion that the trial court erred in refusing to admit extrinsic evidence of the testator’s intention. Consequently, we express no view as to whether the statues pass under article one or with the residuum. The judgment is reversed and the cause remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

LORENZ and MEJDA, JJ., concur.

       Under paragraph 4 of the testator’s trust, the residuary is distributed as follows: One-fourth to Dorothy Griffin, his secretary; one-fourth to defendant, his nephew; and the balance to April Isaacson Camp, his granddaughter.


author: JUSTICE McGLOON

text:
    JAMES DEMOS, Adm’r of the Estates of Judy Glines et al., Deceased, Plaintiff-Appellee, v. JILL ERICSON, Adm’r of the Estate of Raymond Jean Glines, Deceased, et al., Defendants.—(BEECH AIRCRAFT CORPORATION, Defendant-Appellant.)
    First District (1st Division)
    No. 80-2575
    Opinion filed February 8, 1982.
    John W. Adler and Franklin A. Nachman, both of Conklin and Adler, Ltd., of Chicago, for appellant.
    Albert F. Hofeld, Ltd., of Chicago (William J. Harte, of counsel), for appellee.
   JUSTICE McGLOON

Beech Aircraft Corporation appeals from the denial of its motion for expenses and fees pursuant to section 41 of the Civil Practice Act (Ill. Rev.

delivered the opinion of the court: Stat. 1979, ch. 110, par. 41). On appeal Beech Aircraft contends the allegations against nonexistent corporations were unreasonable and untrue.

We affirm.

Judy, Michael and James Glines died in an aircraft crash in the State of Oregon on February 7,1978. The administrator of their estates filed an action against, inter alia, Beech Aircraft Corporation, Beech Aerospace Services, Incorporated, Beechcraft Research and Development, Incorporated, and Beechcraft Hawker Corporation. The administrator sought recovery against defendants under the following theories: negligence, strict liability in tort, wilful and wanton conduct, and breach of warranty.

On July 20, 1979, Beechcraft Hawker Corporation filed a motion to quash service of summons. Attached to the memorandum in support of the motion was the affidavit of C.W. Dieker, secretary-treasurer of Beech Aircraft Corporation. The affiant stated that Beechcraft Hawker was no longer in existence and had become known as Beechcraft Research and Development, Incorporated. Beechcraft Research and Development, Incorporated, also ceased to exist and became known as Beech Aerospace Services, Incorporated.

On July 20, 1979, Beech Aerospace Services, Incorporated, filed a motion to quash service of summons on the grounds that it neither conducted business nor committed a tortious act in the State of Illinois. This same day, Beech Aircraft Corporation filed an answer wherein it admitted the manufacture and sale of the aircraft. Subsequently, the trial court quashed service of summons on Beechcraft Research and Development, and Beech Aerospace Services.

Thereafter Beech Aircraft filed a motion for costs, expenses, and attorney fees. It alleged that plaintiff knew or should have known that Beechcraft Hawker and Beechcraft Research and Development were names by which Beech Aerospace was formerly known. It further alleged that because the corporations were nonexistent, the actions against them were meritless and unreasonable and it was therefore entitled to fees and expenses incurred in defending the action against Beechcraft Hawker and Beechcraft Research and Development. After a hearing, the trial court denied Beech Aircraft’s motion.

Beech Aircraft maintains the allegations against Beechcraft Hawker and Beechcraft Research and Development were untrue and made without reasonable cause because the two corporations were nonexistent at the time the action was filed. Beech Aircraft therefore contends the trial court erred in denying its section 41 motion.

Section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41) is penal'in nature and therefore should be invoked only in cases which fall strictly within its terms. (Johnson v. La Grange State Bank (1978), 73 Ill. 2d 342, 383 N.E.2d 185; Himco Systems, Inc. v. Marquette Electronics, Inc. (1980), 86 Ill. App. 3d 476, 407 N.E.2d 1013; Medical Modalities Associates, Inc. v. Quick (1978), 65 Ill. App. 3d 300, 382 N.E.2d 620.) The burden of proof is on the party seeking relief to show the allegations are untrue and made without reasonable cause. Himco; Williams v. City of Chicago (1977), 54 Ill. App. 3d 974, 370 N.E.2d 119.

In a memorandum filed in the court below, plaintiff had argued that Beechcraft Hawker and Beechcraft Research and Development were not relieved of liability merely because of the amendment of the corporate charter. Based on the fact that the aircraft had been manufactured and sold 30 years before the crash, plaintiff believed that the nonexistent corporations were properly named as defendants.

We do not believe the allegations against the nonexistent corporations fall within the proscriptions of section 41. It is assumed that attorneys in filing pleadings have due regard for their duties and responsibilities as officers of the court and they are permitted to exercise broad discretion based upon honest judgment from facts presented to them. (Williams v. City of Chicago (1977), 54 Ill. App. 3d 974, 370 N.E.2d 119.) It is apparent that in naming as defendants Beechcraft Hawker and Beechcraft Research and Development, plaintiff’s counsel was exercising his professional judgment and, in view of his arguments in the court below, the allegations of the complaint were not unreasonable.

The award of expenses and fees is within the discretion of the trial court. (Ascaridis v. Russis (1979), 78 Ill. App. 3d 376, 397 N.E.2d 14; Brandenberry Park East Apartments v. Zale (1978), 63 Ill. App. 3d 253, 379 N.E.2d 674.) We find no abuse of discretion.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

GOLDBERG and O’CONNOR, JJ., concur.


author: JUSTICE GOLDBERG

text:
      In re ADOPTION OF JENNIE LYNN RICHARDS.—(EDWARD BROUGHTON et al., Petitioners-Appellees, v. TERRY FOWLER, Respondent-Appellant.)
    First District (1st Division)
    No. 81-1155
    Opinion filed February 8, 1982.
    Katz, Hirsch, Wise & Colky, Ltd., of Chicago (Russell J. Hirsch, of counsel), for appellant.
    James A. Palmisano, of Chicago, for appellees.
   JUSTICE GOLDBERG

delivered the opinion of the court:

This case arises from the petition of Edward and Betty Broughton (petitioners) for the adoption of Jennie Lynn Richards. After extensive hearings the trial court found the natural mother, Terry Fowler (respondent) an unfit parent under the Adoption Act (see Ill. Rev. Stat. 1979, ch. 40, par. 1501(D)), and terminated her parental rights (see Ill. Rev. Stat. 1979, ch. 40, par. 1507(B) (j)). Respondent appeals.

Jennie Lynn Richards was born on January 16, 1975. Danny Broughton is the undisputed natural father, although respondent’s husband at the time, Russell Richards, is the putative father. Danny Broughton was convicted of aggravated battery and sent to prison in December of 1974. In February of 1975, he received a letter from respondent stating the baby was “driving me crazy.”

Respondent went to a counselor and on February 21, 1975, took Jennie to the Cradle Society in Evanston. Respondent signed a “Request for Nursery Care” and Jennie remained in the custody of the Cradle Society. On March 11, 1975, respondent returned to the Cradle Society and signed a “Final and Irrevocable Surrender for the Purpose of Adoption.” Danny Broughton received a similar document while he was still incarcerated. He refused to sign it and requested that his parents, petitioners, take custody of the child. Thereafter, on March 28, 1975, respondent once again returned to the Cradle Society, this time in the company of petitioner, Betty Broughton. Respondent removed Jennie from the custody of the Cradle Society and placed her in the care of petitioners. Since March 28, 1975, Jennie has remained in the custody of petitioners except for a period of either 9 or 23 days.

Danny Broughton was released from prison in July of 1976. He and respondent dated a few times over the next two years. On or about July 14, 1978, Danny Broughton and respondent lived together in a basement apartment in the house where petitioners lived. On July 21, 1978, Danny and respondent married. Approximately three days later respondent left. She returned in late November and she and Danny moved into an apartment on Winthrop Avenue, where they resided for approximately two weeks.

Thereafter the testimony is conflicting. Respondent testified Jennie lived with her and Danny in their apartment on Winthrop Avenue from December 2, 1978, to December 14. On that date respondent was admitted to a hospital where she stayed for several days. According to respondent, Jennie then stayed with respondent’s mother in Des Plaines until December 25, 1978, when Jennie was removed forcibly by Danny.

Witnesses for petitioners dispute respondent’s testimony. They testified Jennie never lived in the apartment on Winthrop. From December 2 through December 13, Jennie was still at the home of petitioners. Petitioners admit Jennie did stay at the home of respondent’s mother from December 14 to December 25. Danny Broughton testified he brought Jennie to his mother-in-law’s home, without the permission of petitioners, to stay only a single night. However, Jennie was kept there without his or petitioners’ permission until Danny “brought” her home on December 25, 1978.

Danny Broughton, petitioners, and other witnesses also testified that respondent never inquired about the well being of Jennie, never wrote letters or cards, never made visits specifically to see Jennie, and never contributed to her support. Petitioners contend respondent only saw Jennie a very few times between March 28, 1975, and December 2, 1978, and was never alone with Jennie during that entire period.

In addition, petitioners introduced a letter written by respondent to petitioner Betty Broughton. The letter accompanied a “Record of Birth” for Jennie, and stated that petitioners would need the certificate to “change the baby’s last name,” and that respondent hoped Danny “finds somebody to help him raise Jennie.” Two acquaintances of respondent also testified to conversations in which respondent expressed her intent neither to raise Jennie nor to have custody of her.

Respondent denied those conversations and testified she never intended permanently to relinquish custody of Jennie. Respondent claims she took Jennie to the Cradle Society and put her in the custody of petitioners simply because she was confused and unemployed. She did not realize the significance of the adoption surrender she signed on March 11, 1975. Respondent also testified she went to visit Jennie frequently while Jennie lived with petitioners. Respondent asserted her visitations were limited only because she was threatened and intimidated by Danny and petitioners. Respondent testified Danny threatened to kill her if she tried to see Jennie. She also stated she was afraid of Danny and married him only because she believed Jennie could live with them.

The trial court held the respondent was an unfit parent on the grounds she did not “maintain a reasonable degree of interest, concern or responsibility as to the child’s welfare” (Ill. Rev. Stat. 1979, ch. 40, par. 1501(D) (b)), and she abandoned the child (Ill. Rev. Stat. 1979, ch. 40, par. 1501(D)(a)). On appeal, respondent contends she was not found to be an unfit parent by the requisite degree of clear and convincing evidence, and the trial court committed reversible error in not allowing evidence of respondent’s conduct subsequent to the date petitioners filed their petition for adoption.

Respondent is correct that to terminate the parental rights of a biological mother she must be found an unfit person by clear and convincing evidence. (See, e.g., In re Bredendick (1979), 74 Ill. App. 3d 946, 953, 393 N.E.2d 675.) In the case at bar, petitioners have amply met that requirement. Although proof of unfitness must be clear and convincing, the finding of unfitness is a question of fact and the decision of the trial court “should not be disturbed on appeal unless against the manifest weight of the evidence * # In re Bentsen (1980), 90 Ill. App. 3d 269, 273, 412 N.E.2d 1167.

Respondent claims her attempts to visit Jennie were frustrated by petitioners. Therefore, she urges, her admittedly limited contacts with Jennie are not evidence of abandonment or of a lack of interest in the child. This court has held that official conduct of the Department of Children and Family Services, as custodian of the child, which explicitly interferes with the parent’s ability to visit the child, may mitigate the parent’s lack of contact with the child, for the purposes of determining unfitness. (See In re Overton (1974), 21 Ill. App. 3d 1014, 1019, 316 N.E.2d 201.) However, the mere allegation of “threats” by the child’s grandparents as custodians, is not sufficient to excuse a virtually complete lack of contact between a parent and child over a period of several years. See Freeman v. Settle (1979), 75 Ill. App. 3d 799, 393 N.E.2d 1385.

In the case at bar, the record is replete with contradictory testimony. The able trial judge was in the best position to evaluate the demeanor of the witnesses and to determine their credibility. In re Ice (1976), 35 Ill. App. 3d 783, 786, 342 N.E.2d 460.

The record discloses clear and convincing evidence upon which the trial court could find respondent failed to exhibit sufficient interest in the child to be considered a fit parent. There is no dispute respondent relinquished custody of Jennie less than five weeks after she was born. At the very most, respondent had only minimal contact with the child, and made no discernable effort to regain custody of Jennie for approximately four years. In addition, there is the executed surrender for adoption, and the letter respondent wrote to petitioners indicating her consent to their permanent custody of Jennie. The judgment of the trial court finding respondent an unfit person because she failed “to maintain a reasonable degree of interest, concern or responsibility” is clearly and convincingly supported by the manifest weight of the evidence, and accordingly should be affirmed. Because we have determined there is sufficient evidence to sustain the finding of unfitness based on failure to maintain a reasonable degree of interest, concern or responsibility for the child, we need not address the trial court’s supplemental finding of abandonment. See Freeman v. Settle (1979), 75 Ill. App. 3d 799, 801.

Respondent also contends the trial court committed reversible error in not allowing evidence of respondent’s behavior subsequent to the date petitioners filed their petition for adoption. Counsel for respondent presented an offer of proof to the effect that after January 22, 1979, respondent retained legal counsel and secured court ordered visitation rights. Also, after that time respondent has visited Jennie every weekend. The court held this evidence irrelevant to the central issue which was respondent’s fitness at the time the petition for adoption was filed.

Respondent cites two cases, In re Gibson (1975), 24 Ill. App. 3d 981, 322 N.E.2d 223, and In re Moriarity (1973), 14 Ill. App. 3d 553, 302 N.E.2d 491, for the proposition that the parent’s behavior subsequent to the filing of the adoption petition is relevant to the determination of fitness. However, in those cases we merely referred to evidence already in the record, which was not objected to by the opposing party. We did not adjudicate the propriety of allowing such evidence to be introduced. In fact, in Moriarity, we specifically declined to “consider, as the trial court did, that evidence pertaining to the period following the filing of the unfitness petition.” 14 Ill. App. 3d 553, 556.

The trial “court’s determination that evidence is irrelevant is largely within the discretion of the court, and its ruling should not be reversed absent a clear abuse of discretion.” (Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 1018, 388 N.E.2d 770.) This flexible rule of reason is a sufficient guideline for determination of the propriety of receiving evidence relating to the period after filing of the petition. In our opinion, the introduction of such evidence should be evaluated and decided on a case-by-case basis according to the particular facts of each case. In the case at bar, respondent was not substantially prejudiced by the exclusion of the evidence. The evidence of respondent’s lack of interest in the child for the four years prior to the filing of the petition for adoption, is sufficient to sustain a finding of unfitness even with full consideration of the proposed evidence. In fact, we find the additional evidence tendered by respondent is not sufficient to rebut or overcome the remaining evidence above set forth, which strongly supports the judgment appealed from in a clear and convincing manner. Therefore, we do not find a “clear abuse of discretion” in exclusion of the proposed evidence by the trial court.

Accordingly, the judgment appealed from is affirmed.

Judgment affirmed.

CAMPBELL, P. J., and McGLOON, J„ concur.


author: JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GLEN McEWEN, Defendant-Appellant.
    First District (2nd Division)
    No. 80-1613
    Opinion filed February 9, 1982.
    Rehearing denied March 1, 1982.

      Ralph Ruebner and Bradley S. Bridge, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and David A. Shapiro, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

A jury found defendant guilty of armed robbery and armed violence based on the predicate felony of unlawful restraint. He was sentenced to a term of 8 years for each offense to be served concurrently. Defendant appeals. Among the issues presented are whether: the trial court properly allowed testimony of a witness that defendant asked her not to “come to court”; the trial court properly denied defendant’s motion for a continuance to talk to the victim when defendant found new evidence; and defendant’s conviction of both armed violence based on unlawful restraint and armed robbery was improper.

The State’s evidence included testimony from Herbert Ferguson, the victim (victim), who stated that on August 17,1978, between 5 and 6 p.m., three men walked towards him as he approached his auto. He entered the driver’s side of his car but the “leader” pushed him over to the passenger side and “grabbed” his keys. The “leader” drove while the other two were seated in the back, one of whom was defendant, who pointed a black revolver with brown handles at his head. He was told not to make any “funny moves” or else “his brains would be blown out.” The trip lasted about 55 minutes and they told him to get out. The offenders drove off with his car, eyeglasses, wallet, watch and briefcase containing travel brochures.

Doretha Hammond testified for the State. She shared an apartment with Elgin James (who initially was a co-defendant until defendant’s motion for severance was granted). In the evening hours on the day in controversy, James, McEwen, and Steven Levy entered her apartment possessing a wallet containing victim’s license and picture, a briefcase containing travel brochures and a black gun with brown handles. The three men told her that they waited outside a parking lot for a car owner and then held him at gunpoint. Defendant privately told her “how scared the man was when they held him at gunpoint.” In March 1980, defendant approached her outside of her school and asked her not to come to court.

At the close of the State’s case, defense counsel requested a continuance in order to interview the victim concerning a conversation he allegedly had with defendant’s father and brother-in-law to the effect that he was “really unsure who had the gun.” The motion was denied.

I

Defendant contends that the trial court failed to weigh the potential prejudice to defendant as against its probative value when it improperly allowed Hammond to testify that defendant asked her not to “come to court,” because this constituted evidence of another crime, namely, intimidation of a witness. (Ill. Rev. Stat. 1979, ch. 38, par. 32 — 4(b).) Defendant cites People v. Smith (1979), 73 Ill. App. 3d 577, 392 N.E.2d 347, in support of his assertion that a court’s failure to recognize its discretion is reversible error. That case, however, is easily distinguishable since it involved the admission of defendant’s prior conviction of indecent liberties with a child 8)i years before the offense charged. The instant case involves the admission of evidence of another crime clearly relevant to consciousness of guilt. Assuming, arguendo, that such a conversation could be construed as intimidation of a witness, in a criminal case it is admissible and relevant to show consciousness of guilt. People v. Gambony (1948), 402 Ill. 74, 80, 83 N.E.2d 321, cert, denied sub nom. Gambony v. Ragen (1949), 337 U.S. 910, 93 L. Ed. 1722, 69 S. Ct. 1045; People v. Jones (1980), 82 Ill. App. 3d 386, 393, 402 N.E.2d 746.

II

Defendant next assigns reversible error to the trial court’s denial of his motion for a continuance for the purpose of seeking an opportunity to talk to the victim about his purported statements to his father and brother-in-law in the hallway of the courtroom at the close of the State’s case, to the effect that he was unsure who really held the gun. The State maintains that defendant failed to preserve this issue on appeal by failing to raise it in his written motion for a new trial. People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.

Assuming the asserted error had been properly preserved, defendant’s assertion is unpersuasive. The right to a continuance is not absolute, but is a matter for the sound discretion of the trial court. (People v. Davis (1970), 45 Ill. 2d 514, 519, 261 N.E.2d 314.) In order to reverse the trial court’s exercise of discretion, it must be demonstrated that the denial of the continuance embarrassed the accused in the preparation of his defense so as to prejudice his rights. (People v. Arndt (1972), 50 Ill. 2d 390, 394-95, 280 N.E.2d 230.) In determining whether a denial of a continuance violates the accused’s right to prepare an adequate defense, the circumstances of each case must be weighed, including the reasons presented to the trial judge at the time the request is denied. (People v. Lott (1977), 66 Ill. 2d 290, 297, 362 N.E.2d 312.) Defendant argues that the newly discovered evidence cast doubt on the victim’s ability to identify McEwen as a party to the incident. From the argument presented to the trial court in the form of an offer of proof, however, it appears that the victim’s extrajudicial statement did not change any material aspect of his identification testimony. We find no basis for disturbing the jury’s verdict under these circumstances.

Ill

Defendant maintains, finally, that the armed violence conviction arose out of the same conduct that provided the grounds for the armed robbery conviction in violation of People v. King (1977), 66 Ill. 2d 551, 368 N.E.2d 838. The State contends that defendant waived this issue by failing to raise it at trial or in his post-trial motion.

Assuming, for the purpose of argument, that the point had been properly preserved, defendant’s position must be rejected for two reasons. First, the convictions involved multiple acts. The armed violence charge arose out of the unlawful restraint which occurred when the offenders accosted the victim at gunpoint and pushed him into the car. (Ill. Rev. Stat. 1979, ch. 38, pars. 10 — 3(a) and 33A — 2.) The armed robbery charge arose from later conduct when the offenders took the victim’s watch, wallet, briefcase, glasses and car. (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 2(a).) Second, armed robbery and armed violence based on unlawful restraint are separate crimes; each requires the existence of different facts to sustain a conviction. (People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.) Finally, it should be noted that there is no “double” enhancement involved here since the predicate felony of unlawful restraint by definition may be committed without a dangerous weapon. People v. Haron (1981), 85 Ill. 2d 261, 278, 422 N.E.2d 627.

For the reasons aforesaid, defendant’s convictions cannot be set aside. The jury verdict and judgment accordingly must be affirmed.

Affirmed.

STAMOS, P. J., and DOWNING, J., concur.


author: JUSTICE DOWNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD ALEJOS, JR., Defendant-Appellant.
    First District (2nd Division)
    No. 80-2187
    Opinion filed February 9, 1982.
    Ralph Ruebner, Richard F. Faust, and Steven Clark, all of State Appellate Defender’s Office, of Chicago, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and Raymond F. Brogan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

After a bench trial, defendant Edward Alejos, Jr., was found guilty of voluntary manslaughter and armed violence based on the underlying felony of voluntary manslaughter. (Ill. Rev. Stat. 1977, ch. 38, pars. 9 — 2 and 33A — 2.) He was sentenced to two concurrent terms of 7 years.

Defendant was charged in four counts. Count 1 of the four-count information charged defendant with murder in violation of section 9 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a)(1)). Count 2 charged him with murder in violation of section 9 — 1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a)(2)). Count 3 charged him with armed violence based on the underlying felony of murder in violation of section 33A — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 33A — 2). Count 4, under which defendant was convicted, charged him with armed violence “in that he, while armed with a dangerous weapon, to wit: a firearm committed a felony defined by Illinois law, to wit: voluntary manslaughter in violation of Chapter 38, Section 33A — 2 Illinois Revised Statutes.”

The three issues raised by defendant on appeal deal with various aspects of the armed violence statute. First, defendant argues that count 4 of the information charging him with armed violence based on the underlying felony of voluntary manslaughter failed to properly charge him with an offense. Second, defendant argues that it is improper to base an armed violence conviction on the underlying felony of voluntary manslaughter. Third, defendant argues that his conviction for two offenses violates the rule of “one act, one crime.” Since we agree with defendant’s first argument, it is unnecessary for us to reach the remaining issues.

Defendant and Christian Arntzen, the victim, were both teenagers in the same neighborhood on the northwest side of the city of Chicago, although defendant was currently on active duty in the United States Navy, stationed at Great Lakes Naval Base. During an altercation on a street corner one night, defendant fired multiple shots from a handgun into the victim. At trial, defendant claimed that he feared he would receive great bodily harm from the victim. The trial court, in finding defendant guilty, characterized the case as a “classic case of voluntary manslaughter.”

I

Defendant contends that count 4 is insufficient in that it does not set forth with particularity the elements of voluntary manslaughter, upon which the charge of armed violence is predicated. Additionally, these elements are not set forth in any other count of the information. Specifically, defendant claims he was not sufficiently informed whether the voluntary manslaughter count was based on section 9 — 2(a) (sudden and intense passion) or section 9 — 2(b) (unreasonable belief of justification). Defendant properly attacked the information in the trial court with a timely motion in arrest of judgment. (Ill. Rev. Stat. 1979, ch. 38, par. 116 — 2.) The motion was denied.

Section 111 — 3(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. Ill — 3(a)) contains the requirements for a charging instrument. A charging instrument must, inter alia, state the name of the offense, cite the statutory provision, and set forth the nature and elements of the offense. We believe that count 4 of the information does not adequately set forth the nature and elements of the offense in that the elements of voluntary manslaughter are not alleged, nor is there any reference to either paragraph of section 9 — 2. Two recent cases of this court held identical informations to be insufficient under section 111 — 3(a). We fully agree with the discussion of this issue in People v. Easter (1981), 102 Ill. App. 3d 974, 978, and People v. Miles (1981), 96 Ill. App. 3d 721, 725-26, 422 N.E.2d 5. Based on the principles set forth in those cases, we reverse defendant’s armed violence conviction.

II

Rased on our action with respect to count 4, we must vacate defendant’s sentence on the voluntary manslaughter conviction and remand for resentencing on this conviction. We cannot be certain that the presence of the armed violence conviction did not influence the trial court’s sentence on the voluntary manslaughter conviction. See People v. Filker (1981), 101 Ill. App. 3d 228, 229, 427 N.E.2d 1311; People v. Walton (1981), 94 Ill. App. 3d 903, 912-13, 419 N.E.2d 495.

In summary, defendant’s conviction for armed violence is reversed. The conviction for voluntary manslaughter is affirmed, the sentence on the voluntary manslaughter conviction is vacated, and this cause is remanded for resentencing. The judgment of the circuit court of Cook County is affirmed in part, reversed in part, and remanded.

Affirmed in part, reversed in part, and remanded.

PERLIN and HARTMAN, JJ„ concur.


author: PRESIDING JUSTICE STAMOS

text:
    WALDBILLIG WOODWORKING, INC., Plaintiff-Appellant, v. KING ARTHUR’S NORTH, LTD., et al., Defendants-Appellees.-(THE DIRSMITH GROUP, INC., Intervening Plaintiff-Appellant.)
    First District (2nd Division)
    No. 80-3087
    Opinion filed February 9, 1982.
    Ira Gould, of Holleb & Coff, Ltd., of Chicago, for appellants.
    Andrew Cardaras, of Cardaras & Zagone, of Chicago, for appellee Bank of Ravenswood.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

This is a mechanic’s lien action. The trial court found that plaintiff Waldbillig Woodworking, Inc., and intervening plaintiff the Dirsmith Group, Inc., do not have valid mechanic’s liens against the subject property. Wallbillig and Dirsmith appeal from this judgment.

In 1976, King Arthur’s North, Ltd., an Illinois corporation, made plans to open a restaurant in Skokie, Illinois. For this purpose, King Arthur’s leased space in a building owned by Canteen Corporation. In October 1976, King Arthur’s engaged Dirsmith to provide architectural services for the proposed restaurant. In February 1977, King Arthur’s entered into a contract with Waldbillig. The latter was to perform the interior remodeling of the building in accord with drawings provided by Dirsmith. Waldbillig completed the work in May 1977. Dirsmith’s responsibilities also ended at this time. For its work under the contract and for some additional work, Waldbillig was due $95,601.64. Dirsmith charged $25,667.82 for its services. Waldbillig has received only $42,177.13 in payment; Dirsmith has received $9,719.96.

In February 1978, Waldbillig filed its claim for a mechanic’s lien in the office of the Cook County recorder of deeds. In April 1978, Waldbillig filed this action to foreclose the lien. Waldbillig also filed at that time a notice of lis pendens. Waldbillig’s suit joined King Arthur’s and Canteen Corporation. The latter was joined on the theory that Canteen was the owner of the premises and knowingly permitted the remodeling work to be done. The statute relating to mechanic’s liens allows a lien to attach to real property when the owner of the property has knowingly permitted another to contract for improvements to the property. See Ill. Rev. Stat. 1977, ch. 82, par. 1.

In June 1978, Dirsmith filed its claim for a mechanic’s lien. By this time, King Arthur’s was insolvent and had filed a petition in bankruptcy. In January 1979, Dirsmith was granted leave to intervene in Waldbillig’s suit as a party plaintiff. In June 1979, while the cause was pending in the trial court, Canteen sold the subject premises to the Bank of Ravenswood as trustee under a trust agreement. The bank purchased the property for value and with notice of the mechanic’s lien claims. Canteen was thereafter dismissed as a party defendant. Plaintiffs were permitted to amend their complaint and join the bank as defendant. After hearing the evidence, the trial court entered judgment for defendant bank, ruling that Waldbillig and Dirsmith did not have valid mechanic’s liens against the property. The court found that the bank was a purchaser of the property and that a purchaser could not be bound by plaintiffs’ mechanic’s liens as the liens were not filed within four months of completion of the work.

In so ruling, the trial court relied on section 7 of the statute pertaining to mechanic’s liens, which provides:

“No contractor shall be allowed to enforce such lien against or to the prejudice of any other creditor or incumbrancer or purchaser, unless within four months after completion, * * 0 he shall either bring suit to enforce his lien therefor or shall file in the office of the recorder of deeds of the county in which the building, erection or other improvement to be charged with the lien is situated, a claim for Hen.” (Ill. Rev. Stat. 1977, ch. 82, par. 7.)

As to the owner of the subject property, the claim for lien may be filed within two years from the completion of the work. (Ill. Rev. Stat. 1977, ch. 82, par. 7.) A suit to enforce the lien must be brought within two years from the completion of the work. Ill. Rev. Stat. 1977, ch. 82, par. 9.

The essential facts are not in dispute. Waldbillig and Dirsmith filed these liens more than four months, but less than two years, after completion of the work. The bank is a purchaser of the property and was not the owner at the time the work was done. The liens and lawsuit were therefore filed too late to bind the bank. Illinois courts have consistently held that a mechanic’s lien is not valid against a creditor, encumbrancer or purchaser unless perfected within the statutory four-month period. See, e.g., Components, Inc. v. Walter Kassuba Realty Corp. (1978), 64 Ill. App. 3d 140, 145, 381 N.E.2d 42; Jennet Bridge & Iron Works v. Churchill (1913), 182 Ill. App. 548, 552; Zander Reum Co. v. Congregation B’Nei Moshe (1911), 159 Ill. App. 371, 372.

Plaintiffs contend, however, that the meaning of section 7 is altered by section 1 of “An Act concerning * * * suits seeking equitable relief involving real property * * a provision frequently referred to as the Lis Pendens Act. (See Ill. Rev. Stat. 1977, ch. 110, par. 405, formerly ch. 22, par. 53.) This section states, in part:

“Every condemnation proceeding, proceeding to sell real estate of decedent to pay debts, or other suit seeking equitable relief, affecting or involving real property shall, from the time of the filing in the office of the recorder of deeds in the county where the real estate is located of a notice signed by any party to the suit or his attorney of record or attorney in fact on his behalf, setting forth the title of the cause, the parties to it, the court where it was brought and a description of the real estate, be constructive notice to every person subsequently acquiring an interest in or lien on the property affected thereby, and every such person * * * shall be bound by the proceedings to the same extent and in the same manner as if he were a party thereto.” (Ill. Rev. Stat. 1977, ch. 110, par. 405.)

Plaintiffs assert that since the bank purchased the property pendente lite, the bank took the property subject to the pending litigation and must be bound by the outcome of the lawsuit as if Canteen had remained a defendant.

Plaintiffs rely on a recent case, Mutschler Kitchens of Chicago, Inc. v. Wineman (1981), 95 Ill. App. 3d 728, 420 N.E.2d 672. In Mutschler, the lawsuit was filed against the owner of the property more than four months and less than two years from the completion of the work. About three months prior to the filing of suit, a third party (the Browns) signed a contract to purchase the property. The sale was closed, and the Browns took title three days after the lawsuit was filed. The Browns were joined as defendants in the lawsuit, but neither the complaint nor the supporting affidavits before the trial court adequately specified the Browns’ interest in the property. The appellate court held that the Browns were not purchasers as of July 3,1979 (the date suit was filed), but were purchasers as of July 6,1979 (the date of the closing), after the lis pendens notice had been filed. (Mutschler Kitchens of Chicago, Inc. v. Wineman (1981), 95 Ill. App. 3d 728, 733-34.) The appellate court found the four-month filing requirement of section 7 inapplicable. 95 Ill. App. 3d 728, 736.

According to plaintiffs’ reading of the Mutschler case, a “purchaser pendente lite” is not the same as a “purchaser” and only the latter class falls within the four-month rule of section 7. We are not convinced that the Mutschler opinion stands for this proposition. If it does, we respectfully disagree. In VonTobel v. Ostrander (1895), 158 Ill. 499, 42 N.E. 152, our supreme court held that a party who purchases real property, knowing of a mechanic’s lien claim against the property that was filed outside of the applicable period, takes the property unencumbered. (158 Ill. 499, 503; see In re Bickel (1922), 301 Ill. 484, 489-90, 134 N.E. 76 (applying the VonTobel holding to the current mechanic’s lien statute).) The court in VonTobel rejected the claim that the time limitation in the mechanic’s lien statute applies only to those who have no knowledge of the lien claim. (158 Ill. 499, 503.) As in VonTobel, the bank in the instant case purchased the property knowing of the lien claims, but also knowing that they had been untimely filed. The VonTobel opinion teaches that a purchaser who knows of a defective claim should not be in a worse position than the purchaser without notice of the same claim.

Lis pendens is a common law doctrine, now codified in Illinois, which holds that a person who acquires an interest in property involved in litigation takes the property subject to the outcome of the litigation and the purchaser is bound by the result as if he had been a party from the outset. (See Admiral Builders Corp. v. Robert Hall Village (1981), 101 Ill. App. 3d 132, 135-36, 427 N.E.2d 1032.) We note that even if the bank had been joined at the outset, the outcome would have been the same: the bank’s interest in the property would have been held unlienable because the liens were not filed within four months of the completion of the work. The time fixed for commencing action (either the filing of a lien or the filing of a lawsuit) under the mechanic’s lien statute is not merely a statute of limitations. Filing within the four-month period is a condition of liability itself and not just a limitation on the remedy. (See North Side Sash & Door Co. v. Hecht (1920), 295 Ill. 515, 519, 129 N.E. 273.) It follows that the potential liability of subsequent purchasers perished inchoate four months after plaintiffs completed the work. We cannot accept the proposition that the filing of a lawsuit against a potentially liable party (here, Canteen Corporation) can revive the liability of other parties. We further note that a suit to foreclose a mechanic’s lien is not an action in rem. (See Dunphy v. Riddle (1877), 86 Ill. 22, 28.) This fact precludes plaintiffs from claiming that the property in question is subject to the outcome of the litigation regardless of ownership.

Plaintiffs argue that the policy underlying the doctrine of lis pendens would be frustrated if a property owner defending a suit to foreclose a mechanic’s lien could defeat the action by transferring the property. Plaintiffs maintain that the statutes involved (section 7 of the statute relating to mechanic’s liens and section 1 of “An Act concerning # * suits seeking equitable relief involving real property ° * °”) must be read harmoniously in order to prevent this outcome. The destruction of plaintiffs’ liens, however, is not the result of a conflict between the lis pendens and mechanic’s lien statutes. Rather, the result reached below is a product of a patent and longstanding distinction in the law of mechanic’s liens: a lien can be filed against the property owner within two years but subsequent purchasers are bound only if the lien is filed within four months. The prospect of defeating a lien filed beyond the four-month deadline is therefore inherent in the statute. It is for the legislature to decide whether this eventuality accords with public policy.

Moreover, the statute, setting forth the filing requirements for mechanic’s liens is specific in nature and these specific provisions are controlling as against the more general provisions of section 1 of “An Act concerning 0 ” * suits seeking equitable relief involving real property * * which includes mechanic’s lien foreclosure suits under the rubric of “other suit[s] seeking equitable relief, affecting or involving real property.” (Ill. Rev. Stat. 1979, ch. 110, par. 405; see People ex rel. Oller v. Cairo & Thebes R.R. Co. (1936), 364 Ill. 329, 333, 4 N.E.2d 482.) There is another reason for strictly construing the filing requirements of section 7: “mechanics’ liens are in derogation of the common law and must, therefore, be strictly construed with reference to all the statutory requirements upon which the right to a lien depends.” (Components, Inc. v. Walter Kassuba Realty Corp. (1978), 64 Ill. App. 3d 140, 145, 381 N.E.2d 42.) This rule of strict construction applies even though the mechanic’s lien statute provides that the act “shall be liberally construed as a remedial act.” North Side Sash & Door Co. v. Hecht (1920), 295 Ill. 515, 519; Ill. Rev. Stat. 1977, ch. 82, par. 39.

In consideration of the foregoing, we find that defendant bank’s potential vulnerability to plaintiffs’ liens ceased before the liens and lawsuit were filed and defendant’s purchase of the property with notice of the lis pendens did not revive those liens. The decision below was therefore correct and is affirmed.

Affirmed.

DOWNING and BERLIN, JJ., concur.