author: EBERSPACHER, J.

text:
    In the Matter of the Estate of Esther A. Lightner, Deceased. Elvis B. Adams, Individually and Executor of Estate of Esther A. Lightner, Deceased; Laura F. Adams, et al., Movants-Appellants, v. Joseph C. Lightner, Respondent-Appellee.
    Gen. No. 66-91.
    Fifth District.
    March 31, 1967.

      Lynndon M. Hancock, of Harrisburg, and Kern and Pearce, of Carmi, for appellants.
    Charles H. Thompson and George B. Lee, of Harrisburg, for appellee.
   EBERSPACHER, J.

Elvis B. Adams, executor of the Estate of Esther A. Lightner, deceased wife of Dr. Joseph C. Lightner, sought by sworn motion to strike the renunciation of the will, filed by Joseph C. Lightner the day following the entry of an order admitting the will to probate. The Executor was joined in the motion by each of the legatees and devisees, except Dr. Lightner; and it was therein contended that by reason of a written agreement, incorporated therein, between Dr. Lightner and the other devisees and legatees, previous to the probate of the will, his renunciation should be stricken. Dr. Lightner filed a sworn answer to the motion, alleging a fiduciary relationship between the nominated executor and Dr. Lightner, a lack of possession and apprisal of material facts and failure of Adams to make a full disclosure of the content of the will and the extent of the property involved; and that he was induced to enter into the agreement to his detriment, disadvantage and loss.

The evidence was heard, briefs submitted, and judgment entered, denying the motion to strike the renunciation and cancelling the contract, from which judgment this appeal has been perfected.

Lightner, an 80-year-old retired physician, and his wife were living in their winter home in Sarasota, Florida, when his wife became seriously ill and was hospitalized in Sarasota in January 1965. She remained in the hospital, in serious condition, until her death on March 17, 1965. Her brother, Elvis B. Adams, and his wife, Laura, arrived in Sarasota, from their Illinois residence, early in March, and stayed there approximately a week, in the Lightner home with Dr. Lightner, leaving Sarasota, after calling on Mrs. Lightner at the hospital on the morning of March 9. While there, each day Adams visited his sister in the hospital, and at her request itemized for her the property she advised him she owned for the purpose of making a will. The will was executed by Mrs. Lightner after Adams departed from the hospital on March 9, 1965, and was mailed by the attorney who prepared it to Adams at his home in Norris City, the will arriving on March 14. Until after his arrival at his Harrisburg, Illinois home, on Sunday, March 21, Dr. Lightner had no knowledge of his deceased wife having made a will. Mr. and Mrs. Adams had at his request opened up his Harrisburg home, where they remained with Dr. Lightner until some time after March 26. Funeral services for Mrs. Lightner were held at Harrisburg on Tuesday, March 23.

The Lightners had been married more than 30 years, and for a time after the marriage Dr. Lightner operated a hospital at Harrisburg, and Mrs. Lightner was manager, bookkeeper and laboratory technician therein. They retired in the late 1930’s and thereafter they divided their time between Harrisburg and Sarasota.

Mrs. Lightner’s will contained 10 provisions; these provisions with the property included, with its source are as follows: 1. Payment of debts, funeral expenses and costs of administration by executor. 2. Devise to Elvis B. Adams of all leases and interests in leases, specifically including oil, gas or mineral leases, and all real estate. This included testatrix’ interest in 40 acres of land, held in tenancy-in-common with Dr. Lightner and 14tii mineral interest in 240 acres of land, on which oil is being produced; the Doctor had given Mrs. Lightner the 14th mineral interest in this tract which he owned in fee, before any oil was produced therefrom. 3. Bequest to Elvis B. Adams of a 1959 Chrysler sedan which Dr. Lightner had purchased for Mrs. Lightner. 4. Bequest to sister, Nettie DeBoard, of $6,500 government bonds, which had been bought personally by Mrs. Lightner, a set of diamond ear screws and a mink coat, both of which were gifts from Dr. Lightner. 5. Bequest to Laura F. Adams of Platinum ring set with diamonds, which was an engagement ring given by Dr. Lightner, a ring set with 2 diamonds, which had been a gift from Dr. Lightner, a set of china which Mrs. Lightner had purchased, and an antique table which had been a gift of a neighbor, and clothing and personal effects. 6. Bequest to Betty Jean Black, daughter of Elvis B. Adams, of diamond set wristwatch, a gift of Dr. Lightner. 7. Request that wedding band be buried with decedent. 8. Bequest to Dr. Lightner of her interest in furniture except antique table; the record is uncontradicted that Dr. Lightner had acquired and owned all furniture except the antique table. 9. Bequest to Elvis B. Adams of residue and remainder of estate; this consists of 2 ceramic kilns, purchased by Mrs. Lightner. 10. Nomination of Elvis B. Adams as executor with power of public or private sale. All other property in which Mrs. Lightner had an interest at the date of her death was acquired by Dr. Lightner and held in joint tenancy with him, except a life insurance policy in which her brothers and sisters were beneficiaries.

According to Elvis Adams’ testimony, on Monday morning, following Dr. Lightner’s arrival in Harrisburg, Dr. Lightner told Adams that he guessed Mrs. Lightner’s will was “in her lock box uptown,” when Adams replied that he had received a will by mail from Sarasota, and that after breakfast they would go out where they could have quiet and peace without interruption and Dr. Lightner could read the will. Adams further testified that following breakfast he and Dr. Lightner got into Adams’ car and Adams drove out into the rural area, parked the car on a country road, handed Dr. Lightner the will; that Dr. Lightner read it, and stated there was certain property which he wanted, to which Adams replied he would arrange it provided Dr. Lightner paid the outstanding obligations and funeral expenses and accepted the will. He further testified that Dr. Lightner handed the will back to him, they returned to Harrisburg, and Adams privately conferred with an attorney whom he advised of the terms agreed upon so that a contract could be made; that on the following morning Dr. Lightner pointed out that there would be funeral expenses in Harrisburg, and Adams agreed to divide them, and so advised the attorney.

Adams further testified that on March 26 he and Dr. Lightner went to the attorney’s office where an agreement had been prepared; that a copy was given to each of them, and it was read aloud to them, and Dr. Lightner read it for himself, it was then signed by each of them in quadruplicate, and the signed copies delivered to Adams who had his wife, daughter and sister affix their signatures, and returned them to the attorney.

Dr. Lightner testified that he first learned of a will about two hours after the funeral, March 23, when Adams in the presence of his wife Laura Adams, at his home in Harrisburg, said to him, “Esther has made a will” or “Esther made a will while we was down in Florida,” at the same time pulling his coat open, so that Dr. Lightner could see a paper or envelope in his pocket, and that he was unable, due to an affliction of his vision, to tell which it was. He testified that there was no further discussion of the matter that evening except for Mrs. Adams saying, “Doctor, I hope to God you don’t contest the will”; that he was stunned, tired and shocked, and the following morning Adams said, “Let’s get in my car and go out and talk this will over — discuss it.” He continued, that Adams drove by a circuitous route to a point in the country and pulled off to the side of the road between two cornfields, when Adams pulled a paper from his pocket, faced him and said, “Now I will read the will”; that “He said after the funeral expense, then started off by giving him the automobile, Nettie DeBoard the ear screws and his wife the diamond engagement ring and the double-set diamond ring and also the wedding ring and then his daughter was supposed to get the little wristwatch. He also mentioned the chinaware and her clothes and I believe that’s all of any significance that he mentioned”; that he mentioned the mink coat, made no mention of real estate or oil wells, or anything other than the automobile that Adams was to get; and that Dr. Lightner never had the will in his hands.

According to Dr. Lightner, “I said, ‘Elvis, I would like to have the engagement ring and the wristwatch, especially for sentimental purposes.’ He says, ‘Doc, I can’t do that. Esther willed the watch to my daughter and she willed the engagement ring to my wife, Laura.’ I said, ‘Elvis, I would like to have them.’ He said, ‘Well, Doc, I can’t do that without putting it in writing or making some kind of a contract.’ I said, ‘That is not necessary. You’ve known me for thirty-six years and why couldn’t we do that without having to do anything like that.’ He said no we’d better have it in writing. There was nothing more said. I didn’t hear anymore until a couple of days”; and that he told Adams that he had paid the funeral expenses in Florida, and agreed to pay them and half the funeral expenses in Harrisburg in exchange for the watch and ring. He testified that on the following morning Mr. and Mrs. Adams took him for a drive and that while in the car, he mentioned the jewelry and Mrs. Adams said, “Doctor, I hope you don’t contest the will” and that he replied, “Laura, as far as I know now, the way Elvis read it to me, I don’t have any idea of doing so.” His further testimony was that after he had aroused from a nap on the afternoon of the 26th, Adams said, “Let’s go up to Judge Hancock’s office, he has some papers that he wants us to sign,” that they were there and he “followed along” as the contract was read, that he could not see to read it and understood that it concerned only the watch and ring, which, for sentimental reasons, he wanted.

That Dr. Lightner was tired and under emotional strain and had taken a few “nembutals” during this period is undenied in the record, as is the fact that both his vision and hearing were impaired. The record substantiates the fact that at no time was he advised nor had knowledge of either his right to renounce the will or his right to a spouse’s award under which he could have selected the items he wanted for sentimental reasons; the oil wells and real estate interests were never discussed. He testified that he was of the impression that the will only disposed of the items he says were mentioned in the conversations with Adams. He was never given a copy of any will and the will was not presented to him in the attorney’s office when he signed the agreement; he testified that he was then asked if he had read the will and answered that Adams had read it to him, but that he later determined that Adams had only read parts of it to him. It is to be noted that since he owned the furnishings and furniture, he would take nothing by the will, and that the will provided for debts and funeral expenses to be paid from the assets of the estate.

The agreement executed by Dr. Lightner, Elvis B. Adams, Laura F. Adams, Nettie A. DeBoard and Betty Jean Black, which was offered in support of the motion to strike the renunciation and claims filed by Dr. Lightner for funeral expenses, a hospital bill of Mrs. Lightner and for special nurses in amounts which had been paid by Dr. Lightner, provides that in addition to the property given Dr. Lightner under the will, the ring and watch bequeathed to Mrs. Adams and Betty Jean Black, respectively, were to be delivered to him, and he agreed to pay all debts, expenses in connection with the funeral up to the time the body arrived in Harrisburg, one-half the Harrisburg expenses, neither renounce nor contest the will, make no claim for spouse’s award or any other claim against the estate; the other signatories agreed to the distribution of the ring and watch to Dr. Lightner and that they would not contest the will.

As a practical matter under the terms of the purported agreement, Dr. Lightner agreed to not only give up his spouse’s award, in a minimum amount of $1,000 (the will not having any provision in lieu of the award), but his right to renounce, the exercise of which could have resulted in his taking one-half the entire estate, subject to the debts, funeral expenses and costs of administration, but also to voluntarily pay the debts and greater portion of the funeral expense from his personal funds, all in consideration of "the ring and watch, and a promise to not contest the will by parties, who, if they had successfully contested the will would have received nothing.

At the hearing Dr. Lightner and Elvis B. Adams were the only witnesses who testified. Dr. Lightner testified that he was not aware at the time of these occurrences that he should consult an attorney; that the attorney selected by Adams was not one he used nor was it the one he contacted when he determined he should look into the matter. There is no denial in the record of the statements he ascribes to Mrs. Adams and the parties both testify that there was never any discussion of the possibility of a renunciation or claim for spouse’s award; both testified they did not know of such legal proceedings, and that there was no discussion of the' oil interests or any real estate during the negotiations. The weight to be given the testimony of the two witnesses was for the trial court.

Appellants’ sworn motion, with the purported contract made a part thereof, attempts to estop Dr. Lightner from exercising his right to renounce, and his right of an election to take dower within 10 months of the probate of the will, as is provided by sections 17, 18 and 19 of The Probate Act (c 3, §§ 17, 18 and 19, 111 Rev Stats 1963). His sworn answer seeks to avoid the estoppel, by the allegations of a confidential relationship, absence of disclosure of material facts and a misplaced confidence resulting in action to his detriment, disadvantage and loss. Appellants here contend that this is not a case of equitable election or estoppel; that this is a case of enforcement of a contract for which good consideration has been delivered (the retention of the ring and watch by Dr. Lightner). This contention is based on their theory that Adams, at the time of the negotiations with his brother-in-law, was only the nominated executor, pointing out that Adams did not sign the agreement as executor, and thus no fiduciary relationship existed as established by the evidence, since Dr. Lightner’s testimony, taken nine months after his wife’s death, showed that he at that time knew the extent of her property and its source. They contend that he therefore was aware of it at the time of the execution of the agreement, and that, assuming he read neither the will nor agreement, at that time, he had the opportunity to do so, but made no specific request to do so. They urge that he should not be allowed to rely on misrepresentation or concealment to avoid the transaction when the means to learn the truth of the matter were readily available and could have been investigated by him — and that there was nothing to disclose to him as he had knowledge of her property, and the means to learn of its disposition by the will.

To us, these contentions fail to give the necessary consideration to the evidence of Dr. Lightner’s physical condition, his deficiencies of hearing and sight, his emotional state, the circumstances of time and place surrounding the negotiations, as well as a long and pleasant acquaintanceship with Adams for more than 30 years which led him to repose in his brother-in-law a confidence which he would not have reposed in a stranger. Likewise these contentions ignore the fact that he believed the negotiations and a contract were unnecessary, and that he was not aware that valuable interests in real estate were the subject of the negotiations and agreement. At that time, under the circumstances present, his concern was only with the sentimental value that he attached to particular property and his wanting it for its sentimental value; he was not then concerned with any other property values, or determining what his legal rights were or their preservation, and we do not consider that such concern or alertness is here required to preserve such legal rights.

Appellants concede that as a matter of law, a qualified executor occupies a fiduciary relationship to the heirs and persons interested in the estate, and in dealing with them in reference to estate property must make a complete disclosure of all material facts, and that relief will be granted where confidence has been reposed and betrayed; but point out that such relationship extends only so far as the administration of the estate is concerned, and does not necessarily include all transactions between the parties and is limited to matters in the administration of the estate — pointing out that Adams did not sign as a representative of the estate — contending that Adams was only acting for the devisees and legatees.

The estate was primarily liable for the debts and funeral expenses; the will directed them to be paid by the executor. The agreement purports to relieve the estate of that liability, as well as to relieve the estate property from the statutory spouse’s award, in consideration of personal property which was property of the estate and sought to bar renunciation. Under such circumstances, and the state of this record, we conclude that the acts of Adams clearly arose out of the anticipated administration of the estate. Furthermore, even though letters had not been issued to the nominated executor, that a fiduciary relationship existed between Adams and Dr. Lightner as a matter of fact is conclusive from this record, and the same principles with reference to the necessity of full disclosure are here applicable as in a case where letters have been issued. In Lipscomb v. Allen, 298 Ill 537, 132 NE 206, the court, in holding that Allen, a qualified coexecutor, occupied a position as a fiduciary as a matter of law, pointed out that the burden of showing that a transaction entered into with the surviving spouse, who was also a coexecutor, was entered into with full knowledge of its nature and effect and was the result of the spouse’s deliberate, intelligent desire and for her benefit, was the burden of the coexecutor, Allen. There the court relied upon Mayrand v. Mayrand, 194 Ill 45, 61 NE 1040, a case in which the nominated executors procured a release of the spouse’s award, before probate and letters, and in which both the Appellate Court and the Supreme Court affirmed the overruling of the executor’s objections to the spouse’s award. Both the May-rand and Lipscomb cases point out that the origin of the confidence and the source of the influence are immaterial and that an existing relation of trust and confidence raises a presumption against validity, and that the rule “embraces both technical fiduciary relations and those informal relations which exist whenever one man trusts in and relies upon another,” and that this principle extends to every possible case in which a fiduciary relation exists as a fact, in which there is confidence reposed on one side and the resulting superiority and influence on the other.

There is sufficient evidence in the record from which the trial court could find that a fiduciary relationship existed as a matter of fact, and we consider the sworn answer to appellants’ motion sufficiently so pleads.

In Eichhorst v. Eichhorst, 338 111 185, 170 NE 269, the chancellor and jury heard and saw the witnesses, and a decree was entered denying a widow relief from a trust agreement she had entered into, and cancelling her renunciation and election. The Appellate Court reversed, and the Supreme Court, taking the case on a writ of certiorari affirmed the Appellate Court, stating that the Appellate Court was justified in reversing on the ground that the plaintiffs in error did not show, as they were required to show, the utmost good faith in explaining to the widow her rights under the will and under the law, at the same time giving voice to the rule that courts of review will not under the circumstances present, set aside the finding of the trial judge, unless it is manifestly against the weight of the evidence. Citing Lipscomb v. Allen, supra, and Mayrand v. Mayrand, supra, the court there pointed out that there was a duty not only to point out the probable value of both her interest in the estate and the spouse’s award, but what a spouse’s award was. While it is apparent from the opinion that Mrs. Eichhorst was “not versed in the English language” and had little formal education, Dr. Lightner, according to uncontradicted testimony, had serious deficiencies of sight and hearing, and was physically tired, and testified that he did not realize that anything more than the personal property was involved. In Eichhorst v. Eichhorst, supra, at pages 193 and 194, the court said:

“The burden rested on plaintiffs in error to clearly show that in signing such a contract the defendant in error made an election with full knowledge of the facts. Granting to plaintiffs in error the benefit of the controverted testimony in the case, we are of the opinion that defendant in error signed the trust agreement in ignorance of her rights, and this being so, the same was not binding on her and she had a right to revoke it. (Carper v. Growl, 149 111 465.) It is the settled rule in this State that transactions of parties between whom a fiduciary relation exists are prima facie voidable on grounds of public policy. They will be closely scrutinized by a court of equity, and relief will be granted unless the party claiming the benefit of the contracts shows by clear and convincing proof that he has acted in perfect good faith and has not betrayed the confidence reposed in him. (Citing authorities.) It is the confidential fiduciary relation existing between the parties which gives rise to such suspicion. If a reasonable suspicion exists that the confidence has been abused the contract will be set aside. (Citing authorities.) And this though the contract is such that had no fiduciary relation existed the contract would not be disturbed.”

We conclude that those principles are applicable in this case.

We, therefore, affirm the judgment of the Circuit Court of Saline County.

Judgment affirmed.

MORAN and GOLDENHERSH, JJ., concur.

       The pertinent testimony of Elvis Adams in answer to his counsel’s question, “What happened then?” is contained in his answer, as follows:
      “I produced the Will, handed it to the Doctor and he read it. And he got his information and he says, ‘I think I should have the diamond engagement ring and the watch.’ I says, ‘Okay, I will stick my neck out inasmuch as the diamond ring goes to my wife and the watch goes to my daughter; I will grant you the ring and the watch providing you take care of all outstanding obligations including funeral expenses, transportation and so forth and agree to accept the Will.’ He reached over and shook hands and he says, ‘We’ll do it.’ We came back to town. I transmitted the agreement to Judge Hancock. The following morning I came downstairs and Doctor was sitting on the edge of the davenport. He said, ‘Elvis, I forgot something.’ He says, ‘There’s going to be a lot of funeral expenses here in Harrisburg.’ I says, ‘Well, Doctor, if that’s all that’s worrying you, I will agree to split those fifty-fifty with you.’ He says, ‘Fine.’ I informed Judge Hancock of that agreement and he incorporated it in the agreement the Doctor signed.”

       Ch 3, §§ 178 and 182, 111 Rev Stats 1963.

       Ch 3, § 16, 111 Rev Stats 1963. The record shows decedent’s brothers and sisters to be heirs, and it is therefore concluded that she left no descendants.

       Ch 3, § 11, Par Third, 111 Rev Stats 1963.

       96 Ill App 481.


source: Caselaw Access Project

author: MR. JUSTICE BURKE LYONS, P. J.,

license: Public Domain

text:
    Harry Michaels, Plaintiff-Appellee, v. Midwest Emery Freight Lines, Inc., an Ohio Corporation and Roland C. Snyder, an Individual, Defendants-Appellants.
    Gen. No. 51,005.
    First District, Second Division.
    March 30, 1967.

      Michael A. Gerrard and Allen S. Gerrard, of Chicago, for appellants.
    Robert L. Landsman and Warren P. Landsman, of Chicago (Fredric R. Finne and Charles R. Winkler, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This appeal is taken from a judgment in the amount of $15,000 for plaintiff for personal injuries sustained when a wheel of defendant’s tractor-trailer allegedly-rolled onto the side of plaintiff’s left foot. Defendant maintains that plaintiff’s evidence is such as to render the mishap impossible and that the trial court consequently erred in refusing to direct a verdict for the defendant.

Approximately 10:00 a. m. on November 16, 1960, plaintiff double parked his truck in a southerly direction in the southbound lane of Peoria Street, some 40 to 50 feet south of Lake Street, in Chicago. Peoria Street is a north-south street and is approximately 50 feet wide at the point where plaintiff double parked. Plaintiff’s truck was approximately one foot to the left (or east) of the vehicle parked at the curb. Plaintiff made a delivery from the rear of his truck and, in jumping off the tailgate, some change, his glasses and a pencil fell from his pocket and rolled beneath his truck. Plaintiff testified that he looked north on Peoria Street, noticed no traffic and crawled underneath his truck to recover the items which he had dropped.

Plaintiff’s truck is sixteen feet long, six and one-half feet wide, and nine and one-half feet high. The tailgate, which extends approximately two feet beyond the back wall of the truck, is three feet above the ground. Plaintiff testified that, while under his truck, he was facing south on his hands and knees and was near and to the west of the left rear wheel. He stated that his legs extended some two or three feet beyond the rear end of his truck and that at no time was any part of his body extended to the east side of his vehicle.

Plaintiff testified that as he was picking up his belongings, the left side of his left foot was pinned by a tractor wheel. He stated' that with the pinning of his foot he heard the squeak of a trailer rubbing against the upper part of his truck. The tractor tire remained on his foot for some two to three minutes and was then backed off in a northerly direction. Plaintiff testified that he was pinned by the right rear wheel of the tractor.

The truck which allegedly struck plaintiff’s foot was a tractor-trailer unit, aggregating some 35 feet in length. The tractor portion of the vehicle was four feet wide and eighteen feet long. Plaintiff testified on cross-examination that after the wheel was backed off his foot, defendant’s vehicle was not moved until after plaintiff called the police. Plaintiff stated that, when he got to his feet, defendant’s vehicle was “facing due south” and was not angled in any way, that “there could have been two feet separating” defendant’s vehicle from his own, that “the tractor was a little further up” in front of his own vehicle and that the trailer portion extended a distance behind plaintiff’s vehicle, to the north.

A court or a jury is not required to accept inherently improbable testimony. Oliver v. Oliver, 340 Ill 445, 460, 172 NE 917; Tepper v. Campo, 398 Ill 496, 504, 76 NE2d 490. Liability may not be based on conjecture, speculation or imagination. Tiffin v. Great Atlantic & Pacific Tea Co., 18 Ill2d 48, 60, 162 NE2d 406. The jury could not have found defendant liable from the facts testified to by plaintiff.

With respect to his own physical position and that of his truck, plaintiff testified he was on his hands and knees beneath his truck, facing south, with some two to three feet of his legs extending beyond a rear portion of his truck. He also stated he was to the west of the left wheel of his truck and that at no time was any part of his body extended beyond the left side of his truck to the east. When he got to his feet after the alleged accident, plaintiff testified, defendant’s truck was facing due south, the front of the tractor portion extended some distance beyond the front of his truck, there was a distance of some two feet between the two vehicles, and defendant’s vehicle was not angled in any way. In the light of the fact that plaintiff testified that defendant’s truck was not moved after the tractor wheel rolled onto the side of his foot except when it was backed off the foot, it was physically impossible for the right rear tractor wheel to have come into contact with plaintiff’s foot. Defendant’s motion for a directed verdict should have been allowed.

Therefore the judgment is reversed and the cause is remanded with directions to enter judgment notwithstanding the verdict for the defendants and against the plaintiff.

Judgment reversed and cause remanded with directions.

BRYANT, J., concurs.

LYONS, P. J.,

dissenting:

I cannot concur in the conclusion reached by the majority that the manner in which the injury was alleged to have occurred was inherently improbable. Only plaintiff and defendant, Snyder, testified as eyewitnesses to the incident, each as an interested party. The credibility and weight to be afforded their respective testimony were matters for the jury, not the court, to decide. Absent manifest error, it is not the province of this court to reweigh the evidence and substitute its judgment for that of a jury, even if it would have reached a contrary conclusion. Niman v. Pecatonica Livestock Exchange, 13 Ill App2d 144, 141 NE2d 327 (1957). After hearing all of the testimony, considering exhibits, and witnessing demeanor, the jury chose plaintiff’s account of the accident as the more truthful of the two. I do not consider that conclusion to be either erroneous or unwarranted.

Motions for a directed verdict and judgment notwithstanding the verdict present the single question of whether there was any evidence, taken with all its reasonable intendments most favorable to plaintiff, which tends to prove the material elements of the negligence action. Markus v. Lake County Ready-Mix Co., 6 Ill App2d 420, 128 NE2d 370 (1955). The court cannot attempt to reconcile away any conflict in the evidence. Cardona v. Toczydlowski, 35 Ill App2d 11, 180 NE2d 709 (1962). Here, when called for cross-examination under section 60 of the Civil Practice Act, defendant stated that plaintiff’s back was turned to his approaching vehicle. Defendant had an unobstructed view of plaintiff beneath the parked truck. He never sounded his horn. Defendant further remarked that plaintiff was about 20 feet east of the curb, approximately 45 feet south of the intersection. He testified that he stopped his truck upon a signal from a driver proceeding in the opposite direction. He, furthermore, conceded to having called his company to report an “accident.”

When called in his own behalf, defendant stated that plaintiff’s truck was 10 to 15 feet “directly” in front of him. Yet, he continued by saying that his vehicle was never in the same lane of traffic as plaintiff’s, never leaving that lane even as he crossed Lake Street. Taking cognizance of the width of Peoria Street (48 feet) and the dimensions of the vehicles here involved, this would mean that defendant crossed the intersection with one half of his truck in the path of oncoming traffic. The jury chose not to believe such a proposition. Assuming defendant crossed Lake Street in the proper lane, physical limitations dictate that he had to veer to his left into the oncoming lane to avoid a collision. This was exactly the theory offered by plaintiff. I do not feel that an injury being occasioned in this manner is inherently improbable.

Certainly, these attendant circumstances raised bona fide issues of fact, which when construed most favorably for plaintiff, would require the denial of motions for a directed verdict and judgment notwithstanding the verdict.


author: ALLOY, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harold Dean Watts, Defendant-Appellant.
    Gen. No. 66-28.
    Third District.
    March 31, 1967.

      Robert H. Schenk, of Joliet, for appellant.
    George E. Sangmeister, of Joliet, for appellee.
   ALLOY, J.

Defendant Harold Dean Watts was tried on an indictment charging that on August 11, 1965, he escaped from the Stateville Branch of the Illinois Penitentiary in violation of chapter 38, section 31-6A of 1963 Illinois Revised Statutes. The jury returned a verdict of guilty and (following overruling of a post-trial motion for a new trial) defendant was sentenced for an indefinite term of one to ten years in the Stateville Branch of the Illinois State Penitentiary with the minimum fixed at two years and the maximum at ten years. Since defendant was found to be indigent, and had requested appointment of counsel, the court-appointed counsel has prosecuted this appeal capably on defendant’s behalf.

On appeal in this cause, defendant contends (1) that the trial court committed error by giving instructions which were confusing, incomplete, improper, and, therefore, prejudicial; (2) by summarily dismissing defendant’s motion for a change of venue without receiving evidence or arguments thereon and without being advised of the facts supporting the motion; (3) by admitting into evidence exhibits consisting of a shirt and a pair of pants alleged to be those of the defendant without proper foundation being laid therefor; and (4) by rendering a sentence upon the verdict of guilty which was excessive under the circumstances. The section of the act under which defendant was indicted specifically provides that:

“A person convicted of a felony, or charged with the commission of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution shall be imprisoned in the penitentiary from one to 10 years.”

The record discloses that defendant was serving a sentence of two to five years in the Illinois State Penitentiary, Stateville Branch, for the crime of burglary. He had been assigned to the Honor Farm of the penitentiary in June of 1965 and had remained there until August 11, 1965. When he could not be accounted for on that date he was found, after a search, off the premises of the penitentiary and taken to the office of the Warden. Two days later an employee of the Stateville Branch of the State Penitentiary went to a cemetery adjacent to the penitentiary and in the company of an officer found a shirt and a pair of pants rolled up into a bundle in the hedges, examined them and found numbers thereon to be 56965 (Watts’ number).

The first issue for consideration is whether the trial court committed reversible error by giving instructions to the jury. While there were no objections to such instructions at the conference on instructions, if substantial defects are found, the failure to make timely objections would not preclude this court from inquiring into the effect of such instructions in criminal cases (1965 111 Rev Stats, c 110, § 101.25). The Supreme Court Rule specifically provides that substantial defects are not waived by failure to make timely objections thereto if the interests of justice require.

One instruction which was given in the trial of this cause advised “the jury are instructed by the court that in this case the burden of proof rests upon the prosecution to make out and prove to the satisfaction of the jury, beyond all reasonable doubt, every material allegation of the indictment, and unless this has been done, the jury should find the defendant not guilty.” It is contended that the jury were so instructed without having been guided by any definition or delineation of what the “material allegations of the indictment” were and indeed without ever having seen the indictment. In the cause before us, the court gave other instructions which fully defined the “material allegations” referred to in the instruction objected to. The court instructed the jury in the language of the statute as to what constituted an escape from a penal institution. The court also adequately instructed the jury as to “Intent,” “Conviction,” “Felony,” and “Penal Institution.” While we do not approve the form of instruction which was given in the case in making reference to “every material allegation of the indictment” and suggest that such recital be avoided, other instructions in this cause which were given, when considered as a whole, fully and fairly announced the law applicable to the case and defined all such material allegations. It is apparent from the record in this cause that there were no substantial defects since the jury was not required to determine legal issues or to determine what were the material issues in the case. All of the essential elements of the crime were fully set forth in the instructions taken as a whole (People v. Cavaness, 21 Ill2d 46, 171 NE2d 56). The record actually shows that instructions of similar import were tendered by the defendant advising the jury that the burden of proving beyond a reasonable doubt every material allegation necessary to establish defendant’s guilt rests upon the state throughout the trial and that such burden never shifts to the defendant, and also to the effect that the state is required to prove every material fact necessary to constitute the crime charged beyond a reasonable doubt. One of defendant’s instructions tendered advised the jury that it is incumbent upon the prosecution to prove every material allegation of the indictment as therein charged. Thus, where the defendant tendered substantially the same instruction as the one now being suggested to this court as a basis for reversal, such objection might be considered to have been waived.

After the trial had begun, defendant moved for a change of venue. An objection was made that the motion was not in writing and supported by affidavit. A written motion was thereafter filed. In neither the written nor the oral motion were facts set forth showing the nature of the prejudice alleged as required by Article 14 of the Code of Criminal Procedure. Since there were no facts before the court upon which it could rule, the court properly refused to consider the motion (1965 Ill Rev Stats, c 146, § 22; People v. Fricker, 320 Ill 495, 151 NE 280). In view of the fact that the motion was made to change the place of trial after the trial had actually begun and rulings had been made thereon, the record does not contain a sufficient showing of prejudice to support the contention that the trial court abused its discretion in denying the motion for change of venue (People v. Wilfong, 17 Ill2d 373, 162 NE2d 256). No allegations were made that the jurors were influenced or prejudiced by publicity given to the trial (People v. Brinn, 32 Ill2d 232, 204 NE2d 724).

As to questions raised relating to the foundation for admission into evidence of the clothing referred to (without detailing the testimony), it is apparent from the record that custody of the clothing from the time Warden Dort was given information as to its location by Watts to the time when it was introduced into evidence shows that no alterations were made, there was no tampering with the articles and no changes of any nature made in the articles. The testimony tended to establish continuous possession and control by prison authorities. While other persons may have had access to the Armory where the clothing was stored, there was no indication or suggestion of any substitution, alteration or other tampering with the exhibits. A proper foundation was, therefore, established to permit introduction into evidence of the clothing (People v. Harper, 26 Ill2d 85, 185 NE2d 865). The tag on the clothing was identified by Lieutenant Brown as being the one he originally placed on the clothes. The clothing was also identified by Lieutenant Brown (People v. Greer, 28 Ill2d 107, 190 NE2d 742). The exhibits were, therefore, properly admitted into evidence and they were properly connected with defendant. The final point raised by defendant on appeal is that the trial court abused its discretion in imposing a sentence which is manifestly in excess of that warranted by the circumstances and that a reduction of sentence is justified. While this court has the power, in an appropriate case, to reduce the sentence where justice so requires, it does not have the right to reduce the sentence unless it clearly appears that the penalty constitutes a substantial departure from fundamental law and, therefore, that it is not proportioned to the nature of the offense (People v. Miller, 33 Ill2d 439, 211 NE2d 708). The trial judge examined all the facts as presented at the time of sentencing and, in determining sentence to be imposed, stated that it recognized all of the facts and circumstances, some of which would suggest sympathetic consideration. The sentence which was given of a minimum of two years with a maximum of 10 years was within the scope of the act and is not inconsistent with the record which was made in the trial court as to the nature of the crime of escape as well as of the capacity and ability to understand of defendant. We must, therefore, conclude, on the basis of the record before us, that the trial court did not abuse its discretion in imposing the sentence, and under the circumstances this court would not be justified in modifying or changing such sentence.

Since we find no reversible error in the record, the judgment of conviction and the sentence as imposed in the trial court are affirmed.

Affirmed.

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


author: JUSTICE GOLDENHERSH.

text:
    Central Illinois Public Service Company, Petitioner-Appellant, v. Ross S. Montgomery, et al., United States of America, Acting Through the Farmer’s Home Administration, United States Department of Agriculture, Southern Illinois Power Co-operative, Lee Norris, et al., The Federal Land Bank of St. Louis, Eugene Stone, et al., and Southeastern Illinois Electric Co-operative, Inc., Defendants-Appellees, and United States of America, Intervener-Appellee.
    Gen. No. 66-93.
    Fifth District.
    April 3, 1967.

      Fowler & Novick, of Marion, and Nafziger & Otten, of Springfield, for appellant; R. W. Harris of Harris, Holbrook & Lambert, of Marion, and Charles D. Winters of Winters & Morgan, of Marion, for appellees.
   Opinion by

JUSTICE GOLDENHERSH.

Not to be published in full.


author: MR. JUSTICE McCORMICK

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Davis McCracken, Defendant-Appellant.
    Gen. No. 51,015.
    First District, Fourth Division.
    March 31, 1967.

      Jason E. Bellows, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

Charge : Burglary.

Defense at Trial : Plea of not guilty.

. JUDGMENT: After a bench trial, the court found deféndant guilty and imposed a sentence of not less than "two nor more than four years.

Point Raised on Appeal : The defendant was not proved guilty beyond a reasonable doubt.

Testimony of State Witnesses : Frank Stefan testified that he was the janitor in a building at 933 Hyde Park Boulevard, in Chicago, and lived in the basement apartment at that address; that on June 4, 1965, he left the apartment about 1:00 p. m.; that when he returned at 6:00 p. m., he found his back door standing open, and the window next to it broken. A search of his apartment disclosed that two 12-gauge shotguns, one .22 caliber rifle, a radio, sewing machine, about $30 in coins, and a set of laundromat keys were missing. The condition of the door to the apartment indicated that it had been pried open. Stefan testified that he called the police, and made an inspection of the building. He explained that the laundry room is located in the center of the basement and could be reached from Stefan’s apartment only by going out of Stefan’s back door, traveling through an open gangway about 30 yards long. The laundry room could also be reached by going through a door from the alley leading into the boiler room. Stefan testified that in the laundry room he discovered the three guns behind an old door which leaned against the wall; that the guns were wrapped in a baby’s blanket which had been taken from the room of Stefan’s baby; that after he found the weapons he showed them to certain police officers, one of whom remained on watch with him until midnight at the place where the guns were found. He testified that he was on watch alone, armed with one of the shotguns, at about 1:30 a. m., when he heard the door of the boiler room open, adjacent to the laundry room, then heard steps coming through the boiler room into the laundry room. He testified that the defendant “went for that door, dodged the door and wanted to grab whatever is behind it. He went for the stuff.” Stefan testified that he then placed the defendant under arrest and caused the police to be called; they arrived and took the defendant into custody; the defendant at that time denied committing the burglary and told the police he went into the basement to relieve himself. Stefan testified that there was a light hanging in the center of the laundry room, and that from the time the defendant passed through the door into the boiler room he had to travel 40 feet to get to the laundry room, and to get through the laundry room to where the door was lying against the wall, he had to travel another 15 or 20 feet.

Thelma Mathews testified that she lived at 939 East Hyde Park Boulevard, the same building in which the alleged burglary occurred; that on June 4, at about 1:30 or 2:00 p. m., she noticed a man coming out of the alleyway; that he had some things in his arm and a machine case in the other arm; that he went across the street, got into a taxi and drove away. She stated that she did not get a good look at the man and does not think she could identify him; that the defendant looked like him only in height; that the man was a Negro, but she didn’t notice whether he was light or dark skinned.

Grace Willis testified that she lived at 933 East Hyde Park Boulevard; that on June 4, at about 2:00 p. m., she was talking through her front window to Mrs. Mathews when she saw a man carrying a portable machine case and a blue package. She stated that “he started to pass my window and he looked at Mrs. Mathew and then backed up and went back to this alley and ran across the street and got into a cab.” She further testified that she did not get a good look at the man, and while she could tell he was not white, she could not tell whether he was light skinned or dark.

Walter Brown, a police officer, testified that on June 4, 1965, he went to Stefan’s home, arriving there at about 1:25 or 1:30 in the morning; that when he got there McCracken was in custody; that he questioned the defendant, who said he had only gone to the basement to relieve himself.

Testimony for the Defense : Davis McCracken testified as follows: On June 4, 1965, he was living at 6220 Greenwood Avenue in the City of Chicago; at about 1:30 a. m., on June 5, 1965, he was in the vicinity of 933 Hyde Park Boulevard in the back of the alley. He had gone there to see a girl in the neighborhood, who was not at home. On cross-examination he gave the name of the girl, but did not know her address, except that it was around the comer from the 933 Hyde Park building. He testified that there was a big light in front of the building and a car was parked there; that he had gone to the alley to urinate, had stepped down in the basement, then walked over to the corner, at which time Stefan opened the door, put a gun on him and told him to come with him. He stated that Stefan then told his wife to call the police, and that when they arrived and asked why he was in the basement, the defendant told the police the same thing. He testified that he did not go into the basement at all, 'that he only walked down the steps in the corridor, and was there when Stefan opened the door. He denied that he was in the laundry room or that he went towards an old door in the room; he denied that he at any time entered Stefan’s apartment or took anything from it. On cross-examination he denied that he walked 30 feet into the laundry room; that instead, he was standing in a dark area and could not see into the basement because there was a closed door there and nobody inside the basement could see him, either.

The defendant further testified that he had been at the Armour Soap Company about 12:30 or 1:00 p. m., that day; that he went there to seek employment; that afterwards he went to 47th Street, looking for a man called “Snookum Baby” who was to help him find work, but did not find him. The defendant did not remember the names of any of the people to whom he talked.

Opinion : The defendant contends that the only evidence in the record adduced by the State to prove his guilt was circumstantial, and he argues that to justify a conviction, circumstantial evidence must be of such nature as to produce a reasonable and moral certainty that the accused committed the crime, and where the circumstances can be explained upon a reasonable hypothesis consistent with innocence and leave a grave and serious doubt of guilt, a conviction cannot stand.

In this case there was no question that a burglary had been committed in the premises of the complaining witness, Stefan, nor that among other things taken from the apartment in the course of the burglary were two shotguns and a rifle. There is no contradiction in the record that Stefan found these articles in the laundry room concealed behind a door leaning against the wall, wrapped in a blanket taken from Stefan’s baby’s room. The only place where there is a sharp conflict in the evidence is in the question of whether or not the defendant, as Stefan testified, entered the basement door, walked through the boiler room into the laundry room and went directly to the place where the guns were concealed. The distance, as was pointed out, was about 40 feet.

If the trial court believed the testimony of Stefan, the circumstantial evidence would be sufficient to prove the guilt of the defendant beyond a reasonable doubt. If, on the other hand, the trial court believed the testimony of the defendant that he did not go through the door into the boiler room and that he was standing outside that door at the time Stefan apprehended him, then, of course, there could be no conviction. The case depends upon the credibility of the witnesses, which is essentially a matter for the trial court. As stated in People v. Scott, 34 U12d 41, 213 NE2d 521:

“. . . it is the function of the trial court to determine the credibility of the witnesses and the weight to be accorded their testimony, and where the evidence is merely conflicting, this court will not substitute its judgment for that of the trier of fact. People v. Clark, 30 Ill2d 216; People v. McCreary, 29 Ill2d 295; People v. Dillon, 24 Ill2d 122.”

During the oral argument defendant’s counsel correctly pointed out that the defendant was charged with burglary of Stefan’s apartment and not of the laundry room. Counsel argued that even if the testimony of Stefan was believed, the defendant could have been an innocent messenger who was instructed to pick up the articles, and that the circumstances were therefore consistent with innocence and left a doubt as to defendant’s guilt. This argument is not substantiated by the evidence. Stefan’s testimony is that the defendant entered the boiler room, went into the laundry room, then, like a homing pigeon, went directly to the place where the guns had been concealed. The defendant categorically denied that he went through the doorway into the basement at all, and consequently, there is no explanation whatsoever of his conduct, if the trier of the fact believed — as he apparently did — the testimony of Stefan. Under these circumstances the only inference which could be drawn is that the defendant burglarized Stefan’s apartment and later went to the laundry room for the purpose of retrieving the guns which he had taken from Stefan’s apartment and hidden behind the door in the láundry room.

In People v. Bussell, 17 H12d 328, 161 NE2d 309, which is particularly applicable to the case before us, the court said:

“. . . a conviction can be sustained upon circumstantial evidence as well as upon direct. People v. Hansen, 5 Ill2d 535; People v. Weiss, 367 Ill 580; People v. Schullo, 360 Ill 580.
“It is possible, of course, to conjure up hypotheses that are inconsistent with the defendant’s guilt as accessory or principal, as it is in any case in which judgment rests on circumstantial evidence. The defendant’s flight might not have been caused by his consciousness of guilt, or by his consciousness of guilt of this offense. So, too, one or the other of the contradictory stories that he told to account for his presence at the tavern might have been true, or there might even be a different and unknown explanation consistent with his innocence. His tools, which were found inside the burglarized tavern, might have been taken from his car without his knowledge, either by his co-indictees or by someone else.
“But the requirement that the defendant’s guilt be proved beyond a reasonable doubt does not mean that the jury must disregard the inferences that flow normally from the evidence before it. Here all of the inferences from the evidence pointed toward the defendant’s guilt. The jury was not required to search out a series of potential explanations compatible with innocence, and elevate them to the status of a reasonable doubt.”

Decision : In our opinion the defendant in the instant case was proved guilty beyond a reasonable doubt, and the judgment of the Circuit Court is affirmed.

Affirmed.

ENGLISH, P. J. and DRUCKER, J., concur.

       111 Rev Stats 1965, c 38, § 19-1. Burglary.
      (a) A person commits burglary when without authority he knowingly enters into, or without authority remains within a building, housetrailer, watercraft, aircraft, railroad car, or any part thereof, with intent to commit therein a felony or theft.
      (b) Penalty. A person convicted of burglary shall be imprisoned in the penitentiary for any indeterminate term with a minimum of not less than one year.

       Defendant was a Negro.


author: PRESIDING JUSTICE STOUDER.

text:
    Donna Jean Zug, Plaintiff-Appellant, v. John Roy Zug, Defendant-Appellee.
    Gen. No. 66-67.
    Third District.
    March 31,1967.
    Stewart R. Winstein, of Rock Island, for appellant; no appearance made for appellee.
   Opinion by

PRESIDING JUSTICE STOUDER.

Not to be published in full.


author: MR. JUSTICE MCCORMICK

text:
    Federal Savings & Loan Insurance Corporation, Plaintiff-Appellee, v. Howard B. Quinn, Defendant-Appellant.
    Gen. No. 50,406.
    First District, Fourth Division.
    March 17, 1967.
    Samuel E. Hirsch and Solomon Sachs, of Chicago, for appellant.
    McCarthy, Witry, Lyon & McCarthy, of Chicago, for appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

Judgment was confessed for $457,702.77 in the trial court on February 11, 1964, against defendant, Howard B. Quinn (hereinafter called Quinn), arising out of a note executed by and delivered to plaintiff’s assignor. On October 15, 1964, Quinn filed a verified motion to vacate, open up the judgment, and stay the execution thereon. On November 19, the trial court entered an order denying Quinn’s petition to open up or vacate the judgment, ordered that Quinn have leave to file a counterclaim instanter, and that plaintiff, Federal Savings & Loan Insurance Corporation (hereinafter called Federal), have 20 days to plead thereto. On December 15, 1964, Federal filed a motion to strike and dismiss the counterclaim of Quinn. On December 17, Quinn filed a petition for a rehearing which was denied on December 22. Quinn took an appeal from the order of November 19 denying his motion to vacate or open the judgment, and from the order of December 22 denying Quinn’s petition for rehearing.

This court, on its own motion, must first decide the question as to whether or not the orders entered in the trial court, from which the appeal is taken, are final and appealable. Section 50(2) of the Civil Practice Act (111 Rev Stats 1963, c 110, § 50 (2)) provides as follows:

“If multiple parties or multiple claims for relief are involved in an action, the court may enter a final order, judgment or decree as to one or more but fewer than all of the parties or claims only upon an express finding that there is no just reason for delaying enforcement or appeal. In the absence of that finding, any order, judgment or decree which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not terminate the action, is not enforceable or appealable, and is subject to revision at any time before the entry of an order, judgment or decree adjudicating all the claims, rights and liabilities of all the parties.”

In the case before us the trial court denied the verified motion of Quinn to vacate the judgment by confession entered against him. In the same order the court permitted Quinn to file a counterclaim instanter, and ordered Federal to answer the same. Federal thereupon filed a motion to strike. No ruling was made on that motion and the counterclaim is still pending in the trial court.

The rule of law is that where a pleading is filed and a motion to strike is entered, all the matters well pleaded in the pleading are presumed to be true. People v. Sterling, 357 Ill 354, 192 NE 229; Consolidated Gasoline Co. v. Lexow, 316 Ill App 257, 44 NE2d 927; and Indemnity Ins. Co. of North America v. Prairie State Bank, 336 Ill App 438, 84 NE2d 338. Federal argues that the only matters raised by Quinn’s counterclaim were matters which were set up in the petition to vacate the judgment, and consequently, must have been decided in the court at the time the petition was denied. We cannot so find, since the court had before it the counterclaim at the time it entered its order denying Quinn’s petition to vacate the judgment. Nevertheless, the court, as it had a right to do, allowed Quinn to file the counterclaim and entered a rule upon Federal to answer.

In De Lia v. Toolen, 307 Ill App 491, 30 NE2d 763, the plaintiffs argued that the counterclaim stated no cause of action. The court pointed out that they made no motion to strike or to question its sufficiency, and that the point could not be raised in the Appellate Court for the first time. In the instant case Federal did make a motion to strike but no ruling was made by the trial court on that motion. Under those circumstances it is not incumbent upon this court to compare the pleadings and reach a conclusion which was not raised in the trial court, particularly, since the trial court, having before it both the counterclaim and the motion to strike, permitted the filing of the counterclaim in the same order. It is difficult for us to understand why the court was not asked to rule upon Federal’s motion to strike the counterclaim. It is argued in this court that the trial court should not have permitted the filing of the counterclaim. That question is not before us.

Federal relies upon certain cases — among them, Getzelman v. Koehler, 14 Ill2d 396, 152 NE2d 833, in which case the court discussed and applied the rule laid down in Ariola v. Nigro, 13 Ill2d 200, 148 NE2d 787, and in Hanley v. Hanley, 13 Ill2d 209, 148 NE2d 792. In Getzelman, a partition decree which had been entered on October 22, 1956, provided for a reference to a master, and on November 5, 1957, the court ordered its decree approving and confirming the master’s report. The plaintiffs contended that the appeal should have been taken from the decree of October 22, 1956, instead of from the decree entered by the court on November 5, 1957. The Supreme Court held that Ariola v. Nigro, supra, and Hanley v. Hanley, supra, were controlling, and that the partition decree of October 22 was not appealable at that time because it determined fewer than all the rights and liabilities in issue, and the trial court had not made the necessary findings.

Federal also cites Craven v. Craven, 407 Ill 252, 95 NE2d 489, which is not applicable since it was decided before the decision of the Supreme Court in the Ariola case. In Peterson v. Gwin, 17 Ill2d 261, 161 NE2d 123, an original complaint for ejectment was filed, and an amendment to the complaint added a claim for funds alleged to have been misappropriated from the joint bank account of the parties. The defendant filed an answer and a counterclaim, then appealed from orders dismissing count 2 of the second amended counterclaim, for failure to state a cause of action, and denying an application for leave to file a third amended counterclaim. The court said:

“The plaintiff contends that this appeal is premature and the contention is correct. It is a basic tenet of our procedural system that only final judgments, decrees or orders are appealable. (Ill Rev Stats 1957, chap 110, par 77.) The statutory exceptions by which certain specified interlocutory orders may be reviewed are not here pertinent. (Ill Rev Stats 1957, chap 110, par 78.) Even if the order denying leave to file a further pleading should be regarded as importing finality to the order dismissing count 2 of the counterclaim, there are multiple claims for relief in this action and obviously all of them are not disposed of by the orders sought to be reviewed. In this situation a final order disposing of less than all of the claims is reviewable ‘only upon an express finding that there is no just reason for delaying enforcement or appeal.’ (Ill Rev Stats 1957, chap 110, par 50 (2); Bohannon v. Ryerson and Sons, Inc., 15 Ill2d 470; Ariola v. Nigro, 13 Ill2d 200.) There is no such finding by the trial court in this record.”

We are today handing down opinions in three cases involving Quinn, based on the same fundamental dispute out of which this instant case arose. In Lawn Savings & Loan Ass’n v. Quinn, 81 Ill App2d 304, 225 NE2d 683, the trial court on November 5, 1964, entered an order which provided that the judgment heretofore entered in the instant case should be reduced and partially satisfied to the extent of $25,000. In the instant case we find no order carrying into effect the reduction and partial satisfaction. This is one of the matters which should be determined by the trial court. We find that because there was no disposition of the counterclaim pending in the court the orders entered in the trial court were not final and appealable.

The appeal of Howard B. Quinn is dismissed.

Appeal dismissed.

ENGLISH, P. J. and DRUCKER, J., concur.


text:
    Lawn Savings and Loan Association, Plaintiff-Appellee, v. Howard B. Quinn, Defendant-Appellant, La Salle National Bank, as Trustee, Under Trust No. 28563, et al., Defendants-Appellees. Howard B. Quinn, et al., Plaintiffs-Appellants, v. Lawn Savings & Loan Association, La Salle National Bank, as Trustee, Under Trust No. 28563, and Federal Savings & Loan Insurance Corporation, Defendants-Appellees.
    Gen. Nos. 50,419 and 51,000.
    First District, Fourth Division.
    March 17, 1967.
    Rehearing denied April 14,1967.

      Samuel E. Hirsch and Solomon Sachs, of Chicago, for appellant.
    David Krueger, Henry W. Kenoe and Raphael Fine, of Chicago, for appellee, Lawn Savings and Loan Association.

      McCarthy, Witry, Lyon & McCarthy, of Chicago, for appellee, Federal Savings and Loan Insurance Corporation.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

In the case of Lawn Savings and Loan Association, plaintiff, v. Howard B. Quinn and La Salle National Bank, as trustee, under trust No. 28563, et al., defendants (our No. 50,419), a judgment was entered in the Circuit Court of Cook County in favor of the plaintiff, Lawn Savings and Loan Association, against defendants, Howard B. Quinn and La Salle National Bank.

In the case of Howard B. Quinn and Charlotte J. Quinn, plaintiffs, against Lawn Savings and. Loan Association, La Salle National Bank, as trustee, under trust No. 28563, and Federal Savings & Loan Insurance Corporation (our No. 51,000), a judgment was entered against the plaintiffs and in favor of the defendants. The two cases were consolidated in this court, and we will first discuss Lawn Savings and Loan Ass’n v. Howard B. Quinn and La Salle National Bank, as trustee, our No. 50,419.

The appeal arises out of orders entered in the course of a proceeding to foreclose a real estate mortgage. No evidence was introduced. The defendant, Howard B. Quinn (hereinafter called Quinn), was the holder of a certificate of beneficial interest under a trust agreement in which the defendant, La Salle National Bank (hereinafter called La Salle), was the trustee of a land trust of which Quinn was the beneficiary. La Salle executed a mortgage note and mortgage to plaintiff, Lawn Savings and Loan Association (hereinafter called Lawn); when the Lawn mortgage went into default Lawn filed a complaint to foreclose against La Salle, Quinn, and a number of unpaid mechanics’ lien claimants. The certificate of beneficial interest had been pledged by Quinn to Beverly Savings and Loan Association (hereinafter called Beverly), a party defendant, as security for a loan. Beverly was also the lessee of a portion of the premises which had been constructed on the trust res. Beverly assigned its interest in the lease and its interest in the certificate of beneficial interest to Federal Savings and Loan Insurance Corporation (hereinafter called Federal), which association was in possession of the property demised by the lease. Federal filed a counterclaim in the foreclosure suit, alleging that the mortgage sought to be foreclosed was fraudulent and unlawful, and asked that Federal’s right in the property be decreed to be superior to Lawn’s mortgage. Trial of the difficult issues raised by the counterclaim was avoided by a stipulation between Lawn and Federal. Thereafter the court entered a decree on the counterclaim and the stipulation. The instant appeal is taken from an order confirming the sale of the beneficial interest and from an order overruling Quinn’s objections to the decree on the counterclaim.

It appears that La Salle held title in a land trust to the property located at 8001-8025 South Western Avenue, Chicago. The certificate of beneficial interest which was designated only as personal property, was held by Quinn. On September 27,1961, La Salle executed a mortgage note and a mortgage to Lawn for $2,100,000. The mortgage waived the right of redemption. Quinn thereupon undertook the construction of a 9-story commercial building on the property. On February 6, 1962, Beverly entered into a lease with La Salle for half of the basement and the first three floors of the building. At this time Quinn was the owner of a large majority of the permanent reserve shares of Beverly, and was chairman of its board of directors. On July 18, 1963, Quinn signed a note payable to Beverly for $500,000, and pledged as collateral his beneficial interest in the trust at La Salle.

A default occurred in the mortgage payments and Lawn filed its complaint to foreclose its mortgage on September 13, 1963. On October 15, 1963, an order was entered designating Lawn as mortgagee in possession. Lawn demanded payment of $12,500 monthly rental from Beverly, the lessee. The lease was for a term of 20 years. Beverly became financially involved, and on October 25, 1963, adopted a plan of voluntary liquidation, and Federal acquired its assets and assumed its liabilities under its deposit insurance agreement.

On February 28, 1964, Federal filed a counterclaim in Lawn’s foreclosure suit. In Count I it alleged that Quinn had fraudulently disbursed $1,187,325.36 of Beverly’s funds toward the construction and that Lawn knew, or should have known, of the fraudulent disbursements. This count prayed that Federal be declared entitled to a lien upon the real estate, or that the real estate be impressed with a trust in its favor for such advance. Count II of the counterclaim alleged that Quinn, by reason of his ownership of the beneficial interest in the La Salle trust and his domination and control of Beverly, had fraudulently caused Beverly to execute the lease of February 6, 1962, and prayed that the lease be set aside. On March 18, 1964, Lawn filed its answer to Federal’s counterclaim.

On October 2, 1964, Lawn moved the court for leave to file its stipulation with Federal providing for the entry of a decree on Federal’s counterclaim. This stipulation provided: 1) that Federal be decreed to have no lien on the property in the foreclosure and not to be entitled to have the said property impressed with a trust in its favor as sought by Count I of its counterclaim; 2) that the lease between La Salle and Beverly, dated February 6, 1962, be decreed to be of no further legal effect; 3) that Federal continue in possession of the property under the terms set forth in the stipulation; and 4) that Federal should be declared to have succeeded to all interests of Beverly in the property.

The court entered an order granting leave to all parties to file their objections to the motion of the plaintiff for the entry of the decree pursuant to this stipulation. Neither Quinn nor La Salle were parties to the stipulation. On October 7, 1964, Quinn and La Salle filed objections to the termination of the lease pursuant to the stipulation and to the entry of the decree in accordance with the stipulation.

On October 14, 1964, Quinn and La Salle filed a petition setting forth the execution by Quinn of his July 18, 1963, note to Beverly for $500,000, and the collateral pledge of his beneficial interest in the La Salle trust, asserting the present ownership of the note and collateral by Federal. The petition requested the court to enter an order that in the event of the aforesaid beneficial interest being offered for sale, Federal give five days’ notice of the proposed sale to La Salle, Quinn, and Robert Irmiger, attorney. The court ordered that the notice asked for in the petition in the event of the sale of the beneficial interest by Federal should be given.

On October 22, 1964, Federal filed a written motion to strike the answer of Quinn and La Salle to its counterclaim and to strike the objections of Quinn and La Salle to the entry of a decree on the counterclaim, alleging as a basis, the refusal of Quinn to testify to a discovery deposition proceeding. In support of this motion Federal filed a transcript of the testimony of Quinn at a discovery deposition in which Quinn declined to answer all questions regarding the matters in issue upon the ground that his answer might incriminate him. This transcript does not appear in the record on appeal. It was, however, presented to and considered by the court as stated in the court’s order of October 23, 1964.

At the hearing on October 22, 1964, Quinn’s ownership of the beneficial interest in the La Salle trust was urged in support of his objection to the entry of a decree terminating the Beverly lease pursuant to the stipulation. In order to obviate the objection, counsel for Federal asked Judge Harrington to conduct a collateral sale of this beneficial interest in accordance with the pledge in Quinn’s $500,000 note. Judge Harrington agreed to conduct the sale, and the following morning, October 23, 1964, an order was accordingly prepared and entered. This order set the sale of the beneficial interest for November 5, 1964, and continued the objections to the entry of a decree on the stipulation “for hearing immediately after the conclusion of such sale.”

On October 30, 1964, Solomon Sachs and Samuel E. Hirsch substituted for Robert Irmiger as attorneys for Quinn and La Salle. On November 2, 1964, Quinn and La Salle filed a written motion to vacate the order of October 23, 1964, and were granted leave to file an amended answer to Federal’s counterclaim.

On November 4, 1964, Quinn and La Salle filed an “amended answer regarding petition of plaintiff seeking to sell defendant Howard B. Quinn’s beneficial interest under trust agreement dated September 26, 1961 between Quinn and La Salle National Bank, trustee under trust No. 28563.” On the same day Quinn and La Salle filed “amended answer and objections to the proposed stipulation sought to be entered into between the plaintiff herein and the counterclaimant herein, seeking to cancel a written lease dated February 6, 1962.” The answer asked the court to deny the petition and motion of Lawn and Federal to enter the proposed stipulation, and that an order be entered declaring the lease to be valid. Also on the same day, Quinn and La Salle filed an amended answer to Federal’s counterclaim, denying and putting in issue the allegations of the counterclaim.

On November 5, 1964, the following steps were taken before Judge Harrington:

First: After a determination that the certificate
of beneficial interest was personal property as opposed to an interest in real estate, an order was entered denying Quinn’s motion to vacate the order of October 23,1964.
Second: After some discussion between the court and Quinn’s attorney, who did not make any formal objection, there was a sale of the beneficial interest, subject to any rights Quinn might have therein.
Third: The entry of the order confirming the sale and the ownership of the beneficial interest by Federal. This is the order from which one appeal was taken.
Fourth: The filing of the stipulation between Lawn and Federal, copies of which had been furnished to the parties earlier.
Fifth: The entry of the order denying Quinn’s objections to the entry of a decree on the counterclaim pursuant to stipulation. This is the order from which the other appeal was taken.
Sixth: The entry of the decree on the counter-
claim, pursuant to the stipulation, dismissing Count I thereof in which Federal sought a lien on the property in foreclosure or to have the property impressed with a trust in its favor, decreeing that the lease was of no further legal effect as prayed in Count II, and setting forth the terms of Federal’s occupancy of part of the building.

On December 15, 1964, a substitution of attorneys for La Salle was filed by which counsel (who were Quinn’s attorneys) withdrew their appearance and counsel for Federal entered their appearances for La Salle.

On January 4,1965, Quinn filed a notice of appeal from the order of Judge Harrington dated November 5, 1964, denying his objections to the entry of a decree on the counterclaim of Federal pursuant to stipulation. Also on January 4, 1964, Quinn filed a notice of appeal from the order entered by Judge Harrington on November 5, 1964, which order recited that the court, on November 5, 1964, in accordance with its order of October 23, 1964, and upon due notice having been given, conducted a sale in open court at public auction of the beneficial interest of Quinn; that Federal made the highest and best bid in the sum of $25,000, and is the absolute owner of the beneficial interest under the trust agreement between Quinn and La Salle. The order further recited that the judgment heretofore recovered by Federal against Quinn shall be reduced and partially satisfied to the extent of “the aforesaid sum bid for said beneficial interest.”

It appears that after the notices of appeal were filed a decree of foreclosure was entered in the trial court by Judge Harrington. The property was bid in by Lawn at a foreclosure sale, a master’s deed was entered, and the period for redemption by creditors has expired. No appeal has been taken from the decree of foreclosure.

Defendants’ theory of the case is that (1) the trial court lacked jurisdiction to order and hold the sale of Quinn’s beneficial interest in the trust; (2) the court, in ordering the sale of the beneficial interest, was permitting a strict foreclosure in violation of the statute; and (3) the trial court had no power to terminate the 20-year lease by entering an order upon stipulation between Federal and Lawn.

We will first consider defendants’ contention that the trial court was without jurisdiction of the subject matter. Defendant Quinn argues that the certificate of beneficial interest in the trust represented a security of personal property for a debt which was not connected with the mortgage sought to be foreclosed, and therefore, it was not properly within the purview of the court, and that the court could not enter any orders with reference to the certificate. In support of his contention Quinn cites and relies on City of Chicago v. Chatham Bank of Chicago, 54 Ill App2d 405, 203 NE2d 788. In that case the City brought suit against the Bank as trustee of a land trust, and the Chicago Title and Trust Company as trustee under a trust deed, to enforce provisions of certain building ordinances. The appellant, Gale Johnson, who owned the beneficial interest in the land trust, was not a party, but appeared pro se and defended. Later the owner of the mortgage notes which were signed by Chatham Bank as trustee without personal liability, but guaranteed by Gale Johnson, filed a counterclaim to foreclose the mortgage. The foreclosure sale resulted in a deficiency for which they took judgment against Gale Johnson as guarantor. On appeal the first issue considered was whether “the trial court had any jurisdiction to enter such order, since Gale Johnson had not executed either the notes or the mortgage in question as an obligor, but had signed the notes only as a guarantor. . . .” Reversing the judgment against Gale Johnson, the appellant, the court held that a guarantor is not liable for a deficiency judgment in a foreclosure action.

Quinn cannot bring himself within the ambit of that case. No question is presently raised regarding his liability on the mortgage notes. The issue here is whether or not the trial court had jurisdiction over the certificate of beneficial interest, an issue not raised in the Chatham case. All the other cases Quinn relies on only determine the liability of one who is not a maker of the mortgage note.

Defendant Quinn has correctly stated in his brief that the question of absolute lack of jurisdiction may be raised at any time, even for the first time on appeal. Moreover, a party or parties cannot by consent confer jurisdiction of the subject matter on the court. A court of chancery which has obtained jurisdiction of a controversy on any ground or for any purpose, will retain such jurisdiction for the purpose of administering complete relief and doing entire justice with respect to the subject matter. ILP, Chancery, § 17. In Keith v. Henkleman, 173 Ill 137, 50 NE 692, the Supreme Court said:

“It is well settled that, when a court of equity has jurisdiction of a cause for one purpose, it will retain such jurisdiction for all purposes. When the controversy requires any purely equitable relief, such as will give a court of equity the right to act, the court will proceed to a determination of all the matters at issue, and, in doing so, it may establish purely legal rights and grant legal remedies, which would otherwise be beyond its power. The concurrent jurisdiction of equity may thus be exercised over legal causes of action, in order to avoid a multiplicity of suits.”

In Oppenheimer Bros., Inc. v. Joyce & Co., 20 Ill App 2d 34, 154 NE2d 856, a complaint was brought in equity for an injunction restraining a defendant from breaching a contract not to place insurance with any brokers other than the plaintiff. The complaint further sought an accounting. The defendant sought to have these issues separated; made a jury demand and prayed that this aspect of the case be removed to the law side. The court held that the second issue might be determined along with the principal one. The court said:

“Where equity has acquired jurisdiction for the purpose of administering equitable relief, it may determine all matters at issue, although by so doing it may grant legal rights and establish legal remedies at the same time. McIntyre v. McIntyre, 287 Ill 544, 550 (1919); Keith v. Henkleman, 173 Ill 137, 141 (1898). This matter should be completely disposed of in chancery, where unquestionably such issues can receive a more expeditious and less cumbersome hearing than would be involved in presenting the issues to a law court.”

In the case before us it is undisputed that the trial court had jurisdiction in equity to foreclose Lawn’s mortgage and to pass on Federal’s prayer to impress the property with a lien or trust and to cancel the lease. At the hearing on October 22, 1964, Quinn filed an objection to the entry of the decree terminating the Beverly lease. The objection was bottomed on Quinn’s allegation of ownership of the beneficial interest in the La Salle trust. The $500,000 note signed by Quinn on July 8, 1963 (which was payable to Beverly and in which note Quinn pledged as collateral his beneficial interest in the trust in which La Salle held title to the real estate), was in Federal’s possession under and by virtue of Beverly’s plan of voluntary liquidation. Illinois Revised Statutes 1963, c 26, § 9-504 (3) provides for the sale of collateral as follows:

“Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. . . .”

The trial court, under the authorities heretofore cited, had jurisdiction to conduct the sale, and it seems that Quinn recognized this rule, inasmuch as in his petition of October 8, 1964, he stated: “The Counterclaim-ant, Federal Savings and Loan Insurance Corporation, by assignment is now the owner of said note and is Successor-Assignee of the aforesaid beneficial interest, and said Counterclaimant may offer said beneficial interest for sale pursuant to the terms' of the aforesaid note of July 18, 1963.” (Emphasis supplied.) The only prayer in the petition is that in the event of a sale five days’ notice should be given to Quinn, his attorney, and La Salle. The sale was proper and well within the trial court’s jurisdiction. The pledged beneficial interest was properly and legally disposed of.

Quinn also argues that the sale of the beneficial interest constituted a strict foreclosure in violation of law. Horney v. Hayes, 11 Ill2d 178, 142 NE2d 94, is determinative of that issue. In that case Horney was the owner of the beneficial interest in a land trust. He assigned this interest to Hayes as security for a loan and when the loan was not repaid, Hayes, proceeding under a power of sale conferred by the assignment, sold the beneficial interest to one Walsh. Thereafter, Horney brought suit to set aside the sale and certain subsequent conveyances, alleging among other things that the transaction constituted a mortgage in equity in real estate. The Supreme Court held that the trust agreement creating the land trust provided that the entire legal and equitable title was to be in the trustee in fee simple, and the interest of the beneficiary was expressly declared to be personal property as security; that consequently, Horney had no equity of redemption with respect thereto. The court held that this transaction was not a mortgage in equity, even though it bore a superficial resemblance to the facts in DeVoigne v. Chicago Title & Trust Co., 304 Ill 177, 136 NE 498. In the Homey case the court said:

“. . . The pledge in the case at bar is on an entirely different footing. ... It does not provide for sale of the real estate, as in the DeVoigne case, nor was the trust itself created as security for a debt. The transaction between plaintiff and Hayes occurred subsequent to the creation of the trust, and concerned only the beneficial interest represented by the certificate.”

In the present case there is no requirement in the Quinn pledge of the beneficial interest as collateral that the real estate be sold. Further, the trust was created on September 27, 1961; it was not until July 18, 1963, that Quinn signed a note payable to Beverly for $500,000 and pledged as collateral his beneficial interest in the trust at La Salle. The legal title to the real estate was in La Salle, and Quinn did not — nor could he — pledge real estate as security for the debt. The beneficial interest was only personal property and the sale of that interest does not fall within the prohibitions of the statute upon which Quinn relies.

Defendant Quinn further argues that the court had no power to terminate the 20-year lease by entering an order upon stipulation of Federal, the lessee’s assignee, and Lawn, the mortgagee. The certificate of beneficial interest had been pledged by Quinn to Beverly, a party-defendant. Federal subsequently acquired all of Beverly’s burdens; among these were the certificate of beneficial interest and the lease. Federal then properly filed a counterclaim against Lawn. Count II of the counterclaim alleged that Quinn, by reason of his ownership of a certificate of beneficial interest in the La Salle trust and his domination and control of Beverly, had fraudulently caused Beverly to execute the lease of February 6, 1962, and prayed that the lease be set aside. This put the issue of the validity of the lease before the court. On authority of Keith v. Henkleman, 173 Ill 137, 50 NE 692, and Oppenheimer Bros., Inc. v. Joyce & Co., 20 Ill App2d 34, 154 NE2d 856, the trial court, acting as a court of equity, having obtained jurisdiction of the controversy for any reason, retains jurisdiction in order to determine all matters at issue, even though legal rights and remedies may be involved. These cases have been heretofore discussed at length.

Finally, the defendant, Quinn, contends that it was highly improper for the court to cancel the 20-year lease on stipulation of Lawn, the mortgagee, and Federal, the petitioner, especially when Federal did so after depriving Quinn of his right to have his attorneys represent La Salle, the trustee, and instead, had their lawyers represent La Salle. However, as plaintiff Lawn points out in its brief, the mortgage expressly conferred upon Lawn complete power to deal with the lease. Following the description of the real estate, the mortgage agreement states in part:

“. . . and also together with all easements and the rents, issues and profits of said premises which are hereby pledged, assigned transferred and set over unto the Mortgagee, whether now due or hereafter to become due under or by virtue of any lease or agreement for the use or occupancy of said property, or any part thereof, whether said lease or agreement is written or verbal and whether it is now or may be hereafter existing or which may be made by the Mortgagee under the power herein granted to it; it being the intention hereof (a) to pledge said rents, issues and profits on a parity with said real estate and not secondarily and such pledge shall not be deemed merged in any foreclosure decree, and (b) to establish an absolute transfer and assignment to the Mortgagee of all such leases amd agreements and all the avails thereunder, together with the right in case of default, either before or after foreclosure sale, to enter upon and take exclusive possession of, manage, maintain and operate said premises, or any part thereof, make leases for terms deemed advantageous to it, terminate or modify existing or future leases, . . . and in general exercise all powers ordinarily incident to absolute ownership, . . .” [Emphasis added.]

The agreement clearly gives Lawn the exclusive right to deal with present or existing leases. The validity of such an agreement was sustained in Ortengren v. Rice, 104 Ill App 428, where the court said:

“Where the rents and profits, together with the land, are pledged for the payment of the debt, . . . The contract of the parties governs. Such a contract does not interfere with the equity of redemption. It is lawful, and the courts will enforce it as it is made, . . .”

There is no question that under the mortgage Lawn could have brought an action of ejectment. Since the mortgage was in default Lawn had an unassailable right “to enter upon and take exclusive possession of, . . .” The lease was made subsequent to the execution and recording of the mortgage, and was therefore subordinate to the rights of the mortgagee. Had Lawn brought an action of ejectment Federal, as the successor in interest, would be in the very same position as it is now. The stipulation merely prevented a multiplicity of suits. In addition Federal, having bought Quinn’s certificate of beneficial interest, which was not subject to any equity of redemption, had the right to direct the action of La Salle, the lessor. Federal could have requested a cancellation of the lease. Whatever Lawn’s reasons for cancelling the lease may have been, they are of no moment here. Lawn’s right to act as it did was absolute.

Federal states in its brief:

“Since this appeal was started, the decree of foreclosure has been entered in the trial court, the property has been bid in by Lawn at foreclosure sale, the Master’s deed has issued, and the period for redemption by creditors has expired, as has also the time for appeal. The ownership of the beneficial interest in LaSalle’s trust which held title to the equity is hence a matter of academic interest only.”

Quinn’s notices of appeal, as we have pointed out, are only from orders entered by the court, and no appeal is taken from the decree entered on the same date. While there may be some question as to the propriety of the notices of appeal, we think they can be properly treated as including an appeal from the court’s decree entered on November 5, 1964, on Federal’s counterclaim, which decree was in accordance with the stipulation between Lawn and Federal.

The decree held that Federal had no lien on the property sought to be foreclosed, nor was it entitled to have the property impressed with the trust in its favor. The decree further provided that the lease between La Salle and Beverly should have no further legal effect, and that possession by Federal of the property demised by the said lease should continue upon certain prescribed conditions, and that Federal has succeeded to all interests of Beverly and the liquidators of Beverly.

The decree of the trial court and the orders entered on November 5, 1964, should be sustained. One order confirmed the sale by the court of the beneficial interest and the ownership of the same by Federal. The other order denied Quinn’s objections to the entry of a decree on the counterclaim pursuant to the stipulation.

While the appeal was pending in Lawn Savings & Loan Ass’n v. Howard B. Quinn and La Salle National Bank (Appellate Court No. 50,419), Howard B. Quinn and Charlotte J. Quinn, his wife (hereinafter called the Quinns), brought an action against Lawn Savings & Loan Association, La Salle National Bank, as trustee, under trust 28563, and Federal Savings & Loan Insurance Corporation, in the Circuit Court of Cook County (Appellate Court No. 51,000).

The decree of foreclosure on the mortgage had been entered in the trial court, and Lawn was the purchaser on the foreclosure sale. As we have pointed out, no appeal was taken from the foreclosure. In case No. 51,-000 the complaint prayed that the court remove the interests of defendants, Lawn, La Salle and Federal, as a cloud upon Quinn’s title, and to declare null and void all proceedings in the case we have just discussed (No. 50,419). The .Quinns then filed an amended complaint by leave of court. On June 17, 1965, the defendants, Lawn, La Salle and Federal, moved to strike the amended complaint and dismiss the cause of action. The plaintiffs were then given leave to file amendments to their amended complaint. Thereupon the defendants moved to strike the amended complaint as amended. On August 31, 1965, the trial court dismissed the amended complaint as amended and dismissed the cause of action. From this order the Quinns take this appeal.

In the amended complaint as amended the Quinns pray that the court direct that the orders and decree for the sale and the approval of the sale of Quinn’s beneficial interest and the order canceling the 20-year lease and exonerating Federal from paying any rental, either under the lease as assignee or for use in occupancy of the demised or occupied premises, be held “as a nullity, void, and be removed as a cloud upon the title of the property involved.”

The Quinns’ theory in this court is that the trial court did not have any jurisdiction of the subject matter in the foreclosure proceedings, nor did it have jurisdiction to conduct a sale of a certificate of beneficial interest in the property sought to be foreclosed. All of the matters raised in the appeal in Case No. 51,000 have been fully covered in the portion of this opinion dealing with the appeal in Case No. 50,419. Further, the complaint constitutes a collateral attack on the adjudications of the trial court since they are the same adjudications appealed from in Case No. 50,419.

The only new matter raised in the instant case is that Federal, by appearing in the trial court in the foreclosure action, was not entitled to relief because it was conducting an insurance and surety business under the laws of the State of Illinois without securing a license to conduct such business. It is apparent that the statute relied on by the Quinns is not applicable. Under the National Housing Act, 12 USCA § 1725 (p) (4), Federal had the right to bring an action in any Illinois court.

Illinois Revised Statutes 1963, c 73, § 723, provides that before a certificate of authority to transact business in this State is issued to a “foreign or alien company,” such company must satisfy the director that the company has been properly organized under the laws of the state or country under which it professes to be organized. It is evident that the Act refers only to companies organized under the laws of another state or a company organized under the laws of a foreign country, and does not apply to any corporation or agency of the United States.

Furthermore, as pointed out in Lawn’s brief, if the orders appealed from should be reversed, Federal could have another sale under its collateral note and the beneficial interest could be sold. Lawn could then file an ejectment case and the lease would be ineffective. “No substantial purpose and no reasonable objective would be attained.”

In that brief it is further pointed out that the only value the beneficial interest of the mortgagor trust could possibly have is to effect a redemption from the foreclosure sale, and this is no longer possible, because the redemption period has expired. “Courts of review will not reverse judgments of decree or orders where no purpose appears or can be shown.” Barnard v. Michael, 392 Ill 130, 63 NE2d 858; Gliwa v. Washington Polish Loan & Building Ass’n, 310 Ill App 465, 34 NE 2d 736.

The trial court properly dismissed the cause of action, and the order entered in the trial court dismissing the cause of action is affirmed.

The decree and the orders entered in the Circuit Court of Cook County in Lawn Savings and Loan Ass’n v. Howard B. Quinn, La Salle National Bank, as trustee under trust 28563, et al. (our court No. 50,419), and the order entered in the case of Howard B. Quinn and Charlotte J. Quinn v. Lawn Savings & Loan Ass’n, La Salle National Bank, as trustee under trust 28563, and Federal Savings & Loan Insurance Corporation (our court No. 51,000), are affirmed.

Affirmed.

ENGLISH, P. J. and DRUCKER, J., concur.

       This decree further provided that “this is a final decree as to the matters involved in said counterclaim and that no reason exists for the delay of any appeal.”

       The abstract shows that the second notice of appeal was filed on January 7. The record shows that it was filed on January 4. The abstract shows that proof of service was filed on January 7, but the record shows it was not filed until January 18.