author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joe Karmazinas, Defendant-Appellant.
    Gen. No. 66-106.
    Fifth District.
    February 28, 1967.
    Broverman & Broverman, of Taylorville, for appellant.
    Rolland F. Tipsword, State’s Attorney of Christian County, of Taylorville, for appellee.
   PER CURIAM:

Defendant appeals from the judgment of the Circuit Court of Christian County entered on a jury verdict finding him guilty of the offense of permitting premises occupied by him, and under his control, to be used as a gambling place (c 38, § 28-3, Ill Rev Stats 1965). The complaint charges that in the premises described, “dice were thrown for money.” The court fined defendant $500 and ordered him to pay the costs of court.

The evidence shows that defendant operates a tavern near Taylorville. Cecil Weller, an agent for the Illinois State Police Crime Section, and Carroll McGrew, a State Policeman, testified that on March 25, 1966, they were engaged in investigating gambling in the Taylorville area. In the course of their duties they entered defendant’s tavern and found a dice game, known as 6-5-4, being played on the end of the bar. Defendant was not participating in the game, but was working behind the bar, and served drinks to the players. Without revealing their identity, they participated in the game, and later reported the results of their investigation to the State’s Attorney of Christian County. On May 5, 1966, Mr. Weller signed the complaint upon which this action is based.

Defendant argues a number of grounds for reversal, only one of which need be discussed.

Defendant, testifying in his own behalf, stated that he did not recall ever having seen the two witnesses, denied owning a dice cup, and denied that 6-5-4 was ever played in his tavern.

After the defendant rested his case, The People called Cecil Weller as, a rebuttal witness, and over defendant’s objection he was permitted to testify that during the noon recess defendant approached him in the hall outside the courtroom, asked him why he signed the complaint, and upon being told that the witness was acting in the line of duty, defendant stated that “every tavern had dice and shot dice for drinks and the juke box.”

Carroll McGrew, also called in rebuttal, testified to having been present at the time, that he heard the conversation between Weller and defendant, and that defendant said “that they do that in all the taverns.”

“Rebutting evidence is that which is produced by a plaintiff to explain, repel, contradict or disprove the evidence given by the defendant.” The People v. Bell, 828 Ill 446, 451,159 NE 807.

We have examined the entire record and fail to perceive in what respect the testimony was in rebuttal of anything brought out by the defendant, and hold that it was, therefore, improperly admitted. Cook & Rathborne Co. v. Sanitary Dist. of Chicago, 177 Ill 599, 603, 52 NE 870. Because we deem its admission to be prejudicial error, the judgment of the Circuit Court of Christian County is reversed, and the cause is remanded for a new trial.

Judgment reversed and cause remanded.


source: Caselaw Access Project

author: MR. JUSTICE SCHWARTZ

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Aubrey Burks, Jr., Defendant-Appellant.
    Gen. No. 50,644.
    First District, Third Division.
    March 2, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendant was charged with attempted rape and aggravated battery. Upon waiver of jury, he was tried by the court, found guilty and sentenced on January 26, 1965, to serve a term of five to ten years on the first charge and one to five years on the second. Six weeks thereafter, defense counsel filed a petition in the nature of a writ of error coram nobis, alleging that defendant had been adjudicated feebleminded and committed to an institution in 1945; that he had not disclosed his history of mental illness either to defense counsel or the court and that defense counsel discovered it by an examination of the records of the Municipal Court of Chicago. He concludes his petition with the statement that if the prior condition of mental disability had been presented, the trial court “would not have found the Defendant guilty” or would have conducted a sanity hearing prior to the trial, for which he prays. After a hearing the petition was denied, and it is from that order that defendant appeals. The facts follow.

Mrs. Betty Freeman testified that on July 3, 1964, at about 11:00 a. m. she was attacked by a man who had been hiding in her heating equipment store. The attacker, whom she later identified as the defendant, held a knife to her throat and indicated that he wanted to have sexual relations with her. When she resisted his advances, he beat her with his fists. Her two children were drawn to the scene by her screams, and the attacker fled. Mrs. Freeman pursued him into the street and asked the aid of a passing mail carrier, one Volante, who saw the defendant enter an automobile and recorded its license number. On the basis of the license number and descriptions by Mrs. Freeman, Volante and another passerby, the police arrested defendant about two hours later.

At the trial defendant was represented by counsel engaged by him. His defense was an alibi based on his own testimony and that of his wife and two of his neighbors. At no time did his counsel represent that defendant could not cooperate with him.

The petition reveals that defendant was committed to the State Hospital at Dixon, Illinois, on September 21, 1945, and was discharged on May 2, 1946, pursuant to a motion made by the hospital superintendent in which he stated that defendant had escaped from the mental institution and was serving a sentence in the penitentiary. Thus more than 18 years elapsed between the time of defendant’s discharge from the Dixon hospital and the time of his trial in the instant case. During the last nine years of that period he was employed, was married and had become a property owner.

The trial court heard argument on the petition and continued the case in order that defendant might be examined by the behavioral clinic. The clinic’s report indicated that he was competent to cooperate with counsel. The trial court then offered to conduct a complete competency hearing if defense counsel so desired, indicating in his comments however that he was satisfied that defendant was able to and did cooperate with his counsel in the trial of the case. Following the colloquy with the court, defense counsel refused to accept the proposed competency hearing and stood on his request for a new trial.

If facts which give rise to a bona fide doubt as to a defendant’s sanity are brought to the attention of the trial court before or during trial, either from observation of the defendant or suggestion by counsel, the court has a duty to impanel a jury to determine whether the accused is capable of understanding the nature of the charges against him and of cooperating with his counsel. People v. Richeson, 24 Ill2d 182, 181 NE2d 170; People v. Robinson, 22 Ill2d 162, 174 NE2d 820; People v. Burson, 11 Ill2d 360, 143 NE2d 239. If after a trial facts are uncovered which indicate that the defendant was unable to cooperate with counsel, then a new trial must be ordered. The court cannot confine the issue to determining the question of competency. Pate v. Robinson, 383 US 375 (1966); People v. Thompson, 36 Ill2d 332, 223 NE2d 97. It is clear therefore that the issue before us is whether or not the evidence presented in support of the petition raised a bona, fide doubt as to the defendant’s competency to stand trial.

Where insanity is proved as existing at a particular time it is presumed to continue until the presumption is disproved. People v. Maynard, 347 Ill 422, 179 NE 833. This presumption however can be rebutted by evidence of lapse of time during which period the defendant’s conduct was normal. Glenn v. People, 9 Ill2d 335, 135 NE2d 336; People v. Samman, 408 Ill 549, 97 NE2d 778.

Defendant entered a plea of not guilty, testified in his own behalf and presented an alibi defense. Neither his lawyer nor anyone concerned in the trial of the case expressed any doubt as to his competency. The trial court, having observed the defendant during the trial and taking into account the long lapse of time (twenty years) since his commitment, his subsequent discharge from the hospital, his serving of two prison terms followed by a period of nine years in which he worked steadily, married, acquired property and apparently led a normal life, properly came to the conclusion that there was no bona, fide doubt that defendant had the ability to understand the nature of the charges against him and was able to cooperate with his counsel.

The order denying the petition in the nature of a writ of error coram nobis is affirmed.

Order affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.

       Ill Rev Stats, ch 38, § 12-4(a) (1963).
      “A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery and shall be imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 10 years.”


text:
    Lacy Oliver, Plaintiff-Appellee, v. Civil Service Commission of the City of Chicago, Arthur J. Ward, Superintendent of the House of Correction of the City of Chicago, and the City of Chicago, a Municipal Corporation, Defendants-Appellants.
    Gen. No. 50,863.
    First District, Third Division.
    March 2, 1967.

      Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Marsile J. Hughes, Assistant Corporation Counsel, of counsel), for appellants.
    Richard L. Clayter, of Chicago, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook County vacating and setting aside a decision of the Civil Service Commission of the City of Chicago. On May 8, 1963, the Commission found the plaintiff guilty of conduct unbecoming an employee of the City of Chicago and ordered that he be discharged from his position as a guard at the House of Correction. Oliver filed a “Petition to Correct Order” with the Commission, which was denied on September 4, 1963. Thereafter he instituted an action for administrative review. The Circuit Court heard the case and ordered plaintiff’s reinstatement. The Commission appeals from this order, contending that (1) the trial court had no jurisdiction to review the decision of the Commission because the action for administrative review was not filed within the time allotted by the Administrative Review Act, and (2) the Commission properly discharged plaintiff for conduct unbecoming an employee. The events precipitating his discharge follow.

On December 9, 1962, at about 2:00 a. m. plaintiff was in the Green Diamond Lounge in Chicago when police officers arrived to investigate a report that an armed man was in the vicinity. Plaintiff volunteered to assist the officers, exhibited his badge and, according to one of the policemen, identified himself as a police officer. He told the officers that a small man on crutches had dropped a toy pistol in the tavern; that he had cautioned the man about frightening people; and that he had assisted in chasing the man from the tavern. After relating the story to the officers, plaintiff turned to the patrons of the tavern and shouted, “Everybody out.” Plaintiff then accompanied the police as they searched the area for the small man with the toy pistol. A crowd gathered and the police tried to disperse it. They also suggested to plaintiff that he should go home. Plaintiff did not comply with their request, so the officers arrested him for disorderly conduct. A search revealed that he was carrying a 88-caliber revolver, and in addition to the disorderly conduct charge he was charged with impersonating a police officer and unlawful use of weapons. Plaintiff was tried on February 15, 1963, and found not guilty on the foregoing charges.

Following plaintiff’s arrest, his superior at the House of Correction filed charges and specifications with the Commission, asking that plaintiff be discharged (1) for conduct unbecoming an employee, (2) disobedience of orders, and (3) violation of law. On motion of the Commission the charges were later reduced to disobedience of orders.

The evidence produced at the hearing before the Commission established that the rules of the House of Correction prohibited guards and custodial employees from carrying firearms, except when authorized to do so on official business.

On May 8, 1963, the Commission found plaintiff guilty of the charges preferred against him and ordered his discharge. Two paragraphs of the Commission’s order related to the charges of disorderly conduct and violation of law, charges which had been stricken during the hearing. Upon noting this error plaintiff’s attorney filed his petition to correct the order and did not initiate a suit for administrative review until the petition was denied by the Commission. In order to resolve the issues presented on this appeal, we must first determine when the official proceedings of the Commission were terminated, since an action for administrative review must be commenced within 35 days of the rendition of the final decision of the administrative agency.

Judicial review of an administrative decision may not be had until the aggrieved party has exhausted his administrative remedies. The Administrative Review Act provides that if an agency provides a method for rehearing a case, either by an agency rule or by a statutory provision, then an agency decision is not an appealable “administrative decision” until the aggrieved party requests rehearing and his petition is denied. The statute further provides that in the event an agency does not have a provision for rehearing, the final order becomes ripe for review when it is rendered by the agency. The parties to this suit stipulated that the Commission does not have any rule or regulation providing a means for the rehearing of its decisions and therefore under the applicable provisions of the Administrative Review Act the order of May 8, 1963, was an “administrative decision,” and the period for review began to run as of that date.

Plaintiff argues that the Commission has the inherent power to correct its orders, just as courts have continuing jurisdiction over their own decrees. On this basis he contends that the Commission could correct its order even though there was no specific provision in the rules or in the ordinance for rehearing. The law is clear however that regulatory agencies have no inherent powers. They are creatures of statute, vested only with those powers specifically conferred upon them by the legislature and accordingly they may modify their decisions only where authorized to do so by statute. Pearce Hospital v. Public Aid Commission, 15 Ill2d 301, 154 NE2d 691.

Plaintiff also contends that the Commission should be estopped from interposing the statute of limitations as a defense to this action because the Commission accepted the petition and entertained it until the 35-day period had run and then acted on it by denying the relief sought. Plaintiff asserts that the conduct of the Commission was inconsistent with the theory that it could not rehear the case and that since the Commission induced plaintiff to refrain from commencing his action for judicial review, it may not be allowed to raise the statute of limitations as a defense. This theory however is not supported by the facts. The Commission did not request the plaintiff to file his petition nor did its rules indicate that such a petition would be entertained. Plaintiff’s actions were unilateral and unsolicited and we cannot impose an affirmative duty upon the Commission to correct such errors.

We proceed to a consideration of the merits of the order discharging plaintiff from his position as a guard. In so doing we do not purport to reweigh the evidence. It has been repeatedly held that the function of courts reviewing orders of administrative agencies is to consider the record and determine whether the findings and decisions of the agencies are against the manifest weight of the evidence. Taylor v. Civil Service Commission, 33 Ill App2d 48, 178 NE2d 200. The court can only review the nature of the offense and the penalty for the purpose of determining whether the offense was related to the service and whether the ruling was arbitrary or capricious. Nolting v. Civil Service Commission, 7 Ill App2d 147, 129 NE2d 236.

It is apparent that security employees such as guards at the House of Correction must be emotionally stable. It is also clear that such employees may be prevented from carrying weapons on their person for fear that such weapons will fall into the hands of inmates. These guards were provided with badges and given a certain degree of authority and therefore the Chief of Security has the duty to make certain that the guards do not misrepresent their authority or use their badges as means of securing special privileges.

The rules imposed by the House of Correction were directly related to the service and there is ample evidence that plaintiff violated those rules. The order of the trial court vacating and setting aside the order of the Civil Service Commission is reversed.

Order reversed.

SULLIVAN, P. J. and DEMPSEY, J., concur.

       The rules and regulations of the House of Correction provide as follows:
      “FIREARMS.
      “All guards and custodial employees are prohibited in carrying firearms about their person, except when authorized to do so on official business only. Any infraction of this rule will be considered sufficient cause for immediate dismissal.”
      In April 1961 the following directive letter was posted on the bulletin boards:
      “To all Security Personnel:
      “It has been called to my attention that certain Security Personnel are carrying side arms to and from the institution.

        “This practice must cease immediately as no one is authorized to carry any guns of any kind. Carrying a gun is a violation, not only of institutional regulations but also of city and state statutes. Anyone apprehended carrying a gun will be prosecuted to the fullest extent of the law.”

       Judicial review of the decisions of municipal civil service commissions is governed by the Administrative Review Act. Ill Rev Stats, c 24, § 10-1-45 (1965). An action for judicial review of an “administrative decision” must be commenced within 35 days of the rendition of the decision or else it will be barred. Ill Rev Stats, c 110, §§ 265, 267 (1965). It is therefore crucial to determine whether the Commission terminated its official proceedings on May 8, 1963, when the order was entered, or on September 4, 1963, when it denied the petition to correct its order.

       Section 1 of the Administrative Review Act, as in force throughout 1963, L 191, pp 1911-1913, Ill Rev Stats, c 110, § 264 (1961) provided that:
      “ ‘Administrative decision’ or ‘decision’ means any decision, order or determination of any administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of the parties and which terminates the proceedings before the administrative agency. In all cases in which a statute or rule of the administrative agency requires or permits an application for a rehearing or other method of administrative review to be filed within a specified time . . . , and an application for such rehearing or review is made, no administrative decision of such agency shall be final as to the party applying therefor until such rehearing or review is had or denied.”


author: MR. PRESIDING JUSTICE LYONS

text:
    David M. Maytnier, Jr., by David M. Maytnier, His Father and Next Friend, Plaintiff-Appellant, v. Robert Rush, Defendant-Appellee, and Chicago National League Ball Club, Inc., a Corporation, Defendant. David M. Maytnier, Jr., by David M. Maytnier, His Father and Next Friend, Plaintiff-Appellee, v. Chicago National League Ball Club, Inc., a Corporation, Defendant-Appellant, and Robert Rush, Defendant.
    Gen. Nos. 50,780 and 50,781.
    First District, Second Division.
    March 6, 1967.
    Rehearing denied April 5, 1967.

      James A. Dooley, of Chicago, for David M. Maytnier, Jr., appellant and appellee.
    Hinshaw, Culbertson, Moelmann & Hoban, of Chicago (Perry L. Fuller and Thomas J. Weithers, of counsel), for appellant, Chicago National League Ball Club, Inc. and appellee, Robert Rush.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is a consolidation of appeals from judgments, after the return of jury verdicts, entered in favor of plaintiff against defendant, Chicago National League Ball Club, Inc. (hereinafter referred to as defendant, Chicago Cubs) for $20,000 and in favor of defendant, Robert Rush (hereinafter referred to as defendant, Rush). General No. 50,780 is an appeal by plaintiff from the judgment for defendant Rush and General No. 50,-781 is an appeal by defendant Chicago Cubs from the judgment for the plaintiff.

On September 13, 1957, plaintiff, David M. Maytnier, Jr., purchased a ticket to a Chicago Cubs doubleheader specifically requesting a seat as close to the Cubs’ dugout as possible so that he could get a better view of the players. He received and occupied a seat in the front row, approximately ten to fifteen seats to the outfield side of the Cubs’ dugout. Plaintiff had been to Wrigley Field six to twelve times over the previous two to three years. He knew a protective screen was provided behind home plate and that none was so provided in the area where his seat was located.

During the sixth inning of the second game, plaintiff was struck and injured on the left side of his head by a ball thrown from the bullpen by defendant Rush. This warming up area or bullpen was located on the field of play between the third base foul line and the grandstand at a point about midway between the Cubs dugout and the left field wall. Pitchers warming up therein would throw in approximately the same direction as would the pitcher in the game itself. Plaintiff knew of the bullpen’s proximity to the grandstand, and that it was not uncommon for some warming up activity to take place there. The seat occupied by plaintiff was in such a position that it required him to look to his right to see the pitcher and batter in the game and to his left to see the bull pen activity. In just which direction plaintiff was looking when struck by the ball was much controverted.

Testimony was elicited which showed that Cub pitchers may warm up of their own volition or by the specific direction of a manager, and that a pitcher may, on occasion while warming up, experiment with a new pitch. It was proffered that defendant Rush was having a bad year and that when a pitcher is having a bad year, he attempts to correct his pitching rhythm. The warm up catcher, Gordon Massa, testified that the pitch in question went up to his left beyond his reach. Massa was six feet three inches tall.

Evidence was offered to show that there exists a substantial benefit, to be able to throw warm up pitches in the same direction as the pitcher in the game and also thus be able to examine the opposing batters as they come to bat. Testimony was also introduced to support the contention that there existed no other feasible location in Wrigley Field for such a bullpen. Defendant Rush admitted that he had thrown “wild pitches” while warming up on prior occasions.

It is defendant Rush’s theory of the case in No. 50,780 that plaintiff’s appeal should be dismissed for want of timeliness under the Supreme Court Rules.

It is defendant Chicago Cubs’ theory of the case in No. 50,781: (1) that it was under no duty to screen off its entire park and is, as a matter of law, not liable to spectators at a game, who are struck by baseballs; (2) that plaintiff assumed the risk of injury; and (3) that the trial court erred in not directing a verdict in its favor.

It is plaintiff’s theory of the case in No. 50,781: (1) that defendant Chicago Cubs violated the duty an owner-occupier of premises owes to invitees present thereon by establishing and maintaining a dangerous facility in proximity to the grandstand; - (2) that defendant Chicago Cubs was negligent in allowing defendant Rush to experiment with new pitches while in the bullpen; (3) that defendant Rush was negligent in throwing the ball into the grandstand; and (4) that the verdict returned for defendant Rush was against the manifest weight of the evidence.

In case No. 50,780 plaintiff appeals from a judgment entered below in favor of defendant Rush. Defendant Rush filed a motion to dismiss the appeal, (which was taken with the case) on grounds that the appeal was not perfected within the time permitted by Supreme Court Rule 35. A judgment was entered upon the verdict on January 14, 1965. Plaintiff and both defendants filed post-trial motions which were denied on April 28, 1965. Defendant Chicago Cubs filed notice of appeal 16 days thereafter on May 14, 1965, and plaintiff filed notice of appeal from the judgment in favor of defendant Rush on June 25, 1965, 58 days after the judgment had become final. Supreme Court Rule 35(1), Ill Rev Stats 1965, c 110, par 101.35(1) stated:

. “Each appellee who desires to prosecute a cross appeal from all or any part of the judgment, decision, order or decree, and each co-party who did not join in the notice of appeal but who desires to join as appellant or to prosecute a separate appeal shall, within 10 days after service upon him of notice of appeal, serve a notice upon each party or attorney or firm of attorneys who signed the notice of appeal, and upon each appellee, person or officer entitled to receive notice of appeal, and file a copy thereof in the trial court.”

It is defendant Rush’s position that once defendant Chicago Cubs filed its notice of appeal 16 days after the judgment became final, it then became incumbent upon plaintiff to file his notice of cross appeal within 10 days thereafter, or within a sum total of 26 days after the judgment became final notwithstanding the general provision found in the Civil Practice Act, Ill Rev Stats 1965, c 110, par 76, allowing 60 days for the filing of notice of appeal. Plaintiff contends that as to defendant Rush, he is neither an appellee nor a coparty who did not file a separate notice of appeal within the meaning of the statute. In addition, plaintiff points out that separate judgments were entered from the verdict in the trial court. This court is of the opinion that plaintiff’s reasoning, if accepted here, would operate to defeat the intent of Supreme Court Rule 35.

In case No. 50,781, we find that plaintiff entered the premises of defendant Chicago Cubs as a business invitee. Reciprocal benefits were derived as a result. Plaintiff, by accepting the public invitation held out by the defendant Chicago Cubs, was entertained by the performance of professional athletes, and defendant Chicago Cubs in consideration therefor, received pecuniary benefit.

It is well established law in this State that the owner-occupier of lands is not an insurer of the safety of invitees on his premises, but he is under a duty to exercise reasonable care for their protection. An owner-occupier’s liability to an invitee for injuries not intentionally inflicted must be predicated upon negligence, and no presumption of negligence on the part of the owner-occupier arises merely by showing that an injury has been sustained by one rightfully upon the premises. Altepeter v. Virgil State Bank, 345 Ill App 585, 104 NE2d 334 (1952). Moreover, this duty of reasonable care owed to an invitee does not require a complete fencing of the spectators present at a baseball game to protect them from stray baseballs. As stated in Brisson v. Minneapolis Baseball & Athletic Ass’n, 185 Minn 507, 240 NW 903 (1932):

“In our opinion they exercise the required care if they provide screen for the most dangerous part of the grandstand and for those who may be reasonably anticipated to desire protected seats, and that they need not provide such seats for an unusual crowd, such as the one in attendance at the game here involved.”

It does not necessarily follow, however, that once an owner of a ballpark has provided an adequate fenced-in area for the most dangerous part of the grandstand he has thereafter exculpated himself from further liability as defendant Chicago Cubs contends. To the contrary see Restatement of the Law of Torts, 2d, 344 (1964), which states:

“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons . . . , and by the failure of the possessor to exercise reasonable care to
“(a) discover that such acts are being done or are likely to be done, or
“(b) give a warning adequate to enable the. visitors to avoid the harm, or otherwise to protect them against it.”

In speaking of the independent negligent acts of a third person while on the premises of the owner which result in injury to an invitee present thereon, the court in Altepeter v. Virgil State Bank, 345 Ill App 585, 104 NE2d 334 (1952) said:

. . no liability attaches to the latter (owner) unless the circumstances are such that liability can be predicated on the theory of the existence of a public nuisance or of a dangerous condition, known to the owner or occupant, which he failed to take reasonable precautions to alleviate.” (Insert supplied.)

The court went further stating that the basis of an owner’s liability for injuries to an invitee rests upon the owner’s superior knowledge of the danger. Moreover, proof that the owner had actual knowledge of the dangerous condition is not a prerequisite to his liability. Reichmann v. Robertson’s, Inc., 264 Ill App 537 (1932).

In Ratcliff v. San Diego Baseball Club, 27 Cal App2d 733, 81 P2d 625 (1938), the court said that the park owner would not have been carrying out its duty of ordinary care if such an accident could reasonably have been foreseen and nothing was done to protect the patrons from such possible injury. Plaintiff here clearly avers a breach of this duty owing to him in paragraph 7 (a) of his fourth amended complaint at law, to wit;

“. . . carelessly and negligently permitted and caused to permit and maintain the location of its bullpen at a place in the park which was dangerous to the plaintiff, situated nearby, who was watching the game.”

Defendant Chicago Cubs contends that the only evidence presented by plaintiff to sustain his charges of negligence by defendant Chicago Cubs was that in 1957 the Chicago White Sox and New York Yankees of the American League and two of eight National League ball clubs situated their respective bullpens in areas off the playing field. We do not believe this to be a correct appraisal of the evidence offered by plaintiff. Relative to the issue of negligence, plaintiff offered the following: (1) that protective screens are positioned in front of both the first baseman and pitcher during batting practice as more than one ball is simultaneously being played; (2) that protective plastic helmets were worn by some, if not all, batters in the National League in 1957; (3) that Wrigley Field has remained substantially unchanged since its construction in 1916; (4) that the ball in question struck the plaintiff on the fly from his left while he was, at the same moment, looking to his right at the pitcher and batter in the game; (5) that a baseball is a hard ball, oft times thrown at speeds near ninety miles per hour, by a pitcher, from a point sixty feet, six inches away from its intended destination; (6) that pitchers pitching in the bullpen, whether by direction of the team manager or of their own volition, is not an abnormal occurrence during a ball game; (7) that when a pitcher is having a bad year he attempts to correct his pitching rhythm, and he may also possibly experiment by throwing new pitches in practice; (8) that pitchers warming up in the bullpen are eventually throwing as hard as they would in the game itself; (9) that plaintiff was not, as a result of the focus of his attention on the game in progress, in a position to see the ball that struck him; (10) that the defendant Rush, had thrown “wild pitches” during warm up sessions on prior occasions; and (11) that no protective screening was provided by the defendant Chicago Cubs in the area in proximity to said bullpen.

Admittedly, defendant Chicago Cubs is correct in contending that evidence to the effect that another method was used by others in performing a certain task does not, of itself, establish negligence. Watts v. Bacon & Van Buskirk Glass Co., 18 Ill2d 226, 163 NE2d 425 (1959), Rotche v. Buick Motor Co., 358 Ill 507, 193 NE 529 (1934), Turner v. Chicago Housing Authority, 11 Ill App2d 160, 136 NE2d 543 (1956), Peterson v. Feltenberger, 102 Pa Super 6, 156 A 621 (1930), Kelly v. Loft, Inc., 124 NJL 185, 11 A2d 58 (1940), Kahn v. Werbel, 4 NJ Super 184, 66 A2d 559 (1940). It must be pointed out, however, that this evidence is not the only evidence presented by plaintiff, as defendant Chicago Cubs maintains. The aforementioned evidence offered by plaintiff, though seriously questioned by opposing counsel, clearly raises triable issues of fact of sufficient credibility and probative value to warrant the court’s refusal of a directed verdict in favor of defendant Chicago Cubs.

Defendant Chicago Cubs further argues that the only question raised by plaintiff as to its alleged negligence is a question of law and not fact and as such should not have been submitted for jury determination. It claims that the owner of a baseball stadium is under no duty to screen the entire baseball park area occupied by the spectators and as a matter of law, is not liable to spectators at a baseball game who are struct by baseballs. In support of this contention, defendant Chicago Cubs cites eighteen cases, all of which are clearly distinguishable from the facts of the instant case. These cases all dealt with injuries to a spectator from a batted or thrown ball that was the ball actually in play in the game or from a batted or thrown ball when no game was, in fact, in progress.

The facts here in issue evidence an entirely different situation in which the plaintiff was struck by a ball, not in play in the game, coming from his left at a time when the spectators’ attentions were focused on the ball actually in play in the game, to plaintiff’s right. Furthermore, defendant Chicago Cubs relies on Jones v. Alexandria Baseball Ass’n (La App), 50 So2d 93 (1951) as authority for its nonliability, yet, there the court specifically attributed the plaintiff’s denial of recovery to his failure to “keep his eye on the ball,” a ball that was in play it might be added. The case at bar presents factual circumstances quite different from those held applicable to the general rules concerning nonlia-bility of ball park owners to spectators. This court cannot say, therefore, that defendant Chicago Cubs has not breached a duty as a matter of law.

It is not the province of this court to substitute its judgment for that of a jury. Niman v. Pecatonica Livestock Exchange, Inc., 13 Ill App2d 144, 141 NE2d 327 (1957). Furthermore, the sole question presented on a defendant’s motion for a directed verdict or judgment notwithstanding the verdict is whether the evidence in favor of plaintiff, admitting it to be true, together with all the legitimate conclusions drawn therefrom, fairly tends to sustain plaintiff’s cause of action and thereby support the verdict of the jury. Elbers v. Standard Oil Co., 331 Ill App 207, 72 NE2d 874 (1947), Seeds v. Chicago Transit Authority, 409 Ill 566, 101 NE 2d 84 (1951). It is the opinion of this court that the evidence in favor of plaintiff, assumed to be true, together with reasonable inferences drawn therefrom, that as a matter of law, the motions for a directed verdict and judgment notwithstanding the verdict made by defendant Chicago Cubs was properly denied. We cannot say that an opposite conclusion was clearly manifest or that the jury’s verdict was erroneous and unwarranted.

Defendant Chicago Cubs further argues that it was error for the court to refuse his motion for a directed verdict because plaintiff was barred from his action by the affirmative defense of assumption of risk. It contends that plaintiff, then a boy 13 years old, familiar with the game of baseball and the hazards attendant thereto, specifically requested a seat behind the Cub dugout, an area known by him to be unscreened and adjacent to the bullpen, thereby assuming the risk of the injury he incurred. Plaintiff strongly questions the applicability of assumption of risk as a defense beyond the scope of master-servant relationships from which it originated. Defendant Chicago Cubs relies on four decisions as persuasive authority that the doctrine applies equally to contractual relationships as well and possibly any relationship whatsoever in Illinois. They are, Macabee v. Miller, 316 Ill App 157, 44 NE2d 341 (1942), Campion v. Chicago Landscape Co., 295 Ill App 225, 14 NE2d 879 (1938), Stickel v. Riverview Sharpshooters’ Park Co., 159 Ill App 110, 95 NE 445 (1910), Altepeter v. Virgil State Bank, 345 Ill App 585, 104 NE2d 334 (1952).

The Macabee and Stickel cases, when analyzed, simply held that the question of assumption of risk, where a master-servant relationship did not exist, was properly submitted to the jury, as a question of fact, for their determination. The court in the Campion case, where a golfer was struck by a golf ball while playing on a public course, pronounced that the doctrine was no longer limited to master-servant relationships. This ruling, however, must be afforded little weight by this court as the pronouncement was obiter dictum, as the court there reversed a decision for the plaintiff for his failure to prove any negligence by defendant. Clearly, the question of assumption of risk was not a determinative issue. Similarly in the Altepeter case, plaintiff was barred from recovery, not because he assumed the risk, but rather because of his failure to state a cause of action. Again here, the court’s discussion of the doctrine was not germane to the outcome of the case.

It is plaintiff’s contention that, notwithstanding the position taken by other states, the doctrine is still strictly limited to master-servant relationships in Illinois as promulgated by this State’s highest court in Shoninger Co. v. Mann, 219 Ill 242, 76 NE 354 (1906), Conrad v. Springfield Consol. Ry. Co., 240 Ill 12, 88 NE 180 (1909) and O’Rourke v. Sproul, 241 Ill 576, 89 NE 663 (1909). These eases evidence the traditional limitation placed on the application of the doctrine of assumption of risk in Illinois which its judiciary continues to adopt. Davis v. Springfield Lodge No. 158, Benev. and Protective Order of Elks, 24 Ill App2d 102, 164 NE2d 243 (1960), Hensley v. Hensley, 62 Ill App2d 252, 210 NE2d 568 (1965). Even assuming arguendo that the doctrine were applicable to other than master-servant relationships, it must be remembered that, unlike contributory negligence, it is defendant Chicago Cubs, not plaintiff, who bears the burden of proof on the issue. Moreover, after arguments had been offered by each party in support of their respective positions, it was defendant Chicago Cubs’ instruction, which was accepted by the court and given to the jury on the subject.

Dean Prosser, Prosser on Torts (3rd Ed) (1964) at page 462 points out:

“Knowledge of the risk is the watchword of assumption of risk. Under ordinary circumstances the plaintiff will not be taken to assume any risk of either activities or conditions of which he is ignorant. Furthermore, he must not only know of the facts which create the danger, but he must comprehend and appreciate the danger itself.”

and at page 464:

“Even where there is knowledge and appreciation of a risk, the plaintiff may not be barred from recovery where the situation changes to introduce a new element, such as several balls in the air at one time in a baseball park.”

Plaintiff, in this conjunction, relies on Cincinnati Baseball Club v. Eno, 112 Ohio St 175, 147 NE 86 (1925) where plaintiff was injured by a stray batted ball during a practice session in between games of a doubleheader, at a time when several balls were in use simultaneously. The Ohio Supreme Court reasoned in allowing recovery, that when several balls are simultaneously in play upon the field, it is impossible for the spectator to protect himself by watching the ball, for more than one ball is being batted or thrown at once. The court explained that actual game play is done at a greater distance from the spectators to minimize injury, Whereas this practice was within fifteen to twenty feet away from the plaintiff. Defendant Chicago Cubs urges that this case is distinguishable on several points, to Wit; (1) that the ball came from an area other than the bullpen at a time when there was no game in progress; (2) that numerous balls were in use, whereas in the instant case only two were in use; and (3) that in the Eno case the players had ample space to practice away from the grandstands unlike the instant case. We agree with defendant Chicago Cubs’ contentions on these points, but have, nonetheless, made the following observations: (1) this is a case of first impression and (2) the Eno case, though distinguishable, clearly stands for the proposition that a spectator at a baseball park does not assume the risk of being hit by a baseball he does not see, when more than one ball is being used, regardless of whether the game is in progress or not. As the Ohio court said:

“We do not think that a court should say as a matter of law that a spectator assumes the risk of every batting or throwing of the ball permitted upon the field by the management, no matter how near the grand stand, no matter how many groups were engaged in the practice, and no matter whether the batting or throwing is a part of the game itself.”

The subsequent Ohio cases of Ivory v. Cincinnati Baseball Club Co., 62 Ohio App 514, 24 NE2d 837 (1930) and Hummel v. Columbus Baseball Club, 71 Ohio App 321, 49 NE2d 773 (1943) do not distinguish the Eno decision as defendant Chicago Cubs maintains. These two cases did not involve situations in which more than one ball was in use simultaneously and furthermore, do not represent decisions of equal or superior authority, being from the Appellate Court.

Defendant Chicago Cubs next contends that the issue of assumption of risk raises a question of law, not fact, and as such it should not have been submitted to the jury. We can find no foundation to this proposition, for even if assumption of risk were made applicable to the instant case, the doctrine’s underlying premise is appreciation of the danger itself, not mere knowledge of a defect or condition by which danger is created, thereby necessarily raising a question of fact for the jury. Hopkins v. Kraft Foods Co., 44 Ill App 2d 373, 194 NE2d 680 (1963), Cincinnati Baseball Club v. Eno, 112 Ohio St 175, 147 NE 86 (1925). Moreover, defendant Chicago Cubs submitted the jury instruction on assumption of risk. Having been submitted to the jury, this court will not disturb their finding in absence of manifest error.

For the above reasons, the judgment in case No. 50,-781 against defendant Chicago National League Ball Club, Inc. is affirmed, and the motion by defendant Robert Rush to dismiss the appeal in case No. 50,780 is granted.

As to appeal No. 50,780 the appeal is dismissed.

As to appeal No. 50,781 the judgment is affirmed.

BURKE and BRYANT, JJ., concur.


author: PRESIDING JUSTICE LYONS.

text:
    The Diplomat Motel, Inc., an Illinois Corporation, Plaintiff-Appellant, v. The Plateau, Inc., an Illinois Corporation, et al., Defendants-Appellees.
    Gen. No. 50,820.
    First District, Second Division.
    March 6, 1967.
    David Chaimovitz, of Chicago, for appellant; Max and Herman Chill and Hoffman & Davis, of Chicago, for appellee, The Plateau, Inc.; Rafferty, Seheele & Mackin, of Chicago (A. G. Scheele, of counsel), for appellee, Olympic Federal Savings and Loan Association, successor to Success Savings and Loan Association.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in full.


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard Williams, Defendant-Appellant.
    Gen. No. 51,022.
    First District, Second Division.
    March 6, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward J. Downs, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: MR. JUSTICE BURKE

text:
    Philip Halperin, Plaintiff-Appellant, v. Darling & Company, a Corporation and Richard Wagner, Defendants, and L & L Auto Rental Company, Inc., a Corporation, Defendant-Appellee.
    Gen. No. 50,903.
    First District, Second Division.
    March 6, 1967.
    Rehearing denied March 22, 1967.

      Leonard M. Ring, of Chicago, for appellant.

      Herbert L. Caplan, of Chicago (Herbert L. Caplan and Michael J. Polelle, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This action was brought to recover damages for personal injuries occasioned by the alleged negligence of defendants Darling & Company, Richard Wagner, and L & L Auto Rental Company, Inc. A motion to dismiss the complaint as to L & L Auto Rental Company, Inc., (hereinafter referred to as L & L Auto) was sustained by the trial court; plaintiff appeals. The complaint as against Darling & Company and Richard Wagner is pending in the trial court.

Count II of the complaint was directed against L & L Auto and alleged that on February 3, 1956, plaintiff entered a written truck-leasing agreement with L & L Auto whereby the latter, as lessor, agreed to lease a truck to plaintiff for a term of three years. The complaint alleged that L & L Aiito failed to maintain the brakes of the truck in good operating condition, as L & L Auto was required to do under the lease, and that in August of 1957 plaintiff was injured in a collision with a Darling & Company truck driven by Richard Wagner while plaintiff was riding as a passenger in the leased truck when its brakes failed to function properly.

The pertinent parts of the lease provided that L & L Auto would furnish full maintenance on the truck, including grease and oil, the safety sticker and the City of Chicago and State of Illinois licenses, that it would furnish signs, the chassis and the body of the truck, that it would furnish full insurance coverage, including public liability and property damage, and that it would furnish registration fees for the truck and any costs connected with local safety inspections. Plaintiff agreed to adhere to “the standards of preventive maintenance prescribed by [L & L Auto] to the end that the truck leased would be properly maintained and operated.” Plaintiff further agreed that “at the termination of the lease, the [plaintiff] shall deliver the truck to [L & L Auto] in good and marketable condition, ordinary and usual wear and use excepted.” “Good and marketable condition” was defined in the contract to mean “good operational and mechanical condition with all running and operating parts functioning in proper manner, and the interior and exterior of the body and chassis shall be in a salable condition and tires shall have 50% of the tread remaining, . . .”

Clause 6 of the contract is the provision upon which L & L Auto’s motion to dismiss was based. It provides:

“Lessee further agrees to reimburse Lessor, save Lessor harmless from and indemnify Lessor from any loss or liability whatsoever with respect to or arising out of or in the course of the operation of any truck leased hereunder during the term that this lease shall be applicable to any such truck.”

The motion to dismiss, filed pursuant to Section 48(1) (i) of the Civil Practice Act, was allowed by the trial court, the order of the court reciting that “judgment be entered in favor of the defendant, L & L Auto Rental Company, Inc., and against the plaintiff, Philip Halperin, on the pleadings, and that defendant, L & L Auto Rental Company, Inc., go hence without day [sic].”

Plaintiff maintains that the provision for indemnity relied on by L & L Auto does not, by its terms, provide for indemnity against L & L Auto’s own negligence. We agree.

Contracts of indemnity against one’s own negligence are generally regarded as valid and enforceable. However, the unusual nature of such a contract requires that the agreement be strictly construed against the indemnitee. As stated in Westinghouse Elec. Elevator Co. v. LaSalle Monroe Bldg. Corp., 395 Ill 429, 70 NE2d 604, at page 433: “It is quite generally held that an indemnity contract will not be construed as indemnifying one against his own negligence, unless such a construction is required by clear and explicit language of the contract, ... or such intention is expressed in unequivocal terms.”

The indemnity contract in the case at bar fails to meet this test. Except for such preventive maintenance on plaintiff’s part as normal driving and handling of the truck, the operation of the truck within posted speed limits, and the like, the rental contract provided that L & L Auto would retain all responsibility for the active maintenance of the vehicle. The indemnity contract, however, provides that the plaintiff shall save L & L Auto harmless from any loss whatsoever arising out of “the operation” of the truck. No intention is manifest through any wording in the contract that L & L Auto be held harmless from damages arising out of its own negligence in the maintenance of the vehicle. Be it was intended that plaintiff save L & L Auto harmless from its own negligence in this regard the contract should have provided that the lessee would hold the lessor harmless from liability arising out of “the operation or the maintenance” of the truck, or wording which otherwise manifested such intention. The contract is unclear with respect to the limitation of L & L Auto’s liability in connection with its own negligence; the contract must therefore be construed most strongly against its maker, L & L Auto. Gothberg v. Nemerovski, 58 Ill App2d 372, 208 NE2d 12. It would be an extraordinary result to hold that plaintiff should be held responsible for damages arising out of that over which he has lost control by way of the contract, without an express provision therein to that effect or a clear intention that such is what the parties intended.

Defendant maintains that the record on appeal does not contain any facts pertaining to the construction of or performance under the leasing agreement and that, in the absence of a sufficient record, the reviewing court must indulge all reasonable presumptions in favor of the order of the trial court and resolve any doubt against the appellant. While this is true as a general principle of law, it has no application to the case at bar. The rule is generally applied where an attack is made upon the order of a trial court and is based upon matters not affirmatively appearing of record. Kaye v. Kremer, 23 Ill App2d 506, 163 NE2d 561. In the instant case, however, the order of the trial court specifically recited that the judgment was based “on the pleadings” which were on file and considered by the trial court, namely the complaint, the rental agreement, and the motion to dismiss. On those pleadings the trial court should not have dismissed the complaint as to L & L Auto Rental Company, Inc.

The judgment is reversed and the cause is remanded for further proceedings not inconsistent with these views.

Judgment reversed and cause remanded for further proceedings.

LYONS, P. J. and BRYANT, J., concur.


author: JUSTICE CORYN.

text:
    Joseph R. Burke and Alice Burke, Plaintiffs-Appellees, v. Kenneth L. Kaschke, Defendant-Appellant.
    Gen. No. 66-53M.
    Third District.
    March 7, 1967.
    Hupp & Irion, of Ottawa, for appellant; Berry & O’Conor, and Wolslegel & Armstrong, of Ottawa, for appellees.
   Opinion by

JUSTICE CORYN.

Not to be published in full.


author: CORYN, J.

text:
    People of the State of Illinois ex rel. Town of Richwoods, Peoria County, Illinois, a Body Politic and Corporate, Delbert M. Stone, et al., Plaintiffs-Appellants, v. City of Peoria, Illinois, a Municipality, Walter V. McAdoo, Jr., et al., Defendants-Appellees.
    Gen. No. 66-75.
    Third District.
    March 7, 1967.
    Rehearing denied April 17, 1967.

      Kellstedt & Young, and Letter, Newlin, Fraser, Park-hurst & McCord, of Peoria, for appellants.
    Max J. Lipkin and W. McDowell Frederick, both of Peoria, for appellees.
   CORYN, J.

This is an appeal from a summary judgment entered in favor of the City of Peoria in a proceeding in quo warranto by which Relator and certain Intervenors to the petition (hereinafter called petitioners) challenged the right of that municipality to exercise authority over certain territories described as being within Medina, Richwoods, and Kickapoo townships. The city answered the petition with the assertion that its authority derives from certain annexation proceedings initiated by municipal ordinance No. 7864, made pursuant to Ill Rev Stats, c 24, § 7-1-2 et seq., and approved as valid by order of the Circuit Court of Peoria County in cause No. 64 Z 2103, wherein the proposition as to annexation was thereafter submitted by special election, pursuant to order of said court, to the voters of the territory to be annexed, and whereupon, after a canvass of the returns, said court decreed that the proposition had carried. Certified copies of the proceedings in cause No. 64 Z 2103 were attached by the city to this answer. The reply of the petitioners admits the foregoing facts of “pretended” annexation of the area, but asserts that the aforedescribed proceedings are a nullity by reason of fraud and certain other defects which are alleged to be jurisdictional, as follows:

(a) Ordinance No. 7864, adopted by the city council pursuant to Ill Rev Stats, c 24, § 7-1-2, although decreed in cause No. 64 Z 2103 to be valid and in compliance with the requirements of ch 24, § 7-1-2, is not, in fact and law, a valid ordinance because it includes in the description of territories to be annexed, properties which are not contiguous to each other, and tracts as to which owner's consents were not obtained, and that said ordinance illegally fragmented a township; and
(b) after the ordinance was adopted and filed with the court, and after notice of hearing therein was given, the court, without authority, allowed an amendment to the description of the territory, and instead of dismissing the matter, thereafter erroneously proceeded, without further notice, to submit the question to a vote; and
(c) the canvass of the election returns made in No. 64 Z 2103, and the finding and order of the court therein that the proposition for annexation had carried is erroneous because persons not qualified to vote on the proposition were permitted to vote; because the territories described in the proposition on the ballot included tracts not contiguous to each other, so that the ballots of persons qualified to vote on the proposition as to only one of the tracts were counted also as to the other tracts; and because in its finding that the proposition for annexation had carried, the trial court considered only that a majority of the electors who voted were in favor of the proposition, whereas the statutory standard requires that the issue be approved by a majority of the electors in the territory.

Petitioners attempted to invoke the jurisdiction of the Supreme Court for a direct review upon the asserted grounds that constitutional questions regarding rights to free elections and the separation of legislative and judicial powers are presented. That court adjudicated that no such questions are presented, that jurisdiction for a direct appeal to the Supreme Court is lacking, and, therefore, transferred the cause here. We are of the opinion that the primary issues presented for our review are: (a) whether the validity of the annexation proceeding, under the circumstances herein, is open to attack in quo warranto; and (b) if so, whether petitioners, or any of them, have the right to bring such an action; and (c) if so, whether the pleadings attacking the validity of the annexation sets forth matters which are legally sufficient, if true, to invalidate it, or, to put it conversely, whether the city’s plea of justification is sufficient in law; and (d) if so, whether any genuine issue of fact is thereby presented.

It is settled law, we think, that quo warranto is an appropriate remedy to effect a direct attack upon the validity of municipal annexation proceedings. See 18 ALR2d 1255. Such a proceeding in quo warranto, however, raises only the question of whether, by reason of a total absence of power or jurisdiction, the annexation is a nullity. It is not the office of that remedy to provide a vehicle for reviewing merely the regularity of an exercise of vested power where fully adequate means of direct review of that issue are provided. People ex rel. Cash v. Wells, 291 Ill 584, 126 NE 575. The city, as a plea in justification, has set forth here the judicial proceeding in cause No. 64 Z 2103 as the basis for its asserted authority. The reply makes it plain that petitioners believe this plea of justification insufficient, and that it is incumbent upon the city to prove by affirmative evidence the further factual issue of whether ordinance No. 7864, by which the annexation proceedings were initiated, both in fact and in law, complies with the statutory requisites from which the power of annexation derives. The trial court disagreed with this proposition of the petitioners, and so do we.

An examination of the rationale in cases where the use of quo warranto to attack annexations has been discussed, warrants a distinction between instances where the proceedings used were purely legislative in character, and instances where the annexation is effected by judicial act. In the first instance, it is not enough for the municipality, in order to establish justification, to plead and prove only its own official acts by which the annexation was purportedly effected, but it must prove also by affirmative evidence that all the circumstances imposed by statute, as a prerequisite to the valid exercise of that power, were present. The reason for this requirement in the case where the annexation was effected purely by a legislative act is made apparent from the case of People v. City of Peoria, 166 Ill 517, 46 NE 1075. The challenged annexation in that case was initiated and concluded by a municipal ordinance which made certain findings of fact to the effect that a petition for annexation presented to the council complied with the requirements of statute, and on the basis of that finding, the disputed territory was therein recited to be annexed. The People replied to the City’s plea of justification by alleging that the petition of owners and legal voters to the City for annexation, which the council found to be in proper form, and from which it derived its power to act, was not in fact signed by three-fourths of the legal voters residing within the described territory. In holding that the City did not prove a justification merely by presenting the documentary evidence of its official acts whereby the annexation was effected, the Supreme Court at 166 Ill 517, 526, 46 NE 1075, stated:

“As a prerequisite to the passage of the ordinance annexing the territory, the city council was authorized to ascertain the facts which constituted the statutory conditions upon which it could exercise the power, but this finding of such facts and recital of them in the ordinance are not evidence of their truth when the corporation is called upon by the State itself to answer by what authority it has assumed jurisdiction over the territory in question. To so hold would be tantamount to holding that it was justified in annexing the territory because it had concluded that the conditions existed under which it had the lawful right to annex it and had annexed it, — in other words, that the City was justified in annexing the territory because it had itself so decided.”

Thus, in that case, by quo warranto, the City was required to go behind the recitations in its ordinance, and by affirmative evidence, show that the facts which the ordinance found to be true, and the truth of which gave rise to the power of annexation, were in fact true.

In the case at bar, the plea of justification does not assert that the City’s right of annexation derives merely from its own legislative determination that it has such authority. It asserts, to the contrary, that the annexation was made by right of a judicial determination of the City’s power to do so in Circuit Court cause No. 64 Z 2103. The jurisdiction of the Circuit Court to have adjudicated those issues in Cause 64 Z 2103 did not arise from or depend upon the correctness of any findings made by the city council in ordinance No. 7864, but from the statute itself, which recites not only that the Circuit Court shall have the power to determine the validity of the municipal ordinance, but that its decision in that proceeding, on that question, shall be a final and appealable order. (Ill Rev Stats, c 24, § 7-1-4 (1963).) Thus, the Circuit Court, in cause No. 64 Z 2103 plainly had jurisdiction to adjudicate the question of the validity of ordinance No. 7864, and such determination constituted a final and appealable order. When that court, in No. 64 Z 2103, declared the ordinance valid and proceeded with the annexation referendum, the provisions of the Election Code (i. e., Ill Rev Stats, c 46, § 28-3) became applicable (Ill Rev Stats, c 24, § 7-1-7), and the Election Code, at § 23-24, permits an election contest of the results of an election on a public question to be brought by any five electors to whom the proposition was submitted, from which judicial determination a right of direct review exists. To require the city in this proceeding to go behind the adjudications in cause No. 64 Z 2108, and to prove again here the issues it has already proved there, would require us to ignore the express language of the statute (Ill Rev Stats, c 24, § 7-1-4) that adjudications made in proceedings such as those in 64 Z 2103 are to be final and appealable, and in effect would allow, by a collateral proceeding, a de novo review of another adjudication. We are satisfied that quo warranto is not appropriate for that purpose, and that the City’s plea of justification here was sufficient in law, and that the truth of the matters asserted in that plea being admitted, no triable issue of fact was presented, and that the judgment of the Circuit Court was, therefore, correct. While there may be some instances where quo warranto would be considered an appropriate means for reviewing a judicial determination, or the results of an election, we are of the opinion that it is not appropriate where, as here, fully adequate means of direct review are provided, and where the remedy of an election contest is afforded, not merely to a losing candidate, but, in instances of an election on a public question, to members of the public as well.

In view of our determination, we conclude that it is also unnecessary that we should consider other alleged errors. The judgment of the Circuit Court is affirmed.

Affirmed.

STOUDER, P. J. and ALLOY, J., concur.


author: MR. JUSTICE SEIDENFELD

text:
    South Beloit Electric Company, Inc., an Illinois Corporation, Plaintiff-Appellee, v. Lar Gar Enterprises, Inc., La Salle National Bank, a National Banking Association, of Chicago, Illinois, Its Successor or Successors, as Trustee, Under the Provisions of a Trust Agreement Dated August 28, 1962, Known as Trust No. 29937, Joel Robert Hillman, Salk, Ward & Salk, a Corporation, Defendants-Appellants.
    Gen. No. 66-27.
    Second District.
    March 8, 1967.

      Goldberg, Levinson & Komie, of Chicago (William Levinson, of counsel), for appellants.
    Miller, Thomas, Hickey and Collins, of Rockford, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

This is an appeal from a Mechanic’s Lien decree for $19,596 plus interest and costs. The decree further entered a money judgment in the same amount.

The plaintiff, South Beloit Electrical Co., Inc., as subcontractor, entered into a preliminary subcontract with defendant, Lar Gar Enterprises, Inc.,- as general contractor, under a letter agreement dated August 30, 1962, for electrical work on an apartment building being erected in Rockford, Illinois. The original contract price was $89,085, but this was shortly thereafter increased by $4,700 to cover the contemplated services of Malko Electric Co. in supervising the work to be done under the subcontract. The formal subcontract agreement was then executed, showing the price to be $93,785, and the plaintiff commenced work thereunder.

In October of 1962, plaintiff made its first request for payment, submitting a lien waiver and contractor’s affidavit. This request was for $4,230, being precisely the amount contemplated for the services of Malko Electric Co., after deducting the ten percent which was to be retained on all partial disbursements. These documents were submitted to Lar Gar who in turn submitted them to the defendant, Salk, Ward & Salk, Inc., the construction lender. Payment of the $4,230 was never received by the plaintiff. It is apparent from the testimony of all parties that Malko Electric Co. did no work whatsoever on the job. However, at monthly intervals thereafter, the plaintiff submitted five additional sworn statements, each clearly showing that the initial request of $4,230 had been received by it.

On March 6, 1963, the plaintiff submitted its final sworn statement, requesting payment of $17,419, and filed its waiver of lien therefor. As with its previous sworn statements, this one, too, showed the initial request of $4,230 as having been received by the plaintiff. The entire amount of $17,419 was paid to plaintiff on March 19, 1963, and on the same date, without notice to anyone, the plaintiff abandoned the job. The plaintiff’s president testified that the sole reason for leaving the job was the failure to receive the $4,230.

The amended complaint alleged that plaintiff was entitled to $19,596, consisting of the initially requested amount of $4,230, labor and materials supplied from February 28th through March 19, 1963, in the amount of $11,223, and the ten percent retainages of $4,130. The plaintiff prayed for an accounting, and sought to enforce a mechanic’s lien for any amounts which the court might find due it from any of the defendants. The answer and amended answer of the defendants pleaded as affirmative defenses that the plaintiff breached its subcontract by abandoning performance thereunder without just cause on March 19, 1963, and that the plaintiff waived and released any lien it might otherwise have had by the execution of its full waiver of lien submitted on March 6, 1963. The amended answer also denied that notice of subcontractor’s lien was properly served.

The court entered judgment against all of the defendants for $19,596, decreed the mechanic’s lien, as prayed for in the amended complaint, and ordered a sale of the real estate involved if the judgment were not satisfied within thirty days.

The essential grounds urged for reversal are that no monies are due the plaintiff, that plaintiff itself materially breached the subcontract by wrongfully abandoning the job, that any lien rights which the plaintiff might otherwise have had were waived and released, and that the plaintiff did not serve its notice of subcontractor’s lien in accordance with the law.

We first consider the items constituting the $19,596 for which the plaintiff brought suit and for which the court below entered judgment.

1. The $U,230 initially requested but never received by the plaintiff. Without question, this amount ($4,700 less ten percent retainage) requested by the plaintiff was that which the parties agreed would cover the expense of the contemplated supervisory services to be furnished by Malko Electric Co. This was precisely the amount of Malko’s proposal for these services and it was precisely the amount by which the subcontract was increased for the purpose of providing the plaintiff with the extra funds with which to pay Malko. The testimony of the plaintiff’s president himself established these facts. It was obviously never intended by any of the parties that this amount was for the ultimate benefit of the plaintiff.

Parenthetically, plaintiff’s affidavit accompanying this request originally included certain services in addition to those of Malko. However, there were several penciled deletions and additions on the face of this statement, and while all of the labor and material listed added up to only $4,200, the figures of $4,230 and $4,700 were also written thereon. Moreover, all subsequent sworn statements of the plaintiff reflect the initial request as being for $4,230 (or $4,700 less ten percent) — and not for $4,200. In addition, a letter written by the plaintiff to the general contractor, as well as plaintiff’s amended complaint, alleges that the initial payment due it was $4,230. This figure, penciled in plaintiff’s original affidavit and appearing in all subsequent documents, could not possibly apply to the services of anyone other than Malko.

We come, then, to the question of whether the plaintiff was actually entitled to this payment which was to provide the funds for the contemplated supervisory services of Malko. It was agreed by all witnesses who testified on the subject, including the plaintiff’s president, that Malko never had a representative on the job and rendered no services at all. It is therefore clear, from all the evidence before us, that Malko was entitled to no money whatsoever, and that receipt of this payment by the plaintiff would have constituted a windfall, for which the plaintiff had not bargained. The testimony of the plaintiff’s president on the subject is inconsistent with its present demand for this payment:

“Q. And included in that price you were to get for doing the work was the services of Malko ?
“A. Yes.
“Q. And that was $4,700.00 ?
“A. That’s right.
“Q. And Malko never did the work ?
“A. No.
“Q. And Malko from the start never did any work?
“A. No, sir.
“Q. And Mr. Hallman or Lar Gar does not owe you for the work?
“A. No, sir.
“Q. Isn’t that true, Mr. Keough ?
“A. Yes.”
Similarly, the plaintiff’s president later testified that the general contractor, for whom the defendant Hillman is president, was entitled to a credit from the plaintiff for the amount contemplated for Malko, but that such a credit was not given by the plaintiff:
“Q. On this Malko situation, you didn’t give Mr. Hillman a credit for that in writing ?
“A. No, sir.
“Q. But they didn’t do the work ?
“A. No, sir.
“Q. Then he should have received a credit, should he not?
“A. Yes.”

In spite of the plaintiff’s testimony that it was not owed the payment originally requested to cover Malko’s services, and that the general contractor was entitled to a credit in that amount against the subcontract price because Malko in fact performed no services, the plaintiff, both through its testimony and its brief, offered as its only excuse for abandoning the job the fact that it did not receive this payment.

This portion of the subcontract price was specifically intended for a service which was never received. Accordingly, it should not have been recovered by the plaintiff.

2. The $11,223 claimed to be due for labor and materials furnished from February 28th through March 19, 1963. That portion of the plaintiff’s amended complaint based on the labor and materials furnished by it from February 28th through March 19, 1963, may be summarily disposed of:

The plaintiff never requested this amount in any of his sworn statements and in fact did not request it, if at all, until after he abandoned the job. Even then the request was not made in conformity to the subcontract. Paragraph 15 of the subcontract provides that, at the option of the contractor, each request shall be supported by proper releases or waivers of lien, together with a sworn statement setting forth that all labor and materials furnished have been fully paid for. That the contractor exercised this option and, throughout this job, required the release or waiver and the sworn statement, is admitted, in that the plaintiff’s president testified that the general contractor “insisted” on these supporting documents, and that the plaintiff was “informed” of this. All prior requests for payments by the plaintiff were accompanied by such documents. There is, however, no evidence that the claim for labor and materials furnished from February 28th through March 19, 1963, was accompanied by such releases or waivers and affidavits.

There even seems to be considerable doubt as to whether this amount was ever requested by the plaintiff, with or without the required supporting documents. The plaintiff’s president testified that this request was not even typed up until after plaintiff abandoned the job, and added, when asked whether it was submitted to the contractor or architect: “I don’t know whether it was or not. I don’t know whether that there request was submitted or not.”

3. The $U,130 represented by retainages. The third and final element of damages claimed by the plaintiff and allowed by the lower court is the $4,130 which had been withheld from all of the partial payments made. Paragraph 15 of the subcontract contains the customary provision that ten percent of all partial payment requests shall be withheld by the contractor until the final payment is made and all waivers in full and sworn statements are submitted.

Under no interpretation of the subcontract could it be said that the plaintiff had a right to receive these amounts during the course of performance. The wrongful and unexcused abandonment thereof could not create the right. The party who breaches a contract may not then recover for amounts due him upon complete performance.

Under this record the plaintiff was not entitled to receive any of the amounts included in the judgment of the lower court at the time of leaving the job. It follows that plaintiff’s abandonment of the job was without justification and in itself constituted a material breach of the subcontract. That the plaintiff may have furnished labor and materials shortly before the abandonment does not create a lien right or a basis for the recovery decreed by the trial court, “It is a fundamental principle of the law that, in order for one to recover upon a contract, he must have performed his part of the contract.” Archibald v. Board of Education of Chicago, 19 Ill App2d 554, 561, 154 NE2d 867 (1959); Abeles & Taussig Lumber & Tie Co. v. Northwest Side Lumber Co., 239 Ill App 623, 624 (1926).

The plaintiff abandoned the job on March 19, 1963, for the sole reason that it had not received the very first payment requested the preceding October, notwithstanding that all subsequent requests made before the abandonment were timely paid. “Where a contract is breached in the course of its performance, the injured party has a choice presented to him of continuing the contract or refusing to go on. If he chooses to continue performance, he has doubtless lost his right to stop performance.” Williston, Contracts, § 683 (3d ed 1961). See also Lichter v. Goss, 232 F2d 715, 720.

Having taken the view that the plaintiff was not entitled to the monies claimed from any of defendants at the time it abandoned the job, and that the abandonment was unjustified and constituted a material breach of the subcontract, it follows that plaintiff had no lien rights. We find it unnecessary to consider whether the plaintiff effectively released any lien rights it may have had by giving waivers of lien and whether the plaintiff’s notice of lien was properly served.

That part of the decree giving plaintiff a money judgment in the amount claimed was in error for the same reasons which defeat the right to a mechanic’s lien. However, the trial below did not purport to meet the issue of what amounts, if any, plaintiff would be entitled to upon a noncontractual basis after a finding that it had wrongfully abandoned its contract. It appears that plaintiff has in good faith partially performed the contract and that defendant has received the benefits of such performance without payment. Under these circumstances it would be unjust to deprive plaintiff of the amount of such benefits less any damages suffered by its failure to complete the contract. Spiro v. Cable, 248 Ill App 343, 348; Turner v. Goodman, 90 Ill App 339, 342; Restatement of Contracts, § 357. The cause is therefore remanded so that evidence may be adduced for that purpose.

The decree of the trial court is reversed and the cause remanded for further hearing in accordance with this opinion.

Reversed and remanded.

MORAN and ABRAHAMSON, JJ., concur.


text:
    Mary Jane Loss, Plaintiff-Appellant, v. Edward A. Loss, Jr., and Armstrong Paint & Varnish Works, Inc., Defendants-Appellees.
    Gen. No. 65-147.
    Second District.
    March 8, 1967.

      MORAN, J., dissenting.
    Helen C. Kinney, of Hinsdale, for appellant.
    O’Toole & Westrick, of Chicago, and Leren and Burek, of Wheaton, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Mary Jane Loss filed suit for separate maintenance in DuPage County against Edward A. Loss, Jr., later joining Armstrong Paint & Varnish Works, Inc. as a defendant, who was alleged to have money owing to the husband. A special appearance and a motion to dismiss for lack of jurisdiction was filed by the husband. From an order dismissing the wife’s suit and a subsequent order dismissing the Defendant Armstrong, based on the dismissal of the main suit, the wife appeals.

The plaintiff filed her complaint for separate maintenance with the court below on June 15, 1964, but defendant was not personally served with summons until an alias summons was served upon him in Arkansas on November 6, 1964. Prior to personal service being made on defendant, he himself filed suit for divorce in Crittenden County, Arkansas, and this plaintiff was personally served with summons therein on September 30, 1964.

The plaintiff filed an answer in the Arkansas proceedings, and on October 29, 1964, filed a petition for attorney’s fees. Although plaintiff chose to stand mute at the subsequent trial on the merits in Arkansas, she must be held to have appeared generally in those proceedings.

On December 8, 1964, after finally being personally served with summons in the Illinois action, the defendant filed a “Special and Limited” appearance in DuPage County, and moved for a dismissal of the cause on the grounds that the plaintiff had filed a general appearance in the Arkansas case, and that plaintiff had failed “to serve the defendant.”

The defendant’s motion for dismissal does not state whether the issues in the Arkansas case were the same as or similar to those in the Illinois case. Also, and in spite of the representations in the defendant’s motion, the record clearly shows that he was personally served with summons prior to the filing of his motion.

On April 13, 1965, a decree of divorce was entered in the Arkansas proceeding in favor of the husband. On October 11, 1965, the court below dismissed the Illinois case on the grounds that “this court does not have jurisdiction.” It is from this order and other orders incidental thereto that plaintiff appeals to this court, praying, inter alia, for a determination of her “property rights” and rights to the custody and support for the minor children of the parties.

The dismissal order is silent as to whether the missing jurisdiction was over the defendant’s person or the subject matter. However, the order was entered pursuant to the defendant’s motion “that the above entitled cause be dismissed,” and this motion was accompanied with defendant’s “Special and Limited Appearance.”

A special appearance is made “for the purpose of objecting to the jurisdiction of the court over the person of the defendant.” (Ill Rev Stats, c 110, § 20.) However, approximately twenty days prior to filing his motion and special appearance, defendant was personally served with alias summons in Arkansas, and the propriety of this service was not seriously questioned. Further, the tenor of defendant’s argument to this court and the trial court, and the wording of his motion to dismiss, suggests strongly that the main thrust of his position was the existence of the Arkansas proceeding, in which plaintiff filed a general appearance.

Accordingly, defendant’s motion to dismiss would be sustained, if at all, under section 48 (c) (Ill Rev Stats, c 110, § 48 (c)), which provides for a dismissal motion where “there is another action pending between the same parties for the same cause.” The defendant’s participation below is tantamount to a general appearance, notwithstanding the nomenclature chosen for his pleadings. As noted above, the Civil Practice Act limits the use of the Special Appearance to objections to jurisdiction over the person of the defendant. While the motion represents that defendant was not personally served with summons, the uncontroverted evidence is to the contrary.

A motion to dismiss a cause because of a prior pending suit has been held to constitute a general appearance in Jones v. Jones, 40 Ill App2d 217, 189 NE2d 33 (1963) (3d Dist), where it was said (p 227):

“The second plea in abatement was directed solely to the issue of the care and custody of the children and it was asserted therein that the same issue was then pending in the prior case. This plea was equivalent to a motion for dismissal under subpara-graph (c) of Section 48: ‘(c) That there is another action pending between the same parties for the same cause.’ By this plea and motion the defendant also submitted himself to the jurisdiction of the court. People for the Use of White v. White, 263 Ill App 425.”

For the reasons stated below, we believe the court erred in dismissing the entire cause because of the pen-dency of the Arkansas litigation.

By his Arkansas complaint, the defendant sought only to effect the termination of his marriage. He made no allegations or prayers regarding the custody or support of the minor children of the parties, and stated that “there is no property involved in this action.” The record does not disclose that any evidence was offered on these issues. In fact, the record shows that no evidence whatsoever was offered on the issues of child custody or support. A letter dated April 14, 1965, from plaintiff’s Arkansas counsel to her Illinois counsel, which letter was put into evidence by defendant, summarizes the proofs taken in Arkansas. These proofs contained nothing regarding the needs of the children, the amounts necessary to support them or the amounts which defendant could afford to furnish for such support. In the Arkansas decree the court expressly found that the three children of the parties are “out of this state and, therefore, not before this court,” and that “there should be no adjudication of property rights between the parties.” In plaintiff’s Illinois complaint for separate maintenance, however, there is an express prayer for custody and child support as well as a prayer for the adjudication of property rights.

It is established doctrine in this State that a woman may maintain a separate suit against her husband or former husband for the support and maintenance of their minor child. Thus, in Boyle v. Boyle, 247 Ill App 554 (1928) (4th Dist), the plaintiff brought suit against her former husband for the support of their infant child in her custody. Previously, the husband obtained a decree of divorce from the plaintiff on grounds of desertion, with the complaint and decree silent as to child custody and support. The wife had filed her general appearance in the prior divorce action. In affirming a recovery against the former husband, the court (at page 556) set forth the relevant facts of the case, which are strikingly similar to those in the instant case:

“In the argument of the appellant he lays stress upon the fact that it was through the fault of the wife that the divorce was procured, namely, desertion. The record shows that the wife entered her appearance in writing in the divorce proceedings and knew the charge against her by her husband in his bill for divorce. Evidently she knew that her husband was not claiming the right to the possession of the child. He made no attempt whatsoever to have the court decree the care and custody of the child to him. The husband at no time seemed to concern himself about the care and custody of the child, either before or after the divorce was granted.
“When the parents of a child are divorced and no mention is made in the decree for the care and custody of the minor child, under the law, the father is still bound to provide a reasonable and proper support for the said minor child, depending upon the age, ability and circumstances of the child.” (Emphasis added.)

The Boyle case was heavily relied upon by this court in The People ex rel. Hartshorn v. Hartshorn, 21 Ill App 2d 91,157 NE2d 563 (1959) (2d Dist). In Hartshorn, the mother initiated a suit in Georgia under the Uniform Reciprocal Enforcement of Support Act against her former husband, seeking support for their child. The defendant father was in Illinois, and Illinois was the “responding” state. The evidence disclosed that the father had previously obtained an Illinois decree of divorce from the mother while she was in Georgia, with the decree making no mention of the support or custody of the child. On appeal, it was held that the mother could maintain this independent action for child support, notwithstanding the prior divorce suit.

The fact that the wife in Hartshorn was not personally before the court in the earlier divorce action does not distinguish the case since the court relied strictly on Boyle where the wife did appear generally in the prior divorce suit. The relevant test would seem to be whether the court in the earlier suit adjudicated the question of child support and custody, after a due consideration of the circumstances normally affecting such right and obligation.

Another case establishing that an independent suit may be maintained in such cases for child support is Hoover v. Hoover, 307 Ill App 590, 603, 30 NE2d 940 (1940) (1st Dist), holding that

“. . . the duty of a father to support his minor child exists and can be enforced, even by the people, despite the existence of an adverse decree awarding the custody of the child to the mother, where the decree makes no provision for the payment of any sum for the support of the child.” (Emphasis added.)

It would be a strange doctrine that would permit a new and separate action by plaintiff and deny her the right to pursue her present action, commenced prior to the Arkansas proceedings, insofar as it pertained to the custody and support of these minor children. Courts of equity dispose of cases so as to end litigation, not to foster it; to diminish suits, not to multiply them. Payne v. Hook, 74 US 425, 19 L Ed 260. “If one sues in equity in good faith and fails to estabish his cause, but shows a state of facts entitling him to recover at law, the court, having rightfully obtained jurisdiction for a purpose, may retain the cause and grant just such relief as, on the facts, the complainant appears to be entitled to, whether at law or in equity.” (Emphasis added.) White v. Macqueen, 360 Ill 236, 195 NE 832 (1935); Rosehill Cemetery Co. v. City of Chicago, 352 Ill 11, 185 NE 170 (1933); 19 Am Jur, Equity, § 133. See also Twohy v. Slate Creek Mining Co., 36 Wash2d 801, 220 P2d 1075 (1950); Knauf & Tesch Co. v. Elkhart Lake Sand & Gravel Co., 153 Wis 306, 141 NW 701 (1913) ; Johnston & Grommitt Bros. v. Baum, 108 Va 490, 62 SE 341 (1908).

Plaintiff’s right to establish the custody and support of the minor children is not to be denied or limited because the Arkansas decree contains a paragraph requiring this defendant to pay fifty dollars per week under the Uniform Reciprocal Enforcement of Support Act. The Uniform Act provides that (Ill Rev Stats c 68, § 57):

“This act shall be construed to furnish an additional or alternative civil remedy and shall in no way affect or impair any other remedy, civil or criminal, provided in any other statute and available to the petitioner in relation to the same subject matter.” (Emphasis added.)

Furthermore, the Arkansas proceedings contained no allegations, prayers or evidence on the question of child support or custody, and the Arkansas court expressly found that the children were “not before this court.” Surely the interests of the children were not examined in terms of their needs and the father’s ability to furnish these needs.

A ruling of a sister state court in a proceeding involving children in Illinois was similarly presented in The People ex rel. Noonan v. Wingate, 376 Ill 244, 33 NE2d 467 (1941). In that case the maternal grandparents of an infant in Illinois petitioned a Massachusetts court to be appointed as the infant’s guardians. The Massachusetts court granted the prayer of the petition, and the grandparents thereupon instituted a habeas corpus proceeding in Illinois, arguing that the Massachusetts decree was entitled to full faith and credit. The Illinois court noted that the prior Massachusetts proceedings (376 Ill at 247):

“ (W)ould not involve a consideration of whether the child was then receiving better care and attention in the possession of appellees than she would in the possession of such guardian .... The probate court of Massachusetts, having been thus limited in its scope of inquiry, it cannot be said that mere proof of the order of appointment of a guardian of the person by that court requires this court to deliver her into the possession of appellant as such guardian without a, full consideration of the evidence to determine what is best for the child.” (Emphasis added.)

The rationale of The People ex rel. Noonan v. Win-gate, supra, is consistently found in the authorities, and is sound. “From time immemorial minors have been considered wards of the State and entitled to protection in courts of chancery where their custody or property rights are involved. The court owes the duty to see that they are properly represented and their rights properly safeguarded.” Union Bank of Chicago v. Wormser, 256 Ill App 291, 305 (1930).

What we have stated above with respect to the plaintiff’s right to have child support established does not, however, extend to give her the right to have her other requests for relief adjudicated in these proceedings. The jurisdiction of the trial court was acquired in a suit for separate maintenance. Separate maintenance proceedings are authorized solely by statutory provisions which specifically include the right to child support. Ill Rev Stats, c 68, § 22. The statute does not authorize the court to adjudicate any property rights, and the Illinois courts have consistently held that this power does not exist independent of the statute in separate maintenance proceedings. “As the Separate Maintenance Act does not grant the courts the power to determine property rights in proceedings brought under the Act the courts cannot enlarge the power given by resorting to their general equity powers in proceedings brought under this Act.” McFarlin v. McFarlin, 384 Ill 428, 51 NE2d 520; Petta v. Petta, 321 Ill App 512, 520, 53 NE2d 324; See generally Weinberg, Illinois Divorce, Separate Maintenance and Annulment, § 612, (1954). Olmsted v. Olmsted, 332 Ill App 454, 456, 75 NE2d 774. Thus, since the Separate Maintenance Act gives the court the power to consider child support, the general equity principles will permit the plaintiff to pursue this remedy in these proceedings, without starting anew. However, and as noted above, these general principles of equity to avoid needless litigation will not authorize the court to tread where it has no jurisdiction.

The order of the trial court dismissing the cause for want of jurisdiction is reversed for the reasons set forth above, and the cause is remanded for the purpose of adjudicating the issue of child support.

On plaintiff’s motion, the court below had previously issued an injunction against the defendant husband’s employer, Armstrong Paint and Varnish Works, Inc. from paying out any commissions or other monies owed the husband. Subsequently, the proceedings were dismissed as to the employer on the express grounds that the court did not have jurisdiction over the person of the defendant husband. Inasmuch as we hold that the trial court did have personal jurisdiction over defendant husband, we necessarily hold also that the court erred in dismissing the employer.

Reversed and remanded.

ABRAHAMSON, J., concurs.

MORAN, J., dissents.