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+ "{\"id\": \"1073671\", \"name\": \"RONALD HINES et at., Plaintiffs-Appellees, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant\", \"name_abbreviation\": \"Hines v. Allstate Insurance\", \"decision_date\": \"1998-08-11\", \"docket_number\": \"No. 4-97-0368\", \"first_page\": \"585\", \"last_page\": \"591\", \"citations\": \"298 Ill. App. 3d 585\", \"volume\": \"298\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T19:16:29.267250+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"RONALD HINES et at., Plaintiffs-Appellees, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant.\", \"head_matter\": \"RONALD HINES et at., Plaintiffs-Appellees, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant.\\nFourth District\\nNo. 4 \\u2014 97\\u20140368\\nArgued November 18, 1997\\nOpinion filed August 11, 1998.\\nWilliam L. Townsley (argued), of Sebat, Swanson, Banks, Garman & Townsley, of Danville, for appellant.\\nFrederick H. Underhill (argued), of Groppi, McNamara & Underhill, of Danville, for appellees.\", \"word_count\": \"2462\", \"char_count\": \"14768\", \"text\": \"JUSTICE COOK\\ndelivered the opinion of the court:\\nPlaintiffs, Ronald and Shirley Hines (the Hines), brought this action against defendant Allstate Insurance Company, seeking to recover additional living expenses covered by a homeowners policy. Allstate defended on the basis that the Hines failed to exercise due diligence in resolving their claim and failed to file suit within the one year required by the policy. The trial court entered judgment in favor of the Hines. Allstate appeals. We affirm.\\nThe Hines suffered a fire loss at their home on May 23, 1992. The Hines' policy provided the following coverages: (1) loss of contents; (2) repair costs on the structure of up to $68,000 or full replacement costs if the repair costs exceeded $68,000; and (3) additional living expenses during the time necessary to repair or replace the structure using due diligence and dispatch. Allstate paid the Hines the maximum amount for their loss of contents in January 1993. Allstate paid the Hines $63,343.94 for their structural loss on August 18, 1993, after which the Hines demolished their existing structure and rebuilt it, completing their rebuilding in February 1994. Allstate made partial payments on living expenses at various times, including a payment in November 1992, a payment of $8,457 in June 1993, and a payment of $1,425 on July 26, 1993.\\nThe structural claim negotiations began immediately after the fire when Allstate employed White Construction, which on May 28, 1992, submitted a repair estimate of $66,659. Allstate reduced that estimate to $57,687.60. On July 8, 1992, the Hines' public adjuster, Continental Fire Adjusters (CFA), agreed to a figure of $59,687.60 with Allstate's adjuster. Allstate then prepared a check for $45,875.18, which it said represented the actual cash value of the repairs. On July 15, 1992, the Hines sent Allstate an estimate prepared by Progressive Builders in the amount of $81,999, and a few days later a P&W Construction estimate in the amount of $79,491. At a meeting on July 27, 1992, the Hines told Allstate that CFA did not represent them. The next day, White Construction submitted an estimate in the amount of $61,904, which had been revised after negotiations between White Construction and Allstate. Allstate stated that White Construction could finish those repairs within 60 days. The Hines replied that the estimate left out several important items. On September 4, 1992, Allstate threatened to terminate the Hines' reimbursement for living expenses as of November 19, 1992. The Hines then offered to settle the structural claim for $68,000, but Allstate rejected the off\\u00e9r.\\nIn November 1992, Allstate advised the Hines that reimbursement for their living expenses would be terminated on December 15, 1992, due to the Hines' failure to exercise due diligence and dispatch in resolving their structural claim. .\\nThere were continued negotiations and submission of receipts for living expenses and loss of contents in November and December 1992 and January 1993. The Hines later submitted receipts for living expenses through March 1993. On June 8, 1993, Allstate informed the Hines it was reducing their claim for living expenses and again stated the benefits for living expenses had been terminated as of December 15, 1992. On June 21, 1993, Allstate exercised its right to have the amount of the structural loss determined by appraisal and arbitration.\\nOn June 29, 1993, the Hines accepted Allstate's offer to settle the structural claim for $62,900. There were additional negotiations after June 29 regarding the living expenses and other matters, and on August 9, 1993, the Hines signed a proof of loss on the structural claim, which was followed by checks on August 18,1993, in the amount of $63,343.94, resolving the structural claim.\\nOn August 11, 1994, the Hines filed this lawsuit, seeking $18,839 in additional living expenses for the period December 16, 1992, through February 28, 1994, the date they completed the demolition and rebuilding of their home. Allstate defended on two grounds: (1) the Hines were not entitled to additional living expenses after December 15, 1992, because they had failed to exercise due diligence and dispatch in resolving their structural claim; and (2) the Hines did not comply with a limitations period contained in their policy, which required them to file suit within one year of the date of loss.\\nThe trial court rejected the due diligence defense, finding that there was an honest difference of opinion regarding damages, that in fact the maximum had been paid for loss of contents, and that there was no lack of due diligence on the part of the Hines. The trial court declined, however, to award living expenses through the date the Hines completed the replacement of their home. The structural claim settlement was for the repair of the home, not for its replacement, and the trial court accordingly awarded the Hines living expenses through the date repairs apparently could have been completed, the end of October 1993. The trial court calculated those living expenses to be $14,751.58. Allstate had indicated the repairs could be completed in 60 days, and 60 days after August 18 would be approximately the end of October.\\nAllstate first argues that the trial court erred in finding that the Hines had exercised due diligence and dispatch in resolving their claim. The trial court's findings in a bench trial will not be disturbed unless they are against the manifest weight of the evidence. A judg ment is against the manifest weight of the evidence when an opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based on evidence. Bazydlo v. Volant, 164 Ill. 2d 207, 215, 647 N.E.2d 273, 277 (1995).\\nThe trial court's findings of due diligence and dispatch were not against the manifest weight of the evidence. The dispute over the amount of repairs was an important one, because if the repairs exceeded $68,000 the Hines would have been entitled not just to repairs but to replacement costs and to significantly more money. The fact that the Hines did eventually replace the structure using their own funds is some indication their position that the structure was a total loss was taken in good faith. The Hines' position was supported by the Progressive Builders and P&W Construction estimates. Allstate argues that it, not the Hines, had the right to choose whether the property would be repaired or replaced. Allstate did not have that option if the cost of repairs exceeded $68,000. In that event the Hines were entitled to replace the structure if they chose to do so. Allstate argues that the Hines were unreasonable in not accepting Allstate's offers but it appears equally plausible that Allstate was unreasonable in rejecting the Hines' offers.\\nAllstate next argues the Hines did not bring suit within the time required by the policy:\\n\\\"No suit or action may be brought against us unless there has been full compliance with all of the policy terms. Any suit or action must be brought within one year after the date of loss.\\\"\\nThere is an important statutory restriction on these policy periods of limitation. A policy period of limitations is \\\"tolled from the date proof of loss is filed, in whatever form is required by the policy, until the date the claim is denied in whole or in part.\\\" 215 ILCS 5/143.1 (West 1996); see also Vola v. Pacific Insurance Co., 296 Ill. App. 3d 968, 971-72, 695 N.E.2d 581, 583 (1998). It is interesting to note that although the policy here requires that suit be brought within one year of the date of loss, the policy does not limit additional living expenses to one year, only to whatever time is necessary to repair or replace.\\nIt is unclear how a policy provision that requires that suit be brought within one year after the date of loss can be applied to coverage for additional living expenses, where the living expense loss does not occur all at once, but over a period of time. The argument could be made that there is no loss until the time harm is suffered by the insured. See McCray v. Merit Insurance Co., 233 Ill. App. 3d 36, 38-39, 598 N.E.2d 366, 368-69 (1992) (uninsured motorist policy; loss occurs when it is determined uninsured driver cannot compensate plaintiff). Under that argument there is a new date of loss each day the insured incurs additional living expenses. Under that argument, if the insured incurs living expenses for a period of three years, after which he immediately files suit, the insured will be compensated for the last year but not for the first two. The parties argued in their briefs that the date of the fire is the date of the loss. Under that analysis claims for living expenses could be barred before those living expenses were ever incurred. Perhaps recognizing the difficulty of that position, Allstate suggested in oral argument, for the first time, that the date of loss was December 15, 1992. We must follow the rule of construction that if an insurance policy is ambiguous it will be construed against the insurer and in favor of coverage. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108-09, 607 N.E.2d 1204, 1212 (1992). Assuming that the policy period of limitations applies at all to claims for additional living expenses, we agree with the trial court that the claim here was not barred.\\nFor the purposes of discussion we accept the parties' argument in their briefs that the date of loss was the date of the fire. The major question in this case involves the tolling period provided by section 143.1 of the Illinois Insurance Code (215 ILCS 5/143.1 (West 1996)). When did that tolling period begin and when did it end? It is implicit in the trial court's order that the tolling period began immediately after the fire, when Allstate began its investigation and the Hines submitted the information requested by Allstate. It is further implicit in the trial court's order that the tolling period ended August 18, 1993, when Allstate made its final payment on the structural claim.\\nWe cannot say the trial court erred in determining that a proof of loss \\\"in whatever form is required by the policy\\\" was filed immediately after the fire. Allstate argues that negotiations do not toll the policy period of limitations, that negotiations do not amount to a proof of loss. Allstate states in its brief, however, that \\\"in the beginning the parties set up a method by which the Plaintiffs were to submit receipts for the additional living expenses they incurred.\\\" Later in its brief Allstate refers to the \\\"proofs of loss,\\\" apparently the receipts, submitted by the Hines for additional living expenses through December 15, 1992. It is possible for the filing of information with an insurance company to constitute a proof of loss and to start the tolling period, if the policy does not require a particular form of proof of loss. Vala, 296 Ill. App. 3d at 971, 695 N.E.2d at 583; Trinity Bible Baptist Church v. Federal Kemper Insurance Co., 219 Ill. App. 3d 156, 161, 578 N.E.2d 1375, 1378 (1991).\\nWhy did Allstate pay the structural claim on August 18, 1993, which was more than a year after the fire on May 23, 1992? A proof of loss was submitted on the structural claim on August 9, 1993, but that was also more than a year after the fire. During oral argument Allstate conceded that it was estopped by its conduct to assert the policy period of limitations as to the structural claim. Allstate argues, however, that the living expenses claim is separate from the structural claim. We do not understand how that can be possible. The amount of additional living expenses cannot be determined until the structure is repaired or replaced. The structure cannot be repaired or replaced until it is determined whether repair is appropriate, what the costs will be, and a contractor is secured. The insured is entitled to his actual living expenses, not to an estimate of what those expenses might be. If the insured unreasonably delays the settlement of the structural claim it may be possible to terminate the living expenses before the structural claim is settled, but the trial court found there was no unreasonable delay here. The living expenses claim and the structural claim seem inextricably intertwined.\\nSection 143.1 provides for tolling \\\"until the date the claim is denied in whole or in part.\\\" 215 ILCS 5/143.1 (West 1996). Section 143.1 could be read to say that when a claim consists of several parts, and the insurance company firmly announces it will pay nothing or only a limited amount on one part, the insured must quickly file suit on that part. Such a construction makes little sense when the parties' negotiations are proceeding satisfactorily on the remaining parts. Filing suit would almost certainly interfere with the remaining negotiations. Plaintiffs are generally not permitted to split their causes of action and, accordingly, would be required to file suit on the entire claim, not just a part of the claim. Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 340, 665 N.E.2d 1199, 1206 (1996). Filing suit might prove unnecessary if the insured were eventually satisfied with the remainder of the settlement. Requiring suit on a part of a claim also requires court determination as to the precise moment the insurer has made a final decision on a part of the claim, an unlikely proposition to begin with. Why would an insurer irreversibly refuse to give in on one point, when giving in later proves beneficial to the overall settlement? Claims are generally resolved or they are not resolved; they are not resolved in part. The better view is that section 143.1 refers to the point at which the insurer has made a final disposition of the claim, whether the claim is thereby denied in its entirety or paid in part and denied in part.\\nThe trial court properly concluded that proof of loss was made immediately after the fire and that tolling of the one-year policy period of limitations, pursuant to section 143.1, began at that time. Likewise the trial court properly concluded the tolling period did not end until August 18, 1993, when the last part of the claim was finally resolved. Accordingly the lawsuit was properly filed within the one-year period of limitations provided by the policy.\\nThe judgment of the trial court is affirmed.\\nAffirmed.\\nSTEIGMANN and McCULLOUGH, JJ., concur.\"}"
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+ "{\"id\": \"12129620\", \"name\": \"The People ex rel. Community High School District No. 231, Petitioner, vs. Lawrence L. Hupe, School Treasurer, Respondent\", \"name_abbreviation\": \"People ex rel. Community High School District No. 231 v. Hupe\", \"decision_date\": \"1954-03-17\", \"docket_number\": \"No. 33156\", \"first_page\": \"434\", \"last_page\": \"450\", \"citations\": \"2 Ill. 2d 434\", \"volume\": \"2\", \"reporter\": \"Illinois Reports, Second Series\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T21:38:24.314791+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The People ex rel. Community High School District No. 231, Petitioner, vs. Lawrence L. Hupe, School Treasurer, Respondent.\", \"head_matter\": \"(No. 33156.\\nThe People ex rel. Community High School District No. 231, Petitioner, vs. Lawrence L. Hupe, School Treasurer, Respondent.\\nOpinion filed March 17, 1954.\\nHarold W. Norman, Allyn J. Franke, and John Ligtenberg, all of Chicago, for petitioner.\\nKlein & Thorpe, of Chicago, for respondent.\", \"word_count\": \"4956\", \"char_count\": \"30680\", \"text\": \"Mr. Justice; Daily\\ndelivered the opinion of the court:\\nIn the public interest and because of the urgency of the cause, we have granted leave to the People, acting on the relation of Community High School District No. 231 of Cook County, (hereafter referred to as petitioner,) to file an original petition for writ of mandamus directing the respondent, Lawrence L. Hupe, treasurer for said district, to register, number and countersign bonds totalling $1,100,000, which relator has been lawfully authorized to issue, as he is required to do by section 19-7 of the School Code. (Ill. Rev. Stat. 1953, chap. 122, par. 19-7.) Respondent has refused to execute bonds in excess of $516,000 on the ground that such figure is the limit of relator's debt-incurring power.\\nRespondent's refusal is predicated on section 12 of article IX of the Illinois constitution as it is implemented by section 19-33 \\u00b0f the School Code. (Ill. Rev. Stat. 1953, chap. 122, par. 19-33.) The mandate of the constitutional provision is, that \\\"No county, city, township, school district, or other municipal corporation, shall be allowed to become indebted in any manner or for any purpose, to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, .\\\" As regards school districts, section 19-33, as amended in 1953, (Laws of 1953, p. 1369,) ordains the following:\\n\\\"\\u00a7 19-33. computing the debt incurring power of any school district where there has been included in any such school district only a part of any former school district which at the time of such inclusion has outstanding bonded indebtedness, a proportionate amount of such bonded indebtedness shall be chargeable to such school district based upon the ratio that the assessed valuation of taxable property as equalized and determined by the State Department of Revenue in that part of the territory of such former school district that has been included in any such school district bears to the total assessed valuation of the said former school district as equalized and determined by the State Department of Revenue for the year in which the change occurred, and said proportionate amount of such bonded indebtedness shall be chargeable against such school district in determining its debt incurring power.\\\"\\nThe facts which draw the foregoing provisions into the cause disclose that the petitioner was organized as the result of an election called by the\\\" county superintendent of schools on April 19, 1952, under the provisions of sections 10-9 and 10-10 of the School Code, (111. Rev. Stat. 1951, chap. 122, pars. 10-9 and 10-10,) and that it was formed entirely out of territory comprising a part of Non-High School District No. 216 of Cook County. Since its organization, the petitioner, having no school buildings, has incurred a debt of $'200,000 for tuition; however, by elections held April 11 and October 10, 1953, and by proper board action in January, 1954, petitioner has been authorized to issue bonds totalling $1,100,000 for the purpose of purchasing a site and erecting a school building. The 1952 equalized assessed valuation of the taxable property in the territory which forms petitioner's district was $26,957,960; thus if the constitutional provision alone is controlling, petitioner has a debt-incurring power of $1,347,898 less the $200,000 indebtedness for tuition, or $1,147,898, and the issuance of $1,100,000 of bonds would not violate the constitution.\\nAt the time petitioner was organized, however, Non-High School District 216, of whose territory only a part was taken to create the petitioner, had a bonded indebtedness of $2,808,000 (since reduced to $2,518,000,) and the paramount question here is whether section 19-33 operates to make a portion of such indebtedness chargeable to petitioner's debt-incurring power. The 1952 equalized assessed valuation of the taxable property in District 216 was $107,424,990 while, as previously stated, that of petitioner was $26,957,960, or 25.094 per cent of District 216's valuation. If section 19-33 is applicable, and interpreted literally, the result would be that relator's debt-incurring power would be charged with $631,780 of District 216's bonded indebtedness and would thus reduce petitioner's 5 per cent debt limit to $516,000, the figure beyond which respondent refuses to execute bonds. Petitioner contends that section 19-33 does not apply in this case, while the position of respondent is exactly to the contrary.\\nIt is common knowledge that since 1945, Illinois has been engaged in a comprehensive reorganization of its school system to the end that a more efficient system of schools be provided. One of the important features of the program, as reflected by the reports of the School Problems Commission and by subsequent legislation, has been a studied attempt to eliminate non-high school districts wherever and whenever possible, (See: Ill. Rev. Stat. 1951 and 1953, chap. 122, article 11,) a non-high school district consisting of territory which is no.t in a high-school district or a district maintaining a recognized four-year school. It maintains no educational facilities of its own and its only function is to provide funds to pay the high-school tuition of its eighth grade graduates. (Ill. Rev. Stat. 1953, chap. 122, par. 11-1.) Inasmuch as petitioner was formed out of non-high school territory, thus having the effect of partially eliminating a non-high school district, this expressed purpose of the school administrators and legislators is relied upon heavily by petitioner as a basis for its contention that section 19-33 does not apply to school districts which include a part of a non-high school district.\\nOne of the problems which has beset the reorganization of the school system has been that of fixing liability for existing indebtedness where two districts are consolidated or where a part only of one district is annexed to another. While there appears to be no question that petitioner did not, in this case, become liable for any of the bonded in debtedness of District 216, petitioner's arguments that a proportionate share of such debt is not chargeable to petitioner's debt-incurring power requires some consideration of the manner in which the problem of debt liability has been treated by the legislature.\\nIn the absence of statutory provisions the established rules are, first, if two or more municipal corporations are consolidated or the entire territory of one municipal corporation is annexed to another, the indebtedness of both becomes the indebtedness of the consolidating or annexing corporation (Kocsis v. Chicago Park District, 362 Ill. 24; People ex rel. Moore v. Chicago, Burlington and Quincy Railroad Co. 414 Ill. 419;) and, second, if only a part of one municipal corporation is annexed to another or created into a new municipal corporation, the one to which territory is annexed, or the new corporation formed, does not become liable for any part of the debt of the corporation from which territory has been taken, the latter remaining liable on its indebtedness as though there had been no change in its boundaries. People ex rel. Hagler v. Chicago, Burlington and Quincy Railroad Co. 380 Ill. 120, p. 127; People ex rel. Raymond Community High School Dist. v. Bartlett, 304 Ill. 283, p. 286.\\nThe only provisions in the School Code prior to 1949 which modified the general rules were sections 19-9, 19-30, and 19-31. (Ill. Rev. Stat. 1947, chap. 122, pars. 19-9, 19-30, and 19-31.) Section 19-9 provided that the county clerk should extend taxes against all taxable property in any school district, with a population of less than 500,000, as of the date of the registration of the bonds, in amounts sufficient to pay the principal and interest thereon. Sections 19-30 and 19-31 implemented section 19-9. The effect of the three sections was to confirm the general rule as to detachments of parts of school districts but to change the rule when an entire district was taken into or consolidated with another. This court so construed section 19-9 in Spence v. Selcke, 404 Ill. 98, where it was held that no change in the boundaries of a school district, whether a detachment or a consolidation, affected the liability on existing bonded indebtedness. In 1949, presumably in anticipation of the Spence decision, the legislature added section 19-32 to the School Code, providing that upon the creation of any consolidated school district, community unit district \\u00f3r school district organized under the School Survey Act, (Ill. Rev. Stat. 1949, chap. 122, pars. 713 to 732,) the new districts would assume the bonded indebtedness of all the underlying school districts wholly included within their boundaries. By implication, this direction of the legislature removed the restrictive effect of section 19-9 on the types of districts embraced by section 19-32. At the same time, the General Assembly enacted section 19-33 as a companion measure, providing that where newly created community unit districts or School Survey Act districts included a part only of a former district which then had an outstanding bonded indebtedness, a proportionate amount of such indebtedness was chargeable against the debt-incurring power of the new district. These sections were construed and withstood constitutional attack in McLain v. Phelps, 409 Ill. 393.\\nIn 1951, the legislature further treated upon the matter of the assumption of bonded indebtedness when it added section 4B-12 to the School Code. (Ill. Rev. Stat. 1951, chap. 122, par. 4B-12.) This section, which expressly applied only to boundary changes accomplished by the action of the newly created county boards of school trustees in the manner required by article 4B of the School Code, provided as follows:\\n\\\"\\u00a7 4B-12. Unless otherwise provided in this Article whenever the boundaries of any school district, other than a non-high school district, are changed by the detachment of territory from one district and the annexation thereof to another school district or the dissolution of a district and its annexation to another district under any of the provisions of this Article the district as it exists on and after the change of boundaries shall assume the bonded indebtedness of the original annexing district and the liability for the bonded indebtedness of any territory so annexed. The tax rate for such indebtedness shall be determined in the manner provided in Section 19-9 of this Act.\\\"\\nWhile this section did not, by its terms, apply to districts newly created in the manner provided for in sections 10-9 and 10-10, as was the petitioner, it becomes important because it is the exclusionary language relating to non-high school districts and a later amendment to the section, upon which petitioner predicates its claim that section 19-33 has no application when the boundary changes which occur affect non-high school territory. Applying the contention to the facts of his case, petitioner insists that because its territory was taken from a non-high school district (District 216), it is not chargeable, under section 19-33, with a proportionate share of the non-high school district's bonded indebtedness in computing its debt-incurring power.\\nThe amendments to the School Code which give rise to petitioner's contention were contained in House Bill No. 76, as passed in 1953 by the sixty-eighth General Assembly, (Laws of 1953, pp. 1368-1369,) wherein sections 19-30, 19-31 and 19-32 were repealed and sections 4B-12, 19-9 and 19-33 were amended. As amended, section 4B-12 now provides as follows:\\n\\\"\\u00a7 4B-12. Whenever a new district is created or the boundaries of any school district, other than a non-high school district, are changed by the annexation or detachment of territory or by the dissolution of a district and its annexation to another district under any of the provisions of this Act each such district as it exists on and after such action shall assume the bonded indebtedness of all the territory included therein after such change. The tax rate for such indebteness shall be determined in the manner provided in Section ig-g of this Act, except the County Clerk shall anually extend taxes against all the taxable property situated in the county and contained in each such district as it exists after the action. When the territory of any non-high school district shall be annexed in the manner provided by any of the provisions of the School Code to any district having a bonded indebtedness, such non-high school territory shall remain liable for its bonded indebtedness and become liable for its proportionate part of the, bonded indebtedness of such annexing district.\\\" Ill. Rev. Stat. ig53, chap. 122, par. 4B-12.\\nThus it may be seen that instead of being applicable only to boundary changes occurring under the provisions of article 4B, section 4B-12 was amended to apply whenever a new school district is created or the boundaries of any school district changed under any of the provisions of the School Code. This enlargement of the scope of section 4B-12 beyond the provisions of article 4B eliminated what would have become duplicating provisions in section ig-32, which was repealed.\\nIn like manner section ig-33, as previously quoted at the beginning of this opinion, was amended to make it applicable to the computation of the debt-incurring power of \\\"any school district\\\" in which there is included only a part of any former school district which, at the time of such inclusion, had an outstanding bonded indebtedness. Unlike section 4B-12, as amended, this section contains no exclusionary language relative to territory of non-high school districts.\\nSection ig-g, the third section of the School Code to be affected by House Bill No. 76, was amended to remove the restrictive language which produced the result in Spence v. Selcke, 404 Ill. 98, and now provides, in part, that: \\\"Whenever any school district having a population of less than 500,000 inhabitants is authorized to issue bonds, the recording officer thereof shall file in the office of the county clerk of each county in which any portion of the district is situated a certified copy of the resolution providing for their issuance and levying a tax to pay them, , and the county clerk, subject to the provisions of Section 4B-12 of this Act, annually shall extend taxes against all the taxable property situated in the county and contained in the district in amounts sufficient to pay maturing principal and interest, (Ill. Rev.' Stat. 1953, chap. 122, par. 19-9.) It should be noted, too, that this section is made to apply to \\\"any school district\\\" authorized to issue bonds and makes no exception as to non-high school districts or districts formed from non-high school territory. The legislative failure to exclude non-high school districts from this section is not, however, decisive on the question of their intent. Non-high school districts are authorized to issue bonds by four different sections of the School Code (See sections 11-10, 11-12, 19-10 and 19-16,) and the direction to the county clerk to extend taxes on the basis of tax levies filed with him for each of these separate types of bonds are construed in sections 11-11, 11-13, 19-13 and 19-19 of the School Code. It is at least doubtful, therefore, that section 19-9 was intended to apply to non-high school bonds and the section does little to settle the issue between the parties.\\nPetitioner construes section 4B-12, as amended, as excluding from its purview all boundary changes involving non-high school territory. Although we think the section inart fully drawn, we agree that this conclusion must be reached. When section 4B-12 was originally enacted in 1951 it provided as follows: \\\" whenever the boundaries of any school district, other than a non-high school district, are changed by the detachment of territory from one district and the annexation thereof to another school district the district as it exists on and after the change of boundaries shall assume the bonded in debtedness of the original annexing district and the liability for the bonded indebtedness of any territory so annexed. .*\\\" (Ill. Rev. Stat. 1951, chap. 122, par. 4B-12.) It might be possible to construe this language so that the phrase \\\"other than a non-high school district\\\" would become operative only in the case of annexation \\\"to\\\" and not \\\"from\\\" non-high school districts. However, under such a construction, the phrase would serve only to prevent a non-high school district from having to assume bonded indebtedness of annexed territory. Such a result would be wholly inconsistent with the fact that the legislature did not contemplate the enlargement of non-high school districts but had, rather, established a program for their complete elimination. It must be concluded, therefore, that the phrase \\\"other than a non-high school district\\\" was not intended to describe the district which was to assume the bonded indebtedness, but was intended to specify one kind of boundary changes which did not come within the scope of the section, namely, those involving a non-high school district. This same construction must be carried forward to section 4B-12 as amended in 1953, with the result that a new district is likewise not required to assume the indebtedness of non-high school territory included within its boundaries. We believe this is so despite the fact that section 11-18.2 of the School Code, enacted in 1953, (Laws of 1953, p. 1036,) provides that some non-high school districts may remain as such under certain circumstances, for this section does not contemplate the enlargement of such non-high school districts nor does it alter the legislative plan of eliminating non-high school districts wherever possible.\\nThe concluding sentence of the 1953 amendment to section 4B-12 also serves greatly to remove any doubt as to the legislative intent for it provides that \\\"When the territory of, any non-high school district shall be annexed in the manner provided by any of the provisions of the School Code to any district having a bonded indebtedness, such non-high school territory shall remain liable for its bonded indebtedness and become liable for its proportionate part of the bonded indebtedness of such annexing district.\\\" The annexing district and the annexed non-high school territory could not both be liable for the same bonded indebtedness, thus it is to be concluded that the section does not contemplate that a new district is to assume the bonded indebtedness of non-high school territory included within its boundaries.\\nAside from the language employed in the section, we believe that there are practical reasons, undoubtedly contemplated by the legislature, which would tend to bring about a legislative policy to relieve other districts from liability on non-high school district bonds. It is to be seen from article 11 of the Code that the only purpose for which non-high school districts may issue bonds is to pay tuition debts. By issuing such bonds instead of paying the cost of tuition from current tax collections, the taxpayers of the district simply defer the payment of its current educational costs to other years. Bonds of an ordinary school district, on the other hand, are usually issued for the purpose of purchasing a school site and erecting school buildings and thus provide physical assets of a corresponding value which will inure to the benefit of the district for many years to come. To create a mutual exchange of bonded debt liability between a district and a part of a district, both of which have incurred their indebtedness to establish permanent educational facilities in their respective districts, is logical and understandable and would, no doubt, be acceptable to the taxpayers involved. It is another matter, however, to ask a district that has, or is to become, indebted for a school site and buildings, to further shoulder a share of the bonded indebtedness of annexed non-high school territory which was incurred for current operating expense rather than permanent benefit to the school system. Such a condition would serve as a formidable deterrent to the program to eliminate non-high districts, for taxpayers would be loathe to sanction or seek new districts so burdened. For this, and the reasons previously set forth, it is our conclusion that a new district, such as the petitioner, is not required by section 4B-12, either as originally enacted in 1951 or as amended in 1953, to assume the bonded indebtedness of non-high school territory included within its boundaries. There remains, however, the question of whether a proportionate share of such indebtedness is chargeable to the debt-incurring power of the new district.\\nPetitioner urges that the same reasons which led the legislature to exclude situations involving non-high school districts from the purview of section 4B-12 should operate to exclude them from the provisions relating to the computation of debt-incurring power in section 19-33. Because of this, and because the two sections were amended by the same bill, the petitioner contends that when the sections are construed in pari materia, they manifest a legislative intent to carry the exclusionary provision of section 4B-12 into section 19-33. It is argued that if section 19-33 is to be construed as charging operating districts with the bonded indebtedness of non-high school districts, it will be impossible to carry out the program for the elimination of non-high school districts, a result so inconsistent with the legislature's positive program that it could not have been intended. Respondent, while admitting section 4B-12 is to be construed as showing a legislative intent to exclude cases involving non-high school districts from its scope, asserts that if the legislature had likewise intended to exclude situations of the same nature from the application of section 19-33, it would have expressly done so as it did in section 4B-12. In the absence of such express language, it is the respondent's position that section 19-33 must be literally enforced.\\nWhen the successive changes which have occurred in school legislation relative to assumption of debt and computation of debt, and the legislative effort to resolve all such questions in House Bill No. 76, are considered in the light of the legislative design to eliminate non-high school districts for the purpose of creating a more compact and efficient school system, it must be said that the question of what the legislature intended by section 19-33 is not free from doubt. If the language of the section is to be literally construed, the result will be that the petitioner's debt-incurring power will be reduced to a figure where it will be unable to furnish educational facilities and the net result will be that petitioner's territory will be back in the same position it was when it was part of the non-high school district. This was certainly not the legislative intent when it laid out a program to eliminate non-high school districts, for the very real purpose of the elimination program is to cause such districts to become an integral part of a district that has, or will\\\" be able to furnish, educational facilities. The legislature demonstrated an awareness of such a situation when it amended section 4B-12 to provide that new districts formed under the act did not assume liability for the bonded indebtedness of non-high school districts, for assumption would, without any question, automatically reduce the debt-incurring power of the new district. It is difficult to conceive that the legislature intended to permit section 19-33 to do indirectly that which it directly sought to prevent in section 4B-12, namely, the burdening of a new district formed out of non-high school territory to the extent that the new district would be unable to establish its own educational facilities. While the bonded indebtedness of all high school districts may not be such as to produce the result in this case, i.e., a reduction of the new district's debt-incurring power to an extent that it cannot erect a proper school building, we may take judicial notice that the petitioner district is not alone in the situation it finds itself and that the absurd consequences produced by a literal construction of section 19-33 would have a statewid\\u00e9 effect of hindering the school reorganization program as a whole.\\nIt is a canon of statutory construction that where the passage of a series of legislative acts results in confusion and consequences which the legislature may not have contemplated, courts must construe the acts in such a way as to reflect the obvious intent of the legislature and to permit practical application of the statutes. (Scofield v. Board of Education, 411 Ill. 11; Moyer v. Board of Education, 391 Ill. 156; York Community High School Dist v. Wagemann, 375 Ill. 193.) Again, we have held that where the literal enforcement of a statute would result in great injustice or absurd consequences, courts are bound to presume that such consequences were not intended and to adopt a construction which, it is reasonable to assume, was contemplated by the legislature. When the legislative intention can be gathered from a consideration of all the legislation on the subject, words of a particular section may be modified or altered so as to obviate all inconsistency with such intention.' (Ketcham v. Board of Education, 324 Ill. 314; People ex rel. Taylor v. Camargo Community Consolidated School Dist. 313 Ill. 321.) It is also the rule in construing statutes that it is proper to compare statutes relating to the same subject matter and to consider the motives for making the changes in the law and the evils sought to be corrected. (Anderson v. City of Park Ridge, 396 Ill. 235.) As relates to schools, we have held that although the school law consists of different articles and different sections, it is to be construed as one entire act, (Greenwood v. Gmelich, 175 Ill. 526,) and it is to be presumed that the several enactments relating to the one subject are governed by one spirit and one policy and that the legislature intended the enactments to be consistent and harmonious. Ketcham v. Board of Education, 324 Ill. 314.\\nDemonstrative of the application of the foregoing established principles of statutory construction is the case of People ex rel. Barrett v. Anderson, 398 Ill. 480, where the legislature, in the Congressional Reapportionment Act of 1947, described certain territory as \\\"the village of Stickney\\\" instead of \\\"the township of Stickney,\\\" thus causing all the township outside the village to remain unapportioned. In finding that it was not the intention of the legislature to exclude this territory and in holding that the word \\\"township\\\" should be read into the Act in lieu of the word \\\"village,\\\" we stated: (p. 485) \\\" while courts are and should be cautious about adding words, as such, to a statute generally, they will not hesitate to read into the sense of some section or provision a qualifying or expanding expression plainly implied by the general context of the act, which has been palpably omitted and which is necessary to prevent the legislative purpose from failing in one of its material aspects.\\\"\\nSections 19-33 and 4B-12 both deal with the subject of bonded indebtedness of school districts and, inasmuch as it appears that the over-all purpose for the enactment of House Bill No. 76 was to facilitate and further the program for reorganizing our schools into an efficient, uniform, and fair system, it is apparent that both were intended to be harmonious and consistent with the entire plan for reorganization reflected by the School Code. One part of that plan, as shown by changes incorporated into article 11 of the School Code by the two most recent sessions of the General Assembly (1951 and 1953) is the elimination of non-high school districts. As stated previously, it is not the elimination of such districts which is paramount in such legislation but, rather, that the territory included in such districts becomes a part of a district having, or which will furnish, school facilities. If section 19-33 is t\\u00b0 be literally construed to the extent that new districts created out of non-high school territory are pre vented from providing the needed educational facilities, then the purpose of the legislature to provide an efficient school system will fail in a material aspect and residents of the territory affected will have accomplished no more than to create a new board to administer the payment of tuition for their children.\\nThe consequences discussed were expressly avoided by the legislature in section 4B-12 and it is to be presumed that it was not intended section 19-33, which was enacted in the same bill with the same spirit and policies in view, should operate to restrict or prevent the creation of new districts out of non-high school territory. We hold, therefore, that to give consistency and harmony to the end that the school reorganization program may continue rapidly and successfully, there must be read into section 19-33 the same intention to exclude situations involving the creation of new districts out of non-high school territory that was manifested in section 4B-12.\\nSuch a construction creates the probability that the territory taken to form the petitioner will be subject to the bonded indebtedness of both the old and the new districts, the total of which will likely exceed 5 per cent of the valuation of the taxable property in such territory. However, as fully explained in McLain v. Phelps, 409 Ill. 393, this does not violate the constitution, for its prohibition is against the individual or separate school district from becoming indebted in excess of five per centum.\\nIn view of the result we have reached, discussion of further attacks made by petitioner on section 19-33 becomes unnecessary. Therefore, the writ of mandamus is awarded as prayed for, commanding the respondent forthwith to register, number and countersign the bonds authorized by the Board of Education of Community High School District Number 231, Cook County, Illinois, in the manner previously described, when such bonds have been issued and signed by the president, secretary, and two members of the said board of education.\\nWrit awarded.\"}"
ill/12130359.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"12130359\", \"name\": \"The People of the State of Illinois, Defendant in Error, vs. Angelo Taranto, Plaintiff in Error\", \"name_abbreviation\": \"People v. Taranto\", \"decision_date\": \"1954-03-17\", \"docket_number\": \"No. 32907\", \"first_page\": \"476\", \"last_page\": \"482\", \"citations\": \"2 Ill. 2d 476\", \"volume\": \"2\", \"reporter\": \"Illinois Reports, Second Series\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T21:38:24.314791+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The People of the State of Illinois, Defendant in Error, vs. Angelo Taranto, Plaintiff in Error.\", \"head_matter\": \"(No. 32907.\\nThe People of the State of Illinois, Defendant in Error, vs. Angelo Taranto, Plaintiff in Error.\\nOpinion filed March 17, 1954\\nRehearing denied May 19, 1954.\\nCharles A. Bellows, of Chicago, for plaintiff in error.\\nLatham Castle, Attorney General, of Springfield, and John Guticnecht, State\\u2019s Attorney, of Chicago, (John T. Gallagher, Rudolph L. Janega, and Arthur F. Manning, all of Chicago, of counsel,) for the People.\", \"word_count\": \"1890\", \"char_count\": \"11138\", \"text\": \"Mr. Justice Klingbiel\\ndelivered the opinion of the court:\\nPlaintiff in error, Angelo Taranto, was tried in the criminal court of Cook County on two indictments, the first charging possession of burglar's tools with intent to break into the dwelling house of one Dana Summers and commit larceny, and the second charging an attempt to commit burglary of Dana Summers's apartment. He was found guilty on the first indictment and sentenced to imprisonment for a term of one to two years. He was found not guilty on the second indictment. He prosecutes this writ of error to review the judgment of conviction, contending that the evidence is insufficient to prove either his pos session of the tools or the precise intent alleged in the indictment.\\nNo testimony was offered on behalf of plaintiff in error. The evidence presented by the People shows that on April 4, 1952, officers Coffy and Gallagher were detailed to a 13-story co-operative apartment building at 2666 East Seventy-third Street, Chicago, and were in full uniform at the time. Entrance to the building is gained through two vestibules. The outer vestibule is about nine feet wide by fifteen feet long. On the right are the bells and mailboxes for the apartment building. On the left is a glass door leading into a meeting room for the occupants of the building. This glass door is a mirror when viewed from within the outer vestibule, but is transparent glass when viewed from inside the meeting room. At the north end of the outer vestibule is a door with glass on either side of it leading into the inner vestibule. The door was locked on the night in question. The inner vestibule is about twelve by sixteen feet in dimension and has self-service elevators at the north end.\\nOfficers Coffy and Gallagher arrived on duty at this building at about 7 :oo o'clock in the evening and stationed themselves in the meeting room behind the transparent door. At about 8 :oo P.M. a man, later identified as plaintiff in error, walked into the building and rang one particular doorbell twice for about ten seconds at a time. He then left, and about three minutes later he re-entered the building and walked directly to the door that separates the inner and outer vestibules and admitted himself as if he were putting a key in the door. He then took the self-service elevator, and officers Coffy and Gallagher stepped out of the meeting room. Officer Coffy rang the bell to the building engineer's first-floor apartment and officer Gallagher read the name on the bell plaintiff in error had rung. The officers observed the ascent of the elevator to the twelfth floor on the elevator indicator. The building engineer, Leaf, joined the officers in the inner vestibule, and they waited for the elevator to come down. It remained on the twelfth floor about four to five minutes, then came down to the sixth floor where it remained about a minute and a half and then down to the second floor where it remained about a minute and finally it came down to the first floor. Plaintiff in error stepped out of the elevator whereupon officer Coffy asked him what he was doing there and he said he lived there. The officers then asked Leaf if that were so and he said no. Officer Gallagher said, \\\"You are trespassing on private property; you are under arrest.\\\" Plaintiff in error stated that the officers should wait until he got his wife and she would tell them who he was, and he started toward the door separating the two vestibules. Officer Coffy drew his gun and put plaintiff in error in a corner and told officer Gallagher to search him. Plaintiff in error was standing with his left hand in his pocket. Officer Gallagher caught hold of his hand and pulled it out, and with it came two pieces of cellophane. One of them slipped through his fingers and fell to the floor. The officer then put his hand in plaintiff in error's pocket and found two more objects which were like S-shaped hooks. Plaintiff in error began to resist the search and a fight ensued in the inner vestibule. During the course of the fight officer Coffy was struck on the head and kicked in the groin, and plaintiff in error grabbed officer Gallagher's left thumb and bent it backward and stamped on the officer's toes with his heel. The struggle carried the three men through the door separating the two vestibules into the outer vestibule. There, officer Gallagher grabbed plaintiff in error by his left arm, and, with the other, plaintiff in error was attempting to open the outside door. At that time plaintiff in error was facing officer Coffy and was about three feet away from him. Officer Coffy fired a shot,' striking plaintiff in error in the right thigh. After he was shot plaintiff in error broke away from officer Gallagher and ran about fifteen feet west of the entrance to 2666 East Seventy-third Street before he was again apprehended by the two officers. Officer Gallagher caught hold of his sleeve and plaintiff in error pulled his arm out of his overcoat and was attempting to put the coat over the officer's head. Officer Coffy then struck plaintiff in error over the head with the butt of his gun. At that time four or five police squad cars arrived on the scene and plaintiff in error was subdued and placed in a squadrol, a small police wagon, and removed to the hospital. The officers returned to the inner vestibule where they found two pieces of cellophane on the floor. Officer Coffy testified he saw plaintiff in error throw them there. A search of plaintiff in error's clothing after he was finally subdued also revealed a long slender piece of steel. Officer Erederickson testified that the People's exhibits, the S-shaped objects, the cellophane, and the piece of steel, were capable of being utilized as bolt releases and lock picks. No evidence was introduced associating defendant's activities or intentions with the specific apartment of Dana Summers. '\\nPlaintiff in error argues that the failure of the building engineer, Leaf, to testify to seeing the objects taken from plaintiff in error renders of doubtful value the officers' testimony to that effect. It is further argued that the testimony of a third officer \\u2014 to the effect that he was given certain keys allegedly found on defendant \\u2014 is inconsistent with the testimony of the arresting officers that pick-locks and cellophane were found on defendant, and that a reasonable doubt is thus raised as to defendant's possession of such objects. There is no merit in the contention. The testimony of the arresting officers that they found the objects on defendant is sufficient to support such a finding, in the absence of evidence to the contrary. Positive testimony of a credible witness, uncontradicted and unimpeached either by positive evidence or by circumstan tial evidence, intrinsic or extrinsic, cannot be disregarded but must control the decision of a court or jury. (People v. Rasof, 363 Ill. 431.) The matters relied upon by plaintiff in error neither contradict nor impeach the positive testimony of the officers.\\nIt is next insisted that the prosecution failed to prove plaintiff in error had the intention of breaking into the particular apartment mentioned in the indictment, and that this intention is an essential element of the offense alleged. Apparently to support the position he argues that the decision on the second indictment, finding him not guilty of the attempt to burglarize the apartment of Dana Summers, is an adjudication that he did not have the alleged intention. That such a conclusion does not follow is so obvious that authority is superfluous. In the commission of any crime there must be a union or joint operation of act and intention (or criminal negligence), and a failure to prove either will prevent conviction. A finding of not guilty must result from failure to prove the act, even though the intention be conceded. Clearly, such a finding on the second indictment can have no effect in proving the absence of a criminal intent.\\nThe obvious lack of merit in this argument, however, does not dispose of the contention that the alleged intent was not proved. Although plaintiff in error fails to pursue the contention, other than by the worthless argument referred to above, we shall assume he bases it upon the proposition that if an intent to break into a particular building is alleged it must be proved, even though unnecessary in the absence of the particularity of allegation. Section 39 of division I of the Criminal Code defines the crime here involved, and fixes the punishment: \\\"Whoever is found having any pick-lock, crow, key, bit or other instrument or tool, with intent to break and enter any building, ship or vessel, with intent to commit the crime of murder, rape, robbery, larceny or other felony, shall be imprisoned in the penitentiary not less than one nor more than two years.\\\" (Ill. Rev. Stat. 1953, chap. 38, par. 87; Jones Ann. Stat. 37.067.) If tools are adapted and designed for breaking and entering a building and are possessed with an intent to use them unlawfully for that purpose, their possession constitutes the offense described. The intent required by the statute is a general intent to use the tools for a criminal purpose, and it is hot necessary to allege an intent to break into a particular building. (People v. Taylor, 410 Ill. 469, 475.) Thus the indictment in this case would have adequately charged the crime even if the description of the premises had been omitted. The question, then, is whether the unnecessary allegation, specifying the premises intended to be burglarized, is a matter which the State is required to prove. The rule is well established that every material allegation in the indictment must be proved beyond a reasonable doubt before the defendant can be legally convicted. (People v. Cohen, 352 Ill. 380, 382.) It is also clear, we think, that an immaterial allegation need not be so proved. An averment is material when it is essential to the crime or cause of action and cannot be stricken from the indictment or complaint without leaving it insufficient. As we have observed, the averment that the building intended was the dwelling of one Dana Summers is not essential to the crime, and could have been stricken without rendering the indictment insufficient. It follows that the failure to prove the allegation did not prejudice plaintiff in error, and does not warrant a reversal.\\nPlaintiff in error alleges other invasions of his rights, but does not attempt to show they caused error in the judgment of conviction. We have, nevertheless, examined the contentions and find them to be without merit. The judgment of the criminal court of Cook County is affirmed.\\nJudgment affirmed.\"}"
ill/12255750.json ADDED
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1
+ "{\"id\": \"12255750\", \"name\": \"Victoria Eastman, appellee, v. James Gavin, appellant\", \"name_abbreviation\": \"Eastman v. Gavin\", \"decision_date\": \"1928-05-08\", \"docket_number\": \"Gen. No. 32,304\", \"first_page\": \"662\", \"last_page\": \"662\", \"citations\": \"248 Ill. App. 662\", \"volume\": \"248\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T23:34:34.636075+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Victoria Eastman, appellee, v. James Gavin, appellant.\", \"head_matter\": \"Victoria Eastman, appellee, v. James Gavin, appellant.\\nGen. No. 32,304.\\nOpinion filed May 8, 1928.\\nChurch, Haft, Robertson & Crowe, for appellant; Burt A. Crowe, of counsel. Clarence S. Darrow and William H. Holly, for appellee.\", \"word_count\": \"45\", \"char_count\": \"294\", \"text\": \"Mr. Presiding Justice Barnes\\ndelivered the opinion of the court.\"}"
ill/12545925.json ADDED
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1
+ "{\"id\": \"12545925\", \"name\": \"The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Erick M. MAYA, Defendant-Appellant.\", \"name_abbreviation\": \"People v. Maya\", \"decision_date\": \"2019-03-28\", \"docket_number\": \"Appeal No. 3-18-0275\", \"first_page\": \"1099\", \"last_page\": \"1109\", \"citations\": \"127 N.E.3d 1099\", \"volume\": \"127\", \"reporter\": \"North Eastern Reporter 3d\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-27T21:02:51.917847+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"The PEOPLE of the State of Illinois, Plaintiff-Appellee,\\nv.\\nErick M. MAYA, Defendant-Appellant.\", \"head_matter\": \"The PEOPLE of the State of Illinois, Plaintiff-Appellee,\\nv.\\nErick M. MAYA, Defendant-Appellant.\\nAppeal No. 3-18-0275\\nAppellate Court of Illinois, Third District.\\nOpinion filed March 28, 2019\\nJames E. Chadd, Peter A. Carusona, and Andrew J. Boyd, of State Appellate Defender's Office, of Ottawa, for appellant.\\nJames W. Glasgow, State's Attorney, of Joliet (Patrick Delfino, David J. Robinson, and Mark A. Austill, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.\", \"word_count\": \"4113\", \"char_count\": \"25481\", \"text\": \"JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.\\n\\u00b6 1 Following a preliminary Krankel inquiry, the Will County circuit court found no possible neglect of the defendant's case on the part of defense counsel, and declined to appoint new counsel. On appeal, the defendant argues that the circuit court's finding was manifestly erroneous.\\n\\u00b6 2 I. BACKGROUND\\n\\u00b6 3 The State charged the defendant, Erick M. Maya, with first degree murder ( 720 ILCS 5/9-1(a)(1) (West 2014) ), attempted first degree murder (id. \\u00a7 8-4(a), 9-1(a)(1) ), and unlawful use of a weapon by a felon (id. \\u00a7 24-1.1(a) ).\\n\\u00b6 4 During jury selection, venire member Kevin McGrath indicated that he worked as a correctional officer with the Will County Sheriff's Department. He also indicated that his son-in-law was an assistant state's attorney in Will County. McGrath denied that he would let prejudice or bias affect his ability to be fair and impartial. McGrath was called in for further questioning regarding his son-in-law. McGrath indicated that he would not speak to his son-in-law about the case, and it would not \\\"be an issue\\\" if he found the defendant not guilty. No questions were asked regarding McGrath's profession. The defendant's attorneys did not move to dismiss McGrath.\\n\\u00b6 5 The parties agreed that they would each be allotted seven peremptory challenges. The defendant's attorneys used five of their seven challenges. McGrath was seated as the first alternate juror. When a juror became ill during the State's case-in-chief, McGrath was, by agreement of the parties, seated on the jury. At the conclusion of the defendant's trial, the jury found him guilty on all charged counts.\\n\\u00b6 6 On October 8, 2014, the defendant filed a pro se motion for a new trial in which he alleged that George Lenard, one of his attorneys, had been ineffective. Among his claims, the defendant alleged that he was deprived of a fair trial by an impartial jury in that:\\n\\\"(a) Defendant informed his attorney that a correctional officer from the facility housing him in [sic ], and whom the defendant has had issues and conflicts with, was in the jury pool.\\n(b) Defendant's attorney knowingly refused to use a peremptory strike to remove said juror.\\n(c) Defendant's attorney stated that he would rather have the correctional officer on the jury than a venireman who was a State's Attorney.\\\"\\n\\u00b6 7 At a hearing on October 14, 2014, defense counsel told the court that the defendant wished to withdraw his pro se motion. The defendant confirmed that he was voluntarily withdrawing his motion. Defense counsel subsequently filed a motion for a new trial on the defendant's behalf, which was denied. On October 20, 2014, the court sentenced the defendant to consecutive sentences of 72 years' imprisonment for first degree murder, 39 years' imprisonment for attempted first degree murder, and 11 years' imprisonment for unlawful use of a weapon by a felon. Prior to sentencing, a presentence investigation report (PSI) was filed. The PSI stated that defendant reported that he had never been diagnosed with a mental health illness or disorder.\\n\\u00b6 8 Defense counsel filed a motion to reconsider sentence. Soon thereafter, the defendant filed a pro se motion for sentence reduction. In the motion, the defendant again alleged that counsel had been ineffective for failing to move to strike a juror who worked as a correctional officer and with whom the defendant had engaged in \\\"several confrontations.\\\" The defendant also alleged that defense counsel had been ineffective for failing \\\"to conduct and [sic ] investigation or subpoena [the defendant's] hospital records, which would have forced the State to order a psychological evaluation.\\\" At a hearing on those motions, the court did not allow the defendant to argue any of his ineffectiveness claims, only allowing him to address the single issue in his motion that related to sentencing. The court denied the motion.\\n\\u00b6 9 The defendant filed another pro se motion for a new trial on January 29, 2015. In that motion, the defendant reiterated his previous claims of ineffective assistance of counsel. The court did not address the motion.\\n\\u00b6 10 On direct appeal, this court rejected the defendant's argument that defense counsel had been ineffective for failing to request a jury instruction relating to other-crimes evidence. People v. Maya , 2017 IL App (3d) 150079, \\u00b6 96, 417 Ill.Dec. 369, 88 N.E.3d 10. However, we agreed with the defendant's argument-and the State's confession of error-that the circuit court had failed to properly address his numerous posttrial claims of ineffective assistance of counsel. Id. \\u00b6 104-05. We remanded the matter with instructions that the court conduct a preliminary Krankel inquiry. Id. \\u00b6 105.\\n\\u00b6 11 On remand, the court allowed the defendant to expound on his claims. The defendant's exposition, along with occasional questions from the court, spans 21 pages of record. Within that discourse, the defendant stated:\\n\\\"Mr. George Lenard allowed me to have a tainted jury which had a correctional officer from the housing unit where I was housed named Kevin McGrath, who I had several altercations with who would tell other inmates about my case. Since my case was against a minor and-and two females, he would tell other inmates in hopes to have them attack me and who would come to my cell and verbally insult me. Before trial he knew who I was by me having a high profile case and eventually working on my POD nine times before trial . After I informed George Lenard about him, he responded telling me, 'Oh, well, we rather have him rather than anyone else or the venireman who's a State's Attorney.' In another occasion, after I informed him I didn't want him on my jury, he told me, 'Well, he said he was going to be fair.' This [correctional officer] clearly had hatred towards me so of course he was going to find me guilty.\\\"\\n\\u00b6 12 The defendant also stated that he informed Lenard of his mental health history, but Lenard refused to order a psychological test to determine if he was fit to stand trial. The defendant testified that Lenard failed to subpoena the defendant's hospital records or to consider an insanity defense. The defendant stated that he had been diagnosed with psychotic disorder and had been prescribed medication for schizophrenia, depression, anxiety attacks, and panic attacks.\\n\\u00b6 13 The court then called Lenard to testify. The court briefly examined Lenard. The court asked Lenard if he ever had a good-faith belief that there was an issue with the defendant's fitness or a proper defense of insanity. Lenard replied: \\\"No, Judge. In fact, there was a lot of, um, discussions between myself and [the defendant] that indicated the opposite.\\\" The court asked no questions related to McGrath or the composition of the jury. At a later date, after having reviewed the trial record and transcripts, the court found that the defendant had not shown a possible neglect of the case, and declined to appoint counsel.\\n\\u00b6 14 II. ANALYSIS\\n\\u00b6 15 On appeal, the defendant argues that he sufficiently demonstrated possible neglect of his case, and that the circuit court's finding to the contrary was manifestly erroneous. Specifically, he claims that he showed that defense counsel possibly neglected his case in that counsel failed to (1) strike McGrath and (2) investigate the defendant's mental health issues. The defendant does not, however, challenge the procedures employed by the circuit court in conducting the preliminary inquiry.\\n\\u00b6 16 Through People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984), and its progeny, our supreme court has developed a procedural framework for the resolution of pro se posttrial claims of ineffective assistance of counsel. Where a defendant makes a posttrial claim of ineffective assistance of counsel, the circuit court must conduct a preliminary inquiry into those claims. People v. Moore , 207 Ill. 2d 68, 77, 278 Ill.Dec. 36, 797 N.E.2d 631 (2003). One goal of this preliminary inquiry is to allow the circuit court to create the necessary record for any claims raised on appeal. People v. Jolly , 2014 IL 117142, \\u00b6 38, 389 Ill.Dec. 101, 25 N.E.3d 1127 ; see also Moore , 207 Ill. 2d at 81, 278 Ill.Dec. 36, 797 N.E.2d 631 (observing that appellate review is precluded where the circuit court makes no record of a defendant's claims). If, after this preliminary inquiry, the circuit court \\\"determines that the claim lacks merit or pertains only to matters of trial strategy, then the court need not appoint new counsel and may deny the pro se motion.\\\" Moore , 207 Ill. 2d at 78, 278 Ill.Dec. 36, 797 N.E.2d 631. If the court instead determines that there has been \\\"possible neglect of the case,\\\" it must appoint new counsel to represent the defendant at a full hearing on his claims on ineffective assistance. Id.\\n\\u00b6 17 A court's determination that a defendant's claim does not demonstrate a possible neglect of the case will be reversed where that decision is manifestly erroneous. E.g. , People v. Robinson , 2017 IL App (1st) 161595, \\u00b6 90, 419 Ill.Dec. 454, 93 N.E.3d 573. \\\"Manifest error is error which is ' \\\"clearly evident, plain, and indisputable.\\\" ' \\\" People v. Morgan , 212 Ill. 2d 148, 155, 288 Ill.Dec. 166, 817 N.E.2d 524 (2004) (quoting People v. Johnson , 206 Ill. 2d 348, 360, 276 Ill.Dec. 399, 794 N.E.2d 294 (2002), quoting People v. Ruiz , 177 Ill. 2d 368, 384-85, 226 Ill.Dec. 791, 686 N.E.2d 574 (1997) ).\\n\\u00b6 18 A. Failure to Strike McGrath from the Jury\\n\\u00b6 19 1. Procedural Arguments\\n\\u00b6 20 We first consider the defendant's claim that the circuit court's ruling was manifestly erroneous where the court found that the defendant failed to show possible neglect of his case based on defense counsel's failure to strike McGrath from the jury. We begin our analysis of this issue by addressing two procedural arguments raised by the State. First, the State contends that the defendant has forfeited his present argument by failing to raise it in his first direct appeal. The State's argument proceeds as follows:\\n\\\"Defendant raised in his direct appeal the issue that the trial judge failed to hold a Krankel hearing on his additional claims of ineffective assistance; therefore, this claim was known to defendant prior to the filing of his direct appeal. [Citation.] Defendant has forfeited in this second appeal review of this known issue of record by failing to raise it in his direct appeal.\\\"\\n\\u00b6 21 This argument suffers from numerous flaws. Initially, the State seems to imply that by requesting a preliminary Krankel inquiry in his first direct appeal, the defendant has forfeited the actual claims of ineffectiveness that underlie that request. If this were the case, then the Krankel procedure would be rendered wholly meaningless. Moreover, that the present issue \\\"was known to defendant prior to the filing of his direct appeal\\\" is irrelevant. A number of facts pertinent to the defendant's claim-such as the substance of his conversations with counsel-were not on the record on his first appeal, thus requiring that a preliminary Krankel inquiry be held to establish the necessary record. See Jolly , 2014 IL 117142, \\u00b6 38, 389 Ill.Dec. 101, 25 N.E.3d 1127.\\n\\u00b6 22 Next, the State argues that the defendant's claim is refuted by his own posttrial filings. Specifically, it notes that the defendant did not mention McGrath by name in any of his three pro se posttrial filings, and never included his allegation that McGrath incited other inmates to attack him. A bare claim of ineffectiveness, unsupported by any facts, is sufficient to require the circuit court to conduct a preliminary Krankel inquiry. People v. Ayres , 2017 IL 120071, \\u00b6 18-21, 417 Ill.Dec. 580, 88 N.E.3d 732. \\\"[T]he primary purpose of the preliminary inquiry is to give the defendant an opportunity to flesh out his claim.\\\" Id. \\u00b6 20. The defendant's statements at the preliminary inquiry identifying McGrath by name and indicating that McGrath incited other inmates to attack the defendant did not contradict any of the defendant's previous claims. Rather, these statements merely elaborated on the defendant's previous claims-precisely the procedure contemplated by Krankel and its progeny.\\n\\u00b6 23 2. Trial Strategy\\n\\u00b6 24 We next address the State's argument that the court did not err in finding that the defendant failed to show possible neglect of his case because counsel's decision not to exercise a peremptory challenge on McGrath was a matter of trial strategy. Our supreme court has stated that the circuit court may decline to appoint new counsel following a preliminary Krankel inquiry where the defendant's claim \\\"pertains only to matters of trial strategy.\\\" E.g. , Moore , 207 Ill. 2d at 78, 278 Ill.Dec. 36, 797 N.E.2d 631. We recognize that this statement, read most strictly, could imply that any claim possibly relating to trial strategy is per se exempt under Krankel . However, we find such a reading to be inconsistent with current precedent concerning claims of ineffective assistance of counsel based on trial strategy.\\n\\u00b6 25 The standard under which all claims of ineffective assistance of counsel are analyzed was set forth in the seminal case of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In establishing that standard, the United States Supreme Court cautioned that judicial scrutiny of counsel's performance must be highly deferential. Id. at 689, 104 S.Ct. 2052. The Court held: \\\"[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' \\\" Id. (quoting Michel v. Louisiana , 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955) ). Our own supreme court has reaffirmed and emphasized this position on numerous occasions. E.g. , People v. Coleman , 183 Ill. 2d 366, 397, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998) (\\\"[A] defendant must overcome the strong presumption that the challenged action or inaction of counsel was the product of sound trial strategy and not of incompetence.\\\"); People v. Dupree , 2018 IL 122307, \\u00b6 44, 429 Ill.Dec. 398, 124 N.E.3d 908 ; People v. Peterson , 2017 IL 120331, \\u00b6 80, 423 Ill.Dec. 776, 106 N.E.3d 944 (\\\"[T]he strong presumption that counsel's strategy was sound may be overcome where counsel's decisions appear to be so irrational that no reasonably effective defense attorney in similar circumstances would pursue such a strategy.\\\" (citing with approval People v. Lewis , 2015 IL App (1st) 122411, \\u00b6 85, 390 Ill.Dec. 270, 28 N.E.3d 923 ) ).\\n\\u00b6 26 To be sure, both the United States and Illinois Supreme Courts have made clear that the notion of trial strategy presents a tall hurdle for a defendant raising a claim of ineffective assistance of counsel. But neither court has held that matters involving counsel's trial strategy are unavoidably or absolutely exempt from such a claim. Our supreme court's repeated references to overcoming the presumption of sound trial strategy necessarily dictate that that presumption can, in fact, be rebutted. See, e.g. , People v. Miller , 2013 IL App (1st) 110879, \\u00b6 84, 373 Ill.Dec. 429, 993 N.E.2d 988 (\\\"[D]efendant rebutted the presumption that his counsel's decision not to attempt to suppress the statement constituted trial strategy.\\\").\\n\\u00b6 27 As the cases cited above demonstrate, a strict interpretation of our supreme court's statement that the circuit court may decline to appoint new counsel following a Krankel inquiry if the defendant's claim \\\"pertains only to matters of trial strategy\\\" (e.g. , Moore , 207 Ill. 2d at 78, 278 Ill.Dec. 36, 797 N.E.2d 631 ) is untenable. Given that a defendant may, at least potentially, overcome the strong presumption of sound trial strategy, a circuit court should not dismiss a claim of ineffectiveness on the bare fact that it may relate to trial strategy. As we explained above, Krankel and its progeny simply create a procedural framework for the resolution of posttrial claims of ineffectiveness. It would be illogical to hold such claims to a more rigorous standard than any other claim of ineffective assistance. It would make especially little sense in the context of the preliminary inquiry, where a defendant need not actually demonstrate ineffective assistance, but merely show possible neglect of the case. See, e.g. , People v. Roddis , 2018 IL App (4th) 170605, \\u00b6 97-100, 427 Ill.Dec. 672, 119 N.E.3d 52 (comparing the preliminary Krankel inquiry to the first stage of postconviction proceedings).\\n\\u00b6 28 In reaching this conclusion, we are mindful of the fact that our supreme court, when identifying types of duties performed by counsel that are particularly strategic in nature, often uses strong language referring to their susceptibility to ineffectiveness challenges, calling certain actions \\\"virtually unchallengeable\\\" ( People v. Palmer , 162 Ill. 2d 465, 476, 205 Ill.Dec. 506, 643 N.E.2d 797 (1994) ) or \\\"generally immune\\\" ( People v. Enis , 194 Ill. 2d 361, 378, 252 Ill.Dec. 427, 743 N.E.2d 1 (2000) ) from ineffectiveness claims. We would note that even these cases use conditional language. Further, we are unaware of any case holding that claims of ineffectiveness are per se and absolutely barred where they touch on a matter of possible trial strategy.\\n\\u00b6 29 This principle is illustrated in People v. Manning , 241 Ill. 2d 319, 350 Ill.Dec. 262, 948 N.E.2d 542 (2011), a case in which the supreme court considered a claim that counsel had been ineffective for failing to strike a juror during voir dire . After repeating that counsel's strategic decisions are \\\"virtually unchallengeable,\\\" the court also pointed out that it had never previously held that counsel's actions during voir dire were subject to scrutiny under the Strickland standard. Id. at 333, 350 Ill.Dec. 262, 948 N.E.2d 542. Yet, the analysis proceeded. The court expressly considered the reasoning of allowing the juror in question to remain, and postulated strategic reasons that counsel may have done so. Id. at 335, 350 Ill.Dec. 262, 948 N.E.2d 542. The court concluded:\\n\\\"Under these circumstances, given [the juror's] conflicting answers regarding his impartiality, we cannot say that counsel's decision to reserve his two remaining peremptory challenges was unreasonable. Thus, we disagree with defendant that [the juror] was 'plainly and deeply biased,' and we conclude that counsel's actions were a part of his trial strategy and were not deficient under Strickland .\\\" Id. at 336, 350 Ill.Dec. 262, 948 N.E.2d 542.\\n\\u00b6 30 As Manning demonstrates, a claim that counsel's decisions in jury selection amounted to ineffective assistance is not wholly immune from review. Accordingly, we find that, under certain circumstances, even a claim of ineffective assistance of counsel that potentially relates to trial strategy may demonstrate possible neglect of the case, warranting the appointment of counsel and further posttrial proceedings.\\n\\u00b6 31 3. Possible Neglect of the Case\\n\\u00b6 32 Having found that a claim of ineffective assistance of counsel potentially relating to trial strategy may demonstrate possible neglect of the case, we consider whether the circuit court's determination that the defendant failed to establish possible neglect of the case was manifestly erroneous. In the instant case, the defendant asserted at the preliminary inquiry that a member of his jury worked as a correctional officer at the jail in which the defendant himself was detained, the Will County Adult Detention Facility (WCADF). Moreover, the defendant claimed that the correctional officer, McGrath, worked on the defendant's \\\"POD,\\\" that the defendant and McGrath had engaged in \\\"several confrontations,\\\" and that McGrath told other inmates details of the defendant's case to induce those inmates to harass the defendant. The defendant alleged that when he relayed this information to defense counsel, counsel assured the defendant that McGrath would be impartial, and that counsel would rather have McGrath on the jury than \\\" 'anyone else or the venireman who's a State's Attorney.' \\\"\\n\\u00b6 33 The primary fact alleged by the defendant is confirmed in the record. That is, the record of jury selection clearly shows that McGrath worked as a deputy correctional officer in Will County, was seated as an alternate on the defendant's jury, and eventually was seated on the jury proper when another juror became ill. Whether McGrath worked at WCADF or on the defendant's pod is unconfirmed in the trial record. Further, as is to be expected, neither the actual extent of the defendant's relationship with McGrath nor the defendant's conversations with counsel on the subject are on the record.\\n\\u00b6 34 Of course, the preliminary Krankel inquiry provided the opportunity for counsel to shed some light on the defendant's claims, at least in regard to any conversations between counsel and the defendant regarding McGrath. See Moore , 207 Ill. 2d at 78, 278 Ill.Dec. 36, 797 N.E.2d 631 (\\\"During this [preliminary inquiry], some interchange between the trial court and trial counsel regarding the facts and circumstances surrounding the allegedly ineffective representation is usually necessary in assessing what further action, if any, is warranted on a defendant's claim. Trial counsel may simply answer questions and explain the facts and circumstances surrounding the defendant's allegations.\\\"). Indeed, counsel testified at the preliminary inquiry. Troublingly, however, the court asked counsel no questions relating to the defendant's jury claim, and counsel did not otherwise offer any explanation. As of now, the defendant's claims stand unrebutted.\\n\\u00b6 35 If the defendant's factual allegations are true, the seating of McGrath on the jury that eventually found the defendant guilty shocks the conscience. The claims that McGrath had altercations with the defendant in jail and induced other inmates to harass the defendant by sharing details of his case demonstrate actual malice and bias. Trial before a biased jury is structural error and requires automatic reversal. People v. Thompson , 238 Ill. 2d 598, 610, 345 Ill.Dec. 560, 939 N.E.2d 403 (2010). It is difficult to discern any potential strategy defense counsel might have for allowing a juror with demonstrated bias toward his client to serve on a jury.\\n\\u00b6 36 We make no finding as to the credibility of the defendant's factual allegations. However, given the serious nature of the allegations, the absence of any explanation from defense counsel as to the facts and circumstances surrounding the allegations, and the fact that the record shows that McGrath was a Will County correctional officer, we hold that the circuit court's determination that the defendant failed to demonstrate possible neglect of the case was manifestly erroneous. Accordingly, we find that further proceedings on the defendant's posttrial claims of ineffectiveness are warranted under the circumstances presented in this case.\\n\\u00b6 37 B. Failure to Investigate the Defendant's Mental Health Issues\\n\\u00b6 38 We next address the defendant's argument that he showed possible neglect of the case based on his claim that defense counsel failed to investigate his mental health issues. Unlike the issue concerning McGrath, the circuit court addressed this issue at the preliminary Krankel inquiry. Specifically, the court asked defense counsel if he ever believed there was an issue with the defendant's fitness or a proper defense of insanity. Defense counsel replied: \\\"No, Judge. In fact, there was a lot of, um, discussions between myself and [the defendant] that indicated the opposite.\\\" Also, the defendant's allegations regarding his history of mental illness were rebutted by the PSI, in which the defendant reported that he had never been diagnosed with a mental illness. Accordingly, the circuit court's determination that the defendant failed to show possible neglect of his case with regard to this claim was not manifestly erroneous.\\n\\u00b6 39 III. CONCLUSION\\n\\u00b6 40 The judgment of the circuit court of Will County is reversed. The matter is remanded for the appointment of new counsel to represent the defendant on his posttrial claim that defense counsel was ineffective for failing to strike McGrath from the jury.\\n\\u00b6 41 Reversed and remanded.\\nJustices McDade and O'Brien concurred in the judgment and opinion.\\nThough the defendant was represented by two defense attorneys throughout his trial, each of his posttrial claims of ineffectiveness have been levied against only Lenard.\\nIn Lewis , 2015 IL App (1st) 122411, \\u00b6 85, 390 Ill.Dec. 270, 28 N.E.3d 923, the First District collected a number of cases in which defendants successfully overcame the presumption of sound trial strategy.\\nIt is unclear if McGrath, as a correctional officer in Will County, must have worked at WCADF. We will not assume this to be the case.\"}"
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+ "{\"id\": \"1352848\", \"name\": \"PREFERRED AMERICA INSURANCE, a/k/a Ansvar America Insurance Company, Plaintiff-Appellant, v. LINDA DULCEAK, Defendant-Appellee\", \"name_abbreviation\": \"Preferred America Insurance v. Dulceak\", \"decision_date\": \"1999-02-05\", \"docket_number\": \"No. 2\\u201498\\u20140232\", \"first_page\": \"990\", \"last_page\": \"998\", \"citations\": \"302 Ill. App. 3d 990\", \"volume\": \"302\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T20:44:10.888011+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"PREFERRED AMERICA INSURANCE, a/k/a Ansvar America Insurance Company, Plaintiff-Appellant, v. LINDA DULCEAK, Defendant-Appellee.\", \"head_matter\": \"PREFERRED AMERICA INSURANCE, a/k/a Ansvar America Insurance Company, Plaintiff-Appellant, v. LINDA DULCEAK, Defendant-Appellee.\\nSecond District\\nNo. 2\\u201498\\u20140232\\nOpinion filed February 5, 1999.\\nScott R. Britton, of Brenner & Moltzen, Ltd., of Chicago, for appellant.\\nMichael W. Clancy and Nancie Golnick Dorjath, both of Clancy, Higgins & Clancy, Ltd., of St. Charles, for appellee.\", \"word_count\": \"2901\", \"char_count\": \"17714\", \"text\": \"JUSTICE COLWELL\\ndelivered the opinion of the court:\\nPlaintiff, Preferred America Insurance, a/k/a Ansvar America In surance Company (Preferred), filed a complaint for declaratory judgment against defendant, Linda Dulceak (defendant or claimant). The complaint sought to have the circuit court determine whether the judgment entered in a prior, related negligence case, Dulceak v. Cetlinski (No. 94\\u2014L\\u20140421) (prior case), should collaterally estop plaintiff from asserting any liability defense during the arbitration of the present case in which claimant has now brought an uninsured motorist claim against plaintiffs insured, George Dulceak. In the prior case, a jury found George 100% liable for the accident in question. Plaintiff prayed that it be allowed to relitigate all issues concerning liability in the present uninsured motorist (arbitration) proceeding and to raise any appropriate defenses as though no prior trial had taken place.\\nThe parties filed cross-motions for summary judgment. On February 2, 1998, the trial court entered summary judgment in favor of defendant and against plaintiff. The court determined that the arbitration of the present claim must be limited to the issue of the nature and the extent of claimant's damages. The thrust of plaintiffs arguments on appeal is that (1) the trial court erred in allowing the claimant to invoke the doctrine of offensive collateral estoppel against plaintiff; (2) plaintiff was not a party or in privity with a party in the prior case where its insured was found to be 100% liable; and (3) it would be unfair to apply offensive coll\\u00e1teral estoppel in this case. We disagree, and we affirm.\\nPreferred issued a policy of insurance to George J. Dulceak under its former designation, Ansvar America Insurance Company, a member of the Preferred Risk Group. On October 15, 1993, there was a collision at a Kane County intersection involving cars driven by George and by Jennifer Cetlinski respectively. George's spouse, Linda Dulceak, a passenger in the car driven by George, alleged that she was injured as a result of the accident. ,\\nAccording to plaintiff's admissions in the record, Linda filed a lawsuit against Cetlinski (No. 94 \\u2014 L\\u20140421) to recover for her injuries. Cetlinski filed a counterclaim and contribution claim against George, alleging that he was at fault. George tendered the defense of the issues to Preferred, which then hired counsel (Brittain & Ketcham, PC.) to defend George in that action. Pursuant to its obligations under the policy, Preferred paid George's defense counsel for their services in defending George at trial. The jury found that Cetlinski was not at fault in the accident and that George was 100% negligent in causing the accident. Linda did not recover damages in that suit. No appeal was taken from that judgment. At no time, from the time Preferred received notice of the accident until the time that judgment was entered upon the jury's verdict, did Preferred send George any corre spondence or writing by which it informed George that Preferred was providing him a defense pursuant to a reservation of rights or a nonwaiver agreement. Although it appears that Preferred was not a named party to the prior suit, it defended its insured by obtaining counsel and defense counsel sought to show that Cetlinski, not George, was at fault. Preferred states that, as George was a \\\"family member\\\" under its policy, he would not be covered under that policy as to a claim by his spouse. Therefore, he is deemed an \\\"uninsured motorist\\\" as to any claims by his wife.\\nLinda filed a claim against George under the uninsured motorist provisions of George's policy for injuries she allegedly sustained as a result of the automobile accident in October 1993. Plaintiff filed the present complaint for declaratory judgment, asserting that, since it was not a named party to the Cetlinski action, the parties in the matter pending under the uninsured motorist arbitration clause are not the same; therefore, the judgment in the prior case should not operate as collateral estoppel to bar plaintiff from fully litigating all issues concerning liability, and it should be allowed to raise any appropriate defenses at the arbitration proceeding as though no trial had taken place. The trial court entered judgment against Preferred and for Linda, after concluding that Preferred was in privity with George, its insured, and that its interests were protected in the prior trial. Implicit in the court's conclusion was that the judgment in the prior case collaterally estopped plaintiff from relitigating the issue of liability. This timely appeal followed.\\nThe question before this court is whether the trial court properly granted summary judgment to defendant and against plaintiff as a matter of law. We review the trial court's decision de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). A motion for summary judgment should be granted only when the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). Here, the essential and material facts are undisputed. The question presented is a legal one: whether the trial court properly applied the doctrine of col-' lateral estoppel under the facts presented. See In re Paternity of Rogers, 297 Ill. App. 3d 750, 754 (1998).\\nThe doctrine of collateral estoppel or estoppel by verdict, a branch of res judicata, prohibits the relitigation of an issue essential to and actually decided in an earlier proceeding by the same parties or their privies. Rogers, 297 Ill. App. 3d at 755. The basic theory behind the use of the doctrine is that, if two parties undergo a full and fair trial that results in a final judgment, neither party may seek a different result upon the same facts and issues in a subsequent lawsuit. Kessinger v. Grefco, Inc., 173 Ill. 2d 447, 460 (1996). The doctrine is founded upon the need for the finality of judgments. When some specific fact or question has been directly in issue and decided upon and the same fact or question is again put into issue by the same parties or their privies, the former adjudication is conclusive on the parties whether or not the cause of action is the same; further, the parties need not have been arrayed on opposite sides in the prior suit, nor must formal issues have been raised between them. Pechous v. Field Enterprises, Inc., 114 Ill. App. 3d 605, 608 (1983). When properly applied, collateral estoppel promotes fairness and judicial economy by preventing the relitigation in one suit of an identical issue already resolved against the party against whom the bar is sought. Kessinger, 173 Ill. 2d at 460.\\nThe \\\"offensive\\\" use of collateral estoppel occurs when a plaintiff seeks to foreclose a defendant from litigating an issue the defendant has previously litigated unsuccessfully in another action. In re Owens, 125 Ill. 2d 390, 397 (1988). (In this case, Linda, as the claimant, would stand in the position of the plaintiff.) We recognize that our supreme court has cautioned against the indiscriminate application of offensive collateral estoppel where there is no mutuality of parties, but we also note that the mutuality of parties is no longer required. Kessinger, 173 Ill. 2d at 461. Where the minimum elements of the doctrine are satisfied and it is clear that no unfairness will result to the party being estopped, the circuit court may properly conclude that a prior adjudication precludes the relitigation of an issue in the case before it. Kessinger, 173 Ill. 2d at 461, 468. To apply the doctrine, these elements must be satisfied: \\\"(1) the issue decided in the prior suit is identical with the one presented in the pending suit; (2) there was a final judgment on the merits in the prior adjudication; and (3) the party against whom the estoppel is asserted was either a party or in privity with a party in the prior lawsuit.\\\" (Emphasis added.) Kessinger, 173 Ill. 2d at 461.\\nIt appears that plaintiff was not a named \\\"party\\\" in the prior action. However, plaintiff argues that, in the prior suit, it was also not in privity with a party (George) who adequately represented the same legal interest. See People ex rel. Burris v. Progressive Land Developers, Inc., 151 Ill. 2d 285, 296 (1992) (privity is said to exist between parties who adequately represent the same legal interests). Plaintiff suggests that there was a potential conflict of interest between itself and George, its insured. Plaintiff argues that it could very well have been in George's interest to assume 100% liability for the accident and as serts that counsel's primary responsibility was to defend the interest of the insured, not the insurer.\\nTo the extent that we can follow plaintiffs rather disingenuous and strained argument, we find it both untenable and unsupported by the record. We discern no conflict of interest, potential or actual, between plaintiff and George in the prior lawsuit. It is clear from the record that plaintiff chose George's defense counsel, who vigorously sought to show, albeit unsuccessfully, that George was not liable \\u2014 a desirable outcome for and in the interest of the insurer.\\nIt is undisputed that George was adjudicated 100% liable for the accident and this resulted in the entry of a final judgment on the merits. The first two requirements of collateral estoppel have been met. Since it appears that plaintiff was not a named party in the prior suit, the only threshold element left to be satisfied is whether plaintiff was a \\\"privy\\\" of George.\\nWe conclude that plaintiff was in privity with George and that plaintiff is estopped from relitigating any issue or defense with respect to George's liability. It is well settled that the assumption of the insured's defense constitutes a waiver by the insurer of all questions of policy coverage. Apex Mutual Insurance Co. v. Christner, 99 Ill. App. 2d 153, 161 (1968). Absent a clearly communicated reservation of rights by the insurer, if the insurer elects to take over the insured's defense, it will afterwards be estopped, under the equitable doctrine of estoppel in pais, from denying its own liability under the policy; this is ordinarily justified because the insurer has prejudiced the insured's right to control his own defense. Apex, 99 Ill. App. 2d at 161-62 (estoppel in pais operates as the result of the insurer's monopolization of the insured's defense, since the insured, in reliance thereon, refrains from seeking other counsel); see Cowan v. Insurance Co. of North America, 22 Ill. App. 3d 883, 890-91 (1974) (distinguishing between equitable estoppel in pais arising from breach of insurer's contract and collateral estoppel or estoppel by verdict arising from prior adjudication involving parties or their privies). Where the insurer has the duty to defend, that duty includes the right to assume control of the litigation; the purpose of that right is to allow insurers to protect their financial interests in the outcome of the litigation and minimize unwarranted liability claims. Waste Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill. 2d 178, 203 (1991).\\nInsureds and insurers share a special relationship: they are in privity of contract. Waste Management, 144 Ill. 2d at 194. When the insurer retains the attorney to defend the insured, the attorney represents both the insured and the insurer in furthering the interests of each. Waste Management, 144 Ill. 2d at 194. Ordinarily, since the interests of the insurer and the insured are harmonious, there is no conflict and the attorney is able to exercise independent judgment for both clients. If a conflict does arise, the attorney is ethically prohibited from continuing to represent the interests of both the insured and the insurer unless certain steps are taken, which include making full and frank disclosure to the clients and obtaining their consent to continue their representation. Rogers v. Robson, Masters, Ryan, Brumund & Belom, 74 Ill. App. 3d 467, 473 (1979).\\nIn the present case, there is no reservation of rights or nonwaiver agreement or question of policy coverage by the insurer, and the insurer undertook the defense of its insured. There is no evidence of noncooperation or misconduct by the insured. We have not been informed by plaintiff or by the record that any such conflicts between the insurer and the insured occurred. Thus, it appears that their legal interests are essentially identical.\\nThe nonliability of the insured is potentially the most effective bar to any policy claims against the insurer. That is what Preferred undertook to show in defending its insured. Plaintiff has not demonstrated how it was wrongly prejudiced in the first suit or was prevented from presenting its defense. Where the possibility exists of making a successful defense on behalf of the insured, the insurer has much to gain from placing its first reliance upon this fine of action, since, by declining to defend, it would sacrifice all opportunity to contest the injured party's claim because of the likely operation of collateral estoppel. See Apex, 99 Ill. App. 2d at 161-62.\\nWhere one party is liable to indemnify another against a particular loss, either by law or contract, the primary liability is upon the party indemnifying. In such a case, the party bound to indemnify is in privity with the party to be indemnified, and the indemnifying party therefore has a direct interest in defending any suit whereby there may be a recovery against the party indemnified as to the subject matter of the indemnity. Sanitary District of Chicago v. United States Fidelity & Guaranty Co., 392 Ill. 602, 612 (1946); Drennan v. Bunn, 124 Ill. 175, 188 (1888). \\\"The party to be indemnified, moreover, is, manifestly, directly interested in having him defeat all recovery in such suit, and so their respective interests and duties in respect of such suit must be' the same.\\\" Drennan, 124 Ill. at 188. Thus, \\\"[wjhere the party indemnifying has proper notice of the pendency of the action he is bound by his obligation to indemnify to defend, and is bound by the judgment entered the same as if he were a party to the cause.\\\" Sanitary District, 392 Ill. at 612.\\nAn insurer that defends an action for negligence within the policy coverage against its insured cannot claim, after an adverse judg ment against the insured, that it is not bound by the prior adjudication when the question in both the original suit and the subsequent suit against the insurer is the negligence of the insured. Cowan, 22 Ill. App. 3d at 891. We recognize, however, that the reason for this rule does not exist when there is no identity of interests between the insured and the insurer in the original tort action (Cowan, 22 Ill. App. 3d at 891), but that is not the case here.\\nDespite plaintiff's speculation that there may be a potential conflict of interest between it and its insured, we fail to see any actual conflict supported by the record which would obviate the insured's claim of privity. Plaintiff is collaterally estopped from relitigating the issue of its insured's liability. Plaintiff undertook the defense of its insured with respect to the issue of his liability and did not affirmatively reserve its rights in any manner or demonstrate an actual conflict of interest.\\nPlaintiff had notice of the prior action and, like its insured, had the incentive and opportunity to resist, through its choice of counsel and direction of the defense of the action, any finding of liability whatsoever. Regardless of the ground for invoking the estoppel against plaintiff, whether through estoppel in pais or collateral estoppel, plaintiff should not be permitted to relitigate the issue of liability. We find no unfairness or injustice in estopping plaintiff from doing so under the facts presented. If plaintiff is allowed to try the issue of liability before two different triers of fact, the mischievous consequences of inconsistent judgments become apparent. See, e.g., United States Gypsum Co. v. Admiral Insurance Co., 268 Ill. App. 3d 598, 624-25 (1994) (unnecessary, duplicative proceedings; placing insured in a conflict situation with the potential for raising charges of perjury against insured).\\nAs defendant points out, the reasons for estopping plaintiff are not difficult to see. Having failed to persuade a jury that the accident was Cetlinski's fault, plaintiff now seeks to relitigate this before the arbitration panel. This exposes Linda to the risk that the arbitration panel might disagree with the jury and assign some or all of the blame for the accident to Cetlinski. Linda could then be prevented from recovering for some or all of her loss because two separate finders of fact judged the same facts differently. It would be unfair to Linda, a passenger, to recover either nothing or a reduced amount because plaintiff was allowed to present the same factual argument to two different audiences in the hope of obtaining a different result. We see no reason to allow plaintiff another bite of the apple.\\nThe judgment of the circuit court of Du Page County is affirmed.\\nAffirmed.\\nTHOMAS and RAPR JJ., concur.\"}"
ill/1596965.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"1596965\", \"name\": \"AMERICAN NATIONAL BANK AND TRUST COMPANY, Plaintiff, v. ROBERT C. THOMAS et al., Defendants (Grazyna M. Thomas et al., Third-Party Plaintiffs-Appellants; The United States of America et al., Third-Party Defendants-Appellees\", \"name_abbreviation\": \"American National Bank & Trust Co. v. Thomas\", \"decision_date\": \"1997-05-22\", \"docket_number\": \"No. 2\\u201496\\u20140833\", \"first_page\": \"343\", \"last_page\": \"348\", \"citations\": \"288 Ill. App. 3d 343\", \"volume\": \"288\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T18:35:43.472380+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"AMERICAN NATIONAL BANK AND TRUST COMPANY, Plaintiff, v. ROBERT C. THOMAS et al., Defendants (Grazyna M. Thomas et al., Third-Party Plaintiffs-Appellants; The United States of America et al., Third-Party Defendants-Appellees.\", \"head_matter\": \"AMERICAN NATIONAL BANK AND TRUST COMPANY, Plaintiff, v. ROBERT C. THOMAS et al., Defendants (Grazyna M. Thomas et al., Third-Party Plaintiffs-Appellants; The United States of America et al., Third-Party Defendants-Appellees.\\nSecond District\\nNo. 2\\u201496\\u20140833\\nOpinion filed May 22, 1997.\\nRobert C. Thomas, of Chicago, appellant pro se.\\nJames Burton Burns, United States Attorney, of Chicago, Loretta C. Argrett, Assistant United States Attorney General, and Anthony T. Sheehan and William S. Estabrook, both of Department of Justice, all of Washington, D.C., for appellees.\", \"word_count\": \"1984\", \"char_count\": \"11718\", \"text\": \"JUSTICE INGLIS\\ndelivered the opinion of the court:\\nThis action arose from a suit brought to quiet title to the beneficial interest in an Illinois land trust on which third-party defendant, the Internal Revenue Service (IRS), claims a lien for the unpaid income taxes of third-party plaintiff, Robert C. Thomas, Sr. (Thomas, Sr.). Third-party plaintiffs, Thomas, Sr., Grazyna Thomas, Robert C. Thomas, Jr., and Lynn Trotter (collectively, plaintiffs), appeal from the order of the circuit court granting the IRS' motion to dismiss for lack of jurisdiction pursuant to section 2 \\u2014 619(a)(1) of the Code of Civil Procedure (735 ILCS 5/2 \\u2014 -619(a)(1) (West 1994)).\\nOn February 25, 1977, Oak Brook Bank (Bank) and Dane and Virginia Erickson established Oak Brook Bank trust No. 8 \\u2014 1297 (trust). The res of the trust was a single-family residence located in Hinsdale. The trust instrument provided:\\n\\\"No assignment of any beneficial interest hereunder shall be binding on the Trustee until the original or a duplicate copy of the assignment, in the form as the Trustee may approve, is lodged with the Trustee and its acceptance indicated thereon, and the reasonable fees of the Trustee for the acceptance thereof paid; and every assignment of any beneficial interest hereunder, the original or duplicate of which shall not have been lodged with the trustee, shall be void as to all subsequent assignees or purchasers without notice.\\\"\\nOn November 13, 1979, the Ericksons assigned the beneficial interest in the trust to Thomas, Sr., making him the sole beneficiary. The assignment was lodged with and acknowledged by the Bank on December 21, 1979. Thomas, Sr., amended the terms of the trust on January 31, 1980, to provide that the beneficial interest would vest in his children upon his death; Thomas, Sr., still retained the full power of direction with respect to the beneficial interest. This amendment was also lodged with and acknowledged by the Bank.\\nOn January 19, 1988, Thomas, Sr., obtained a home equity line of credit from American National Bank, which he secured by a mortgage on the res of the trust. The line of credit was for 5 years and renewable for a period of up to 15 years.\\nOn April 21, 1990, Thomas, Sr., married his current wife, Grazyna, and assigned his entire beneficial interest in the trust to Grazyna and his children. The assignment form stated that an executed copy of the form should be lodged with the Bank as trustee and that the assignment was not binding on the trustee unless and until the assignment was lodged with the trustee and its acceptance was indicated thereon. The plaintiffs never presented the assignment form to the Bank for acceptance.\\nOn August 6, 1990, and on September 10, 1990, the IRS made assessments against Thomas, Sr., for unpaid income taxes for the years 1984 and 1985. The IRS filed a lien against Thomas, Sr., on May 14, 1991, for the taxes assessed against him.\\nThomas, Sr.'s home equity line of credit expired on January 19, 1993, and American National Bank refused to renew the line of credit because of the federal tax lien. Late in 1993 or early in 1994, Thomas, Sr., disclosed the existence of the trust and the assignment of his beneficial interest to his wife and children to the IRS during negotiations. The IRS served a notice of levy on Thomas, Sr., and the Bank on February 4, 1994, and served the Bank with a summons to testify and produce its records concerning the trust. On May 10, 1994, the IRS seized the beneficial interest in and power of direction of the trust.\\nOn May 25, 1994, American National Bank instituted foreclosure proceedings against Thomas, Sr., and the Bank, seeking to foreclose its mortgage on the res of the trust. The next day, Grazyna and the children filed a quiet title action against the IRS, alleging that they owned the beneficial interest, which the IRS was wrongfully trying to levy. Grazyna and the children and the IRS entered an agreed order on June 2, 1994, that the IRS would not sell the beneficial interest during the pendency of the litigation and on August 12, 1994, the two cases were consolidated.\\nThe IRS informed Grazyna and the children that it believed their state action was improper and that the only way to contest the seizure was to bring a wrongful levy action in federal court. Grazyna and the children voluntarily dismissed the quiet title action without prejudice and asked the IRS to release the levy in a letter dated October 12, 1994. The IRS denied their request on November 1, 1994, by let ter. The IRS' letter indicated that Grazyna and the children would have six months in which to bring suit in federal court to contest the denial of their request. They filed their wrongful levy action on June 5, 1995, and, following the IRS' motion to dismiss the action as untimely, voluntarily dismissed the action on September 8, 1995.\\nOn August 16, 1995, the circuit court denied Grazyna and the children's motion to reinstate the quiet title suit. Instead, the court gave them leave to file a third-party complaint. On September 6, 1995, plaintiffs filed the complaint to quiet title which is at issue in this appeal.\\nPlaintiffs alleged in their complaint that the lien and levy against the property were invalid because the IRS failed to advertise or sell the property in a timely manner, because the IRS failed to record its lien against the property, and because the property was exempt from levy as it was Thomas, Sr.'s principal residence. Plaintiffs also alleged in the alternative that the IRS levy was wrongful because Grazyna and the children alone held the beneficial interest in the land trust and because they were not liable for Thomas, Sr.'s unpaid taxes.\\nThe IRS made a special appearance in the circuit court in order to challenge the court's jurisdiction over plaintiff's suit to quiet title. On April 23, 1996, the IRS filed a section 2 \\u2014 619 motion to dismiss on the grounds that plaintiffs lacked standing to bring a quiet title suit because the transfer of the beneficial interest to them was invalid with respect to the IRS. The circuit court granted the IRS' motion to dismiss on June 17, 1996. Plaintiffs timely appealed.\\nOur review of a dismissal pursuant to section 2 \\u2014 619(a)(1) is de novo. Village of Riverwoods v. BG Ltd. Partnership, 276 Ill. App. 3d 720, 724 (1995). We will dismiss the complaint only if there exists no set of facts that could entitle the plaintiff to recover, and we regard all well-pleaded facts in the plaintiff's complaint as true. Village of Riverwoods, 276 Ill. App. 3d at 724. We may affirm the trial court's ruling on any ground supported by the record, even if it differs from the trial court's reasoning. Shramuk v. Snyder, 278 Ill. App. 3d 745, 748 (1996).\\nThe jurisdiction of the trial court is the only matter before us on appeal as it was the basis upon which the IRS' motion to dismiss was brought. The United States, as sovereign, is immune from suit unless it consents to be sued, and this consent is a prerequisite to jurisdiction over the subject matter of the suit. Amwest Surety Insurance Co. v. United States, 28 F.3d 690, 694 (7th Cir. 1994). Where Congress has attached conditions to the waiver of sovereign immunity, those conditions are strictly construed. Amwest, 28 F.3d at 694.\\nWe first examine whether the court has jurisdiction to hear Grazyna and the children's action to quiet title. If, as the IRS asserts, Thomas, Sr.'s assignment was ineffective, then Grazyna and the children hold no title to the beneficial interest and may not challenge the IRS' actions. If, however, the assignment was effective, as plaintiffs assert, then Grazyna and the children are still barred from pursuing the present action.\\nThe only remedy Grazyna and the children are permitted to seek is through a wrongful levy action. Section 7426(a)(1) of the Internal Revenue Code provides:\\n\\\"(1) Wrongful Levy. \\u2014 If a levy has been made on property *, any person (other than the person against whom is assessed the tax out of which such levy arose) who claims an interest in or lien on such property and that such property was wrongfully levied upon may bring a civil action against the United States in a district court of the United States.\\\" (Emphasis added.) 26 U.S.C.A. \\u00a7 7426(a)(1) (West 1989).\\nThis statute does not extend the United States' waiver of sovereign immunity to state courts; the waiver extends only to federal district courts. Moreover, a wrongful levy suit is the exclusive remedy \\\"where suit is by a nontaxpayer third party and \\u00a7 7426(a)(1) applies, and the alternative basis proffered for waiver of sovereign immunity is an action to quiet title under \\u00a7 2410(a)(1) [(28 U.S.C.A. \\u00a7 2410(a)(1) (West 1994))].\\\" Fidelity & Deposit Co. v. City of Adelanto, 87 F.3d 334, 335 (9th Cir. 1996). The instant case is exactly the situation depicted in the holding of Fidelity & Deposit, and, thus, the only action that may lie is a wrongful levy suit under section 7426(a)(1).\\nPlaintiffs assert that a quiet title suit is a proper action to challenge an IRS levy, citing to Harrell v. United States, 13 F.3d 232 (7th Cir. 1993). Harrell is distinguishable, however, because the individual bringing the action to quiet title was both the titleholder and the taxpayer. Harrell, 13 F.3d at 233. Here, however, the titleholders are not the taxpayers, but are third parties. Fidelity & Deposit is squarely in point and prohibits Grazyna and the children from bringing a quiet title action. Fidelity & Deposit, 87 F.3d at 335. Assuming that Grazyna and the children held the title to the beneficial interest and are not the taxpayer, they may challenge the IRS' action only through a wrongful levy suit. Accordingly, regardless of whether or not Grazyna and the children hold title to the beneficial interest, the circuit court was without jurisdiction to hear their claim. The trial court thus correctly dismissed the action with respect to Grazyna and the children.\\nWe now consider whether Thomas, Sr., may maintain the ac tion. The IRS concedes that Thomas, Sr., is a proper party to bring a quiet title action because he is the owner of the beneficial interest. Further, Harrell explicitly allows the taxpayer to bring a quiet title action to challenge the IRS' lien on his property. Harrell, 13 F.3d at 234. As Thomas, Sr., is the taxpayer and conceded owner of the beneficial interest, he may properly bring a quiet title action pursuant to the section 2410 waiver of the government's sovereign immunity. Accordingly, we hold that the trial court erred by dismissing Thomas, Sr.'s quiet title action with prejudice. We note, parenthetically, that the action is styled as a third-party complaint and may have been properly dismissed as to its form. We direct the trial court to allow Thomas, Sr., to reinstate his quiet title action as a first-party plaintiff.\\nFor the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed in part and reversed in part, and the cause is remanded for further proceedings consistent with this opinion.\\nAffirmed in part and reversed in part; cause remanded.\\nGEIGER, P.J., and McLAREN, J., concur.\"}"
ill/182686.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"182686\", \"name\": \"DAVID ORR et al., Plaintiffs-Appellees, v. JIM EDGAR, Governor, et al., Defendants-Appellants (The City of Chicago et al., Intervening Plaintiffs-Appellees)\", \"name_abbreviation\": \"Orr v. Edgar\", \"decision_date\": \"1996-09-26\", \"docket_number\": \"Nos. 1\\u201496\\u20141613, 1\\u201496\\u20142178, 1\\u201496\\u20143050 cons.\", \"first_page\": \"1088\", \"last_page\": \"1104\", \"citations\": \"283 Ill. App. 3d 1088\", \"volume\": \"283\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T20:55:31.533685+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"DAVID ORR et al., Plaintiffs-Appellees, v. JIM EDGAR, Governor, et al., Defendants-Appellants (The City of Chicago et al., Intervening Plaintiffs-Appellees).\", \"head_matter\": \"DAVID ORR et al., Plaintiffs-Appellees, v. JIM EDGAR, Governor, et al., Defendants-Appellants (The City of Chicago et al., Intervening Plaintiffs-Appellees).\\nFirst District (6th Division)\\nNos. 1\\u201496\\u20141613, 1\\u201496\\u20142178, 1\\u201496\\u20143050 cons.\\nOpinion filed September 26, 1996.\\nJames E. Ryan, Attorney General, of Chicago (Barbara A. Preiner, Solicitor General, Mary E. Welsh, Paul Racette, and Marcia L. McCormick, Assistant Attorneys General, of counsel), for appellants.\\nMichael Kreloff and Keck, Mahin & Cate (David R. Melton, of counsel), both of Chicago, for appellees David Orr and Monica Chavez-Silva.\\nCornfield & Feldman, of Chicago (Michael H. Holland, of counsel), for appellees Illinois Federation of Labor and Congress of Industrial Organizations.\\nMeites, Frackman, Mulder & Burger, of Chicago (Thomas R. Meites and Paul W. Mollica, of counsel), for appellee League of Women Voters of Illinois.\\nSusan S. Sher, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Jean Dobrer, Assistant Corporation Counsel, of counsel), for appellees City of Chicago, Lorraine Dixon, and Vilma Colom.\", \"word_count\": \"6444\", \"char_count\": \"40624\", \"text\": \"PRESIDING JUSTICE ZWICK\\ndelivered the opinion of the court:\\nIn these consolidated appeals, we are called upon to review the validity of the two-tier system of voter registration implemented by defendants. For the reasons that follow, we hold that this two-tier system, as implemented by defendants, is violative of state law and infringes upon fundamental constitutional rights.\\nIn granting summary judgment in favor of the plaintiffs, the circuit court held that the two-tier system, which implemented the National Voter Registration Act of 1993 (NVRA) (42 U.S.C. \\u00a7 1973 et seq. (West 1994)), violated certain provisions of both the Illinois Vehicle Code (625 ILCS 5/1\\u2014100 et seq. (West 1994)) and the State Mandates Act (30 ILCS 805/1 et seq. (West 1994)). The court also held that the two-tier system of registration violated both the equal protection clause and article III, section 3, of the Illinois Constitution of 1970, which provides for free and equal elections. In addition, the court ordered local election authorities to treat voters who are registered pursuant to NVRA as properly registered to vote in state and local elections in Illinois.\\nBACKGROUND\\nBefore embarking upon an analysis of the issues presented, it is necessary to review the background of voter registration in Illinois. Under the Illinois Constitution of 1970, the qualifications for voting include United States citizenship, attainment of age 18, permanent residency, and registration. Ill. Const. 1970, art. III, \\u00a7 1. The General Assembly is vested with the authority to establish registration requirements. Ill. Const. 1970, art. III, \\u00a7 1. The Illinois State Board of Elections is charged with powers of general supervision over the administration of registration and election laws in Illinois. Ill. Const. 1970, art. III, \\u00a7 5.\\nThe Illinois Election Code provides that United States citizens who are over the age of 18 years and have been Illinois residents for at least 30 days may register to vote. 10 ILCS 5/4\\u20142, 5\\u20142, 6\\u201427 (West 1994). The Election Code establishes a unitary registration system for voting in all elections, i.e., registration with the local election authority qualifies a voter to vote in all state, federal and local elections. 10 ILCS 5/1\\u20141 et seq. (West 1994). Implementation of this unitary system is the responsibility of local election authorities, such as county clerks or commissioners of local boards of election. 10 ILCS 5/4\\u20144, 5\\u20144, 6\\u201421 (West 1994). Among the duties of local election authorities are the appointment, training, certification and supervision of deputy registrars, who conduct voter registration. 10 ILCS 5/4\\u20146.2(b), 5\\u201416.2(b), 6\\u201450.2(b) (West 1994).\\nThe Election Code provides that eligible citizens may register to vote by personally appearing before a deputy registrar by presenting proof of identity and by signing, under oath, a form stating their legal age, residency, and citizenship. Registration may be accomplished by mail in limited circumstances. See 10 ILCS 5/4\\u20144, 4\\u20146.1, 4\\u20146.2, 4\\u20148, 4\\u201410, 5\\u20144, 5\\u20145, 5\\u20146, 5\\u20149, 5\\u201416.1, 5\\u201416.2, 6\\u201429, 6\\u201435, 6\\u201450.1, 6\\u201450.2 (West 1994).\\nThe Election Code requires that the Secretary of State designate a reasonable number of employees at each driver's license facility to serve as deputy registrars. 10 ILCS 5/4\\u20146.2 (West 1994). It also requires that employees of the Department of Public Aid and of certain civic and labor organizations must be appointed on written request. 10 ILCS 5/4\\u20146.2 (West 1994).\\nIn 1990, the Illinois legislature passed an amendment to the Illinois Vehicle Code, which required that \\\"each person\\\" applying for a new or corrected driver's license, identification card, or permit \\\"shall be notified\\\" of the opportunity to register to vote; such notification may be made in writing or verbally by an employee of the Secretary of State. 625 ILCS 5/2\\u2014105 (West 1994). In addition, the Secretary of State was obligated to promulgate such rules as may be necessary for the efficient execution of the duties imposed under this amendment. 625 ILCS 5/2\\u2014105 (West 1994). Although explicitly required by statute to do so, the Secretary of State failed to issue rules implementing this statute.\\nIn 1993, Congress enacted the National Voter Registration Act (NVRA), which established procedures designed to increase the number of eligible citizens who register to vote in federal elections and to protect the integrity of the electoral process. 42 U.S.C. \\u00a7 1973gg(b)(1), (b)(3) (1994). The provisions of NVRA required that citizens be given the opportunity to register to vote in federal elections simultaneously with their application for a driver's license. NVRA also mandated that each state include a voter registration application form for federal elections as part of an application for a driver's license. 42 U.S.C. \\u00a7 1973gg\\u20142, 1973gg\\u20143 (1994). In addition, NVRA permitted registration by mail (42 U.S.C. \\u00a7 1973gg\\u20144 (1994)) and at offices that provide public assistance or state-funded programs primarily engaged in providing services to persons with disabilities (42 U.S.C. \\u00a7 1973gg\\u20145(a)(2) (1994)), as well as at certain other governmental offices, as designated by the state (42 U.S.C. \\u00a7 1973gg\\u20145(a)(3) (1994)).\\nIn registering under NVRA, applicants are required to sign, under penalty of perjury, a form setting forth their eligibility to vote, which includes an affirmation as to their age, residency, and citizenship. 42 U.S.C. \\u00a7 1973gg\\u20143(b) (1994). NVRA permits deputy registrars who are dissatisfied with an applicant's qualifications to forward that applicant's registration card to local election authorities for further verification. A knowing failure to notify authorities of a suspect registration constitutes a federal crime. 42 U.S.C. \\u00a7 1973gg\\u201410(2)(A) (1994). Although application for NVRA registration may be accomplished by mail, states are authorized to require that first-time voters appear in person to cast their ballot. 42 U.S.C. \\u00a7 1973gg\\u20144(c) (1994).\\nThe State of Illinois failed to implement procedures to facilitate compliance with the terms of NVRA by the statutory deadline of January 1, 1995. Thereafter, several plaintiffs, including the Association of Community Organizations for Reform Now (ACORN), brought suit against defendants in the Northern District of Illinois for their failure to comply with the terms of NVRA (ACORN litigation). Defendants claimed that NVRA unconstitutionally infringed upon the State's power to govern state and local elections. In August 1995, the United States Court of Appeals for the Seventh Circuit rejected defendants' claim, holding that the passage of NVRA was a proper exercise of congressional power to regulate federal elections. The court issued an injunction commanding defendants to comply with the provisions of NVRA, but ruled that the State may maintain a separate voting registration record for its state and local elections. See Association of Community Organizations for Reform Now (ACORN) v. Edgar, 880 F. Supp. 1215 (N.D. Ill. 1995), mod. affd, 56 F.3d 791 (7th Cir. 1995).\\nDefendants subsequently implemented a two-tier system of voter registration, creating dual and separate electorates for state and federal elections. Under this system, persons who register under NVRA provisions are registered to vote in federal elections only. Unless those persons also register a second time to vote in state and local elections, they are restricted on election day to casting ballots for federal offices only.\\nTHE CIRCUIT COURT LITIGATION\\nDavid Orr, the Illinois Federation of Labor and Congress of Industrial Organizations, and Monica Chavez-Silva (collectively, the Orr plaintiffs) challenged the two-tier system, claiming that it violated the notification requirements of the Vehicle Code. 625 ILCS 5/2\\u2014105 (West 1994). The Orr plaintiffs also alleged that the two-tier system constituted an unfunded service mandate, in violation of the State Mandates Act (30 ILCS 805/1 et seq. (West 1994)).\\nThe League of Women Voters of Illinois (the League) then filed a similar action, asserting, inter alia, that the two-tier system violated the equal protection clause of the Illinois Constitution (Ill. Const. 1970, art. I, \\u00a7 2), as well as the guarantee of free and equal elections (Ill. Const. 1970, art. III, \\u00a7 3). These two actions were consolidated by the trial court.\\nSubsequently, the City of Chicago (the City) and two of its aider-men, Lorraine Dixon and Vilma Colom, were permitted to file a complaint as intervening plaintiffs in the consolidated lawsuits. The City and the aldermen joined in the constitutional claims asserted by the League, as well as the Orr plaintiffs' claim that the two-tier system violated the State Mandates Act.\\nFollowing denial of defendants' motions to dismiss the complaints, plaintiffs moved for summary judgment on the above claims. On May 1, 1996, after consideration of the pleadings, memoranda of law, arguments of counsel, and admissible portions of several affidavits, the trial court entered summary judgment on each of the above claims in favor of the Orr plaintiffs and the League.\\nIn its order, the trial court held that the Secretary of State violated the notice provisions contained in the Vehicle Code (625 ILCS 5/2\\u2014105 (West 1994)) by failing to specifically notify each applicant for a new or renewed driver's license or identification card of his or her right to register to vote in all elections. The court found that the posting of a sign in the driver's license facilities was insufficient and did not satisfy the statute's requirement that \\\"each\\\" applicant be notified. The court also found that the implementation of the two-tier system of registration exacerbated this violation, frustrating the purpose of the Vehicle Code's notice requirement. In ruling, the court specifically noted that \\\"few, if any persons would knowingly limit their voting options at the point of registration.\\\" Accordingly, the court ordered the Secretary of State to institute procedures designed to ensure compliance with the notice provision of the Vehicle Code. Specifically, the court found that section 2\\u2014105 of the Vehicle Code required the Secretary to provide actual notice to each individual applicant, either orally or in writing, of the opportunity to register to vote in all elections.\\nIn addition, the court held that defendants' adoption of a two-tier system of registration and voting constituted an unfunded mandate in violation of the State Mandates Act. 30 ILCS 805/1 et seq. (West 1994). The court observed that the \\\"state government was left to its own judgment as to the mode of implementation\\\" of NVRA and that defendants had selected a form of compliance that was \\\"most costly, most burdensome, [and resulted in the] most disenfranchisement.\\\" Consequently, the court determined that unless and until the General Assembly provided the necessary funding, local election authorities had no obligation to implement the two-tier system and could, instead, continue to operate a unitary registration and voting system.\\nThe court also held that defendants' adoption of the two-tier system was a \\\"manifest\\\" classification of the Illinois voting population and violated the \\\"free and equal elections\\\" clause, as well as the equal protection clause of the Illinois Constitution. The court found registration and voting to be fundamental rights and determined that the two-tier system constituted the most restrictive means available of complying with NVRA. The court ordered that all voters registered under NVRA were to be treated in the same manner as other registered voters in Illinois, fully able to participate in state and local elections as well as federal elections.\\nPOST-JUDGMENT LITIGATION\\nDefendants appealed the trial court's grant of summary judgment, and the Illinois Supreme Court denied defendants' motion for a direct appeal of that ruling. On June 21, 1996, the trial court issued a conditional stay of the summary judgment order. Defendants thereafter appealed the conditional stay, and that appeal was consolidated with the appeal of the May 1, 1996, grant of summary judgment.\\nOn August 22, 1996, the Illinois Supreme Court entered a stay of both trial court orders, pending a decision by this court. On August 28, 1996, pursuant to a motion filed by the City and aldermen, the trial court entered an order which clarified the prior ruling of May 1, 1996. In the August 28, 1996, order the court held that the City and aldermen were entitled to the same relief awarded the other plaintiffs on the claim brought under the State Mandates Act and on their constitutional claims. Accordingly, the trial court ordered that the grant of summary judgment entered May 1, 1996, also applied to the City. Defendants subsequently filed a separate notice of appeal, challenging this order, and that case was consolidated with the two previously filed appeals.\\nDue to the gravity of the issues presented and the proximity of the upcoming elections, the briefing schedules and oral arguments in these consolidated appeals were expedited.\\nSTANDARD OF REVIEW\\nA motion for summary judgment should be granted when the pleadings, depositions, admissions, and affidavits before the court establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2\\u20141005 (West 1994); Kolakowski v. Voris, 83 Ill. 2d 388, 398, 415 N.E.2d 397 (1981). Courts of review consider orders of summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992).\\nPLAINTIFFS' VEHICLE CODE CLAIMS\\nWe initially address defendants' argument that the trial court erred in ruling that the conduct of the Secretary of State violated the voter-registration notice provisions contained in the Illinois Vehicle Code.\\nApplicants who present themselves at driver's licensing facilities must, of necessity, deal with an employee of the Secretary's office. Since at least November 1995, as a way of complying with the notification requirements of NVRA, employees at licensing facilities have received a \\\"prompt\\\" on their computer screens telling them to inquire whether the applicant wishes to \\\"register to vote under NVRA,\\\" i.e., for federal-only elections. The employee is instructed to ask only whether the applicant desires to register to vote under the provisions of NVRA (i.e., for federal-only elections), not whether the applicant wishes to register to vote generally (i.e., for state and local elections as well). It is only if the applicant specifically inquires about voting in all elections that he or she is directed to a deputy registrar, who can then register that applicant to vote in all elections.\\nNotwithstanding the mandates contained in NVRA, section 2\\u2014105 of the Illinois Vehicle Code has, since 1990, required the Secretary to notify \\\"each person\\\" applying for services at a driver's license facility that he or she \\\"may register at such station to vote.\\\" 625 ILCS 5/2\\u2014105 (West 1994). Notice can be either oral or in writing. Because section 2\\u2014105 was enacted before NVRA, it is clear that this provision contemplates that the Secretary will give notice to applicants of their right to register to vote in all elections, state and local as well as federal. However, the Secretary of State's only attempt at compliance was to post a sign within the facility which stated, \\\"You may be able to register to vote at this facility. For more information, please ask at the service counter.\\\" In granting summary-judgment, the trial court held that section 2\\u2014105 requires individualized written or oral notification to each applicant of his or her right to register to vote in all elections. The court rejected the Secretary's position that posting a sign at each licensing facility is sufficient to satisfy the requirements of section 2\\u2014105.\\nThe Secretary concedes that NVRA requires that each applicant be given individual notice of the opportunity to register for federal elections by a member of his staff as part of the driver's licensing process. Curiously, however, the Secretary does not interpret the Illinois Vehicle Code, which specifically requires that \\\"each person\\\" be given oral or written notice of his or her opportunity to register to vote, in the same way. The Secretary takes the position that the notice requirements set forth in section 2\\u2014105 of the Vehicle Code are satisfied by simply posting a sign in each facility stating \\\"You may be able to register to vote at this facility. For more information, please ask at the service counter.\\\" According to the Secretary, such a sign gives \\\"each person\\\" sufficient notice \\\"in writing\\\" of his or her registration rights consistent with the requirements of the Vehicle Code.\\nIt is axiomatic that a statute should be interpreted so as to give meaning to each term or phrase that appears in the statute. Hirschfield v. Barrett, 40 Ill. 2d 224, 230, 239 N.E.2d 831 (1968); Flowers v. City of Moline, 251 Ill. App. 3d 348, 352, 622 N.E.2d 38 (1993). While the express language of section 2\\u2014105 permits notice to be given \\\"in writing,\\\" which could arguably be done through the posting of a sign, it also expressly requires that \\\"such notification\\\" be given to \\\"each\\\" applicant. The Secretary's interpretation of section 2\\u2014105 as simply requiring the posting of a sign effectively reads the term \\\"each\\\" out of the statutory language.\\nThe word \\\"each\\\" is defined in relevant part as follows:\\n\\\"A distributive adjective pronoun, which denotes or refers to every one of the persons or things mentioned; every one of two or more persons or things, composing the whole, separately considered.\\\" (Emphasis added.) Black's Law Dictionary 507 (6th ed. 1990).\\nOur supreme court has noted that \\\"each\\\" means every one of the two or more individuals composing the whole, considered separately from the rest. Volunteers of America v. Peirce, 267 Ill. 406, 415, 108 N.E. 318 (1915); Auger v. Tatham, 191 Ill. 296, 300-01, 61 N.E. 77 (1901); Knickerbocker v. People ex rel. Butz, 102 Ill. 218, 233 (1882) (Scott, J., dissenting). Thus, when the General Assembly specified that \\\"each\\\" applicant must be notified, it plainly contemplated an individual notice given separately to each applicant. Thus, contrary to the Secretary's contention, the actual notice requirements contained in section 2\\u2014105 do not allow the Secretary to merely give constructive notice by the posting of a sign.\\nThe record indicates that approximately 15,000 voters per month are being registered as \\\"federal only\\\" voters. Most of these voters are being registered at the Secretary of State's driver's license examination facilities. Yet, the Secretary has offered no explanation as to why so many of our citizens would at the time of registration intentionally limit their opportunity to fully participate in state and local elections, or, conversely, would elect to register twice, once for federal-only elections and then again for federal, state and local elections. Logic and reason compel the conclusion that if these citizens had been given meaningful notice of their opportunity to register for all elections when they first approached one of the Secretary's employees, there would be no need to separately register anyone as a \\\"federal only\\\" voter. To put it plainly and directly, few, if any, citizens would consciously choose to wait in two separate lines and make two separate applications in order to register to vote if they were informed, as required under section 2\\u2014105 of the Vehicle Code, that the task could be accomplished with a single application. We conclude that the Secretary's interpretation of section 2\\u2014105 of the Vehicle Code is incorrect.\\nSTATE MANDATES ACT\\nDefendants also challenge the trial court's ruling that adoption of a two-tier system of registration and voting constituted an unfunded mandate in violation of the State Mandates Act. 30 ILCS 805/1 et seq. (West 1994). In support of this challenge, defendants first argue that the trial court lacked jurisdiction to rule on this issue because plaintiffs failed to exhaust their administrative remedies by proceeding before the Department of Commerce and Community Affairs prior to filing suit in the circuit court. We find this argument unpersuasive.\\nOur supreme court's most recent pronouncement on this issue appears in Employment Mutual Cos. v. Skilling, 163 Ill. 2d 284, 644 N.E.2d 1163 (1994), where a similar argument was rejected. In Skilling, the supreme court noted that although Illinois courts have original jurisdiction over all justiciable matters (Ill. Const. 1970, art. VI, \\u00a7 9), the legislature may vest exclusive original jurisdiction in an administrative agency. Skilling, 163 Ill. 2d at 287. However, where a legislative enactment purports to divest the circuit courts of their original jurisdiction through a comprehensive statutory administrative scheme, it must do so explicitly. Skilling, 163 Ill. 2d at 287, citing People v. NL Industries, 152 Ill. 2d 82, 96-97, 604 N.E.2d 349 (1992).\\nWe have carefully examined the State Mandates Act and find that it contains no language expressly granting the Department of Commerce and Community Affairs (DCCA) exclusive jurisdiction over claims arising thereunder, and it does not divest the circuit courts of jurisdiction to hear such claims. See Skilling, 163 Ill. 2d at 287; NL Industries, 152 Ill. 2d at 97. Accordingly, concurrent jurisdiction is vested in the circuit courts and in the DCCA.\\nThe doctrine requiring exhaustion of administrative remedies is applicable only where the administrative agency has exclusive jurisdiction to hear the action. See Skilling, 163 Ill. 2d at 288; NL Industries, 152 Ill. 2d at 95-96. We therefore conclude that the exhaustion doctrine has no relevance in the case at bar, since DCCA and the circuit courts have concurrent jurisdiction.\\nWe now examine the merits of plaintiffs' claim brought pursuant to the State Mandates Act (30 ILCS 805/1 et seq. (West 1994)). Defendants argue that the trial court erred in finding a violation of this statute because their adoption of the two-tier system of voter registration did not constitute an unfunded state mandate. We disagree.\\nState mandates include any state-initiated statutory or executive action that requires a local government to establish, expand, or modify its activities, in such a way as to necessitate additional expenditures from local revenues. 30 ILCS 805/3(b) (West 1994). Under this statute, the State is obligated to reimburse local governments for at least 50% of the additional expenses that result from a \\\"service mandate,\\\" which is defined as \\\"a State mandate as to creation or expansion of governmental services or delivery standards therefor.\\\" 30 ILCS 805/3(f), 6(b) (West 1994). Where the General Assembly fails to make the necessary appropriations allowing reimbursement of expenses for a service mandate, local governments are relieved of the obligation to implement such mandate. 30 ILCS 805/ 8(a) (West 1994); Board of Trustees of Community College District No. 508 v. Burris, 118 Ill. 2d 465, 469, 515 N.E.2d 1244 (1987).\\nIt is undisputed that this two-tier system of voter registration and voting was established by executive action of defendants as a means of complying with NVRA. However, it is also undisputed that nowhere in the provisions of NVRA is there a requirement of a two-tier system of registration. We, therefore, reject any assertion by defendants that the two-tier system was spawned by a federal mandate and was, accordingly, exempt from the State Mandates Act (30 ILCS 805/3(b) (West 1994)).\\nAs the trial court noted, defendants had available to them several different options for effecting compliance with NVRA that would not have resulted in the expansion of governmental services or in additional expenditures from local revenues. In fact, NVRA could have been complied with simply by notifying driver's license applicants that they may register to vote for all elections simultaneously with their application. This is no more than the Secretary of State was already under an obligation to do pursuant to section 2\\u2014105. Defendants chose to implement a system that imposed significant additional duties and increased costs upon local election authorities.\\nIt was established in the circuit court that the two-tier system of voter registration adopted by defendants requires local election authorities to devise and maintain two sets of records by preserving information for voters who are registered to vote in federal elections only as well as for voters who are registered to vote in all elections. In addition, local election authorities are obligated to accommodate this dual system by printing two sets of ballots and by maintaining two separate lists of eligible voters at each polling place.\\nThe circuit court found that these additional duties will necessarily increase the costs borne by local election authorities. Defendants now assert that the record does not contain sufficient evidence that additional costs will be imposed. The record does not establish with mathematical precision the exact amount of the additional expenses to be borne by local election authorities. However, the performance of these additional obligations will unquestionably result in increased costs. Indeed, when pressed by the trial judge, defendants conceded this point during argument in the proceedings below.\\nBased upon the forgoing, we conclude that the two-tier system of registration and voting adopted by defendants constitutes a state service mandate for which no funds have been appropriated. As a result, the local election authorities are relieved of the obligation to implement the mandate, and the trial court correctly ruled that they were excused from complying with the regulations imposed by defendants.\\nPLAINTIFFS' CONSTITUTIONAL CLAIMS\\nWe now turn to plaintiffs' constitutional claims.\\nBoth the United States Supreme Court and the Illinois Supreme Court have taken a clear stand against the erection of barriers, large or small, to the right to vote. As our supreme court has noted:\\n\\\" 'The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.' \\\" Craig v. Peterson, 39 Ill. 2d 191, 195, 233 N.E.2d 345 (1968), quoting Reynolds v. Sims, 377 U.S. 533, 555, 12 L. Ed. 2d 506, 523, 84 S. Ct. 1362, 1378 (1964).\\nMost recently, in Tully v. Edgar, 171 Ill. 2d 297, 664 N.E.2d 43 (1996), the Illinois Supreme Court stated:\\n\\\"Suffrage \\u2014 the expression by the people of their will \\u2014 is fundamental to a viable democratic form of government. Article III, section 1, of the 1970 Illinois Constitution reaffirms the principle that all qualified citizens have a constitutionally protected right to vote and to have their votes counted. [Citations.]\\n* ' \\\"No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.\\\" ' [Citations.]\\\" Tully, 171 Ill. 2d at 305-06.\\nIn passing NVRA, Congress recognized that overly selective voter registration laws and restrictive administrative procedures that impeded voter registration have historically been used by the various states to improperly disenfranchise citizens from the democratic process. In the legislative history of NVRA, Congress noted:\\n\\\"Restrictive registration laws and administrative procedures were introduced in the United States in the late nineteenth and early twentieth centuries to keep certain groups of citizens from voting; in the North, the wave of immigrants pouring into the industrial cities; in the South, blacks and the rural poor. The poll tax, literacy tests, residency requirements, selective purges, elaborate administrative procedures and annual reregistration requirements were some of the techniques developed to discourage participation.\\\" H.R. Rep. No. 103\\u20149, at 2 (1993).\\nIn recognition of this history of voter-registration abuses, NVRA was enacted to \\\"reduce these obstacles to voting to an absolute minimum while maintaining the integrity of the electoral process.\\\" 42 U.S.C. \\u00a7 1973gg(a), (b) (1994). Of particular significance to the present dispute is the recognition by our supreme court that \\\"[o]ur cases support the view that legislation that affects any stage of the election process implicates the right to vote.\\\" (Emphasis in original.) Tully, 171 Ill. 2d at 307.\\nThe constitution of Illinois specifically guarantees free and equal elections (Ill. Const. 1970, art. III, \\u00a7 3) and provides that no citizen shall be deprived of equal protection of the laws (Ill. Const. 1970, art. I, \\u00a7 2). The trial court determined that the two-tier system of voter registration implemented by defendants violates both of these constitutionally protected rights. We agree.\\nArticle III, section 3, of our constitution states that \\\"[a]ll elections shall be free and equal.\\\" Ill. Const. 1970, art. III, \\u00a7 3. The Supreme Court of Hlinois has interpreted this section to import the guarantees of the equal protection clause of the federal constitution's fourteenth amendment into Illinois elections. Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 70-71, 566 N.E.2d 1283 (1990). Our examination of the rights conferred by this constitutional provision is not, however, exclusively confined to a fourteenth amendment analysis. The free and equal election clause guarantees the right to vote in Illinois and reflects a broad public policy to expand the opportunity to vote. See McDunn v. Williams, 156 Ill. 2d 288, 330, 620 N.E.2d 385 (1993); Craig, 39 Ill. 2d at 195; Anagnost v. Layhe, 230 Ill. App. 3d 540, 544, 595 N.E.2d 109 (1992). This clause requires that \\\"each voter have the right and opportunity to cast his or her vote without any restraint and that his or her vote have the same influence as the vote of any other voter.\\\" Goree v. Lavelle, 169 Ill. App. 3d 696, 699, 523 N.E.2d 1078 (1988).\\nThe history of the enactment of the free and equal elections clause by the 1970 Constitutional Convention, as considered by the Committee of Suffrage and Constitutional Amending, specifies that the drafters' goal was to increase the voting franchise:\\n\\\"The Committee's proposal is premised on this right to free and equal elections. It specifies certain elemental voting qualifications and disqualifications designed to ensure the responsible exercise of that right. It calls for the enactment of laws designed to encourage the full and effective participation of all persons meeting these qualifications.\\\" (Emphasis added.) 7 Record of Proceedings, Sixth Illinois Constitutional Convention 2324-25 (hereinafter cited as Proceedings).\\nA key motivation of the drafters was to abolish all unnecessary impediments to voting:\\n\\\"The Committee proceeded in the belief that broad participation is essential to the proper working of our democracy, that only the most necessary requirements for limiting that participation can be justified, and that the burden of proof for any limitations rests heavily upon those advocating them.\\\" 7 Proceedings 2318.\\nContrary to defendants' restrictive reading of our state constitu-\\ntion, the framers intended for the concept of free and equal elections to apply to all aspects of the election process, including the registration process:\\n\\\"As construed by the Illinois Supreme Court, this concept applies to the entire election process, from a candidate's effort to gain access to the ballot, [citations], to the people's right to nominate candidates, [citations]; to the freedom of the election process from fraud and voter intimidation, [citations], to the counting of every properly cast ballot, [citation].\\\" 7 Proceedings 2324.\\nThe free and equal elections clause, according to the committee report, gives constitutional priority to Illinois' public policy of \\\"encourag[ing] the full and effective participation\\\" of the entire electorate. The intent of the drafters of article III, section 3, was clear and unequivocal. Any plan or design whose result might impede, impair or frustrate full participation in the electoral process cannot endure. We conclude that the free and equal elections clause, its history, its language, and its intent prohibit defendants' creation of a confusing system of dual and separate electorates for state and federal elections. Nor will our constitution allow a system that makes it easier to register for some elections than for others. We hold, therefore, that the two-tier system of voter registration implemented by defendants violates the guarantee of free and equal elections in our constitution.\\nThe trial court also found that the defendants' two-tier system of voter registration classified voters into separate federal and state electorates with disparate voting rights and, thus, violated the equal protection clause of our constitution. Ill. Const. 1970, art. I, \\u00a7 2. Defendants argue on appeal that their actions were constitutionally permissible because they simply did what is required of them to implement NVRA.\\nThe leading case in Illinois that addresses this issue is Fumarolo v. Chicago Board of Education, 142 Ill. 2d 54, 70-71, 566 N.E.2d 1283 (1990), in which our supreme court held that \\\"[w]hen a statute provides for an inequality in voting power, a question arises as to whether there has been a violation of the constitutional guarantee of equal protection of the law.\\\" Fumarolo, 142 Ill. 2d at 73. Defendants do not deny that the differentiation between federal and state electorates constitutes a type of \\\"classification,\\\" but instead contend that \\\"the guarantee of equal protection is irrelevant when a challenged distinction results from differences in state and federal law under dual sovereignty principles.\\\" Defendants cite no authority for this proposition. Instead, this argument is based on their interpretation of Oregon v. Mitchell, 400 U.S. 112, 27 L. Ed. 2d 272, 91 S. Ct. 260 (1970), which was, at its core, a case about congressional power rather than equal protection.\\nThe matter before us requires a determination of whether the State's decision to classify state and federal registrants, assigning lesser voting rights to NVRA registrants, violates our guarantee of equal protection. Because this precise issue was not anticipated or addressed by the court in Mitchell, that decision is not controlling here.\\nA classification that provides for inequality of voting power can survive only if it passes the strict scrutiny analysis. Under this standard, the court must conclude that the State employed the least restrictive means available to achieve a compelling state interest. Tally, 171 Ill. 2d at 304; Fumarolo, 142 Ill. 2d at 73.\\nOther cases point to the constitutional infirmity of .laws placing different conditions on similarly situated electorates within a state. In Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184-87, 59 L. Ed. 2d 230, 241-43, 99 S. Ct. 983, 990-91 (1979), the court struck down an Illinois ballot access law that requires more petition signatures to appear on local than statewide ballots. It held that without a defensible distinction between the two electorates, the disparity violates equal protection under the federal constitution. See also Dunn v. Blumstein, 405 U.S. 330, 345-54, 31 L. Ed. 2d 274, 286-91, 92 S. Ct. 995, 1004-09 (1972) (dual residency requirement of one year in state and three months in locality violates equal protection, even under the asserted rationale that both requirements were essential to preserve ballot integrity after federal law abolished residence requirements for national elections).\\nIn the case sub judice, the creation of two separate electorates with disparate voting rights demands application of the strict scrutiny standard. Applying this standard, we must determine whether defendants employed the least restrictive means available to them to achieve compliance with NVRA, which certainly is a compelling state interest. Thus, resolution of this issue compels us to examine whether defendants employed the least restrictive means available in order to comply with NVRA. The trial court determined that defendants had opted for the most restrictive method available in implementing NVRA.\\nIndeed, the record reflects that defendants waited well over a year before attempting to comply with a federal court order requiring compliance with NVRA. Defendants ultimately opted to implement a two-tier system which they recognized would be \\\"confusing\\\" and characterized by \\\"chaos in the conduct of elections,\\\" as reflected in the memorandum from the State Board of Elections, dated December 15, 1994.\\nConsidering the principles and precedents set forth above, and upon careful review of the record, we come to the inescapable conclusion that the two-tier system of registration adopted by defendants constituted the most restrictive means available to comply with NVRA, thereby failing the strict scrutiny standard. Accordingly, we hold that this system cannot stand because it violates the equal protection clause, as well as article III, section 3, of our state constitution.\\nPROPRIETY OF INJUNCTIVE RELIEF\\nDefendants finally assert that the trial court erred in ordering injunctive relief because it was too broad. This argument is without merit.\\nIt is well established that a trial court is endowed with broad discretion to fashion such remedies or to grant such relief as equity may require to remedy a wrong. Daniels v. Anderson, 162 Ill. 2d 47, 65, 642 N.E.2d 128 (1994); Flynn v. Kucharski, 49 Ill. 2d 7, 11, 273 N.E.2d 3 (1971). The Illinois Supreme Court has held that our circuit courts may order injunctive relief to prevent an unconstitutional election. See Coalition for Political Honesty v. Illinois State Board of Elections, 65 Ill. 2d 453, 461, 359 N.E.2d 138 (1976).\\nIn the instant case, the circuit court determined that future elections would not be free and equal, and would violate equal protection, if NVRA registrants continued to be penalized with less voting power than state registrants. In light of this determination, with which we agree, we find that the relief awarded by the trial court was warranted under the circumstances of this case. The court carefully considered the importance of the rights and issues before it and, in the exercise of its equitable powers, fashioned a remedy that was proper, indeed necessary, to meet the demands of this situation. The grant of injunctive relief, which permitted NVRA registrants to vote in state and local elections, constituted an adequate and appropriate remedy for those constitutional violations. Consequently, we find no abuse of discretion in the scope of relief ordered by the trial court.\\nFor the foregoing reasons, the trial court's order entered May 1, 1996, is affirmed in its entirety.\\nAffirmed.\\nMcNAMARA and RAKOWSKI, JJ., concur.\\nDefendants also assert that the court improperly considered the State Mandates Act claim because it was brought by the Orr plaintiffs, who do not have standing as private parties. We observe, however, that the City of Chicago also asserted this claim and, as a unit of local government, the City has clear standing to allege a violation of the Act. See 30 ILCS 805/3(a) (West 1994). Accordingly, the merits of this claim were properly before the trial court.\"}"
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+ "{\"id\": \"2420639\", \"name\": \"Warter L. Strubinger, Appellant, vs. Otis O. Ownby, Appellee\", \"name_abbreviation\": \"Strubinger v. Ownby\", \"decision_date\": \"1919-12-17\", \"docket_number\": \"No. 12998\", \"first_page\": \"380\", \"last_page\": \"384\", \"citations\": \"290 Ill. 380\", \"volume\": \"290\", \"reporter\": \"Illinois Reports\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T20:59:15.224015+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Warter L. Strubinger, Appellant, vs. Otis O. Ownby, Appellee.\", \"head_matter\": \"(No. 12998.\\nReversed and remanded.)\\nWarter L. Strubinger, Appellant, vs. Otis O. Ownby, Appellee.\\nOpinion filed December 17, 1919.\\n1. Elections \\u2014 ballots are the best evidence in an election contest. In an election contest the ballots are the original evidence of the votes cast and constitute the best evidence of the resiilt, and if it clearly appears that they are in the same condition as when counted by the judges of election ..the count made by the court must prevail and any discrepancy must be attributed to errors of judges.\\n2. Same \\u2014 burden is on contestant to shozv ballots have been properly preserved. In an election contest it is not required of the candidate declared elected that he show that the ballots offered to impeach his title have been changed, but it is incumbent upon the contestant to show that the ballots have been so kept that there has been no reasonable opportunity to tamper with them.\\n3. Same \\u2014 zvhat does not destroy evidentiary value of ballots in contest. . The fact that the ballots have not been strung, sealed and ' kept in the manner required by statute is ribt conclusive against their weight as evidence in a contest of the election, and the failure to deliver the ballots to the town clerk within the time required by law does not destroy their evidentiary value, where it is shown there has been no reasonable opportunity to tamper with the ballots in the place where they were kept.\\nAppear from the County Court of Pike county; the Hon. Burr Swan, Judge, presiding. \\\"\\nW. E. Wirriams, and A. Cray Wirriams, for appellant.\\nWirriam & Barry Mumford, and LEE Capps, for appellee.\", \"word_count\": \"1529\", \"char_count\": \"8716\", \"text\": \"Mr. Chief Justice Dunn\\ndelivered the opinion of the court:\\nAt the town meeting held in the town of Derry, in Pike county, on April 1, 1919, Otis O. Ownby was declared elected supervisor by a majority of eleven votes over his opponent, Walter L. Strubinger. The latter contested the election, alleging various irregularities in the conduct of the election and errors in counting the ballots. The cause was heard, the ballots were opened and counted, io ballots were rejected by agreement, 164 were marked for the contestant and 157 for the respondent, but the court rendered judgment in favor of the respondent and the contestant appealed.\\nThe appellant insists that there were irregularities in conducting the\\\" election and making the returns which discredit the returns; that the result of the election should be determined by the ballots, and that the appellant should have been declared elected.\\nGeorge Motley, the supervisor who had just been defeated at the primary by the appellant, and William B. Ownby, brother of the appellee, were two of the judges of the election. There were two men named Smith, one of whom signed the oath in the poll-books as judge and acted as clerk, while the other signed the oath as clerk and acted as judge. The -oaths in the poll-books were signed by the judges and clerks of election, respectively, and the jurats bear the signature \\\"M. M. Shinn.\\\" There was no person of that name in the town. Mac Shinn, a justice of the peace, administered the oath to Motley and to two of the others who acted as judges and clerks but he did not sign any jurat. He went away and Motley administered the oath to the others who had not previously been sworn. He signed no jurat, but the jurats attached to the respective oaths were all filled out by some other person and signed with the name of M. M. Shinn. There was no proclamation at the opening of the polls, no cards of instruction were posted, specimen ballots were refused to voters. W. B. Ownby, one of the judges, indorsed his initials on all the ballots which were handed out, keeping a supply ahead, and when- he went to dinner Motley handed out ballots on which Ownby had indorsed his initials, and there were some unused ballots when the polls closed bearing Ownby's initials. Several voters were assisted in marking their ballots, but no affidavit was required of them, no inquiry was made as to the necessity for such assistance, a single judge went into the booth to assist the voter and no notation of the fact of such assistance was made in the poll-book. After the polls closed the votes were counted. One ballot was rejected but was not kept separate from the ballots which were counted and none of the ballots were strung. No proclamation was made of the result of the election, as required by the statute, though Motley went to the door and told anyone who wanted to know how many votes each of the candidates for supervisor received. None of the judges signed the returns of the election. The clerks filled out the certificates in the back of the poll-books and each one wrote all the signatures to the certificate he filled out. This was done in the presence of all and with their consent. The ballots and the returns of the election were not delivered to the town clerk, as required,by law. When the judges had finished counting the votes, all the ballots, poll-books and tally-sheets were placed in the ballot-boxes, which were locked and were left in the room where the election had been held, Motley keeping the keys to the boxes. They remained in that room until the following Saturday, when the returns were canvassed by the supervisor, assessor and town clerk, and the ballot-boxes and their contents were then delivered to the town clerk and afterwards remained in his custody.\\nThe'room in which the election was held was used as a warehouse by E. T. Strubinger, the appellant's father. E. T. Strubinger was conducting a general store, and the warehouse, which was just across the street, was used to keep his reserve stocks of merchandise.. After the election the room in which the ballot-boxes containing the ballots and the returns were left was unlocked for about an hour, when it was locked by the appellant.. The key to this room was kept in the store and no one had access to the ware house except the appellant, who was a clerk in. the store, and his father. There was another clerk, but he was at home sick from Tuesday until Saturday, and the appellant's sister, who kept the books, did not go to the warehouse. If there was occasion to go to the warehouse to get goods the appellant or his father went over and got them, but neither of them remembered having been in the warehouse after the election while the ballot-boxes were there, and they did not handle or interfere with the boxes or their contents.\\nThe ballots are the original evidence of the votes cast at an election and upon a contest constitute the best evidence of the result, provided they are in the same condition as when first counted. The fact that they have not been strung, sealed and kept in the manner required by the statute is not conclusive against their weight as evidence, but the burden is upon the contestant to show that the ballots are those cast at the election and in the same condition as when cast. It is not required of the candidate declared elected to show that the ballots offered to impeach his title have been changed, but it is incumbent upon the contestant to show that they have been so kept that there has been no reasonable opportunity to tamper with them, otherwise their effect as evidence is destroyed. (West v. Sloan, 238 Ill. 330; Graham v. Peters, 248 id. 50; Rottner v. Buchner, 260 id. 475.) However, when the ballots are produced in court, if it clearly appears that they are in the same condition as when counted by the judges the count made by the court must prevail, and if there is any discrepancy it must be attributed to the errors of the judges. The ballots of this election were securely locked in the ballot-boxes, of which one of the judges of election, the supervisor of the township, alone had the keys. His failure to deliver them to the town clerk within the time required by law did not destroy their evidentiary value. No one else had access to the boxes except the appellant and his father. They had no access to the contents of the boxes, the keys of which they did not retain. Each testified that he did not remember to have seen the boxes and did not touch or handle them, and their testimony is not contradicted or impeached in any way. Unless their evidence is to be entirely disregarded and it is to be held that the physical possibility of picking a lock and changing the ballots cre\\u00e1tes an irrebuttable presumption against the integrity of the ballots, this evidence sustained the burden of showing the ballots were unchanged.\\nThe court erred in disregarding the evidence of the ballots, and the judgment will be reversed and the cause remanded, with directions to render judgment in favor of the appellant.\\nReversed and remanded, with directions.\"}"
ill/243872.json ADDED
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1
+ "{\"id\": \"243872\", \"name\": \"IRIS DARDEEN, Adm'r of the Estate of Alma Head, Deceased, Appellant, v. HEARTLAND MANOR, INC., Appellee\", \"name_abbreviation\": \"Dardeen v. Heartland Manor, Inc.\", \"decision_date\": \"1999-04-15\", \"docket_number\": \"No. 85917\", \"first_page\": \"291\", \"last_page\": \"301\", \"citations\": \"186 Ill. 2d 291\", \"volume\": \"186\", \"reporter\": \"Illinois Reports, Second Series\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T19:08:42.147800+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"IRIS DARDEEN, Adm\\u2019r of the Estate of Alma Head, Deceased, Appellant, v. HEARTLAND MANOR, INC., Appellee.\", \"head_matter\": \"(No. 85917.\\nIRIS DARDEEN, Adm\\u2019r of the Estate of Alma Head, Deceased, Appellant, v. HEARTLAND MANOR, INC., Appellee.\\nOpinion filed April 15, 1999.\\nJ.C. Mitchell, of Mitchell & Bradley, of Marion, for appellant.\\nRichard C. Hayden and Kristine M. Tuttle, of Craig & Craig, of Mattoon, for appellee.\", \"word_count\": \"2961\", \"char_count\": \"17769\", \"text\": \"JUSTICE McMORROW\\ndelivered the opinion of the court:\\nAt issue in this appeal is whether an amendment to section 3 \\u2014 602 of the Nursing Home Care Act (Act) (210 ILCS 45/3 \\u2014 602 (West 1996)) should be given retroactive effect. Prior to the amendment, section 3 \\u2014 602 required a licensee to pay treble damages plus costs and attorney fees to a facility resident for a violation of the resident's . rights under article II, part 1, of the Act (see 210 ILCS 45/2 \\u2014 101 et seq. (West 1994)). Public Act 89 \\u2014 197 (Pub. Act 89 \\u2014 197, \\u00a7 90, eff. July 21, 1995) repealed the treble damages provision contained in section 3 \\u2014 602, limiting recovery for violations of the Act to actual damages, costs, and attorney fees.\\nThe trial court granted defendant's motion to strike the portion of plaintiffs complaint requesting treble damages. Pursuant to a motion by plaintiff, the trial court also certified the following question of law to the appellate court, as provided in Supreme Court Rule 308 (155 Ill. 2d R. 308):\\n\\\"Shall treble damages be stricken from actions brought under the Illinois Nursing Home Act, 210 ILCS 45/3 \\u2014 602, where the alleged facts supporting said actions occurred before the enactment of Public Act 89 \\u2014 0197 on July 21, 1995, and the pleadings to recover said damages are filed subsequent to the enactment of said Public Act?\\\"\\nThe appellate court, Fourth District, answered this certified question in the affirmative. 297 Ill. App. 3d 684. The appellate court held that the amendment to section 3 \\u2014 602 constituted a remedial act of the legislature which only changed the nature of the damages that may be recovered by a plaintiff under the Act. Because the amendment did not interfere with a vested right, the appellate court held that it was appropriate for the statute to be applied to pending claims arising prior to the effective date of the amendment. For the reasons that follow, we affirm.\\nBACKGROUND\\nAlma Head was a resident of the Heartland Manor Nursing Home, which was owned and operated by defendant, Heartland Manor, Inc. On June 25, 1997, plaintiff, Iris Dardeen, as administrator of the estate of Alma Head, filed in the circuit court of Clark County a multicount complaint against defendant, alleging that defendant violated the Nursing Home Care Act (210 ILCS 45/ 1 \\u2014 101 et seq. (West 1994)) by negligently causing Head's death on June 26, 1995. Count I of plaintiffs complaint, which is the only count at issue in this appeal, alleged that Head developed serious respiratory problems one week before her death, and that, although defendant was aware of Head's medical condition, it negligently failed to provide Head with necessary medical treatment until June 25, 1995. The complaint indicates that Head died of bronchial pneumonia on June 26, 1995. Count I of the complaint alleged that defendant's negligence was a proximate cause of Head's death.\\nThe prayer for relief in count I of the complaint requested an award of treble damages pursuant to section 3 \\u2014 602 of the Act (210 ILCS 45/3 \\u2014 602 (West 1994)). At the time of Head's death, section 3 \\u2014 602 allowed awards of treble damages for a nursing home's negligent failure to provide adequate medical care when this fail ure resulted in a physical injury to a resident. Section 3 \\u2014 602 read as follows:\\n\\\"The licensee shall pay 3 times the actual damages, or $500, whichever is greater, and costs and attorney's fees to a facility resident whose rights, as specified in Part 1 of Article II of this Act, are violated.\\\" 210 ILCS 45/3 \\u2014 602 (West 1994).\\nEffective July 21, 1995, section 3 \\u2014 602 of the Act was amended by Public Act 89 \\u2014 197 (Pub. Act 89 \\u2014 197, \\u00a7 90, eff. July 21, 1995). This amendment repealed the treble damages provision. As amended, section 3 \\u2014 602 provides:\\n\\\"The licensee shall pay the actual damages and costs and attorney's fees to a facility resident whose rights, as specified in Part 1 of Article II of this Act, are violated.\\\" 210 ILCS 45/3 \\u2014 602 (West 1996).\\nThe amendment included no savings clause preserving treble damages for pending cases, nor did it contain provisions addressing whether the amendment's application was to be prospective or retroactive.\\nBased upon the amendment to section 3 \\u2014 602, defendant filed a motion to strike the prayer for treble damages in count I of plaintiffs complaint. On November 13, 1997, the trial court granted defendant's motion. In a docket entry, the trial court judge noted that plaintiffs complaint was filed over two years after the date of the repeal of the treble damages provision, and found that \\\"no vested rights are involved because plaintiff had not perfected her claim by filing suit before the law was changed. A vested right is an expectation that is so far perfected that it may be equated with a property interest and cannot be taken away by the legislature; that is not the circumstance here.\\\"\\nThe appellate court, Fourth District, accepted the question of law certified by the trial court, and answered this question in the affirmative. Relying upon this court's decision in First of America Trust Co. v. Armstead, 171 Ill. 2d 282 (1996), the appellate court rejected plaintiffs contention that she had a vested right in the recovery of treble damages for her negligence cause of action under the Act. Citing to Armstead, the appellate court observed that amended laws are applied to existing controversies where no vested rights are involved, either because such rights are not yet perfected or because the amendment is procedural in nature. 297 Ill. App. 3d at 686. Because the amendment to section 3 \\u2014 602 \\\"merely change[d] the nature of the damages that may be recovered,\\\" and because there is no vested right in any particular remedy or procedure, the appellate court held that it was proper to apply the amended statute to plaintiffs suit. 297 Ill. App. 3d at 686. In arriving at its conclusion, the appellate court disagreed with the decisions in Hernandez v. Woodbridge Nursing Home, 287 Ill. App. 3d 641, 642-46 (1997), and Weimann v. Meadow Manor, Inc., 285 Ill. App. 3d 455, 457-59 (1996), in which the First and Fifth Districts of the appellate court had answered similar certified questions in the negative, thereby allowing the plaintiffs in those cases to pursue treble damages.\\nWe granted plaintiffs petition for leave to appeal. 166 Ill. 2d R. 315.\\nANALYSIS\\nIn First of America Trust Co. v. Armstead, 171 Ill. 2d 282 (1996), this court held that the application of new legislation to pending suits or preexisting causes of action is governed by \\\"the law that applies by its terms at the time of the appeal, unless doing so would interfere with a vested right.\\\" Armstead, 171 Ill. 2d at 289. Vested rights are \\\"interests that are protected from legislative interference by our due process clause (Ill. Const. 1970, art. I, \\u00a7 2).\\\" Armstead, 171 Ill. 2d at 289. Although \\\"[w]hether a particular expectation rises to the level of a vested right is not capable of precise definition\\\" (Armstead, 171 Ill. 2d at 290), a right has not vested until it is \\\"so far perfected that it cannot be taken away by legislation,\\\" and so \\\"complete and unconditional\\\" that it \\\"may be equated with a property interest.\\\" Armstead, 171 Ill. 2d at 290-91.\\nWe explained in Armstead that \\\"where an amendment does not reach back and interfere with vested rights, there is no truly retroactive impact.\\\" Armstead, 171 Ill. 2d at 289. However, where an amendment takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect of transactions or considerations already past, an amendment is retroactive. Armstead, 171 Ill. 2d at 290. Thus, this court concluded in Armstead that \\\"[w]here no vested rights are involved, either because they are not yet perfected or because the amendment is procedural in nature, the amendment can be applied to the existing controversy without any retroactive impact.\\\" Armstead, 171 Ill. 2d at 290.\\nAt issue in this appeal is whether applying the amended section 3 \\u2014 602 to plaintiffs pending cause of action would affect a vested right within the meaning of Armstead. The First District, fourth division, and the Fifth District of our appellate court have concluded that application of the amended statute would impair a plaintiffs vested rights to treble damages under section 3 \\u2014 602 prior to the enactment of Public Act 89 \\u2014 197. See Hernandez v. Woodbridge Nursing Home, 287 Ill. App. 3d 641 (1st Dist. 1997); Weimann v. Meadow Manor, Inc., 285 Ill. App. 3d 455 (5th Dist. 1996). Both Hernandez and Weimann found it significant that the amendment was enacted after accrual of the plaintiffs' causes of action and after the plaintiffs had filed their complaints. Those courts ruled that the plaintiffs' right to recover treble damages had been perfected and thus amounted to a vested right. Hernandez, 287 Ill. App. 3d at 645; Weimann, 285 Ill. App. 3d at 458. Hernandez found it additionally significant that under the preamended version of section 3 \\u2014 602, a plaintiff proving simple negligence could recover treble damages. Characterizing the treble damages award as a form of punitive damages, the Hernandez court observed that, as a result of the repeal of the treble damages provision, a plaintiff was required to meet the traditional standard of proving willful and wanton misconduct to obtain punitive damages under the Act. Consequently, the court found that \\\"the amendment amounts to a substantive change in the law and should be applied prospectively.\\\" Hernandez, 287 Ill. App. 3d at 645.\\nIn the cause at bar, the appellate court explicitly disagreed with the holdings in Hernandez and Weimann that the plaintiffs had a vested right in the recovery of treble damages, and rejected the reasoning that the timing of the filing of the complaint was determinative in assessing whether a plaintiff possessed a vested right in the treble damages remedy. Instead, the appellate court ruled that because \\\"[tjhere is no vested right in any particular remedy or procedure,\\\" it follows that \\\"[a] change in law affecting the remedy or procedure will be employed without regard to whether the cause of action accrued before or after the change in the law or when the suit was instituted unless there is a savings clause as to existing legislation.\\\" 297 Ill. App. 3d at 687. Additionally, the appellate court disagreed with the conclusion in Hernandez that because the amendment of section 3 \\u2014 602 foreclosed a plaintiff from recovering treble damages upon proof of simple negligence, as opposed to proof of willful and wanton misconduct, the repeal of the treble damages provision constituted a substantive change in the law. The appellate court, citing to this court's decision in Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 366-67 (1986), observed that the treble damages remedy available under the former section 3 \\u2014 602 and an award of punitive damages constituted different and distinct remedies under the Act. 297 Ill. App. 3d at 687. Therefore, because a plaintiff always had to prove willful and wanton misconduct to recover an award of punitive damages, the appellate court concluded that no substantive change in the law occurred as a result of the amendment.\\nSimilar to the appellate court in the instant cause, appellate panels in the Second and Third Districts have also explicitly rejected the reasoning employed in Hernandez and Weimann, and have concluded that a plaintiff has no vested right in seeking treble damages. See Ditsworth v. Kankakee Terrace Partnership, 298 Ill. App. 3d 544 (3d Dist. 1998); White v. Sunrise Healthcare Corp., 295 Ill. App. 3d 296 (2d Dist. 1998). Disagreement has also occurred within the First District of the appellate court. The second division recently ruled in Parker v. Illinois Masonic Warren Barr Pavilion, 299 Ill. App. 3d 495 (1998), that the holdings in Hernandez and Weimann \\\"do not accord with Armstead,\\\" and that section 3 \\u2014 602 of the Act \\\"is related solely to a remedy and does not affect a vested right.\\\" Parker, 299 Ill. App. 3d at 507. In sum, Ditsworth, White and Parker all hold that because the amendment to section 3 \\u2014 602 affects only the procedures and remedies used to enforce a plaintiff's rights, the provisions of the amended section apply to pending causes of action brought pursuant to the Act.\\nAccording to plaintiff, the appellate court in the matter at bar erred when it found that the repeal of the treble damages provision in section 3 \\u2014 602 of the Act constituted a remedial act of the legislature which did not deprive plaintiff of a vested right. Plaintiff urges us to adopt the reasoning of Hernandez and Weimann, and thereby allow her to recover treble damages pursuant to the preamended version of section 3 \\u2014 602.\\nWe hold that the amendment to section 3 \\u2014 602 of the Act repealing the treble damages provision is related solely to a remedy and does not affect a vested right. As explained in Armstead, not all expectations rise to the level of vested rights. Where a statutory amendment is procedural in nature, no vested rights are involved, and the amendment is properly applied to an existing controversy. Armstead, 171 Ill. 2d at 290. It has been well settled for over a century that, prior to judgment, a plaintiff has no vested right to a particular method of procedure or remedy such as the treble damages authorized under the former section 3 \\u2014 602 of the Act. See, e.g., Woods v. Soucy, 166 Ill. 407, 414 (1897); Chicago & Western Indiana R.R. Co. v. Guthrie, 192 Ill. 579, 581 (1901); Orlicki v. McCarthy, 4 Ill. 2d 342, 346 (1954). Furthermore, this court has specifically held that a plaintiff has \\\"no vested right * to exemplary, punitive, vindictive or aggravated damages.\\\" Smith v. Hill, 12 Ill. 2d 588, 595 (1958). Because no vested right is affected, the application of the amended version of section 3 \\u2014 602 to plaintiffs pending suit is proper, irrespective of when the cause of action accrued or the complaint was filed.\\nPlaintiff contends that the legislature's abolition of the right to recover treble damages pursuant to section 3 \\u2014 602 \\\"deprive[s] [her] of a substantial right of action.\\\" According to plaintiff, the statutory amendment \\\"alters the elements to be proved in order to recover\\\" on her claim, and denies her the opportunity \\\"to recover punitive damages upon proof of negligence * as opposed to proof of intentional or wilful misconduct.\\\" Contrary to plaintiffs assertions, the repeal of the treble damages provision by the legislature as a result of Public Act 89\\u2014 197 does not interfere with plaintiffs substantive right to recover against defendant for violations under the Nursing Home Care Act. In order to recover under the Act, a violation of a resident's rights, as enumerated in part 1 of article II of the Act, must be established. See 210 ILCS 45/2 \\u2014 101 through 2 \\u2014 113 (West 1996). The grounds for recovery have remained unchanged both before and after the amendment to section 3 \\u2014 602, and, therefore, plaintiffs substantive rights have also remained unaffected. Furthermore, plaintiffs claim that she has been deprived of a substantive cause of action because the amended section 3 \\u2014 602 raises the burden of proof a plaintiff must meet in order to recover punitive damages is misplaced. The repeal of one of the remedies available to plaintiff under the Act does not deprive plaintiff of her cause of action. As stated, the amendment alters neither the substance nor the elements of a violation under the Act. The amendment to section 3 \\u2014 602 pertains only to the remedies available to plaintiff once plaintiff has proved her cause of action. Under the amended version of the statute, plaintiff may recover actual damages and attorney fees upon proof of defendant's negligent violations of the Act, and may additionally recover common law punitive damages upon proof of willful and wanton misconduct on the part of defendant.\\nPlaintiff's reliance on Hogan v. Bleeker, 29 Ill. 2d 181, 187 (1963), is unavailing. Hogan is factually distinguishable and inapposite to the cause at bar. Unlike the plaintiff in Hogan, plaintiff in the cause at bar has not suffered a deprivation of vested rights as a result of the application of the amended section 3 \\u2014 602 to her suit. As explained above, plaintiffs right to pursue her cause of action under the Act is unaffected by the amendment, and several remedies remain available for enforcement of plaintiffs rights.\\nIt is well established that a plaintiff has \\\"no vested right in the mere continuance of a law.\\\" Armstead, 171 Ill. 2d at 291. It is likewise well established that \\\"[t]he legislature has an ongoing right to amend a statute.\\\" Armstead, 171 Ill. 2d at 291. The legislature has exercised this right by eliminating the statutory provision for treble damages in section 3 \\u2014 602 of the Act and by not including a savings clause as to existing litigation. This statutory amendment does not infringe upon a vested right possessed by plaintiff, as it only alters the remedies available for plaintiff's cause of action. To the extent that Hernandez and Weimann hold otherwise, those decisions are overruled.\\nCONCLUSION\\nFor the foregoing reasons, we conclude that amended section 3 \\u2014 602 of the Nursing Home Care Act does not affect vested rights. Accordingly, the amendment is to be applied to pending claims arising under the Act. The judgment of the appellate court is affirmed.\\nAffirmed.\"}"
ill/2514718.json ADDED
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1
+ "{\"id\": \"2514718\", \"name\": \"William Seymour v. Gertie Berg\", \"name_abbreviation\": \"Seymour v. Berg\", \"decision_date\": \"1906-06-14\", \"docket_number\": \"Gen. No. 12,536\", \"first_page\": \"369\", \"last_page\": \"380\", \"citations\": \"127 Ill. App. 369\", \"volume\": \"127\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T19:20:46.833593+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William Seymour v. Gertie Berg.\", \"head_matter\": \"William Seymour v. Gertie Berg.\\nGen. No. 12,536.\\n1. Wages\\u2014act providing for preference to, due from insolvent estate, construed, A judgment against the debtor, finding that the claim in question is for wages, is, even as to third parties, a sufficient and conclusive adjudication of the character and amount of such claim so as to entitle it to the lien and preference provided for by the act in question.\\n2. Wages\\u2014aef providing for preference to, due from insolvent debtor, construed. The judgment required by statute to be obtained where the claim for wages filed against the estate of the insolvent debtor has been excepted to, is a simple judgment at law; a proceeding in equity, making the creditors and others in interest parties, is not necessary.\\n3. Wages\\u2014act providing for preference to, due from insolvent debtor, construed. The lien provided for under this act, in some circumstances, continues after the possession of the property has passed from the officer or court seizing or having possession of the same, and in such case continues until discharged, and equity may be resorted to to enforce tire same.\\n4. Judgment -when proof of, established. The absence of the placita and recitals as to the court in which a purported judgment was ren dered, does not affect the sufficiency of the proof made by such other offered document, where no such specific objection was interposed.\\n5. Judgment\\u2014 how may be proved. A judgment may be proven by a sworn copy of the judgment docket.\\n6. Judicial notice\\u2014of what taken. Judicial notice will be taken by courts of its own records.\\n7. Answer\\u2014ejfeet of admission contained in. A party cannot upon review assert a theory which is contradicted by the admissions contained in the answer filed by him.\\nBill in equity to enforce wage claim. Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1905.\\nAffirmed.\\nOpinion filed June 14, 1906.\\nStatement by the Court. This appeal is from the decree of a chancellor in- the Superior Court of Cook County rendered April 3, 1905, in a suit in chancery brought by the appellee as complainant against the Virginia Livery Company, Forrest O. Murdock, and-the appellant, William - Seymour, as defendants. The decree finds that the Virginia Livery Company, a corporation, was, on December 4,1902, indebted to the appellee, Gertie Berg, in the sum of $885.06 for wages earned and due her as a servant; that on that date Murdock seized all the goods, chattels and property of the Virginia Livery Company, in pursuance of the terms of a chattel mortgage by said company held by him, and placed said property in the custody of the appellant, Seymour; that the business of the Virginia Livery Company was thereby suspended, and that Murdock advertised a sale of the property for December 15, 1902; that on December 6, 1902 (within ten days from the seizure of the property and suspension of business), while the property was in the hands of Seymour, who was charged with the same, the appellee, Berg, caused to be presented to Seymour, in accordance with the statute in such case made and provided, a written statement under oath, showing $885.06 due her for wages, the kind of work for which said wages were earned, and when the work was performed, and claiming a lien upon all the property of the Virginia Livery Company under the statute; that at the date for which the sale was advertised Seymour informed Berg\\u2019s agent that it had been postponed, but has failed to make answer to frequent inquiries since as to the disposition of the property; that Berg has caused demand to be made upon Seymour to sell the property and pay her the amount due her, but that he has not paid her claim, which still remains due and. unpaid; that the claim of Berg against the Virginia Livery Company constituted a preferred claim and lien on the property of the Virginia Livery Company to be first paid in full, and if there were not sufficient moneys of said corporation to pay said claim, then it was to be paid from the first proceeds of the sale of its property, including that in the hands of Seymour; that by virtue of the premises and the statute, it became the duty of Seymour to pay Berg the amount of her claim within thirty days after the property came into his hands, unless proper exceptions to the claim, as provided by statute, should be filed with said Seymour as trustee or custodian, in which case it would become the duty of said Seymour, as such trustee or custodian, to require her, Berg, to reduce her claim to judgment, whereupon it should be paid; that on December 15, 1902, Murdock filed with Seymour, as custodian and trustee of the seized prop, erty, written exceptions to the claim of Berg, but that no notice was given to her of the filing of said exceptions, nor was she ever required or requested to reduce her claim to judgment until the filing of the answers of Seymour and Murdock to the original bill brought in the cause in which this decree is rendered; that upon the filing of said answers advising the complainant, Berg, of the exceptions to her claim, she brought an action at law in the Superior Court of Cook County against the Virginia Livery Company, and filed her declaration therein, setting forth her claim to $885.06 as wages earned by her as a servant; that process was duly served on the Virginia Livery Company, but no appearance made for it, and that on December 9,1903, she recovered a judgment against the Virginia Livery Company for $885.06 and costs of suit, \\u201c being by the said court ad judged to her for wages earned and due to her for labor by her performed as.a servant of said defendant, the Virginia Livery Company\\u201d; that said judgment is unpaid, and the complainant Berg is the owner of the same; that the Virginia Livery Company is insolvent and has no property except that placed in the hands of Seymour out of which the judgment can be paid; that subsequent to filing her claim with Seymour, complainant Berg caused repeated inquiries to be made of Seymour whether any objections or exceptions had been filed to said claim, but that Seymour failed to make any reply; that by reason of the premises complainant was and is a preferred creditor of the Virginia Livery Company, and was entitled to a first and prior lien upon the property of the Virginia Livery Company in the hands of Seymour; that thereby Seymour became by law charged with a trust in favor of Berg in respect to said property, and the proceeds of any sale thereof, for the payment of her said claim, and that by reason thereof it was the duty of Seymour and Murdock to cause a fair bona fide sale of said property to be made under the chattel mortgage on which it was seized, and to apply the first proceeds of said sale to the payment of said claim of Berg; that, in fact, no sale was had under the advertisement thireof made by Murdock, as aforesaid,nor was the sale adjourned, but that on December 16, 1902, without any notice to Berg, a sale was made between Murdock and Seymour, by which Murdock sold and Seymour purchased said property for $5,000; that Seymour paid Murdock $5,000, and retained possession of the property and continued to use it in the general livery business; that-said sale was made subject to the rights of the'complainant Berg, and was ineffective to pass to Seymour the title to the said property discharged of the lien in favor of Berg; that it became thereupon the duty of Seymour to see that sufficient of the purchase price of the property to satisfy the claim of Berg be paid to her, but that no notice was ever given to her by said Murdock or Seymour that said property was sold, or that said sum of $5,000 was paid to Murdock therefor, said sum having been received and retained by Murdock without the knowledge or consent of Berg; that the amount due Berg has been withheld from her by an unreasonable and vexatious delay of payment ever since the receipt of said sum by Murdock, which entitles her to interest on the same from the date of the judgment therefor on December 9, 1903, to the date of the decree, making the total amount due complainant Berg $942.22.\\nThe decree therefore orders that Seymour account for, pay and turn over to complainant Berg the sum of $942.22 and costs, and have execution therefor.\\nIn this co.urt the appellant has assigned errors which, as far as they are argued, will be considered in the opinion following, and the appellee has assigned cross-errors, all amounting in effect to the proposition argued by her counsel, that Murdock as well as Seymour should be made personally chargeable with the amount found due to appellee Berg.\\nWilliam Annan Taylor, for appellant.\\nCharles H. Hamill and Charles H. Pease, for appellee.\", \"word_count\": \"4243\", \"char_count\": \"24165\", \"text\": \"Mr. Justice- Brown\\ndelivered the opinion of the court.\\nThe decree in this cause is abstracted very fully in the preceding statement. It follows closely the allegations of 4he original bill and supplemental bill of the appellee, who was complainant below, and therefore no detailed statement of those pleadings is necessary. But it may be noted that the original bill filed September 23, 1903, set up the alleged indebtedness of the Virginia Livery Company to the complainant, its nature as wages, the seizure of the property by Murdock, its committal to Seymour and the statutory statement of claim by complainant to Seymour, while it denied that exceptions as provided for by, statute had been filed with said Seymour to said' claim. It asserted that complainant was entitled to a lien and payment, but that payment had been refused, and that by some arrangement, of which she did not know the terms, Seymour-had retained the property and was carrying on business with it. It prayed for a decree declaring a lien and requiring payment to her by the defendants, or some of them. October 23, 1903, answers were filed to this bill by Murdock and Seymour, admitting, among other things, the placing of the goods in the hands of Seymour as custodian by Murdock, and the reception by Seymour, while holding such custody, of the statement of claim describ. d by complainant, but denying that no exceptions or objections to this claim were filed, and alleging that Murdock did file exceptions with Seymour on December 15, 1902. The answers denied the indebtedness of the Virginia Livery Company to the complainant for wages, and alleged also that after the exceptions were filed it became the duty of the complainant to reduce her claim, if she had any, to judgment before she could require its payment.\\nThe supplemental bill filed June 3, 1904, recited the original bill and averred that on November 14, 1903, the complainant Berg commenced an action at law against the Virginia Livery Company and secured judgment on it on December 9, 1903, and that before the filing of the answers of Seymour and Murdock she had no notice of the filing of exceptions to the claim.\\nThe defendants, Murdock and Seymour, demurred to this supplemental bill. The demurrers were overruled, and then they answered, repeating the denials of their original answers and also denying that complainant had no notice of the filing of exceptions to her claim.\\nThe evidence was taken in open court, and the decree appealed from was the result of the hearing,\\nThe statute under which the bill and supplemental bill were filed and the decree entered is one approved June 21, 1895, entitled \\\"An Act to amend an Act entitled 'An Act to Protect Employees and Laborers in their Claims for Wages,' approved June 15, 1887.\\\"\\nAs the disposition of this appeal rests entirely upon the construction given this Act, we reproduce it here:\\n\\\"Section 1. Hereafter when the business of any person, corporation, company or firm shall be suspended by the action of creditors, or be put into the hands of receiver or trustee, then, in all such cases, the debts owing to laborers or servants which have accrued by reason of their labor or employment, shall be considered and treated as preferred claims, and such laborers or employees shall be preferred creditors, and shall be first paid in full, and if there be not sufficient to pay them in full, the same shall be paid from the proceeds of the sale of the property seized: Provided, that any person interested may contest any such claim or claims, or any part thereof, by filing exceptions thereto, supported by affidavit, with the officer having the custody of such property, and thereupon the claimant shall be required to reduce his claim to judgment before some court having jurisdiction thereof, before any part thereof shall be paid.\\nSection 2. Any such laborer or servant desiring to enforce his or her claim for wages under this Act, shall present a statement, under oath, showing the amount due, the kind of work for which said wages are due and when performed, to the officer, person or court charged with such property, within ten (10) days after the seizure thereof on any execution or writ of attachment, or within thirty (30) days after the same may have been placed in the hands of any receiver or trustee, and thereupon it shall be the duty of the person or court receiving such statement to pay the amount of such claim or claims to the person or persons entitled thereto.\\nSection 3. fSTo claims made under this Act shall be paid until after the expiration of the time in which to present such claims, and if the funds realized on the property seized be insufficient to pay the total claims presented, then such funds shall be pro-rated on such claims.\\\"\\nThe principal contention in this case is on the effect to be given to the last clause of the first section of this Act, and to the \\\"judgment\\\" therein provided for when it has been obtained.\\nAs we regard the judgment at law of December 9, 1903, recovered by appellee against the Virginia Livery Company conclusive as to the nature of the indebtedness even as against the appellant, there is no occasion for us to consider or discuss the evidence on the issue which the answers to the original and supplemental bills attempt to raise, and which was the subject of much of the evidence on the trial, namely, the actual nature of the indebtedness of the Virginia Livery Company to the appellee.\\nThe appellant indeed insists that the evidence of the judgment of December 9, 1903, was not competent, and if competent, was not sufficient to establish the same in this suit. This position is based on the fact that a writing read in evidence and marked as a complainant's exhibit, purporting to be \\u2022 (and sworn to be) a copy of a certain page of the Law Records of the Superior Court of Cook County, showing a judgment in favor of Gertie Berg v. Virginia Livery Company for $885.06, for servant's wages, entered December 9,1903, contained in itself no pl\\u00e1cito, nor recitals as to the court in which it was rendered, nor any certificate as to its authenticity.\\nThe copy when in the trial court offered and identified and sworn to as compared and as correct, was not objected to on this ground specifically, but was objected to generally as incompetent and irrelevant, and as not the proof required by law to prove a judgment.\\nWe do not think the objections made in the lower court, or the one specifically made here for the first time, well taken.\\nThe original prcecipe, summons and declaration from the files of the Superior Court were introduced as well as this compared copy of the judgment record, the page and book where said record appeared being specified in the offer.\\nA court will take judicial notice of its own records, and it would be strange if a sworn copy of a portion of such records, carefully identified, were not competent to establish collaterally the existence of such a record, no pretext of denial of the fact being made.\\nThe only question left, in our view, is the effect of this judgment on the rights and liabilities of the appellant Seymour. Counsel for appellant argue first, that such a judgment as was obtained by the appellant against the Virginia Livery Company is not the \\\"judgment\\\" provided for by the statute. His argument is that nothing is said in the statute as to the form of the action, whether it shall be at law or in chancery, or by petition, and that it does not appear who must be made parties or against whom judgment must be obtained, but that as it is a mechanic's lien statute, it comes under the decision in Cairo & Vincennes R. R. Co v. Hackney, 78 Ill. 116, where the court said all statutory liens are enforceable in equity, unless the law has provided for another mode.\\nWe cannot concur in this view. We think in this case the law has provided another mode. 'The act is not in any true sense a mechanic's lien act. It is intended, like similar provisions in the national Bankrupt Act, to secure a preference for the wages of laborers and servants in cases where by reason of insolvency the business of an employing concern is suspended and its assets must be divided among creditors. The language of the statute requires merely that if the claim is\\\"objected to, the claimant must reduce his claim \\\"to judgment before some court having jurisdiction thereof,\\\" and the very simplicity and generality of the language would seem to exclude the theory that it must be in equity, and that all the parties claiming rights in the distribution of the assets must be made defendants. The legislature can hardly be credited with this intention, which it certainly did not express. It would defeat the evident purpose of the Act if each laborer or servant having a claim for wages which, in the nature of things, might and probably would be small, should be obliged, in order to make effective his claim, to incur the expense and delay of a chancery proceeding having many parties.\\nThe dangers to commercial credit which counsel insist are involved in a contrary construction of the statute, seem to us rather imaginary than real, but in any event his argument on this point is more appropriate for the legislature which makes the laws, than for us, who only construe them.\\nUndoubtedly fraud, which vitiates everything in which it is an element, would vitiate a judgment obtained under this Act. But there is no fraud shown here in the obtaining of this judgment. The mere fact that the Vir ginia Livery Company did not contest it, does - not show fraud on the part of the plaintiff.\\nThe evidence would seem to indicate more concealment on the part of appellant of the legal actions taken in this matter, than on the part of the appellee. If a chancery proceeding to test, in behalf of some other person than the alleged debtor, the validity of the claim for servant's wages was necessary for the preservation of the rights of such party, it would seem that after the claim and exceptions had been filed with the appellant, the initiative in such a suit might, as a matter of justice and expediency, have been as well looked for from him as from the claimant.\\nThe Branch Appellate Court of this District decided in Western Stone Co. v. Carver, 93 Ill. App. 150, that under this statute a third party lienor has no right to appear and defend in a law suit between the wage claimant and the debtor, but it did not decide that a court of equity could not, in a case of necessity, be called on to intervene for his protection, nor do we express an opinion on this question. It is not before us.\\nBut the appellant contends that, even on the theory that the judgment is such as is provided for by the statute, it is not conclusive' or binding, nor indeed competent as evidence, against him for any other purpose than as proving its own existence. Neither Seymour nor any other person than the actual parties to the judgment are, according to this theory, as we understand' it, foreclosed from disputing its amount, even, and a fortiori no such person is concluded as to the nature of the indebtedness on which it was founded. This theory, however, would also, like the one which we previously discussed, defeat the evident purpose of the Act. It is hard to imagine what the purpose was of requiring claims for wages formulated and presented in a prescribed manner to be paid by the person having the custody of the property of a suspended concern from its first realized assets, unless exceptions to such claims are filed by a person interested, and in that case requiring a further method of proof of them,\\u2014if that proof is not to be held conclusive against the interested party objecting.\\nThat in cases like those provided for by this statute, such a judgment in the absence of fraud is to'be held conclusive as to its existence, its amount and its nature, against interested third parties who are not privy to it, is the doctrine of the authorities. Candee v. Lord, 2 N. Y. 269; Ledoux v. Bank of America (N. Y.), 24 App. Div. 123; Moore & Handley Hardware Co. v. Curry, 106 Ala. 284; Bensimer v. Fell, 35 West Virg. 15; Strong v. Lawrence, 58 Ia. 55; Sidensparker v. Sidensparker, 52 Me. 481; Southern Ry. Co. v. Bouknight, 17 C. C. A. 181; Bain v. Wells, 107 Ala. 562; Binder v. Finkbone, 25 Ohio St. 103; Naylor v. Mettler, 11 Atlantic Rep. 859; Conwell v. Hartsell, 16 S. W. Rep. 541.\\nAppellant further contends that the decree appealed from is not justified, even allowing the full force claimed by appellee for the judgment of December 9, 1903, first, because, as he. says, he was not the person who, in the language of the statute, was \\\"charged with the property,\\\" to whom the claim of the servant must be presented, nor \\\"the officer having the custody of the property,\\\" with whom the exceptions to such claim must be left; and, second, because the statute is purely a lien statute and justifies no personal judgment in any case against any one, but, at the best, only a declaration of a lien on the property involved.\\nHe cannot be heard to make the first of these objections to the decree. His custodianship of the property, when the claim and when the exceptions were left with him, was not in issue under the pleadings. It was admitted formally by his answer. Moreover the evidence, despite his own statement of a conclusion to the contrary, sufficiently justifies the allegations of the bills and answers.\\nTo the second of these objections the language of the statute is a sufficient answer. Under certain conditions it becomes the duty of a person situated like Seymour to pay to the claimant the amount of such a claim as the appellant filed. These conditions, according to our view, existed in this case. Seymour, before he made the payment to Murdock of $5,000, was under this duty. He should not have paid for the property for his personal use and retained it, without paying this claim. The statute in effect forbade it. He is therefore liable to the claimant for the amount of the claim, which was first payable out of the proceeds of the property. If the property, on the other hand, should be considered as sold to him subject to a lien for the claim, his retention and use of it as his own for a long period, and his repudiation of the claimed lien in the litigation, render him in equity properly chargeable personally with the amount of the claim.\\nWe do not think the court .erred in refusing to allow the proposed amendments to the appellant's answer. Our view of the matter heretofore expressed shows that we consider its allegations of fact immaterial and its conclusions of law unwarranted.\\nNor do we think that, as alleged by the cross-errors assigned by the appellee, the decree should have included a personal judgment against Murdock.\\nThe bills appear to have been originally filed on the theory that a lien prior to that of the seizing lienor should be declared against the chattels of which Seymour had been made custodian. When it developed that under a claim of right to do so Seymour had bought the title to them from' the lienor originally making the seizure, and paid a sum intended to represent their full price, a proper and sufficient enforcement of the rights given by the statute was to compel the performance by him of the duty in it enjoined upon him of paying the wage claimant. This the decree of the Superior Court-does. It is affirmed.\\nAffirmed.\"}"
ill/2549549.json ADDED
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1
+ "{\"id\": \"2549549\", \"name\": \"B. S. Pearsall Butter Company, Appellant, vs. The City of Elgin et al. Appellees\", \"name_abbreviation\": \"B. S. Pearsall Butter Co. v. City of Elgin\", \"decision_date\": \"1941-11-24\", \"docket_number\": \"No. 26380\", \"first_page\": \"382\", \"last_page\": \"384\", \"citations\": \"378 Ill. 382\", \"volume\": \"378\", \"reporter\": \"Illinois Reports\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T00:12:29.706124+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"B. S. Pearsall Butter Company, Appellant, vs. The City of Elgin et al. Appellees.\", \"head_matter\": \"(No. 26380.\\nB. S. Pearsall Butter Company, Appellant, vs. The City of Elgin et al. Appellees.\\nOpinion filed November 24, 1941.\\nR. L. KemlER, for appellant.\\nPerry D. Wells, Corporation Counsel, and George D. Carbary, (Almore H. Teschke, of counsel,) for appellees.\", \"word_count\": \"750\", \"char_count\": \"4464\", \"text\": \"Mr. Justice Smith\\ndelivered the opinion of the court:\\nThis is a direct appeal brought by appellant to review a judgment of the circuit court of Kane county. The suit was brought by appellant against appellees. The complaint, in so far as it is necessary to be here considered, alleged, in substance, that appellant was the owner of certain real estate in the city of Elgin. That appellees contemplated making certain improvements in public streets and including the extension of one street through the property of appellant. It was further alleged that the proposed improvements and extension of the street would result in damages to appellant's property. The character of the damages anticipated and alleged was set out in detail and may be stated as follows: (1) That appellant now uses, for its own private purposes, a portion of one of the public streets proposed to be improved; that if the improvement is completed, that portion of the street, now used by appellant, will be used by the public and appellant will thereby be deprived of the use of said' portion of said street, for private purposes; (2) that the proposed improvement will necessitate the shortening of a railroad side-track extending along one side of appellant's property, resulting in inconvenience and damage to appellant; (3) that the improvement will necessitate the razing of a warehouse and thereby expose a part of the outer wall of another building, owned by appellant, constructed of common brick, so that a portion of such outer wall will be different in appearance from the balance of said outer wall, which is constructed of face brick, and that this will result in making that particular building unsightly in appearance; (4) that the plans contemplate some change in the grade of the streets, which will impair and obstruct ingress and egress to and from appellant's building. The prayer of the complaint is that a writ of mandamus issue against appellees directing them to settle and pay to appellant the damages which will result to its building and property by these improvements within a reasonable time; that upon their failure to pay such damages, the writ direct appellees to proceed under the Eminent Domain act to determine the rights of the parties, and to pay any damages that will result from the construction of the proposed improvement, prior to the accrual of such damages. The trial court sustained a motion to dis miss the complaint. Judgment was entered dismissing the complaint and cause of action.\\nA reference to the complaint shows that there is no question involved in this case which would give this court jurisdiction on direct appeal. No constitutional question or other question is involved which would authorize a direct appeal to this court. The only purpose of the suit is to compel appellees, by mandamus, to either pay the damages which it is anticipated will accrue to appellant by the construction of the proposed improvement, no part of which has yet been constructed, or, in the alternative, to compel appellees to institute proceedings under the Eminent Domain act to determine the rights of the parties and the damages which will accrue to appellant if and when the improvement is constructed. Nothing is suggested in the brief of appellant upon which the jurisdiction of this court could be sustained. It is not a suit under the Eminent Domain act. If it be said that appellant has a constitutional right to compel appellees to do what he asks to have them compelled to do, by the complaint, any constitutional question as to the existence of such right has already been settled by the decisions of this court. People v. Kingery, 369 Ill. 289; People v. Smith, 374 id. 286; Grunewald v. City of Chicago, 371 id. 528.\\nNo constitutional questions, however, are raised in this case and none were passed upon in the trial court. It is simply a suit for mandamus involving no question which would give this court jurisdiction of a direct appeal from the judgment of the circuit court.\\nIt appearing from the record that this court has no jurisdiction, it is ordered that the cause be, and the same is, transferred to the Appellate Court for the Second District.\\nCause transferred.\"}"
ill/2553197.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"2553197\", \"name\": \"Humphrey Cadillac and Oldsmobile Co., Inc., PlaintiffAppellee, v. Dr. Charles A. Sinard, Defendant-Appellant; Humphrey Cadillac and Oldsmobile Co., Inc., Plaintiff-Appellee, v. Edward L. S. Arkema, Defendant-Appellant\", \"name_abbreviation\": \"Humphrey Cadillac & Oldsmobile Co. v. Sinard\", \"decision_date\": \"1967-06-27\", \"docket_number\": \"Gen. Nos. 51,176 and 51,177\", \"first_page\": \"64\", \"last_page\": \"70\", \"citations\": \"85 Ill. App. 2d 64\", \"volume\": \"85\", \"reporter\": \"Illinois Appellate Court Reports, Second Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T00:38:23.930855+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Humphrey Cadillac and Oldsmobile Co., Inc., PlaintiffAppellee, v. Dr. Charles A. Sinard, Defendant-Appellant. Humphrey Cadillac and Oldsmobile Co., Inc., PlaintiffAppellee, v. Edward L. S. Arkema, Defendant-Appellant.\", \"head_matter\": \"Humphrey Cadillac and Oldsmobile Co., Inc., PlaintiffAppellee, v. Dr. Charles A. Sinard, Defendant-Appellant. Humphrey Cadillac and Oldsmobile Co., Inc., PlaintiffAppellee, v. Edward L. S. Arkema, Defendant-Appellant.\\nGen. Nos. 51,176 and 51,177.\\nFirst District, Second Division.\\nJune 27, 1967.\\nRehearing denied July 31,1967.\\nOlson and Hanelin, of Chicago (J. W. Olson, of counsel), for appellants.\\nAhern and Gillogly, of Chicago (Kevin J. Gillogly, of counsel), for appellee.\", \"word_count\": \"1606\", \"char_count\": \"9560\", \"text\": \"MR. JUSTICE BRYANT\\ndelivered the opinion of the court.\\nThis is an appeal from judgments of the Circuit Court of Cook County awarding possession of two Cadillac automobiles to the plaintiff, Humphrey Cadillac and Oldsmobile Co., Inc., hereinafter referred to as Humphrey. Defendants' theory on this appeal is: (1) That the plaintiff, by its agent and employee, William Warhurst, placed the Cadillac automobiles in the hands of a dealer in automobiles, and, by doing so, gave that dealer power to transfer all rights of the plaintiff in the automobiles; (2) that plaintiff Humphrey is bound by the acts of its agent and employee even though such acts may have been contrary to its instructions; and (3) that defendants were buyers in the ordinary course of business and were good faith purchasers for value as defined in the Uniform Commercial Code, chapter 26, \\u00a7 1-201(9).\\nThe facts of this case are as follows: Plaintiff Humphrey Cadillac and Oldsmobile Co., Inc., is a very large automobile dealer with its main place of business in Rockford, Illinois. At the time of the transactions in question, William Warhurst was employed by plaintiff as the wholesale and fleet manager. Warhurst also had the authority to make sales at retail. Out of a work force of 96 or 97 employees Warhurst was the number four or five man. On wholesale, fleet and retail sales of Cadillacs Warhurst reported to John G. Jason, Vice President and General Manager of plaintiff.\\nPlaintiff, through William Warhurst, had on occasion sold automobiles to Raymond Johnson, who was known to plaintiff as an automobile dealer. Johnson had a sales lot at 103rd Street and Normal Avenue and also operated a restaurant and lounge known as Royal Coachman, located at 119th Street and Southwest Highway, Palos, Illinois. Following some difficulty in obtaining payment from Johnson, John Jason, Vice President of plaintiff, instructed William Warhurst that no further cars were to be sold to Johnson. Nevertheless, it is apparent that Warhurst continued to sell automobiles to Johnson, including the two involved in the transaction which is the subject of this appeal.\\nDefendant Dr. Charles A. Sinard, is a dentist with offices at 11106 South Michigan Avenue, Chicago, and defendant Edward L. S. Arkema is an attorney. Dr. Sinard had known Raymond Johnson for at least fifteen years. Since 1950 or 1951 Sinard purchased about ten new Cadillacs from Johnson. In 1958, 1961 and 1962 he purchased Cadillacs from Johnson and obtained certificates of title to those automobiles. The certified records of title to those three cars showed that the 1958 Cadillac originated with Metropolitan Cadillac in Milwaukee, and the 1962 Cadillac with the plaintiff. Metropolitan Cadillac in Milwaukee was part of plaintiff's organization of dealers.\\nThe purchase by Sinard of the car replevined from him in the proceedings below was started by a telephone call from Johnson on or about December 3, 1963, when Johnson told Sinard that he had a 1964 Eldorado, Biarritz, convertible, gold colored Cadillac, at a total cost to Sinard of $5,760.70 (cash plus a trade-in). The manufacturer's suggested retail price on this model was $7,497.15. Sinard went to Johnson's car lot located at 103rd and Normal and completed the transaction, paying Johnson $3,328 in cash and trading in his 1962 Cadillac. Sinard did not receive a certificate of title. He made numerous telephone calls to Johnson and met with no success. Sinard also made several telephone calls to the plaintiff in Rockford to try and obtain title for his car. He was advised by William Warhurst that the car was paid for but the title certificate had been misplaced and was in the possession of Hertz Company and that he (Sinard) would receive it in a short time. All that the defendant ever received was a set of Cadillac owner's books from Johnson, which showed Hertz Corporation as the owner.\\nDefendant Arkema had not dealt with Johnson before buying the Cadillac which was the subject of the replevin proceedings. On March 14, 1964 he purchased the automobile replevined from him from Johnson. This transaction took place at Johnson's restaurant, the Royal Coachman, where Arkema was introduced to Johnson by Clifford J. Dreyer, a lecturer for the Cook County Traffic Safety Commission. Arkema paid $2,392 by check plus the trade-in of his 1964 Oldsmobile. In response to two telephone calls made to Warhurst at plaintiff's place of business, Arkema received a set of Cadillac owner's books, which showed the owner to be Arkema but gave his address as P. O. Box 1526, Rockford, Illinois, the P. O. Box address of plaintiff.\\nThe basic issue, we are confronted with on this appeal is whether the defendants acquired good title to the Cadillacs which they purchased. It is our view that they did and that the decision of the trial court must be reversed.\\nThe Uniform Commercial Code, Ill Rev Stats, chapter 26, \\u00a7 2-403, provides as follows:\\n\\\"(1) . When goods have been delivered under a transaction of purchase the purchaser has such power (to transfer a good title to a good faith purchaser for value) even though\\n\\\"(a) . . .\\n\\\"(b) the delivery was in exchange for a check which is later dishonored, or\\n\\\"(c) it was agreed that the transaction was to be a 'cash sale,' or\\n\\\" (d) the delivery was procured by fraud punishable as larcenous under the criminal law.\\n\\\"(2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business.\\\"\\nThere can be no question that William Warhurst was acting within the scope or apparent scope of his authority when he sold the automobiles in question to Raymond Johnson. We have already seen that Warhurst was fleet and wholesale manager for plaintiff and that he was responsible only to the Vice President and General Manager of Humphrey. There can also be no question that Raymond Johnson was known to plaintiff as an automobile dealer. Nor can there be any question that the defendants dealt with Johnson on the basis that he was an automobile dealer. Dr. Charles Sinard had been buying Cadillacs from Johnson since 1950 or 1951.\\nThe intent and purpose of chapter 26, \\u00a7 2-403, supra as stated in the comment to the section is as follows:\\n\\\"This section advances the law of Illinois by extending further protection to bona fide purchasers of goods.\\\"\\nWilliam D. Warren, in his article \\\"Cutting off Claims of Ownership Under the Uniform Commercial Code,\\\" 30 U of Chicago Law Review 469 (1962) states, at page 472:\\n\\\"In section 2-403 of the Code the bold decision is made to apply, in a limited form at least, the commercial or mercantile theory to goods. Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him the power to transfer all rights of the entruster to a buyer in ordinary course of business. The buyer in ordinary course of business is one who in good faith buys goods from a person in the business of selling goods of that kind, . . .\\n\\\"The effect of these provisions is that when goods are sold in an unquestionably commercial setting, they are to be given a high degree of negotiability.\\\"\\nWe have here a situation where the plaintiff through its agent and employee William Warhurst allowed Cadillacs to be sold to Raymond Johnson, who was in the business of selling automobiles and to whom automobiles had been sold in the past. Raymond Johnson in turn sold such automobiles to the defendants and to other parties.\\nA buyer in the ordinary course of business is defined in chapter 26, \\u00a71-201(9) supra, as meaning:\\n\\\"a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind but does not include a pawnbroker.\\\"\\nAs we have pointed out before, Dr. Sinard had had a long course of dealing with Raymond Johnson, and had bought cars from Johnson, which Johnson had obtained from the plaintiff. Neither defendant Sinard nor defendant Arkema had knowledge nor should they have been put on notice that something was unusual about the sales involved in this case. Moreover, both defendants made attempts to obtain their titles from plaintiff and were assured that titles would be forthcoming.\\nIn view of the facts in this case, for us to hold that the plaintiff had a right to replevy and to retain the automobiles purchased by the defendants would be neither in the spirit nor the letter of chapter 26, \\u00a7 2-403, supra. For the above reasons the judgments are reversed and the causes remanded with directions to enter judgments in replevin for the defendants and against the plaintiffs and for hearing on the amounts of the judgments on the counterclaims for damages in favor of the defendants and against the plaintiffs.\\nThe motion filed May 10, 1967 by the plaintiffs that the judgments be affirmed is denied.\\nJudgments reversed and causes remanded with directions.\\nLYONS, P. J and BURKE, J., concur.\"}"
ill/2557051.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"2557051\", \"name\": \"People of the State of Illinois, Appellee, v. William Eyre, Appellant\", \"name_abbreviation\": \"People v. Eyre\", \"decision_date\": \"1967-05-04\", \"docket_number\": \"Gen. No. 51,342\", \"first_page\": \"123\", \"last_page\": \"136\", \"citations\": \"83 Ill. App. 2d 123\", \"volume\": \"83\", \"reporter\": \"Illinois Appellate Court Reports, Second Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T01:15:48.947642+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"People of the State of Illinois, Appellee, v. William Eyre, Appellant.\", \"head_matter\": \"People of the State of Illinois, Appellee, v. William Eyre, Appellant.\\nGen. No. 51,342.\\nFirst District, Third Division.\\nMay 4, 1967.\\nDEMPSEY, J., dissenting.\\nCharles Locker, of Chicago, for appellant.\\nDaniel P. Ward, State\\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and Ronald Sandler, Assistant State\\u2019s Attorneys, of counsel), for appellee.\", \"word_count\": \"3917\", \"char_count\": \"22228\", \"text\": \"MR. PRESIDING JUSTICE SULLIVAN\\ndelivered the opinion of the court.\\nDefendant appeals from a judgment of guilty of the charge of battery and a fine of $50.\\nThe defendant contends that the evidence failed to prove the defendant guilty beyond a reasonable doubt; that the court erred in failing to allow questions concerning former wrongful acts or conduct on the part of the complainant and directed toward the defendant, and that the court erred in failing to take into consideration or allow questions concerning the violation of curfew by complainant at the time of the occurrence.\\nFor a proper understanding of the case it will be necessary to set forth the testimony of each witness. Four witnesses were called by the State, including the complainant, and four witnesses, including the defendant, were called and testified on behalf of the defense.\\nThe complainant, Vincent Kunieki, who was sixteen years of age, testified that at 10:45 p. m. on August 22,1965, he was walking on the opposite side of the street from the defendant's home on North Wayne Avenue in Chicago. He heard someone call his name and he looked up to the second-floor window across the street and saw that it was a boy named Pat. The complainant was with Daniel McKay and George Bevins. The boys on the street started talking to their friend Pat and the defendant came to the window on the first floor at 6333 North Wayne Avenue. The defendant told the complainant to keep moving. The complainant testified that he then said, \\\"This is public property,\\\" and that defendant then called him a \\\"dirty, rotten hillbilly.\\\" Complainant stated that he and his friends started to cross the street and the defendant grabbed him around the back of the neck and pushed him over between the houses, and started choking him. The defendant then slapped the complainant with his open hand on the left side of the face. The complainant testified that the defendant hit the complainant five or six times and that the next thing he knew he was on the ground. He testified that he knew the defendant prior to the time in question; that the defendant had been his landlord at 6333 North Wayne Avenue. He stated that he saw a doctor right after the occurrence and that he had an internal injury. His testimony further indicated that he had been kicked on the left side of his hip. He said he did nothing to provoke the defendant.\\nComplainant testified on cross-examination that he knew the defendant prior to this occasion; that the defendant had served his family with a notice of eviction prior to this happening and that his family was also served with a notice to pay $300.\\nThe complainant was asked if he had shot beebees at the defendant's window prior to that time, to which he answered that he had not. However, he said that he had been arrested for shooting beebees through the window. An objection was made and the court struck the testimony.\\nComplainant was also asked if he knew what time the curfew was in the city of Chicago, to which he answered that he did know.\\nComplainant's testimony further indicated that at 10:45 p. m. on the date in question he was going to pick up a girl friend. He stated that when he was talking to Pat (Patrick Maloney, who was a defense witness) he did not see Mrs. Eyre, nor did he say anything to her. He stated that Pat left the window and Mr. Eyre told them to get off the street and keep moving.\\nDaniel McKay, one of the teenagers who was with the complainant, testified that he attended high school, and that on the date in question he had seen the defendant; that the time was approximately 11:00 p. m. This witness testified that Pat Maloney called to them from the second-floor window across the street; that he then left the window for a minute and Mr. Eyre knocked on his window and told the complainant and his friends to get off his property. The complainant told Mr. Eyre that this was public property, and they then started to walk toward the curb. When the witness was in the middle of the street Mr. Eyre came out. He called the complainant a hillbilly a couple of times and some words passed between them. According to this witness, Mr. Eyre grabbed the complainant, he thought, around the neck. Vincent was trying to get away. Mr. Eyre was pulling him and Vincent was yelling \\\"help.\\\" When Vincent got away he slipped on the sidewalk and Mr. Eyre ran over to him and kicked him in the side. He testified that Vincent was bleeding from the mouth and nose, and the police were called. He testified that Mr. Eyre told the boys to get off the sidewalk and that he was swearing at them. He also testified that \\\"Once Vincent swore at Mr. Eyre,\\\" and \\\"When we got back home, he said something to him.\\\" He also testified that Vincent did not say anything to Mr. Eyre when this occurrence took place. The witness was asked if he heard the complainant swear at Mrs. Eyre and he testified that he did not see Mrs. Eyre.\\nLeona Ignoffio testified that she was sixteen years old and was a junior in high school. She was babysitting at approximately 10:45 p. m. across the street from 6331 North Wayne Avenue; that the complainant and his two friends came over to see what happened to her because she was two hours late. The complainant was crossing the street to go back home and she saw Mr. Eyre come from the building and they were yelling at each other. Mr. Eyre called Vincent a \\\"dirty, rotten hillbilly.\\\" She saw Mr. Eyre kicking the complainant. She recalled it was in the hip but she did not recall which hip. She did not hear the complainant swear at Mr. Eyre. She also testified that it was possible that part of her view was obscured by a tree. She was at the side window when the fight took place and could see it because she had her glasses on; she saw part of the fight. She knew the boys had come to pick her up because her mother had called her about forty-five minutes before the complainant came over.\\nA police officer testified that he arrested the defendant ; that the complainant had bruises on his elbows and his lip was swollen. The defendant admitted striking the boy. He testified to the following:\\n\\\"Q. Were there any marks or bruises on him?\\n\\\"A. No, I didn't notice.\\n\\\"Q. Did you notice if his glasses were broken ?\\n\\\"A. He claimed they were. He didn't have them on. He didn't have any marks about his face.\\n\\\"Q. He didn't have any marks about the face ?\\n\\\"A. He didn't bring it to my attention.\\n\\\"Q. You didn't see any ?\\n\\\"A. No.\\\"\\nCarol Eyre, the wife of the defendant, testified that at about 11:00 p. m. on August 22, 1965, she went to the sun parlor window at 6331 North Wayne to close the blinds. Danny, one of the boys with the complainant, had a match in his hand. They were walking. The complainant turned around and faced her. She went next door to 6333 in the same building where her husband was working and told him what happened. She then walked to the sun parlor of the apartment and saw them coming back, and she called to her husband to tell him that they were coming back. The complainant at that time was standing on the parkway. The defendant said to Danny, one of the boys with the complainant, \\\"Don't light that.\\\" The complainant moved on the sidewalk and saw Mrs. Eyre in the window, as well as her husband. The complainant swore at them. The words he used were \\\"You bastard.\\\" Her husband then went out the door of the apartment and she saw the complainant kicking and hitting her husband. She went to the phone to call the police. She saw bruises on the side of her husband's face. She did not see her husband strike the complainant or anyonq else. Her husband is thirty-seven years old, about 6'2\\\" tall and weighs about 190 pounds. She stayed inside while her husband went outside. At that time they were in the parkway. Vincent hit her husband with a closed fist. The first blow or two did connect with her husband. At that time she went to call the police.\\nThe defendant testified that he is an engineer by occupation. On the evening in question he was working in the bathroom on the first floor of the apartment next door to his in the same building. He is the owner of the building. His wife came in and mentioned that some boys were in front of the building and they were going to light firecrackers, but she mentioned that they had moved. A few minutes later she called to him from the sun parlor of the apartment he was working in. He looked out the window and saw the complainant standing outside. He also saw Danny McKay. He had something that looked like a firecracker in one hand and in the other hand he had something that looked like a match. It looked as if he were going to light the firecracker. The defendant called out, \\\"Do not light any firecracker.\\\" He told the complainant and his friends to move on. Danny McKay immediately moved on. As the defendant was turning to go back to his work the complainant said to defendant's wife, \\\"Fuck you bitch.\\\" The defendant then went out the door and told the complainant to keep moving. He reminded him it was past curfew. The defendant then testified, \\\"He aimed at me. I tried to grab the other arm but couldn't. He was hitting me with his free arm. I pushed him with my foot to get him off balance. George Bevins grabbed him and held him in a full Nelson. He wanted to attack me again. At this point I told George Bevins, 'Let him go.' \\\" (George Bevins was one of the complainant's friends.) Defendant said that he did not at any time, other than in self-defense, strike the complainant, nor did he tell the arresting officer that he struck the complainant; that if he did, it was in self-defense. The complainant hit the defendant approximately five or six times while the defendant was trying to hold him off. The complainant struck the defendant across the face on both sides of the face. The defendant was trying to hold the complainant off and the complainant continued hitting the defendant. The defendant turned to push him off balance with his foot.\\nPatrick Maloney, a witness called by the defense, testified that he lived in one of the apartments in the building; that he was in the apartment at the time of the occurrence. He called Vincent from his window. He testified that he exchanged a few words with the boys and the defendant told the boys to keep moving. \\\"They said something and Mr. Eyre put his hand on his shoulder.\\\" The complainant then started swinging at the defendant and the defendant started to hold the complainant back. The defendant restrained the complainant. The complainant moved back and slapped Mr. Eyre. The complainant called for George, his boyfriend, across the street. When George came over he restrained the complainant from hitting Mr. Eyre. Maloney further testified that he did not at any time see the defendant hit or try to strike the complainant. Patrick Maloney was the friend of the complainant who called to the complainant from his front window when the complainant and his two other friends came walking down the street. He persisted in his testimony that the complainant was the aggressor and did strike the defendant.\\nCathy Maloney, a witness called by the defense, testified that she lived at 6333 North Wayne. She knew the defendant and the complainant. She was twelve years of age. She testified that on the evening in question she heard voices in the gangway and went to the window to see what was happening. Mr. Eyre was outside and told the complainant to keep moving. The corn plainant said, \\\"Okay, Bud.\\\" The complainant said, \\\"My father can beat you up.\\\" The defendant said, \\\"All right, we'll go and see your father.\\\" They then started walking and the complainant hit the defendant. She did not at any time see the defendant hit the complainant. She further testified the defendant did not put his hand on complainant, also that he did put his hand on complainant, and that the complainant struck the defendant \\u2014 he hit the defendant on the chin.\\nThe defendant's first point is that the evidence failed to prove the defendant guilty beyond a reasonable doubt. Four witnesses, including the defendant, testified on behalf of the defense. The uncontradicted facts are that on the evening of August 22, 1965, the complainant, Vincent Kunicki, with two companions, appeared in front of the defendant's home at about 10:45 or 11:00 p. m. The complainant and the defendant were apparently not on good terms due to some previous hostility between the defendant and complainant's family. The complainant and his companions engaged in a conversation with a friend of theirs, Patrick Maloney, who lived on the second floor. The complainant was in front of the defendant's house and the defendant requested him and his companions to move.\\nThe testimony of the police officer was merely to the effect that he noticed the complainant had bruises on his elbows and his lip was swollen. The police officer, when asked if there were any marks or bruises on the defendant, stated there were none and that he did not see any, and when asked if the defendant's glasses were broken, he stated that he did not have them on. The defendant did not bring to his attention any marks about his face. The police officer also testified that the defendant admitted striking the boy. This, of course, was denied by the defendant at the time he testified, and he stated that at no time did he hit the boy, excepting possibly in self-defense. The testimony, therefore, of the police officer and the defendant cannot be said to be conflicting in that respect, because the police officer at no time stated that the defendant struck the first blow.\\nThe testimony of the defendant, his wife, Patrick Maloney, who was a friend of the complainant and his companions, as well as the testimony of Cathy Maloney, a twelve-year-old girl, were entirely contradictory to the testimony of the complainant, his girl friend, Leona Ignoffio, and Danny McKay, one of his companions on the night of the occurrence. If this were the only testimony in the record it could readily be said that the rule of law to be followed is that it is the function of the trial court to determine the credibility of the witnesses and the weight to be afforded their testimony, and where the evidence is merely conflicting, the reviewing court will not substitute its judgment for that of the trier of fact. People v. Clark, 30 Ill2d 216, 195 NE2d 631. However, there are additional circumstances in this record which we believe the trial court overlooked. The defendant testified that George Bevins restrained the complainant after the complainant had assaulted him, and his testimony was supported by Patrick Maloney, who was a friend of the complainant. Patrick Maloney testified that Vincent, the complainant, called for George Bevins and George came over and restrained the complainant from hitting Mr. Eyre. This evidence would tend to indicate to us that the aggressor was the complainant, for, if he were not the aggressor, why would one of the complainant's companions on that evening instead of going to the aid of the complainant, place a full Nelson on the complainant to prevent him from striking the defendant.\\nGeorge Bevins, the complainant's companion on that evening, who restrained the complainant, was not called as a witness by the State, nor was his absence explained in any way. At least his absence should have been explained in order to overcome any inference, which could be drawn, that the complainant was the aggressor.\\nAnother important element arose during the testimony of Mrs. Eyre. She called the police. The question arises as to why she would have called the police had her husband attacked and assaulted, or battered, the complainant in this case.\\nIt must also be remembered that Patrick Maloney, a friend of the complainant, testified on behalf of the defendant to the effect that the complainant struck the defendant first.\\nWhile the testimony showed the size of the defendant, there is nothing in the record which discloses the size of the three teenagers involved on that evening.\\nSection 3-1 of the Criminal Code (Ill Rev Stats 1965, c 38, par 3-1), reads as follows:\\n\\\"Every person is presumed innocent until proved guilty. No person shall be convicted of any offense unless his guilt thereof is proved beyond a reasonable doubt.\\\"\\nIn People v. Semenick, 360 Ill 250, 195 NE 671, at page 254, the court said:\\n\\\"While the weight of the evidence is for the court or jury to determine, yet where the verdict of judgment is palpably contrary to the weight of the evidence, or the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant's guilt, it is the duty of this court to reverse the judgment. People v. Holton, 326 Ill 481; People v. Rice, 323 id. 580; People v. Nemes, 347 id. 268.\\\"\\nThe evidence in this case, together with the reasonable inferences to be drawn, is so improbable and unsatisfactory as to justify a reasonable doubt of defendant's guilt.\\nBecause of the conclusions we have reached, it will be unnecessary to discuss the other points raised by the defendant.\\nJudgment reversed.\\nSCHWARTZ, J., concurs.\"}"
ill/2588661.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"2588661\", \"name\": \"Mary Agnes Gleason, Plaintiff-Appellant, v. Anthony & Sophie Brazauskas, d/b/a Tony's Tavern, Defendants-Appellees\", \"name_abbreviation\": \"Gleason v. Brazauskas\", \"decision_date\": \"1966-05-06\", \"docket_number\": \"Gen. No. 50,904\", \"first_page\": \"276\", \"last_page\": \"278\", \"citations\": \"70 Ill. App. 2d 276\", \"volume\": \"70\", \"reporter\": \"Illinois Appellate Court Reports, Second Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T00:11:56.907889+00:00\", \"provenance\": \"CAP\", \"judges\": \"ENGLISH AND McCORMICK, JJ., concur.\", \"parties\": \"Mary Agnes Gleason, Plaintiff-Appellant, v. Anthony & Sophie Brazauskas, d/b/a Tony\\u2019s Tavern, Defendants-Appellees.\", \"head_matter\": \"Mary Agnes Gleason, Plaintiff-Appellant, v. Anthony & Sophie Brazauskas, d/b/a Tony\\u2019s Tavern, Defendants-Appellees.\\nGen. No. 50,904.\\nFirst District, Fourth Division.\\nMay 6, 1966.\\nMilroy R. Blowitz, of Chicago (Leon C. Wexler, of counsel), for appellant.\\nRago, Kiely & Kages, of Chicago (C. Gus Kages, of counsel), for appellees.\", \"word_count\": \"661\", \"char_count\": \"3850\", \"text\": \"MR. PRESIDING JUSTICE DRUCKER\\ndelivered the opinion of the court.\\nPlaintiff appeals from a denial of her petition to reinstate the case after a dismissal for want of prosecution.\\nIt appears from the record that this case (Superior Court No. 56 S 6871) went to trial on October 16, 1962; that on October 23, 1962, a mistrial was ordered; that on December 5, 1962, the case was placed on the passed case calendar; that on September 25, 1964, a call was made \\\"of the former Superior Court Dormant Calendar law cases\\\" and on that date the case was placed on the regular trial call and dismissed for want of prosecution. On August 31, 1965, plaintiff filed a petition under Section 72 of the Civil Practice Act (Ill Rev Stats 1963, c 110, \\u00a7 72) alleging that the mistrial was caused by a severe injury to plaintiff during the pendency of the trial; that the case was placed on the passed case calendar because it was uncertain when she could appear for trial; that the attorney had not received a notice that the case had been dismissed for want of prosecution; that both plaintiff and defendant believed the case was still pending and that plaintiff had received from defendants a motion for substitution of attorneys for presentation to the court on August 16, 1965; that in making his periodic review of his cases he found the dismissal order; that he immediately filed his petition to reinstate; and that he had a meritorious claim. Although no answer was filed to the petition and no one appeared before the judge on behalf of the defendants, the petition was denied and this appeal followed.\\nIn the hearing on the petition, plaintiff's attorney stated that he had received a call from opposing counsel and that they would not contest the petition. He further said that he had no knowledge of the dismissal order and that he had not received any postcard or other notice from the court concerning the dismissal. These assertions were not and are not denied.\\nDefendants argue that even though they did not contest the petition in the trial court, they may now urge that the petition did not contain the necessary elements to show diligence. Grizzard v. Matthew Chevrolet, 39 Ill App2d 9, 188 NE2d 59. However, taking the allegations of the petition as true, there was a sufficient showing of diligence.\\nA proceeding under Section 72 \\\"invokes the equitable powers of the court as justice and fairness require. . . .\\\" Elfman v. Evanston Bus Co., 27 Ill2d 609, 613, 190 NE2d 348. Plaintiff's attorney urges that the seventy-year-old plaintiff should not be forced to file a new suit under section 24 of the Limitations Act (Ill Rev Stats, 1963, c 83, \\u00a7 24a) since \\\"as conditions exist today she will certainly never live to see a trial held five or six years from now based upon the current backlog\\\" and therefore should in equity and justice be given a trial in her case filed in 1956.\\nUnder the circumstances of the instant case, we find that the refusal to reinstate was an abuse of discretion.\\nThe order denying the petition to reinstate is reversed and the cause remanded with directions to sustain the petition, vacate the order of dismissal and set the case for trial.\\nReversed and remanded with directions.\\nENGLISH AND McCORMICK, JJ., concur.\\nAlthough the court records might have disclosed that the clerk did send a card, no evidence was adduced to show this fact. The judge indicated that a postcard was always sent and that he \\\"never heard of more than one or two lawyers who came in and said they didn't get it.\\\"\"}"
ill/2591318.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"2591318\", \"name\": \"Murray McConnel, Plaintiff in Error, v. George Street et al., Defendants in Error\", \"name_abbreviation\": \"McConnel v. Street\", \"decision_date\": \"1855-12\", \"docket_number\": \"\", \"first_page\": \"253\", \"last_page\": \"255\", \"citations\": \"17 Ill. 253\", \"volume\": \"17\", \"reporter\": \"Illinois Reports\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T22:45:53.479106+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Murray McConnel, Plaintiff in Error, v. George Street et al., Defendants in Error.\", \"head_matter\": \"Murray McConnel, Plaintiff in Error, v. George Street et al., Defendants in Error.\\nERROR TO MORGAN.\\nA party, who holds land under paper title, purporting to convey the same, and pays taxes for seven successive years, will be protected.\\nThat the title of a party originated in good faith, and that he holds under it, will be presumed until the contrary is shown.\\nGood faith, (under the act of 1839, to quiet possession,) is understood to be the opposite of fraud, and of bad faith; and its non-existence must be established by proof.\\nThis cause was heard by Woodson, Judge, by consent, without the intervention of a jury, who decided that Street and the others had, and that McConnel had not, a good title to the lot of land in question, and rendered judgment accordingly. The opinion of the court sets out the facts in the case.\\nM. McConnel, pro se.\\nD. A. Smith, for Defendants in Error.\", \"word_count\": \"794\", \"char_count\": \"4502\", \"text\": \"Skinner, J.\\nStreet, Harlin and Street, in 1858, brought ejectment against McConnel to recover fractional lot six in Jacksonville.\\nPlea, not guilty; trial by the court, and judgment for plaintiffs.\\nThe plaintiffs proved that the land, upon which the lot was laid out, was patented to one Arn\\u00e9tt; a deed for the lot from Arn\\u00e9tt to the county of Morgan, executed in 1825, and duly acknowledged and recorded on the day of its date; and the plaintiffs proved title in them, derived from the county of Morgan, by several mesne conveyances, and that McConnel was in possession at the time of the commencement of the suit.\\nMcConnel proved a deed of quit-claim of land covering the lot in controversy, from Arn\\u00e9tt to him, executed in 1835, duly acknowledged and recorded on the day of its date, and conveying all \\\"the right, title, claim and interest\\\" of Arn\\u00e9tt in the land described therein; that he took possession of the lot in 1836, and had occupied the same (without actual residence thereon) from that time until the commencement of the suit; that the lot had not been sold for taxes since he took possession of the same; that after the execution of the deed from Arn\\u00e9tt to McConnel, Governor Duncan laid out an addition to the town of Jacksonville, which extended over a portion of the original plat of Jacksonville, and that lot one of this addition covered all of the lot in controversy except a few feet which were left out to widen an alley on the south side of the lot; that he had paid all taxes assessed on the lot, either by the description of \\\" fractional lot six in Jacksonville,\\\" or of \\\" lot one in Duncan's addition to Jacksonville,\\\" for the years 1845,1846,1847,1848, 1849, 1850 and 1851, the lot having been assessed sometimes by one and sometimes by the other of said descriptions.\\nThe only question for determination, is, whether the plaintiffs' action is barred by the possession of McConnel under his paper title, and payment of taxes for seven successive years, by operation of the first section of the act of 1839, entitled \\\" An act to quiet possessions, and confirm titles to land.\\\"\\nMcConnel had actual possession of, and paid all taxes assessed on, the land for seven successive years, and, under paper title, purporting to convey to him the lot.\\nThe description used in assessing, and according to which he was compelled to pay the taxes, could not prejudice his rights, so that he paid all taxes legally assessed thereon for the seven years; nor could the addition to the alley of a strip off the side of the lot, thereby dedicating its use to the public, affect his rights to the extent of his possession in fact.\\nHis possession was adverse, and the deed under which he held, in connection with the patent to Arn\\u00e9tt, purported to vest in him the title to the lot, and in the absence of the prior deed from Arn\\u00e9tt to the county of Morgan, his title was paramount. That his title originated in good faith, and that he held tinder his paper title, will be presumed until the contrary is proved. Fraud is not to be presumed, but must be proved.\\n\\\" Good faith,\\\" within the meaning of this statute, I understand to be the opposite of fraud and of bad faith ; and its nonexistence, as in all other cases where fraud is imputed, must be established by proof.\\nThat the paper title of McConnel is \\\" color of title,\\\" within the meaning of this statute, there can be no question.\\nWe hold that the possession under the paper title, and payment of taxes for seven successive years, is a bar to the plaintiffs' action. Woodward v. Blanchard, 16 Ill. 424; Laflin v. Herrington, ibid. 301.\\nJudgment reversed.\"}"
ill/2592113.json ADDED
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1
+ "{\"id\": \"2592113\", \"name\": \"C. Jon Development Corporation, an Illinois Corp., Plaintiff-Appellee, v. The Pand-Rorsche Corporation, et al., Defendants. Evanston Motor Co., Inc., Defendant-Appellant\", \"name_abbreviation\": \"C. Jon Development Corp. v. Pand-Rorsche Corp.\", \"decision_date\": \"1966-04-11\", \"docket_number\": \"Gen. No. 50,590\", \"first_page\": \"469\", \"last_page\": \"476\", \"citations\": \"69 Ill. App. 2d 469\", \"volume\": \"69\", \"reporter\": \"Illinois Appellate Court Reports, Second Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T00:30:42.714621+00:00\", \"provenance\": \"CAP\", \"judges\": \"KLUCZYNSKI, P. J. and MURPHY, J., concur.\", \"parties\": \"C. Jon Development Corporation, an Illinois Corp., Plaintiff-Appellee, v. The Pand-Rorsche Corporation, et al., Defendants. Evanston Motor Co., Inc., Defendant-Appellant.\", \"head_matter\": \"C. Jon Development Corporation, an Illinois Corp., Plaintiff-Appellee, v. The Pand-Rorsche Corporation, et al., Defendants. Evanston Motor Co., Inc., Defendant-Appellant.\\nGen. No. 50,590.\\nFirst District, First Division.\\nApril 11, 1966.\\nMcMahon & Plunkett, and Charles R. Purcell, Jr., of Chicago, for defendant-appellant, Evanston Motor Co., Inc.\\nFrancis T. Delaney, of Chicago, for plaintiff-appellee.\", \"word_count\": \"1987\", \"char_count\": \"11986\", \"text\": \"MR. JUSTICE BURMAN\\ndelivered the opinion of the court.\\nPlaintiff, C. Jon Development Corporation, commenced an action in replevin to recover a Mercedes-Benz automobile. Subsequently, an amended complaint was filed in trover seeking to recover from the Evanston Motor Company, Inc., the sum of $3,200 the money value of the automobile, and additional damages in the sum of $750 for the wrongful detention, use, and deprivation of the automobile. The trial court entered judgment for the plaintiff in the amount of $1,600 without costs, and Evanston Motor Company has appealed.\\nWe summarize the evidence. Early in June of 1963, the plaintiff advertised a 1958 Mercedes-Benz automobile for sale in a Chicago newspaper. A representative of Pand-Rorsche Corporation, an automobile dealer at 5725 North Broadway Avenue in Chicago, responded by telephone, and at Pand-Rorsche's request the car was brought to its premises. On June 6, a sale was effected, and William Patzer, plaintiff's president, received from Pand-Rorsche a check for $1,000; a draft for $3,200 payable on July 7, 1963; and a letter signed by \\\"Lee Thomas\\\" (a false name), as president of Pand-Rorsche, which recited the terms of the sale and stated that the plaintiff was, \\\"to remain legal owner of said vehicle\\\" until the draft was paid in full. Patzer endorsed in blank the certificate of title to the car, and delivered it to Pand-Rorsche. The certificate bore no indication of any security interest in the vehicle. A new certificate of title was issued by the Office of the Secretary of State on June 14, showing Pand-Rorsche as the owner and listing no liens or encumbrances.\\nOn June 15, 1963, Donald C. Lightner, a wholesale car buyer, visited Pand-Rorsche and purchased the Mercedes-Benz and several other automobiles on behalf of the defendant, the Evanston Motor Company. It is undisputed that at the time of the sale to the defendant, neither Lightner nor any other person associated with the defendant had notice of any existing security interests in the automobile. Lightner gave Pand-Rorsche defendant's check dated June 17, in payment for the automobiles, and delivery of the cars and the titles thereto were made to the defendant. The certificate of title to the Mercedes-Benz, which was endorsed in blank by \\\"Thomas\\\" on behalf of Pand-Rorsche and acknowledged by a notary public who was employed by defendant, bore no indication of any existing liens or encumbrances.\\nNicholas Ferri, a chief investigator for the Office of the Secretary of State, testified that his office uncovered the perpetration of fraud by Pand-Rorsche about June 18, and shortly afterwards put a \\\"stop\\\" on issuing certificates of title on any cars sold by Pand-Rorsche because, \\\"there were so many strings and so many ends that were untied that the only way we could try possibly to stop this fraud was to put a stop on all Illinois processing.\\\" On June 20 and 21, articles appeared in the daily newspapers reporting that Pand-Rorsche had been raided and closed as a fraudulent operation. Thereafter, Ferri had several telephone conversations with Joseph Saporito, president of defendant, in which Ferri told Saporito a \\\"hold\\\" had been placed in Springfield on any transfers of title to the Mercedes-Benz, and advised Saporito not to dispose of the car. Saporito testified he told Ferri he had paid for all of the cars he had purchased, and that he had good title to them. On July 10, Lightner was in Kansas City in response to a subpoena to appear as a government witness in a federal court, and while there he sold the car for $3,200, on behalf of the defendant and with the express approval of Saporito.\\nThe question presented by this appeal is whether under these circumstances the security interest reserved by plaintiff in selling the automobile to Pand-Rorsche can be enforced against the defendant, a subsequent purchaser who had no notice of the plaintiff's interest. The Illinois Motor Vehicle Law (Ill Rev Stats 1963, c 95%) establishes the method for perfecting and giving notice of security interests subject to that act, and provides that such method is exclusive. Ill Rev Stats 1963, c 95%, \\u00a7 3-207. Section 3-202 of that act provides, in part:\\n\\u00a7 3-202. Perfection of security interests, (a) Unless excepted by section 3-201, a security interest in a vehicle of a type for which a certificate of title is required is not valid against creditors of the owner or subsequent transferees or lienholders of the vehicle unless perfected as provided in this act.\\n(b) A security interest is perfected by the delivery to the Secretary of State of the existing certificate of title, if any, an application for a certificate of title, containing the name and address of the lienholder and the date of his security agreement and the required fee. . . .\\nPlaintiff admittedly endorsed in blank the certificate of title to the automobile, which stated that there were no liens against it, and delivered the certificate to Pand-Rorsche. William Patzer, president of plaintiff's corporation who also operates parking lots and who, by his own testimony, had purchased about 20 cars in the period from 1955 to 1961, could be presumed to be familiar with the automobile business and the titling procedures. It was his failure to comply with the mandate of the statute which enabled Pand-Rorsche fraudulently to resell the car without disclosing to the buyer the plaintiff's security interest in it. Under the provisions of \\u00a7 3-202, therefore, plaintiff's security interest was not valid as against defendant, a subsequent transferee.\\nCertain security interests, however, are exempted by \\u00a7 3-201 from the perfection requirements of \\u00a7 3-202. Section 3-201 (Ill Rev Stats 1963, c 95%, \\u00a7 3-201) reads in part as follows:\\n\\u00a7 3-201. Excepted liens and security interests. This Article does not apply to or affect:\\n(c) A security interest in a vehicle created by a manufacturer or dealer who holds the vehicle for sale, but a buyer in the ordinary course of trade from the manufacturer or dealer takes free of the security interest. (Emphasis ours.)\\nIf defendant were a buyer in the ordinary course of trade, therefore, it would take title to the automobile free of plaintiff's security interest, even if that interest fell within the exception carved out by \\u00a7 3-201.\\nThe Motor Vehicle Law itself contains no definition of the phrase, \\\"buyer in the ordinary course of trade.\\\" The Uniform Trust Receipts Act (Ill Rev Stats 1961, c 121%, \\u00a7 166 et seq.), which has since been supplanted in Illinois by the Uniform Commercial Code, contained the following definition of that phrase:\\n\\u00a7 166. Definitions. That in this Act, unless the context or subject matter otherwise requires: (1) \\\"Buyer in the ordinary course of trade\\\" means a person to whom goods are sold and delivered for new value and who acts in good faith and without actual knowledge of any limitation on the trustee's liberty of sale, including one who takes by conditional sale or under a pre-existing mercantile contract with the trustee to buy goods delivered, or like goods, for cash or on credit. \\\"Buyer in the ordinary course of trade\\\" does not include a pledgee, a mortgagee, a lienor, or a transferee in bulk. (Ill Rev Stats 1961, c 121%, \\u00a7 166(1)).\\nThis court, in General Finance Corp. v. Krause Motor Sales, 302 Ill App 210, 23 NE2d 781, interpreted the Uniform Trust Receipts Act's definition of this phrase to include a dealer who purchased several cars from another dealer without knowledge of the fact that the selling dealer had previously created a security interest in the automobiles.\\nThe Uniform Commercial Code altered the phrase to read, \\\"buyer in the ordinary course of business,\\\" and defined it as follows:\\n\\\"Buyer in the ordinary course of business\\\" means a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind but does not include a pawnbroker. \\\"Buying\\\" may be for cash or by exchange of other property or on secured or un secured credit and includes receiving goods or documents of title under a preexisting contract of sale but does not include a transfer in bulk or as security for or in total or partial satisfaction of a money debt. (Ill Rev Stats 1963, c 26, \\u00a7 1-201 (9)).\\nWe are of the opinion that the defendant in this case was clearly a buyer in the ordinary course of trade. It is undisputed that defendant and its agents, at the time of the purchase of the automobile from Pand-Rorsche, had no notice of any liens or encumbrances on the automobile, or of any interest plaintiff may have had therein. Therefore, even if this security interest is included within the exception carved out by \\u00a7 3-201, defendant would nevertheless take clear title to the automobile, free from any claims of the plaintiff.\\nPlaintiff's primary contention is that the defendant's conduct, after learning of the security interest in the automobile, should prevent him from asserting the rights of a buyer in the ordinary course of trade. Particular stress is placed upon the fact that the defendant's agent sold the automobile in another state after the representative of the Office of the Secretary of State had advised him not to dispose of it. But in our view the wisdom and propriety of the defendant's conduct in so doing bears no relation to the quality of the title which he took at the time of the purchase of the automobile from Pand-Rorsche. Plaintiff's failure to protect his security interest, and the fact that at the time of the purchase from Pand-Rorsche defendant was a buyer in the ordinary course of trade, freed the defendant's title from plaintiff's security interest. Events occurring thereafter have no relevance for this purpose.\\nPlaintiff also contends that defendant did not take good title to the automobile because the title certificate was forged, in that the president of Pand-Rorsche signed a fictitious name to the certificate in conveying it to the defendant. Plaintiff claims that, \\\"Defendant knew, or should have known, this title had a link in it which was forged.\\\" Our attention is directed to the fact that the signature of \\\"Lee Thomas\\\" was acknowledged by a notary public who was employed by the defendant.\\nPrior to these dealings, neither of the parties was familiar with the personnel of Pand-Rorsche. When Lee Thomas was introduced by that name as owner and president of Pand-Rorsche, defendant's agents had no reason to suspect a fictitious name was being used. It was natural that when the same person presented himself at the premises of Evanston Motor Co. and signed that name to the application for title, the notary public would, under the circumstances, acknowledge his signature as true. There is no evidence to support plaintiff's contention that Evanston Motor Company \\\"knew, or should have known, this title had a link in it which was forged.\\\" Furthermore, the record gives us no grounds for questioning the fact that the man who signed as Lee Thomas, although using a false name, was in fact the president of Pand-Rorsche, and was competent to buy and sell automobiles on behalf of Pand-Rorsche.\\nFor the foregoing reasons, the judgment of the Circuit Court of Cook County is reversed and the cause remanded with directions that judgment be entered that plaintiff take nothing by this action and that Evanston Motor Company have judgment for its costs.\\nReversed and remanded with directions.\\nKLUCZYNSKI, P. J. and MURPHY, J., concur.\"}"
ill/2609363.json ADDED
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1
+ "{\"id\": \"2609363\", \"name\": \"Marston Hefner v. David Vandolah\", \"name_abbreviation\": \"Hefner v. Vandolah\", \"decision_date\": \"1872-01\", \"docket_number\": \"\", \"first_page\": \"483\", \"last_page\": \"486\", \"citations\": \"62 Ill. 483\", \"volume\": \"62\", \"reporter\": \"Illinois Reports\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T21:23:29.769616+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Marston Hefner v. David Vandolah.\", \"head_matter\": \"Marston Hefner v. David Vandolah.\\n1. Promissory note\\u2014ratification, of forged signatures.' One whose name has been attached to a note as surety, without authority becomes liable, if, upon inspection, he admit the signature to be his. After such admission he is estopped from denying the making of the note.\\n2. Previous agency\\u2014not necessary. Nor is it necessary, to establish a ratification, that there had been any previous agency created. An act wholly unauthorized may be made valid by a subsequent ratification.\\n3. Admission\\u2014when not conclusive. A person who has signed several notes of like character, and, who under a mistake admits the signature of one, especially if not shown him, is not estopped from his plea denying his signature.\\n4. Usury\\u2014will vitiate judgment. A judgment founded upon a not< which upon its face reserves an usurious rate of interest should be for thJ principal alone.\\nAppeal from the Circuit Court of McLean County; the Hon. Thomas F. Tipton, Judge, presiding.\\nMessrs. Williams & Burr, for the appellant.\\nMessrs. Weldon & Benjamin, for the appellee.\", \"word_count\": \"1087\", \"char_count\": \"6290\", \"text\": \"Mr. Justice Sheldon\\ndelivered the opinion of the Court:\\nThis was an action of assumpsit, brought by appellee against appellant, upon a promissory note purporting to have been made by appellant and one Coman.\\nAppellant by plea, verified by affidavit, denied the making of the note, and it is not claimed that he did make it, but it is insisted that by certain declarations made by him, he is estopped from denying the making of the note.\\nThe note sued on is as follows :\\n$700. Sept. -26, 1869.\\nSix months after date, we promise to pay to the order of David Vandolah, seven hundred dollars, at twelve per cent interest, for value received.\\nW. COMAN.\\nMABSTON HEFNER.\\nThe cause was tried by the court, without the intervention of a jury, the issue found for the plaintiff and his damages assessed at the sum of seven hundred and ninety dollars and seventy-three cents, for which, after overruling a motion for a new trial, j udgment was rendered against the defendant, from which he prosecutes this appeal.\\nThe only questions raised are, as to the sufficiency of the admissions and declarations of Hefner to render him liable upon the note, and as to the correctness of a judgment for the principal and interest of the note bearing, as it does, upon its face, the usurious rate of interest of twelve per cent.\\nThe argument of appellant's counsel proceeds entirely upon the ground,, that the acts and admissions of Hefner, in order to charge him with liability upon this note which he never executed, must be of such a character as to constitute an estoppel in pais, having the element of actual damage from delay occasioned by the acts'of Hefner misleading Vandolah; and that the evidence comes short of making such a case. Without considering whether there may not be enough to support the judgment on that ground, we apprehend nothing more is necessary to be shown here, than that Hefner adopted and ratified his forged signature upon the note, to render him liable thereon.\\nIt was in evidence, that soon after the time the, note bears date, Vandolah showed it to Hefner, intimating a doubt as to its genuineness, and expressing a wish to know in regard to it; that Hefner examined the note expressing nothing definite, but intimating that the signature might be his, and saying he would let Vandolah know in a few days; after the lapse of a few days, Hefner told Vandolah that he had signed the note. There was abundant evidence to justify the court in finding that Hefner unequivocally and understanding^ adopted and ratified the use of his name on this note.\\nIf there had been an original assent on the part of the defendant to the placing of the signature of his name upon the note by Coman, the principal promisor, there can be no question that he would have been bound by it.\\nThe subsequent assent of Hefner to, and ratification of the unauthorized use of his name on the note by Coman, must, as we conceive, have the same effect to charge the former, as if he had originally authorized the signature of his name to the note by Co man. Such subsequent assent and ratification would be equivalent to an original authority, and confirm what was originally an unauthorized and illegal act. Story on Agency, Sections 239, 253.\\nWe conceive that the same rule should apply here as in the''1 case of the adoption or ratification of an ordinary act of assumed agency; that the form of signature not bearing any indication of the fact of its being made by another hand, does not prevent the person whose name is placed on the note from being legally holden; upon proof that the signature was previously authorized, or subsequently adopted. Nor is it necessary, to establish a ratification, that there had been any previous agency created. An act wholly unauthorized may be made valid by a subsequent ratification. Culver v. Ashley, 19 Pick. 301.\\nAs fully sustaining the views here expressed, we refer to the following authorities: Commercial Bank of Buffalo v. Warren, 15 N. Y. 577; Greenfield Bank v. Crafts et al. 4 Allen, 447; Casco Bank v. Keene, 53 Maine 103; Livings v. Wiler, 32 Ill. 387.\\nThis does not present the case of admissions, under a mistaken belief, that the signature was genuine. In this respect, a marked difference exists between the present case and that of Hefner v. James Vandolah, 57 Ill. 520. In that case Hefner had not seen the note, and as he had signed several notes as surety for Coman, he might well have supposed that the note which Yandolah mentioned to him as having, not stating its amount, was one which he had signed; and all his supposed acts of adoption and ratification might well have proceeded upon that false assumption. In the present case, the acts and admissions of the defendant were, after a careful actual examination of the note, and time taken for consideration, with full knowledge that the signature was not in his handwriting.\\nAs the note upon its face bore a greater rate of interest than ten per cent, the whole of the interest was forfeited under the statute, and only the principal sum due was recoverable.\\nFor error in this respect, in rendering judgment for interest upon the note, the judgment must be reversed and the cause remanded.\\nJudgment reversed.\"}"
ill/2637468.json ADDED
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1
+ "{\"id\": \"2637468\", \"name\": \"THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES ALLEN, Defendant-Appellant\", \"name_abbreviation\": \"People v. Allen\", \"decision_date\": \"1989-05-23\", \"docket_number\": \"No. 1\\u201485\\u20142566\", \"first_page\": \"438\", \"last_page\": \"453\", \"citations\": \"184 Ill. App. 3d 438\", \"volume\": \"184\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T20:12:13.668099+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES ALLEN, Defendant-Appellant.\", \"head_matter\": \"THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES ALLEN, Defendant-Appellant.\\nFirst District (2nd Division)\\nNo. 1\\u201485\\u20142566\\nOpinion filed May 23, 1989.\\nSteven Clark and Sue Augustus, both of State Appellate Defender\\u2019s Office, of Chicago, for appellant.\\nRichard M. Daley, State\\u2019s Attorney, of Chicago (Inge Fryklund, Judy L. Groeneveld, and Douglas Bank, Assistant State\\u2019s Attorneys, of counsel), for the People.\", \"word_count\": \"5808\", \"char_count\": \"34228\", \"text\": \"JUSTICE SCARIANO\\ndelivered the opinion of the court:\\nAfter being indicted for conspiracy and solicitation to commit murder, and murder, defendant James Allen was convicted of the conspiracy and murder charges and was sentenced to natural life imprisonment.\\nDefendant raises the following issues on appeal: (1) whether the trial court committed reversible error in allowing him only seven peremptory challenges, instead of 14, after he had waived a jury for the death penalty sentencing phase of the trial; (2) whether the trial court erred in denying his motion for a Franks hearing after defendant had made a substantial preliminary showing that the affiant knowingly made a false statement in the affidavit for a warrant; (3) whether he was denied a fair trial because of the court's improper admission of other crimes evidence; (4) whether it was improper to deny defense counsel's motion to withdraw at sentencing and to refuse to appoint other counsel after defendant had filed, pro se, a motion for a new trial alleging ineffective assistance of counsel; and (5) whether defendant's conviction and sentence for conspiracy must be vacated in view of his having been convicted of the principal offense.\\nDefendant was indicted together with Charles Ashley and Henry Griffin on the above-mentioned charges. Before trial, defendant made a motion to quash arrest and suppress certain statements, alleging the improper issuance of a search warrant, and requested a Franks hearing to determine the veracity of the affiant. The trial court denied defendant a hearing on the motion and ordered that the trials of the three defendants would proceed simultaneously, although separately: two juries were selected to try Griffin and the defendant herein, while Ashley elected to be tried by the judge. Prior to jury selection, defendant waived a jury for the death sentencing phase of the proceeding, in connection with which the court ruled that the defendant was entitled. to only seven peremptory challenges. The jury found him guilty of murder and conspiracy, and the judge sentenced him to natural life in prison. Defendant now appeals his conviction and sentence.\\nThree assistant State's Attorneys and six defense counsel participated in the trial, which was conducted before a judge and two juries in the same courtroom. The testimony of the witnesses established the following.\\nNeil Cohen, an assistant State's Attorney, took part in Operation Camelot, a coordinated effort to investigate the drug dealings of Charles Ashley, a major drug dealer on Chicago's south side. In furtherance of this investigation, the State's Attorney's office had a number of grand jury subpoenas served on individuals who frequented the area where Ashley's drug operation was extant. The Chicago police department also executed a number of search warrants and two arrest warrants \\u2014 one for Ashley and one for Carl Gibson \\u2014 on June 14, 1984. After Cohen learned on June 21, 1984, that Gibson had been slain, he met with Sherman Overstreet, who then agreed to testify against Ashley.\\nJohn Blackman, a Chicago police officer, discovered Gibson's body on the 73rd Street exit ramp of the Chicago Skyway on June 21, 1984. It was stipulated that Gibson died of multiple gunshot wounds.\\nOverstreet admitted that he was convicted of murder and of retail theft, that he had multiple charges of delivery of heroin pending against him, and that in exchange for his testimony at trial and for pleading guilty to one of the pending charges, he was sentenced to time served and was relocated. On June 21, 1984, Overstreet was living in an apartment building owned by Ashley, for whom he had worked for the previous nine years as a drug runner, delivering heroin and cocaine. Overstreet knew defendant as being from the area of 65th and Ashland and had seen him with Ashley a few times. On June 10, 1985, Overstreet was living in witness quarters, where he had a conversation with defendant in which defendant told Overstreet that he was first offered a \\\"contract\\\" by Ashley, but when he refused it, Griffin accepted it. Defendant further told Overstreet that he drove the murder car and that he was supposed to have obtained the murder weapons. Defendant and Griffin picked Gibson up at 64th and Maryland, drove to 75th Street, and while defendant waited in the car, Griffin and Gibson went into an apartment. When they returned to the car, Griffin got in the back seat and Gibson got in the front passenger seat. Defendant then began driving southbound on the Skyway, but at the 98th Street toll plaza, he turned the car around and began heading north. At this point, Griffin shot Gibson four times. Defendant left the Skyway at the 73rd Street exit, stopped the car on the exit ramp, jumped out of the car and ran home. Defendant also told Overstreet that he wore tight driving gloves so as not to leave any fingerprints, that he was part of the contract, and that he was angry because he did not receive payment for his participation in the murder.\\nDarryl Moore worked as an \\\"enforcer\\\" for Ashley for a number of years and knew defendant and Griffin. Moore admitted that he sold drugs, killed people for money, that he had previously been convicted of rape and two robberies, and had an armed robbery charge and a drug case pending against him. In exchange for his testimony, the armed robbery charge was reduced to robbery, for which he received time served; his drug case was dismissed, he was given a grant of immunity on a murder charge, and he was also relocated.\\nMoore met with Ashley in the latter's grocery store at 65th and Maryland, where Ashley asked him if he would kill Carl Gibson for $200 and three ounces of narcotics. Moore responded that he would do it for $10,000. When Ashley did not react, Moore lowered his price to $5,000, and after Ashley refused, Moore suggested that Griffin might be interested.\\nOn June 20, 1984, Griffin came to Moore's apartment and told Moore that he had a contract from Ashley on Gibson; he asked Moore if he would assist him and Moore refused. On June 21, 1984, Griffin and defendant came to Moore's apartment and there Griffin informed Moore that the contract on Gibson had been easy, that defendant drove the car and that he (Griffin) shot Gibson on the Skyway.\\nOn June 29, 1984, defendant came to Moore's apartment, complaining that he had not been paid for the work he had done for Ashley. Defendant asked Moore if he would help kidnap Ashley and hold him for ransom. After Moore refused, defendant left with two other men who were at Moore's apartment. Moore also admitted that he knew Arthur Stringer, but he denied ever walking down the street with Stringer, seeing the defendant, pointing a finger at defendant and saying, \\\"I'm going to get that nigger if it's the last thing I do.\\\"\\nOn August 9, 1984, Moore was taken to the State's Attorney's office, where he made a tape-recorded phone call to Griffin in which the two discussed the disposal of the gun and the car used in the victim's murder. They also discussed how Griffin had been offered the contract and how he and the defendant carried it out. While they were talking, Assistant State's Attorney Cohen was listening on another phone, and police officers from the narcotics division were traveling to Griffin's apartment to arrest him. Griffin was found in the bathroom with the telephone in his hand; Cohen heard him being arrested over the phone.\\nDefendant and Griffin were both arrested on August 9, 1984, and placed in separate interview rooms. Cohen spoke first with defendant and later with Griffin. After defendant waived his Miranda rights, he informed Cohen that Griffin had approached him and had offered him money if he would help lure someone out of a building to be killed, but that he refused Griffin's offer. Defendant admitted to Cohen that on June 20, he and Griffin drove to 93rd and Stony Island, where Griffin left the car to get the victim, Carl Gibson. When Griffin returned, defendant was in the driver's seat; Gibson got in the front seat and Griffin sat in the back.\\nDefendant related to Cohen that he drove onto the Skyway southbound but turned around at the toll plaza and went north. Before he exited at 73rd Street, defendant heard three or four shots and saw Gibson slump forward. He drove halfway down the exit ramp, stopped the car, and when he jumped out, Griffin got out and pointed a gun at him. Defendant ran away and went home. Defendant told Cohen that fear prevented him from going to the police.\\nOn cross-examination, Cohen testified that the defendant had stated that he did not know that Griffin was going to shoot Carl Gibson, that Ashley and Gibson forced him to put his fingerprints on a murder weapon later used to kill a man named \\\"Doc\\\" who ran a drug store in Ashley's neighborhood, and that Ashley threatened defendant and defendant's family, warning him not to incriminate Ashley in the Gibson murder.\\nFor the defense, Arthur Stringer, after acknowledging that he had been convicted of armed robbery and murder and was currently imprisoned for a parole violation, testified that in mid-1983, he was with Moore when they saw defendant cross the street. Moore pointed at defendant and told Stringer that defendant had embarrassed him once and that he would get even with him if he had the chance. In August of 1984, Moore told Stringer that he had recently gotten out of jail and that defendant was supposed to get set up in the \\\"Skyway murder\\\" although defendant had no knowledge of it.\\nThe jury returned guilty verdicts against the defendant on the conspiracy and murder charges. At the sentencing hearing, the court denied defendant's pro se motion for a new trial as well as the post-trial motion presented by his counsel. The trial judge also denied the State's request to sentence the defendant to death. Following arguments, the judge sentenced the defendant to natural life imprisonment on both the murder and conspiracy to commit murder convictions.\\nI\\nSupreme Court Rule 434(d) provides in pertinent part as follows:\\n\\\"A defendant tried alone shall be allowed 14 peremptory challenges in a capital case, 7 in a case in which the punishment may be imprisonment in the penitentiary, and 5 in all other cases.\\\" (107 Ill. 2d R. 434(d).)\\nDefendant first claims that because he was a defendant tried alone in a capital case after the effective date of Supreme Court Rule 434(d), the trial court committed reversible error in allowing him only seven peremptory challenges, instead of 14, even though he waived a jury for the death penalty sentencing phase. Defendant further analogizes his case to those in which it has been held to be reversible error to deprive a party of his right to exercise all of the peremptory challenges to which he is entitled in the impaneling of a jury. Gulf, Colorado & Santa Fe Ry. Co. v. Shane (1895), 157 U.S. 348, 39 L. Ed. 727, 15 S. Ct. 641; People v. Webster (1935), 362 Ill. 226,198 N.E. 322.\\nWe encounter no difficulty in holding that People v. Wolfe (1986), 144 Ill. App. 3d 843, 494 N.E .2d 670, is controlling here. In Wolfe, two defendants were jointly tried in a capital case, and, as defendant did in the case at bar, prior to trial, they waived a jury for the death penalty hearing. The trial court accordingly allowed each of the defendants only six peremptory challenges, the statutory number allowed at the time in a single trial of two defendants \\\"in a case in which the punishment may be imprisonment in the penitentiary.\\\" (Ill. Rev. Stat. 1985, ch. 38, par. 115 \\u2014 4(e).) The statute also provided each defendant 12 peremptory challenges in a capital case. The court in Wolfe, relying on People v. Nathaniel (1981), 103 Ill. App. 3d 610, 431 N.E.2d 1080, reasoned that inasmuch as it was no longer within the province of the jury to sentence the defendant to capital punishment, \\\"the rationale behind the statute granting a greater number of peremptory challenges in a capital case simply does not apply.\\\" Wolfe, 144 Ill. App. 3d at 851.\\nDefendant insists, however, that Wolfe was incorrectly decided for the very reason that it based its support on People v. Nathaniel (103 Ill. App. 3d 610, 451 N.E.2d 1080). In Nathaniel, the State was uncertain whether the facts of the case qualified it for a sentence of death, and if it did, whether such a penalty would be sought. Consequently, the State requested that the voir dire be conducted under the guidelines of Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, but when the trial judge refused to do so, the State did not pursue the issue any further. Although it did not \\\"wholly approve of his procedure\\\" (103 Ill. App. 3d at 615), the appellate court held that since the trial court's decision not to \\\"Witherspoon\\\" the jury eliminated the possibility that the defendant could receive the death penalty, the matter was not a capital case within the meaning of the statute. Furthermore, the defendant argues, both in Wolfe and in the present case, the jury was being selected to determine the guilt or the innocence of an accused against whom the prosecution could and would seek the death penalty, and even though the jury would not decide whether to impose it, the jury did decide the equally important question of whether the defendant had been guilty of the crime which might warrant the imposition of such a penalty.\\nDefendant also makes the point that neither Supreme Court Rule 434(d), nor its predecessor statute conditions the defendant's right to the specified number of peremptory challenges in a capital case on whether or not the defendant elects a jury for the death penalty hearing; rather, the defendant contends, the rule and the former statute make a distinction only between capital offenses and those punishable by imprisonment in the penitentiary. The defendant concludes with the argument that if capital punishment is threatened upon conviction, the case is a \\\"capital\\\" one under a sensible construction of the term as used in the former statute and the present rule. People v. Holmes (1974), 19 Ill. App. 3d 814, 313 N.E.2d 297.\\nWe deem it to be the sheerest form of tautology, yet necessary, to point out that because defendant waived a jury for the death penalty hearing, this was no longer a capital case insofar as the jury was concerned. By any logical interpretation of the terms of Rule 434(d), the number of peremptory challenges allowed to a defendant is unmistakably related to the punishment the jury metes out to him. But here the jury was in no conceivable way involved in determining his punishment, which was by his own request left solely to the judge, and the jury was so informed from the very beginning of the trial. To suggest, as defendant does, that the punishment the trial judge imposes is in some impenetrably obscure way dependent upon the number of peremptory challenges a defendant is allotted under the rule is plainly an absurdity.\\nDefendant seems also to be propounding to us that a jury divorced from the duty of fixing a sentence is somehow foreclosed from, or at least less prone to, return a guilty verdict in a murder case if he is permitted 14 peremptory challenges as opposed to seven, although he neglects to inform us as to where he finds this gloss. The fact that Rule 434(d) does not contain specific language conditioning the defendant's right to the specified number of peremptory challenges in a capital case on whether or not the defendant elects a jury for the death penalty hearing does not render Wolfe invalid, for the rationale of the case is implicit and inherent in the rule. Accordingly, we hold that the trial court committed no error in allowing defendant seven, instead of 14, peremptory challenges after he had waived a jury for the death penalty sentencing phase of defendant's trial.\\nII\\nAs to his second issue, defendant argues that the trial court erred in denying his motion for a Franks hearing, in support of which he claims to have made a substantial preliminary showing that Detective Pochardo knowingly made a false statement in his affidavit for both the search warrant and the arrest warrant, which were issued by separate judges.\\nDefendant asserts that pursuant to Franks v. Delaware (1978), 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674, and People v. Garcia (1982), 109 Ill. App. 3d 142, 440 N.E.2d .269, cert. denied (1983), 460 U.S. 1040, 75 L. Ed. 2d 792, 103 S. Ct. 1433, the fourth amendment requires that a hearing be held at the defendant's request if he makes a preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, is alleged to have been included by the affiant in an affidavit for a search warrant and if the alleged false statement was necessary to the finding of probable cause.\\nDefendant contends that the affiant, Detective Pochardo, swore falsely when he deposed that an informant, Darryl Moore, had previously given him reliable information on 10 separate cases. Defendant maintains that Pochardo lied about the number of occasions he talked to Moore and that he falsely represented the facts of the case that were known to the police at the time. Defendant avers that he thus made the necessary preliminary showing which requires a hearing under Franks and Garcia.\\nDefendant further asserts that the Franks principle is equally applicable to an arrest warrant. (People v. Hothersall (1981), 103 Ill. App. 3d 183, 430 N.E.2d 1142.) The fact that the search warrant and arrest warrant were signed by different judges, he argues, is meaningless, for in both instances there is a question as to whether there was probable cause for their issuance. It is reasonable to infer, he adds, that Detective Pochardo supplied the judge who signed the arrest warrant with some of the same information contained in his complaint for the search warrant. Accordingly, defendant concludes that he was improperly denied the opportunity to show that since Detective Pochardo had obtained both warrants by the use of false allegations, this case should be remanded for a Franks hearing.\\nThe State responds that the only reason for challenging an affidavit via a Franks hearing is to suppress any evidence obtained under the search warrant and to exclude its use at a trial, and since in the present case there was no evidence obtained as a result of the execution of the search warrant, there was nothing to suppress; therefore, there was no need to hold a Franks hearing. Moreover, the State contends, assuming arguendo that the search warrant was invalid, its taint in no way affected the issuance of the arrest warrant. The search warrant turned up no evidence that was used in connection with the arrest warrant, and the defendant points to nothing that would indicate that the arrest warrant was premised or based upon the accompanying affidavit to the search warrant. Finally, the State argues that inasmuch as a Franks hearing applies only to determining the validity of a search warrant, a Franks hearing is of no relevance in an attack on an arrest warrant.\\nIn light of the fact that the police did not recover any evidence from the search, we hold that it is irrelevant whether the search warrant was valid. Thus, the issue of the trial court's failure to suppress evidence is moot, and although pursuant to Hothersall, the Franks principle is applicable in the case of a similar attack on an arrest warrant, in the case at bar, the defendant does not provide us with anything in the record to show that the judge who issued the warrant relied upon the questionable affidavit; he merely asks this court to infer that the detective told the judge who issued the arrest warrant at least some of the same things that he included in his affidavit for the search warrant. Since Franks is clear in its requirement that allegations of falsehood be accompanied by an offer of proof, it should go without saying that inferences are not acceptable substitutes. Consequently, the defendant was not entitled to a Franks hearing in regard to the arrest warrant.\\nIll\\nAs to his third issue, defendant contends that he was denied a fair trial by reason of the admission of irrelevant other crimes evidence, charging (A) that the State deliberately elicited testimony that he participated in an armed robbery and kidnapping and was a suspect in an unrelated murder \\u2014 more specifically, that defendant intended to kidnap and rob Ashley; (B) that defendant committed kidnappings of drug dealers for ransom; and (C) that defendant was a suspect in a murder unrelated to the one forming the subject matter of this case. He claims that such testimony was irrelevant, highly prejudicial and denied him a fair trial. We shall discuss these issues seriatim.\\nA\\nDefendant complains that the testimony as to the plot to kidnap Ashley and hold him for ransom was not probative of the defendant's intent or knowledge of the conspiracy to murder Gibson, and that the testimony that he and Moore kidnapped other drug dealers for ransom had on relevance to any of the issues for which he was tired.\\nAlthough it is generally true that evidence of other crimes is inadmissible to prove a defendant's disposition to commit the crimes charged (People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360; People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821, cert. denied (1983), 464 U.S. 84, 78 L. Ed. 2d 136, 104 S. Ct. 145, citing People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; see also People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840, cert. denied (1985), 471 U.S. 1131, 86 L. Ed. 2d 283, 105 S. Ct. 2666), evidence of past crimes may be admitted if it is relevant to prove any material fact in issue other than defendant's propensity to commit a crime, as long as there is a similarity between the other crimes and the offense with which defendant is charged. (People v. Evans, 125 Ill. 2d 50, citing People v. Taylor (1984), 101 Ill. 2d 508, 463 N.E.2d 705, cert. denied (1984), 469 U.S. 866, 83 L. Ed. 2d 140, 105 S. Ct. 209.) More particularly, evidence which goes to show motive, intent, identity, knowledge, absence of mistake, accident, common scheme or plan or modus operandi may also be received even though it may show the commission of a separate offense. (People v. Evans, 125 Ill. 2d 50, citing People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821; People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489; People v. Nicholson (1978), 61 Ill. App. 3d 621, 377 N.E.2d 1063; People v. Jordan (1974), 18 Ill. App. 3d 133, 309 N.E.2d 274.) People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292, cites a variety of other instances in which evidence of the commission of other crimes or wrongful conduct has been found to be admissible and collects the authorities thereon. Such instances include, among others, evidence relevant to prove absence of an innocent frame of mind and consciousness of guilt. See People v. Crayton (1988), 175 Ill. App. 3d 932, 530 N.E.2d 651.\\nThe State's theory at trial was that Ashley hired defendant and Griffin to kill Gibson, and when the defendant was not paid by Ashley for his part in the murder, the defendant planned to kidnap Ashley and hold him for ransom in order to collect the money that Ashley owed him, a theory amply borne out by the evidence set forth hereinabove. Indeed, defendant states in his brief filed in this court that \\\"[w]hile the statement that he had not been paid for the murder was relevant to establish participation, the claim that he committed another crime for the supposed purpose of collecting the debt added nothing to the evidence of participation in the murder other than to improperly prejudice Mr. Allen with the taint of another crime.\\\" We disagree with the last part of this statement. Because the evidence complained of was all of one coherent piece, there was sufficient reason for the trial court to have held that since the evidence of the act and the evidence of the crime charged are inextricably intertwined, the act is not extrinsic and the rule relating to \\\"other crimes\\\" evidence is not implicated, simply because such evidence formed an integral and natural part of the witness' account of the circumstances surrounding the offenses for which defendant was indicted. People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.\\nB\\nThe State claims that its \\\"use of evidence that defendant committed kidnappings of drug dealers for ransom was proper and relevant to show modus operandi to establish that defendant did, in fact, intend to kidnap Ashley and hold him for ransom and that defendant did, in fact, kidnap and murder Gibson.\\\" The State adds that \\\"this is true because the practice of kidnapping a drug dealer for ransom is unique enough to bring defendant's 'other crime' within the modus operandi exception to the general rule prohibiting admission of evidence of crimes other than the one charged.\\\"\\nDefendant responds that \\\"[t]he modus operandi exception is used to establish the identity of the offender based on unique similar actions of a more specific nature than a particular class of victims as broad as drug dealers,\\\" and adds that \\\"while no specifics were offered as to the prior kidnapping for ransom of drug dealers her, there still are several obvious differences from the crime in question since this was a murder with no ransom sought.\\\"\\nThe court in Kimbrough defined modus operandi and discussed its application as follows:\\n\\\"Modus operandi means, literally, 'method of working.' It refers to a pattern of criminal behavior so distinct that separate crimes or wrongful conduct are recognized as the work of the same person. (People v. Barbour (1982), 106 Ill. App. 3d 993, 1000, 436 N.E.2d 667, 672.) If evidence of other crimes is offered to prove modus operandi, there must be some clear connection between the other crime and the crime charged which creates a logical inference that if defendant committed one of the acts, he may have committed the other act. This inference of identity does not arise from the mere fact that the crime charged and the other crime share certain common features or marks of similarity, for it may be that these similarities are shared not only by the crime charged and defendant's other crime, but also by numerous distinct crimes committed by persons other than the defendant. Rather, the inference is created when both crimes share peculiar and distinctive common features so as to earmark both crimes as the handiwork of the defendant. (People v. Matthews (1985), 137 Ill. App. 3d 870, 875-76.) There must be some distinctive features that are not common to most offenses of that type. (People v. Dickerson (1983), 119 Ill. App. 3d 568, 574, 456 N.E.2d 920, 925.)\\\" People v. Kimbrough, 138 Ill. App. 3d at 486-87.\\nThe rules developed by our courts governing the purposes for which extrinsic evidence of crimes, wrongs, or acts may be admitted do not extend to their being inappropriately pyramided or to a prosecutor's use of bootstrapping methods in invoking them. The State's having been permitted to introduce evidence of defendant's intent to kidnap Ashley as his method of forcing Ashley to pay him for his participation in the murder of Gibson does not call for the creation of a \\\"free-fire\\\" zone allowing the admission of Moore's testimony that he and the defendant had engaged in \\\"kidnapping drug dealers \\u2014 we would kidnap for ransom.\\\" The State's theory at trial, we are compelled to reiterate, was that Ashley hired defendant and Griffin to kill Gibson in order to silence him because he was under an arrest warrant along with Ashley in connection with certain drug-related crimes of apparently great magnitude and that later defendant intended to kidnap Ashley to enforce payment of the promised fee. But it is quite another matter to contend that to that stratum of evidence there may be added another layer of testimony relating to other kidnappings, where kidnapping is not in issue, more particularly where the State advances modus operandi in support of its contention. The general kidnapping of drug dealers for ransom is clearly not congruent with killing for hire in order to keep the victim from testifying against his companion in crime, even though the companions are engaged in the drug traffic, even though the murderer later forms the intent to kidnap his procurer as a means of collecting the promised compensation, and even though such compensation is viewed as \\\"ransom.\\\"\\nWe note in the record, however, the following colloquy which took place during the disputed part of Moore's testimony:\\n\\\"Q. How long had you been doing work with James Allen?\\nA. For a matter of weeks.\\nQ. And what type of work did you and Mr. Allen do together?\\nA. We was kidnapping drug dealers. He was \\u2014 he would set it and me and a few other guys\\u2014\\nMR. KUNZ: Objection.\\nA. We would kidnap for ransom.\\nMR. KUNZ: Beyond the scope of this and the answer to discovery.\\nTHE COURT: Overruled.\\nQ. You and Mr. Allen would kidnap drug dealers for ransom?\\nA. Yes.\\nQ. And would you be paid the ransom that you demanded?\\nTHE COURT: All right, sustained.\\\"\\nIt might be fairly inferred from the trial judge's having ultimately sustained the defense's objection that defendant's charge of error is not well taken. No matter, we hold that even if we were to assume that error occurred, it was harmless in light of the overwhelming evidence of guilt amassed against the defendant, as witness his admis sions as testified to by Overstreet, Moore, and Assistant State's Attorney Cohen.\\nC\\nAs to the murder of \\\"Doc,\\\" since the defense was first to raise that subject, the defendant is precluded from successfully claiming that the State's response thereto was somehow unfair and improper. (People v. Ford (1987), 163 Ill. App. 3d 497, 516 N.E.2d 766.) The record is clear that the defense introduced evidence of \\\"Doc's\\\" murder in an attempt to explain that defendant \\\"feared going to the police because Ashley was threatening to frame him for the murder\\\" if he reported the matter to the authorities; hence the reason for Ashley's and Griffin's forcing him to put his fingerprints on a gun that was subsequently used to kill \\\"Doc.\\\"\\nIV\\nAs his fourth issue, defendant asserts that since he alleged ineffective assistance of counsel because of his trial attorney's failure to call certain witnesses, it was erroneous for the court to deny the attorney's motion to withdraw at sentencing and to refuse to appoint other counsel to assist defendant in his pro se motion for a new trial, citing People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045. In Krankel, defense counsel refused to present an alibi witness and failed to investigate defendant's whereabouts at the time of the offense. The defendant argued pro se his post-trial ineffective assistance of counsel motion. The appellate court ruled that the trial court should have appointed substitute counsel and remanded the cause for a hearing on the defendant's motion.\\nDefendant states that although Krankel does not establish a per se rule for the appointment of counsel, whenever a defendant files a pro se motion alleging ineffective assistance of counsel, the trial court should at least examine the merits of his claim. Defendant further states that People v. Jackson (1985), 131 Ill. App. 3d 128, 474 N.E.2d 466, sets forth the procedure for the trial court to follow when confronted with this issue: it should examine the factual matters underlying defendant's claim, and if it goes to matters of trial tactics or strategy, the claim should be declared spurious and the request for new counsel denied; if the factual matters show possible neglect of defendant's case, the court should appoint new counsel who would undertake an independent evaluation of defendant's claim. Jackson, 131 Ill. App. 3d at 138.\\nDefendant indicates that there was a rift between him and his counsel and that there were witnesses whom his attorney did not call to testify. Defendant urges that inasmuch as the evidence against him was not overwhelming, and he faced the possibility of the death penalty, the trial court should have appointed independent counsel to argue the defendant's ineffective assistance of counsel claim.\\nWe agree with the State that defense counsel's decision as to which witnesses to call was a matter of trial tactics and strategy, in which case a charge of ineffective assistance of counsel cannot prevail. (People v. Carter (1985), 132 Ill. App. 3d 523, 477 N.E.2d 1307.) Moreover, defendant failed to inform the trial court, as he overlooks doing here, as to who the witnesses might be whom his attorney is alleged to have neglected to call and what evidence they may have afforded the court. Besides, in Krankel, unlike the present case, the defendant's challenge obviously had merit, and thus justified the appointment of substitute counsel, whereas, here defendant's argument merely demonstrates that he disagreed with defense counsel's trial strategy, which is not enough to mandate the appointment of new counsel. Jackson, 131 Ill. App. 3d at 139.\\nV\\nAs his fifth and final issue, defendant argues, and the State concedes, that pursuant to section 8 \\u2014 5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 8 \\u2014 5), a defendant may not be convicted of both an inchoate offense and the principal one. People v. Walker (1981), 84 Ill. 2d 512, 419 N.E.2d 1167; People v. Atkins (1987), 161 Ill. App. 3d 600, 515 N.E.2d 272.\\nAccordingly, we hold that defendant's convictions for conspiracy to commit murder should be vacated; in all other respects, the judgment of the circuit court is affirmed.\\nJudgment vacated in part and affirmed.\\nEGAN and HARTMAN, JJ., concur.\\nJustice Egan participated in this opinion before being transferred to the sixth division.\"}"
ill/2649621.json ADDED
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1
+ "{\"id\": \"2649621\", \"name\": \"George Hamm v. Mary E. Culvey\", \"name_abbreviation\": \"Hamm v. Culvey\", \"decision_date\": \"1876-09\", \"docket_number\": \"\", \"first_page\": \"56\", \"last_page\": \"57\", \"citations\": \"84 Ill. 56\", \"volume\": \"84\", \"reporter\": \"Illinois Reports\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T17:44:33.090405+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"George Hamm v. Mary E. Culvey.\", \"head_matter\": \"George Hamm v. Mary E. Culvey.\\n1. Trespass\\u2014verdict and judgment. Technical nicety is not required in the verdict, in trespass. A general finding of guilty, and judgment according to the verdict, is sufficient.\\n2. In trespass for a personal assault, a verdict, \\u201c We, the jury, find the defendant guilty, and assess the damages against the defendant at $75,\\u201d though formally liable to objection, is cured by our Statute of Amendments.\\nAppeal from the Circuit Court of Stephenson county; the Hon. William Brown, Judge, presiding.\\nHr. H. Martin, and Mr. H. B. Amerling, for the appellant.\", \"word_count\": \"497\", \"char_count\": \"2940\", \"text\": \"Mr. Justice Soholeield\\ndelivered the opinion of the Court:\\nThis was an action of trespass, by the appellee against the appellant, for a personal assault.\\nAppellant filed two special pleas justifying the assault. The jury returned the following verdict: \\\" We, the jury, find the defendant guilty, and assess the damages against the defendant at $75.\\\" Motions for new trial and in arrest of judgment were made by appellant and overruled by the court, and judgment was thereupon rendered upon the verdict.\\nThe only point relied upon as ground for reversal is, that the judgment is not responsive to the issues. We do not think the point well made. It is said, in Waterman on Trespass, Yol. 1, p. 110, \\u00a7 122: \\\" Technical nicety is not required in the verdict. A general finding of guilty, and judgment 6 according to the verdict,' is sufficient.\\\" See, also, Powers v. Davis, 6 Ala. 9.\\nIn Wilderman et al. v. Sandusky, 15 Ill. 60, trespass was brought against four persons of the name of Wilderman. The verdict was, \\\" We, the jury, find the three defendants, Nancy Wilderman, Simon Wilderman and Garrison Wilderman, guilty, and assess the plaintiff's damages at thirty-five dollars,\\\" saying nothing as to the fourth defendant.\\nThe court said: \\\" In our opinion, the verdict was substantially good. It may properly be regarded as a finding on all of the issues; and the judgment may be considered as a final disposition of the whole case. The case as to all the defendants was submitted to the j ury, and they found affirmatively that three of them were guilty. In legal contemplation, this amounted to a negative finding of not guilty as to the other defendant.\\\" The pleas, although admitting the assault, simply set up matter showing that the defendant was not guilty of the trespass wherewith he was charged, and had the finding on either of these been in his favor, the verdict would have necessarily been that he was not guilty. The finding being that he is guilty, includes, therefore, the determination that the issues.on his pleas are found against him. Hawks v. Croften, 2 Burrows, 698; Worford v. Isbel, 1 Bibb, 247.\\nFormally, the verdict is, perhaps, liable to objection; but this is cured by our Statute of Amendments and Jeofails. Davis v. The People, 50 Ill. 199; Matson et al. v. Connelly, 24 id. 142.\\nThe judgment is affirmed.\\nJudgment affirmed.\"}"
ill/2694288.json ADDED
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1
+ "{\"id\": \"2694288\", \"name\": \"Kankakee County Housing Authority, Appellee, vs. Laura Spurlock, Appellant\", \"name_abbreviation\": \"Kankakee County Housing Authority v. Spurlock\", \"decision_date\": \"1954-05-24\", \"docket_number\": \"No. 33045\", \"first_page\": \"277\", \"last_page\": \"284\", \"citations\": \"3 Ill. 2d 277\", \"volume\": \"3\", \"reporter\": \"Illinois Reports, Second Series\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T19:05:54.938108+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kankakee County Housing Authority, Appellee, vs. Laura Spurlock, Appellant.\", \"head_matter\": \"(No. 33045.\\nKankakee County Housing Authority, Appellee, vs. Laura Spurlock, Appellant.\\nOpinion filed May 24, 1954\\nRehearing denied July 13, 1954.\\nMoore, Ming & Leighton, of Chicago, (Christopher C. Wimbish, and George N. L\\u00e9ighton, of counsel,) for appellant.\\nEdward A. McIntire, of Kankakee, (Donald Gray, of counsel,) for appellee.\", \"word_count\": \"2143\", \"char_count\": \"12961\", \"text\": \"Mr. Justice Daily\\ndelivered the opinion of the court:\\nThis is an appeal from a judgment of the circuit court of Kankakee County in an eminent domain proceeding instituted by Kankakee County Housing Authority, the appellee, to condemn a parcel of real estate owned by Laura Spurlock, the appellant, for use as a public housing site. Appellant does not attack the adequacy of the $7200 compensation awarded her, but urges that the taking was unlawful for the reason that her land is to be utilized for the construction of a project \\\"devoted\\\" to race segregation.\\nThe facts which generated appellant's claim show that after conducting various surveys, appellee proposed to meet the housing needs of the community by erecting forty public housing units on a site known as Hardebeck's Sub division and eighty identical units on a site some four blocks distant. Though part of one overall program, the projects were designated as 39-2 and 39-1, respectively. The proposed site for project 39-2 is a slum area, the elimination of which will also serve a public purpose. (Zurn v. City of Chicago, 389 Ill. 114.) It is composed of eleven parcels of land all owned by persons of the Negro race, and ninety-nine percent of its inhabitants, who will be displaced, are likewise members of the same race. On the other hand, the proposed site for project 39-1 is vacant land and apparently owned by persons not members of the Negro race. Following the formation of preliminary plans, appellee submitted them to Federal authorities as part of an application for an annual-contributions contract for Federal funds. One section of the plan, titled \\\"Racial Equity to be Achieved,\\\" reflects that the estimated distribution of the 120 units will be 80 for \\\"white\\\" and 40 for \\\"non-white,\\\" a distribution of 66.7 percent and 33.3 percent, whereas to \\\"achieve racial equity based solely on the volume of substandard housing,\\\" the distribution would be 73 percent and 27 percent, respectively. The section concludes that the actual needs, reflected by the figures last quoted, had been weighed in this instance because appellee was of the opinion there would be a higher percentage of eligible tenants among the nonwhite people. It appears without question that this breakdown of the distribution necessary to achieve racial equity was included in the plan as a requirement of the Federal agency and was not prompted by any thought of racial segregation or discrimination on appellee's part. The only other section of the plan we find to be pertinent is titled \\\"Long Range Program of Project Location\\\" and concludes with this language : \\\"As stated above, the entire 120 dwelling units reserved are to be constructed at once, with 80 units on a vacant site for white occupancy, and 40 units on a slum site for non-white occupancy.\\\" Ap pellee's application for funds was approved by the Federal agency and among the Federal officials giving approval to appellee's plan was the agency's chief of racial relations.\\nThereafter, appellee filed a petition to condemn the eleven parcels needed for project 39-2, alleging that it sought to acquire the land \\\"for the purpose of constructing thereon a housing project for public use It should be noted here that since Krause v. Peoria Housing Authority, 370 Ill. 356, acquisition of land for low-rent housing and slum clearance has been deemed a public purpose. Appellant, and the several other owners, filed a motion which controverted appellee's right to condemn and asked that the petition be dismissed. Briefly, the motion alleged that the taking is not for use by the public but for use \\\"by the Ethnic group commonly known as Negroes,\\\" and therefore is a taking for a private purpose; that the used described in the petition is not a public use because it is to erect, establish and maintain a race segregation housing project contrary to the laws and public policy of the State of Illinois; and that the acts and conduct of appellee were violative of the rights of the landowners protected and guaranteed by due process of the State and Federal constitutions. After hearing evidence offered in support of said motion, the trial court denied the motion to dismiss and ordered a jury trial to determine the value of appellant's land. A jury was selected and sworn but, before any evidence was heard, appellant filed a motion to discharge the jury for the reason that it \\\"had come to her attention\\\" that Negroes were excluded from the jury panel. Evidence was also presented on this issue, over appellee's objection, and, at its close, the motion was denied and the cause proceeded to verdict and judgment. This appeal has followed with the principal assignments of error being that the trial court erred in denying both the motion to dismiss the condemnation petition and the motion to discharge the jury.\\nAppellant's argument that the taking of her land is violative of the laws and policy of both State and nation is predicated, in the first instance, on the conclusion \\\"that the record inescapably shows appellee has administratively determined that appellant's land is to be used for the construction of a project devoted to race segregation.\\\" We, however, do not interpret the record as revealing any definite or official determination that race segregation will be enforced in the project. Analyzed in its entirety, the evidence shows that the whole question of occupancy by race was injected into appellee's housing program by the requirement of the Federal Housing Administration, whose financial aid was sought, that appellee submit in the outline of its housing program a definite numerical estimate of the distribution of the 120 units proposed, necessary to achieve racial equity between groups classed as \\\"white\\\" and \\\"nonwhite.\\\" The distribution figures arrived at by appellee under such compulsion, based as they were on volume of substandard housing and estimated tenant eligibility, of a certainty cannot be said to have been prompted by any administrative decision that there would be enforced race segregation in the program. The only other reference to occupancy by race in the program approved by the Federal agency is found in a paragraph entitled: \\\"Long Range Program of Site Location,\\\" where it is stated that appellee will build eighty units on the vacant site for white occupancy and forty units on the cleared slum site for nonwhite occupancy. While this statement, standing alone, might be construed as reflecting some intention to enforce race segregation, such a conclusion is dispelled by the testimony of Armen R. Blanlce, chairman of appellee, given in explanation of the plan submitted to the Federal agency.\\nWhen Blanlce was asked if it had been decided if the forty units would be occupied 100 percent by colored people, he replied: \\\"It has not been,\\\" explaining that appellee presently looked upon the forty units as being built to accommodate the colored persons who would be displaced by the clearance of the slum area. Later, when pointedly asked if there was going to be racial segregation in the eighty-unit project, the witness had this to say in explanation of the whole program: \\\"I can only answer that on the basis of what we hoped would be the working out of the situation. All members were well aware that we have no authority or right, to discriminate between races. We hoped the situation would solve itself into a situation where the colored people would occupy 40 to the north, and the 80 to the south by white people. There was no official action taken pointing toward that. The statement on Exhibit 10, Sheet No. 3, [i.e., the estimate on 'Racial Equity to be Achieved,' heretofore referred to] has a different meaning than I accepted it to be when I first saw it. We thought we had to have 40 for the non-white, and 80 for the white. That didn't have to be any specific unit.\\\" Following this, Blanke answered that the 80 units would \\\"not necessarily\\\" have to be rented to white persons exclusively ; then, in contradiction to all his previous testimony, he later replied: \\\"At present, yes,\\\" when asked: \\\"Then the present intention is to segregate the white from the colored?\\\" Despite the last answer of the witness, which is of doubtful quantity in view of his previous testimony, we think jt manifest from his testimony that appellee has made no official or administrative determination that the housing project will be \\\"devoted\\\" to race segregation or that such segregation will be enforced. It would appear, rather, that the members of appellee's administering body are cognizant of the existence of limitations on the manner in which they may achieve the racial equity the Federal housing agency requires and that there is no intention to enforce racial segregation. Blanke's testimony serves also to show that the references in appellee's plans to occupancy. by races resulted from a desire to meet the Federal requirements and not from any administrative decision that race segregation will be enforced. Indeed, the Federal agency must have likewise construed the plan when its chief of racial relations gave his approval to it.' We cannot agree with appellant that the evidence inescapably shows that race segregation is to be enforced in appellee's program.\\nIn cases involving a variety of municipal corporations, this court has stated the presumption of law to be that public officials will properly discharge their duties and that this court will not anticipate evasion or improper performance of such duties. Where municipal action has been attacked on the ground that its enforcement will be unreasonable and unconstitutional, it has been held that it will not be presumed in advance that the municipal corporation will do an unconstitutional act and that the party attacking such action has the burden of proving, by evidence which is definite and certain, the conditions under which the municipal action may be obnoxious to the constitution before a court will be justified in disturbing such action. (Jewel Tea, Co. v. City of Troy, 80 Fed. 2d 366; Ferguson Coal Co. v. Thompson, 343 Ill. 20; Behnke v. Village of Brookfield, 366 Ill. 516.) In the cited cases the court held that it would not be presumed in advance that the municipal corporations would do an illegal act despite the fact that they had already adopted ordinances, the constitutionality of the enforcement of which was in doubt. In the present case, there is a complete lack of proof of any formal action by appellee embracing the allegedly illegal purpose which appellant would have us attach to appellee's exercise of its admitted power to condemn her land. All that is shown is that to acquire Federal funds appellee must achieve equitable distribution of its housing between whites and nonwhites, that appellee is aware of its duty to achieve racial equity and not to discriminate, and that there has been no decision to enforce racial segregation. As the situation appears in the record, appellant has proved at most that appellee might, in the future, perform some illegal act. The presumption is that appellee will refrain from an illegal act and will make the ultimate distribution of its housing units in a lawful manner. If that is not done, or it is thought that appellee is guilty of discrimination, such questions can be decided and presented in proceedings for that purpose. (Cf. Johnson v. Mayor and Council of Baltimore, 148 Atl. 209.) We conclude, therefore, that the evidence was not sufficiently definite and certain to establish that the taking of appellant's land was for an illegal or unconstitutional purpose and hold that the court did not err in denying appellant's motion to dismiss the petition.\\nAppellant's final contention is that the court erred in denying her motion to discharge the jury for the reason that \\\"it had come to her attention\\\" that Negroes were excluded from the jury panel. It is sufficient to point out that a challenge to the jury array comes too late when made after the jury is chosen and sworn. (St. Louis and O'Fallon Railway Co. v. Union Trust and Savings Bank, 209 Ill. 457; St. Louis and Southeastern Railway Co. v. Casner, 72 Ill. 384.) The court properly denied the motion.\\nFor the reasons stated, we think it manifest that the condemnation proceeding instituted by appellee was within its delegated powers, was for the dual public purpose of providing for low-income housing and slum clearance, and was not shown to be in violation of any rights secured to appellant either by law or by constitution. Accordingly, the judgment of the circuit court of Kankakee County is affirmed.\\n, Judgment affirmed.\"}"
ill/2700626.json ADDED
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1
+ "{\"id\": \"2700626\", \"name\": \"Jonathan Y. Scammon et al. v. Sarah A. Campbell\", \"name_abbreviation\": \"Scammon v. Campbell\", \"decision_date\": \"1874-09\", \"docket_number\": \"\", \"first_page\": \"223\", \"last_page\": \"228\", \"citations\": \"75 Ill. 223\", \"volume\": \"75\", \"reporter\": \"Illinois Reports\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T17:57:29.840423+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jonathan Y. Scammon et al. v. Sarah A. Campbell.\", \"head_matter\": \"Jonathan Y. Scammon et al. v. Sarah A. Campbell.\\n1. Doweb\\u2014 effect of answer on question of seizin, of husband. On bill for dower the answer admitted that the title at one time was vested in a person of the same name of the complainant\\u2019s husband, but required proof of idem tity: Held, that.the question of seizin was not in issue, and that the identity could be shown by parol testimony.\\n2. Same\\u2014yearly value when purchasers have made improvements. Where city lots, of which dower is sought, were unimproved when conveyed by the husband of the dowress, and dower cannot be assigned by metes and bounds without prejudice, it is proper, in assessing the yearly value of the dower, to give the widow one-third of the rental value of the lots without the improvements, so long as she may live. Her age and how long she may live are not proper to be considered by the jury in making their assessment.\\n3. Same \\u2014joint decree against several owners, erroneous. Where the de fendants in a petition for dower in city lots own undivided interests in the same, and the yearly value of the dower is assessed and the damages, it is error to render a decree against all the defendants jointly and severally for the whole amount so assessed. It should be apportioned among the defendants according to their several interests and a decree entered against each for his proper share thereof.\\n4. Same \\u2014 decree as to time of payment in lieu of. It is error to require the full payment of a widow\\u2019s yearly assessment in lieu of dower, to be paid before the expiration of the year, as, if she should die, she might thereby receive compensation for her interest after her death. Payment may be required quarterly.\\nAppeal from the Superior Court of Cook county; the Hon. S. M. Moose, Judge, presiding.\\nMessrs. Sooville & Bailey, for the appellants.\\nMessrs. Whiteside & Bush, for the appellee.\", \"word_count\": \"1692\", \"char_count\": \"9512\", \"text\": \"Mr. Justice Breese\\ndelivered the opinion of the Court:\\nThis was a petition in the Superior Court of Cook county, for dower, presented by Sarah A. Campbell, as the widow of James B. Campbell, deceased, who died intestate. The defendants in the petition were J. Y. Scammon, John D. Jennings and John L. Clark, who, it was alleged, were, or claimed to be, the owners in fee of some title or interest in the lots which are described as sub-lots one, two, three of lot four, in George Smith's subdivision of lot four in block thirty-five, original town of Chicago.\\nThe bill was taken as confessed against Scammon, he having failed to plead, answer or demur in obedience to a rule entered against him.\\nThe other defendants, Jennings and Clark, answered, denying the claim of dower, but averring they own in fee an undivided portion of the premises \\u2014 Clark one undivided five-twelfths, and Jennings one undivided two-twelfths thereof. They admit that at one time the title to this property was vested in one James B. Campbell, and raise the question only of identity with the James B. Campbell whose widow the petitioner claimed to be.\\nIssue was made up and the cause submitted to a master in chancery to take proofs and report the same to the court. On the coming in of the report of the master the court finds that the petitioner was the widow of the said James B. Campbell, who died intestate, and that during the coverture of petitioner with him he was seized of an estate of inheritance in fee simple to these sub-lots one, two and three, the same being then vacant and unimproved, and that defendants claim title through him; that defendants have put the improvements on the premises, and that petitioner is entitled to dower in the sub-lots, she not having released the same; and thereupon the court decreed that the petitioner be endowed of one full equal third part of said premises during her natural fife, with the rents, issues and profits thereof since the filing of her petition, and commissioners were appointed to assign and set off her dower, they being directed to take the oath required by law, and to go on the premises and set off her dower and make return.\\nThe commissioners, after being duly sworn, reported they went upon the premises and examined them, and each tract thereof, and that they were so circumstanced a division could not be made without manifest prejudice to the proprietors of the same.\\nWhereupon, on. the 31st July, 1874, the court ordered that a jury come, who were sworn to inquire into the yearly value of the dower, and to assess the same. This was done, and a verdict rendered assessing the yearly value of the dower at eight hundred and forty dollars, and her damages at three hundred and fifty dollars.\\nA motion for a new trial being overruled, the court decreed that the petitioner receive of Scammon, Clark and Jennings eight hundred and forty dollars as the yearly value of her dower in said sub-lots, and that they pay to her on the 1st day of February, 1875, the first year's instalment, to wit, eight hundred and forty dollars, for the year ending the 31st day of July, 1875, and the like sum on the 1st day of February in every year thereafter during the natural life of the petitioner; and demand of payment upon any one of the defendants, after the same shall fall due, shall be held as a sufficient demand upon all, and that the same be a hen on the premises, and executions may issue from time to time. The damages (three hundred and fifty dollars) to be paid by said defendants within twenty days, and costs of suit; and in default of payment, collection may be enforced as money judgments are enforced in courts of law.\\nTo reverse this decree the defendants appeal, and make several points which will be noticed.\\nThe first point made by appellants is, there was no evidence to prove the husband of petitioner was ever the owner in fee of any part of these premises.\\nWe think this point not well taken. The petition avers a seizin in fee simple of these lots in James B. Campbell, and that defendants claim title through him. The default of Scam-\\\" mon admits it, and the defendants Jennings and Clark in their sworn answer admit that the title to these lots was at one time vested in one James B. Campbell, but whether it was the same Campbell named in the petition, and the husband of the petitioner, they say they have no knowledge, and require the petitioner to make proof thereof, thus raising a question of identity alone. Osborne et al. v. Horine, 17 Ill. 92.\\nThe fact of identity was clearly'established by the testimony of the petitioner. Such questions are open to parol evidence. 2 Greenl. on Ev. 304. The question of seizin of James B. Campbell was really not in issue. It was an admitted fact.\\nThe next point made is on the finding of the jury, as produced by the admission of improper testimony on behalf of the complainant.\\nThe theory of the defense, if we comprehend it, is, that the rental value of these premises should be based on the value of such a lease as the petitioner, an aged lady of sixty-one years, could give.\\nWe do not esteem this as the true theory. Whilst petitioner cannot be endowed of the improvements put upon these lots, she is in law entitled to one-third the yearly rental they would bring, if rented by the owners, in an unimproved condition. In the heart of a city like Chicago, such a rental must have great value, and competent witnesses fix it at six per cent on the valuation of the lot, calculated by the front foot, which would be equivalent \\u2014 one-third thereof \\u2014 to eight hundred and forty dollars, the amount found by the jury. We perceive no objection to this assessment,\\\"the improvements not having entered into the computation, nor could a more just and equitable rule be adopted. The estate remains entire, and the rents thereout are apportioned between the owners of the fee and the dowress \\u2014 two-thirds to the first, and one-third to her. It can make no difference, nor is it a subject to be considered, how long she may live.\\\" The only hazard is, that the rental value may depreciate in process of time, but there is an equal chance perhaps that it may rise.\\nAnother point made by appellants, and assigned as error, is in rendering a decree against all the defendants jointly and severally for the amount assessed as dower and as damages \\u2014 that the decree makes each of the defendants liable for the whole amount.\\nThis error, which appellee seems to concede, and of which we have no doubt, it is suggested by her counsel might be corrected by this court. One member of the court is of opinion it can be and should be corrected here, without the expense attending a reversal, and a remandment with directions, but the majority of the court is of opinion it is an error sufficiently grave to demand a reversal. That it is error has been held by this court. Atkin v. Merrell, 39 Ill. 63; Peyton v. Jeffries, 50 ib. 143.\\nIt was also error to decree the full payment of the yearly amount of the dower in the middle of the year. As well stated by appellants, if the petitioner should die on the second day of February she would have received compensation for her interest for about six months after her death. The payment should be complete from February first to the first of the next February, and the court might decree that the payments should be made quarterly.\\nAs the decree must be reversed and the cause remanded, more satisfactory proof of the extent of Scammon's interest might be furnished. There is no allegation in the bill in this respect. For the reasons given, the decree is reversed and the cause remanded.\\nDecree reversed.\"}"
ill/2700742.json ADDED
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1
+ "{\"id\": \"2700742\", \"name\": \"William A. Savitch, Plaintiff-Appellant, v. Richard E. Allman, Defendant-Appellee\", \"name_abbreviation\": \"Savitch v. Allman\", \"decision_date\": \"1975-02-13\", \"docket_number\": \"No. 74-41\", \"first_page\": \"864\", \"last_page\": \"870\", \"citations\": \"25 Ill. App. 3d 864\", \"volume\": \"25\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T18:27:24.486708+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William A. Savitch, Plaintiff-Appellant, v. Richard E. Allman, Defendant-Appellee.\", \"head_matter\": \"William A. Savitch, Plaintiff-Appellant, v. Richard E. Allman, Defendant-Appellee.\\n(No. 74-41;\\nThird District\\nFebruary 13, 1975.\\nOlivero and Olivero, of Peru (Louis Olivero, of counsel), for appellant.\\nJohnson, Martin & Russell, of Princeton (Watts Johnson, of counsel), for appellee.\", \"word_count\": \"2059\", \"char_count\": \"12466\", \"text\": \"Mr. JUSTICE ALLOY\\ndelivered the opinion of the court:\\nThis is an appeal from an order of the Circuit Court of Bureau County assessing $160 in attorney's fees as against the attorney for the plaintiff in this cause for an unreasonable refusal to answer interrogatories.\\nFrom the record it is apparent that plaintiff filed the action in this cause for damages suffered in an automobile collision on January 16, 1973. On February 23, 1973, defendant Richard E. Allman moved to strike the complaint and simultaneously served interrogatories on plaintiff in accordance with Supreme Court Rule 213 (Ill. Rev. Stat. 1973, ch. 110A, par. 213). Under the provisions of Rule 213(c) it is provided that a party has 28 days to answer such interrogatories. Plaintiff, therefore, should have answered the interrogatories on or before March 23, 1973. No answers to the interrogatories had been filed by the middle of Sep tember and on September 18, 1973, defendant's attorneys wrote a letter to the plaintiffs attorney reminding him that such answers were long overdue.\\nAnother 30 days produced no results with respect to answers to interrogatories, and on October 18, 1973, defendant filed a motion for sanctions as against plaintiff and his counsel under Supreme Court Rule 219(c). That rule reads in part as follows:\\n\\\"If a party 9 unreasonably refuses to comply with any provision of Rules 201 through 218, or fails to comply with any order entered under these rules, the court, on motion, may enter, in addition to remedies elsewhere specifically provided, such orders as are just, including among others that the offending party or his attorney pay the reasonable expenses, including attorney's fees, incurred by any party as a result of the misconduct * # # >9\\nA hearing was set on the motion for October 22, 1973, but was continued at the request of plaintiff's attorney who had other court business. He did not inform defendant that the answers to the interrogatories would be forthcoming shortly. Several days later, the answers were mailed to defendant's attorneys who received them on October 29, 1973. Defendant had refiled the motion for sanctions before the interrogatories were received, and a second hearing date of November 7 was again postponed at tlie request of the attorney for plaintiff. Finally, after a hearing on November 29, 1973, the trial court found that the attorney for plaintiff had unreasonably and willfully refused to answer the interrogatories. As a sanction, the trial court assessed, as against plaintiffs attorney, $160 in attorney's fees (less than requested by defendant's counsel in a motion specifying the costs and attorney's fees incurred by defendant as a result of delays in filing of answers to interrogatories by plaintiff). It is the order requiring the attorney for plaintiff to pay the $160 in attorney's fees which is challenged on his appeal.\\nPlaintiffs attorney does not question the power of the court to assess fees as against him, nor does he dispute the fact that he submitted the answers 220 days after they were due and 41 days after being reminded by defendant of the situation, but such counsel contends that the delay was not \\\"an unreasonable refusal\\\" within the meaning of Rule 219 and, also, that the fees assessed were assessed as a penalty rather than for the purpose of promoting the ends of discovery. He also contends that the court should first have ordered him to show cause why penalty should not be assessed before such a penalty is imposed.\\nIt is true that the purpose of the sanctions which are available to the trial court under Supreme Court Rule 219 are basically to be used to accomplish the objects of discovery and not simply to penalize the party who is less than diligent in complying with discovery procedures. (People ex rel. General Motors Corp. v. Bua, 37 Ill.2d 180, 196, 226 N.E.2d 6 (1967).) As we examine the record in the instant case, we note that the sanction was imposed on attorney for plaintiff a full month after he had delivered the answers to defendant. We cannot, however, agree that the sanctions as to attorney's fees were imposed simply as punishment and not designed to promote discovery. The attorney for plaintiff had made no response to file interrogatories for 7 months after they were filed (6 months after answers were due). Defendant had reminded the attorney of the situation, but after another month had passed, no answers had been forthcoming. Only after the passage ,of this period of 8 months, and after defendant had filed the motion for sanctions, did the attorney for plaintiff make an effort to provide the answers according to the record.\\nWe do not believe that the trial courts are required to condone this type of conduct, and that minor sanctions, such as restitution of amount expended as attorney's fees by a party by reason of such delay, may be assessed so as to do justice to all parties in the cause. Under Supreme Court Rule 213(c) the attorney for the plaintiff is required to respond to interrogatories within 28 days. He delayed for over half a year. Defendant was forced to expend additional amounts of money in attorney's fees to obtain a response from plaintiff's attorney. The sanctions imposed were comparatively light since, under Rule 219, the trial court had the power to dismiss plaintiff's entire case and enter judgment as against him.\\nIt is obvious that to impose no sanction of any kind would create a feeling among attorneys that discovery deadlines could be lightly ignored and even willfully flaunted. The deadlines are imposed for significant reasons, particularly to keep the litigation constantly progressing toward a prompt and just termination, and to insure that evidence is made available to both sides while it still exists. By notifying the attorney for the plaintiff and other attorneys that discovery rules may not be lightly disregarded, the sanction imposed in this case may serve to further the objectives of the discovery procedure. We do not agree with the attorney for the plaintiff that the delay in answering the interrogatories was not \\\"unreasonable\\\" under the precedent of Gillespie v. Norfolk and Western Ry. Co., 103 Ill.App.2d 449, 243 N.E.2d 27 (1968) and similar cases. In Gillespie, the trial court had dismissed plaintiff's complaint for his failure to answer interrogatories, and the appellate court found that the sanction thus imposed was too harsh. In that case, the defendant moved to dismiss the complaint after only 19 days from the time the answers were due and 6 days after receiving assurances from the plaintiff that answers would soon be forthcoming. Thus both the time factors and the severity of the sanction distinguish Gillespie from the cause before us. The court in the Gillespie case simply found (at 454) that:\\n\\\"There is no circumstance to indicate that plaintiff, or plaintiff's attorneys, were either refusing to furnish answers to the interrogatories, or ignoring the request.\\\"\\nIn the cause before us, the trial court could have considered that there were two circumstances which indicated vexatious delay amounting to a refusal. There was a 6-month delay after the deadline during which time defendant heard nothing about the answers to the interrogatories and, also, plaintifFs attorney failed to respond within 30 days following a reminder from defendant that the answers were long overdue. As we had stated in Bender v. Pfotenhauer, 21 Ill.App.3d 127, 130, 315 N.E.2d 137 (3rd Dist. 1974), \\\" # the burden of establishing by affidavit or otherwise that his failure to comply with the rules was warranted by extenuating circumstances or events # \\\" was on the noncomplying party. Cf. Schwartz v. Moats, 3 Ill.App.3d 596, 277 N.E.2d 529 (1971).\\nOther cases cited by plaintiff involved action by the trial court dismissing a party's complaint or defense and entering judgment as against the offending party. (Dorhin v. Yellow Cab Co., 14 Ill.App.3d 586, 302 N.E.2d 633 (1973); Bower v. Chicago Transit Authority, 4 Ill.App.3d 1021, 283 N.E.2d 250 (1972); Bergin v. Ashford, 130 Ill.App.2d 835, 264 N.E.2d 266 (1970).) Sanctions involved in those cases were severe, and the courts have been understandably lenient with and sympathetic to parties who have been deprived of a day in court, absent some showing of \\\"a deliberate and contumacious disregard\\\" of the rules or of a court order. Booth v. Sutton, 100 Ill.App.2d 410, 415-16, 41 N.E.2d 488 (1968).\\nThe attorney for the plaintiff in the cause before us also places great weight on the fact that defendant did not first seek a specific court order requiring him to file the answers as has been done in some cases. There is nothing in the rules which requires that such action be taken by the party complaining of a failure to comply with the rules of court. The rules have specific provisions for procedures for sanctions in the event of a failure to comply with provisions of the rules. It is not a prerequisite to the action to require the imposition of sanctions under Rule 219 that a preliminary court order be sought, obtained, and thereafter ignored by the offending party. Violation of a court order would presumably have made the attorney's conduct more culpable, but the fact that no such order was first obtained does not excuse the unreasonable delay in complying with the Supreme Court Rules. If a specific order was required in all cases before sanctions are imposed, a dilatory attorney could simply delay as long as he wished, with consequential inconvenience to the court and other litigants, until he is commanded by order to perform an act which is required by tire rules. No such procedure is required nor would it be desirable.\\nCounsel for plaintiff also argues that defendant has neither alleged nor shown prejudice to defendant's case. It is enough to say that defendant has been required to pay at least $160 in additional attorney's fees for the sole purpose of obtaining compliance by the attorney for plaintiff with the discovery rules, and the sanction imposed by the trial court was simply in the nature of restitution and was proper. No further prejudice need be shown.\\nAs has been indicated in many cases, the trial court has broad discretion in the conduct of pretrial discovery procedures, and such discretion includes the imposition of reasonable sanctions as against dilatory parties. As a court of review we do not interfere with actions of such nature unless the discretion has been clearly abused. (Bender v. Pfotenhauer, 21 Ill.App.3d 127, 315 N.E.2d 137 (1974); Serpe v. Yellow Cab Co., 10 Ill.App.3d 1, 293 N.E.2d 742 (1973).) We find no abuse of discretion in the cause before us from the order of the trial court requiring that $160 in attorney's fees be paid by attorney for plaintiff as a discovery sanction pursuant to Supreme Court Rule 219.\\nDefendant also contends that by reason of the conduct of attorney for plaintiff, the complaint in this cause should be dismissed as an additional sanction. We do not agree that this is necessary or required by reason of the conduct referred to in the record.\\nAttorneys for defendant also contend that the cost to defendant of attorney's fees and other costs occasioned by this appeal should be assessed as against the attorney for the plaintiff by reason of the appellate litigation undertaken arising solely from the imposition of the sanction to require payment of the $160 referred to. While this would be an appropriate sanction under tire precedent of Schwartz v. Moats, 3 Ill. App.3d 596, 277 N.E.2d 529, (1971), it appears that the attorney for plaintiff may have mistakenly assumed that a specific order had to be directed to him before he became obligated to file answers to the interrogatories. Although this is not the required procedure, we assume a good faith effort on the part of attorney for plaintiff to obtain clarification of the applicable law and consequently have determined that no further sanctions should be imposed on attorney for plaintiff other than the sanction imposed in the trial court. The order of the trial court will, therefore, be affirmed.\\nOrder affirmed.\\nSTOUDER, P. J., and STENGEL, J., concur.\"}"
ill/2719197.json ADDED
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1
+ "{\"id\": \"2719197\", \"name\": \"Leo S. Dugosh and Therese Dugosh, Claimants, vs. State of Illinois, Respondent\", \"name_abbreviation\": \"Dugosh v. State\", \"decision_date\": \"1976-08-13\", \"docket_number\": \"No. 74-890\", \"first_page\": \"493\", \"last_page\": \"497\", \"citations\": \"31 Ill. Ct. Cl. 493\", \"volume\": \"31\", \"reporter\": \"Illinois Court of Claims Reports\", \"court\": \"Illinois Court of Claims\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T01:16:19.829354+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Leo S. Dugosh and Therese Dugosh, Claimants, vs. State of Illinois, Respondent.\", \"head_matter\": \"(No. 74-890\\nLeo S. Dugosh and Therese Dugosh, Claimants, vs. State of Illinois, Respondent.\\nOpinion filed August 13, 1976.\\nJohn C. Hedrich and Kent A. Rathbun, Attorneys for Claimants.\\nWilliam J. Scott, Attorney General; William E. Webber, Assistant Attorney General, for Respondent.\", \"word_count\": \"1292\", \"char_count\": \"7581\", \"text\": \"Burks, J.\\nThis is a claim for crop loss resulting from the negligent failure of the State of Illinois to maintain two drainage tubes lying under the Illinois Mississippi Canal.\\nIn 1894 the United States of America had condemned certain farm land in Bureau County for the construction of the Illinois Mississippi Canal. The canal was 80 feet wide at the water line and 7 feet deep.\\nThe pertinent part of the condemnation petition filed in the U. S. District Court for the Northern District of Illinois alleged:\\nThat the United States will properly connect the tile drains now laid in said lands wherever the same are cut by said canal, carry the same under said canal and give the same a proper outlet on the south side thereof; so that after the completion of said canal, said lands will be as thoroughly drained as they are at the present time.\\nClaimants' land, then owned by a predecessor in title, was part of the land condemned. The natural drainage of the land was south towards the canal by means of a natural drainage ditch which drained approximately two square miles of farm land, the water ultimately flowing into a creek known as Bureau Creek. The canal blocked this drainage. To correct this so that Claimants' land would continue to drain properly, the United States laid two 48 inch drainage tubes under the canal at a point where the natural drainage ditch would empty into the tubes thereby carrying the surface water under the canal. The United States obtained an easement from the property owner on the south side of the canal to construct a ditch carrying this water from the mouth of the tubes on the south side of the canal south into Bureau Creek. In addition, the United States laid 1900 feet of 10 inch tile along the north side of the canal to drain into the two tubes.\\nThe property specifically involved in this claim is a 21 acre field bought by Claimants in 1966 and bordering on the north bank of the canal. In 1967 Claimants notified the Department of the Army Corps of Engineers that the tubes and the ditch south of the canal were plugged, and the Corps of Engineers did the necessary remedial work to restore the drainage.\\nIn 1970 the State of Illinois took title to the canal from the United States government.\\nIn early 1972, the two culverts under the canal again began to fill. Thereafter, from 1972 forward, Claimants made repeated requests to the State of Illinois to clean out the tubes under the canal, the drainage ditch running from the south side of the canal to Bureau Creek, and the 1900 feet of tile running along the north side of the canal. The State failed to take any corrective action.\\nIn July of 1972 the District Land Manager for the Illinois Department of Conservation wrote to Claimants as follows:\\nDear Mr. Dugosh:\\nThe Ranger at the Hennepin Canal Parkway looked into your problem and found that the ditch does need cleaning.\\nAt this time the Canal does not have the proper equipment to clean ditches, but we do expect to purchase equipment in the near future and will put your request at the top of our priority list when we receive our equipment.\\nThank you for your patience.\\nIn 1973 and 1974 approximately 9.9 acres of land were under water and unavailable for planting. The evidence is that, in 1973, 9.9 acres of beans at 30 bushels to an acre were lost. The average price was $6.00 per bushel, or a total loss of $1,782.00. The cost of raising the beans would have been $38.00 per acre of $376.20 for a net loss of $1,405.80. In 1974 9.9 acres of hay at 100 bales to an acre were lost. The average price per bale was $2.00, or a total of $1,980.00. The cost of raising the hay would have been $0.35 per bale or $346.50 for a net loss of $1,633.50. Claimants' total net loss for both years was $3,039.30.\\nThis Court is frequently called upon to resolve cases where a public improvement has altered the natural flow of surface waters resulting in flood damage to adjacent property. A typical example is a highway built upon a fill, disrupting the flow of water from one side of the highway to the other.\\nThe Illinois Mississippi Canal, when built, was in effect a public highway for the transportation of barge traffic from Hennepin to the Mississippi River. Its construction disrupted the natural drainage in the area concerned. The United States government however, by constructing the drainage facilities previously described, restored the drainage to its former condition and, ac cording to the record, maintained these facilities as recently as 1967. The Respondent, State of Illinois, present owner of the canal, apparently refuses to keep these drainage structures in repair, taking the position that it has no legal obligation to do so, and that Claimants are free to go upon the State's right-of-way and make the repairs themselves.\\nThe Court does not agree with the State's position. To our knowledge there are no decisions of this or any other court directing citizens (who own property adjacent to a public improvements) to go upon the State's right-of-way and privately maintain drainage facilities found on the public improvement. For reasons of safety, both public and private, if for no other reasons, private citizens should not enter upon the State's right-of-ways and attempt to perform maintenance functions.\\nBy its letter to Claimants in July of 1972, the State acknowledged its responsibility to maintain the drainage installations but stated that at that moment it had no equipment to do the job. Tools needed would have been an auger to clean' the tubes running under the canal and a back hoe to clean the south drainage ditch. Claimants could not be expected to own or to rent such items.\\nRespondent relies on Savoie v. Town of Bourbonnais, et al., 339 Ill.App. 551, an action against the Town of Bourbonnais, the County of Kankakee, and others for damages and a mandatory injunction to compel defendents to repair and maintain a drainage ditch which for more than 40 years had diverted waters from flooding plaintiffs land. The Circuit Court of Kankaee County dismissed the complaint, and the Appellate Court of Illinois Second District affirmed. However, the cited case is not on point. The plaintiff in Savoie was seeking to establish an easement by prescription in a water course on the grounds that it had existed for more than 20 years. The Appellate Court held that, under the facts of the case, prescriptive rights could not be established against the municipality; and that even if they could, the municipality's only obligation to plaintiff and to others who had benefited from the drainage ditch was not to restore the original water course. This has no application to the instant case which involves the disruption of the natural flow of surface water by the construction of a public improvement.\\nRespondent further relies on the Illinois Drainage Code. That Act, pertaining to the creation and taxation of drainage districts, has no apparent application to the case at bar.\\nClaimants have proved damages in the amount of $3,039.30 arising from the State's negligent maintenance of its drainage facilities under and bordering the Illinois Mississippi Canal adjacent to Claimants' property.\\nClaimants are hereby awarded damages in the sum of Three Thousand Thirty-Nine and 30/100 Dollars ($3,039.30).\"}"
ill/2720435.json ADDED
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1
+ "{\"id\": \"2720435\", \"name\": \"Mary A. Healy, Appellee, v. Chicago City Railway Company, Appellant\", \"name_abbreviation\": \"Healy v. Chicago City Railway Co.\", \"decision_date\": \"1911-03-03\", \"docket_number\": \"Gen. No. 15,392\", \"first_page\": \"7\", \"last_page\": \"11\", \"citations\": \"160 Ill. App. 7\", \"volume\": \"160\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T20:00:11.755652+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mary A. Healy, Appellee, v. Chicago City Railway Company, Appellant.\", \"head_matter\": \"Mary A. Healy, Appellee, v. Chicago City Railway Company, Appellant.\\nGen. No. 15,392.\\nEvidence\\u2014when admission of agent binding. Held, that conversations between a motorman and a supervisor of the company in which the supervisor made remarks tending to show that the car in question which caused the injury was out of repair, were competent, hut not as part of the res gestae.\\nAction in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.\\nAffirmed on remittitur.\\nOpinion filed March 3, 1911.\\nRemittitur filed March 6, 1911.\\nJohn E. Kehoe and Watson J. Ferry, for appellant.\\nEdward Maher and H. E. Wynekoop, for appellee; Morse Ives, of counsel.\", \"word_count\": \"1131\", \"char_count\": \"6453\", \"text\": \"Mr. Presiding Justice Smith\\ndelivered the opinion of the court.\\nThis action is prosecuted by Mary A. Healy, appellee, against the Chicago City Railway Company, appellant, to recover damages claimed to have been sustained by the appellee at or near the intersection of Archer avenue and Twenty-second street, in the city of Chicago, on the 13th day of August, 1907, while she was a passenger on one of the appellant's street cars.\\nThe car involved in the occurrence was what was known as a Wallace and Center avenue car. These cars, in going south, start from the down-town district of the city of Chicago, and run in State street to Nineteenth, and thence southwesterly in Archer avenue.\\nIt appears that appellee, a clerk in the employ of the Craig Mercantile Agency, boarded the car at Washington and State streets, at the close of her day's work, to go to her home in East Twenty-seventh street. It was a small, open summer car, the seats extending from side to side, there being no aisle in the center, and with a partition at either end, partly wood and partly glass; and on the platform sides, and immediately behind the motorman's post, was a seat facing the latter; behind the partition was a seat facing, the rear. Appellee was seated in the latter seat. It further appears from the evidence that when the car reached Sixteenth street a fuse blew out, which detained it for a short time, and then it was pushed by another car to Nineteenth street, at which point an employe, designated as a \\\"supervisor,\\\" was stationed; that after he, the conductor and the motorman had opened and examined the fuse box and replaced the burnt-out fuse with another, the car ran slowly, five or six blocks, to Twenty-second street, and that there the second fuse blew ont, and as a result smoke and flame were seen, as some of the witnesses testified, coming from the motor box, while others were just as positive that it came from the canopy switch box, located at the under side of the roof of the car, immediately over the motorman's head, and that thereupon many of the passengers in a panic started to leave the car; but whether appellee was pushed or stepped off does not appear. In being pushed off, or while leaving the car she suffered the injuries for which damages are sought in this case.\\nNo question is made as to the sufficiency of the averments of the declaration to sustain the action, or as to the admissibility of the evidence thereunder. Hence, we do not set out the averments of the declaration, except to say that the defendant is charged in the declaration with carelessness and negligence, whereby a large amount of flame and smoke in the car were occasioned, and that the flame and smoke produced a panic among the passengers, by reason of which the passengers made a rush to depart from the car, and that the defendant carelessly and negligently suffered and permitted the said car to be in disrepair and a fuse to explode in the car, causing the smoke and flame and noise.\\nThe grounds relied upon for reversing the judgment in this court are, first, that the evidence is insufficient to sustain the verdict; second, that errors were committed in the admission of improper, and the rejection of proper, evidence; and, third, that the amount of damages awarded is grossly excessive.\\nUpon a careful consideration of the evidence in the case, we are of the opinion that the evidence sustains the verdict and judgment except as to the amount thereof. Chicago U. T. Co. v. Newmiller, 215 Ill. 383.\\nIt is urged that in the examination in chief of ap pellee's witness, Miss Kennedy, she was allowed to testify to a conversation which she overheard between the supervisor of appellant and the motorman of the car at Nineteenth and State streets. She testified that \\\"the supervisor got on, and he said to the motorman, I understood him to say, 'try the second'\\u2014what he said that I heard was, 'try the second motor, Pete, and go slow.' That is all I heard him say. It was the supervisor that said that.\\\"\\nAnd the same objection is made to the examination of appellee's witness, O'Grady, who testified that at the same place there was something said by the supervisor to the motorman, and that the supervisor told the motorman to run slow, that the car was out of order. \\\"He told the motorman to put on the second motor and run the car slow. The motorman said the car was 'done for.' \\\"\\nMiss Walsh, another of appellee's witnesses, was allowed to testify to what she overheard between the same employes of appellant, to substantially the same effect.\\nIt is urged that this testimony was not admissible, because it was not a part of the res gestae. We do not think it was a part of the res gestae, but we think it was competent upon the question of negligence, charged in the declaration, as tending to show that appellant had permitted and allowed the car to be in disrepair and out of order, and that appellant knew that the car was out of order at Sixteenth and State streets, some little time before the accident in question occurred.\\nUpon the question of the amount of damages awarded by the jury, after a careful consideration of the evidence in the case we are of the opinion that the damages awarded are excessive. In our opinion the damages for the injuries sustained, attributable alone to the injuries suffered by appellee from this accident, should not exceed in amount the sum of $1,500. If, therefore, appellee shall remit the sum of $500 within ten days, the judgment will be affirmed for $1,500 with costs. Otherwise, the judgment will he reversed and the canse remanded for a new trial.\\nAffirmed on remittitur.\\nRemittitur filed and judgment affirmed March 16, 1911.\"}"
ill/2786381.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"2786381\", \"name\": \"Joseph M. Moran et al., Appellants, vs. Zoning Board of Appeals of the City of Chicago et al., Appellees\", \"name_abbreviation\": \"Moran v. Zoning Board of Appeals\", \"decision_date\": \"1957-05-23\", \"docket_number\": \"No. 34215\", \"first_page\": \"374\", \"last_page\": \"377\", \"citations\": \"11 Ill. 2d 374\", \"volume\": \"11\", \"reporter\": \"Illinois Reports, Second Series\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T00:55:31.662563+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Joseph M. Moran et al., Appellants, vs. Zoning Board of Appeals of the City of Chicago et al., Appellees.\", \"head_matter\": \"(No. 34215.\\nJoseph M. Moran et al., Appellants, vs. Zoning Board of Appeals of the City of Chicago et al., Appellees.\\nOpinion filed May 23, 1957.\\nKent G. ChETrain, of Chicago, for appellants.\\nJohn C. Melaniphy, Corporation Counsel, Irving Goodman, and Smietanka & Garrigan, all of Chicago, (Sydney R. Drebin, and Joan C. MillER, of counsel,) for appellees.\", \"word_count\": \"1024\", \"char_count\": \"6034\", \"text\": \"Mr. Justice Bristow\\ndelivered the opinion of the court:\\nThis is an appeal from a judgment of the superior court of Cook County affirming an administrative decision of the Chicago zoning board of appeals which, after finding the evidence established the public convenience would be served, construed the city's zoning ordinance to permit, as a special use, the construction of a parking lot to serve a savings and loan association in an area zoned for duplex residences. Appeal had been taken to the board by the savings and loan association from a refusal of the commissioner of buildings to issue a permit for such a construction.\\nAppellants, four of whom join in the cause for the first time on appeal and the balance of whom prosecuted the complaint for administrative review, are 134 property owners from an area within two blocks of the proposed parking site. It appears that individual notices of the hearing before the board were mailed to nine property owners pursuant to regulations adopted by the board, that a public notice of the hearing was published in a newspaper as required by section 73 \\u2014 4(c) of the Revised Cities and Villages Act, (Ill. Rev. Stat. 1955, chap. 24, par. 73\\u2014 4(c),) that 52 of the appellants filed written objections with the board, and that 32 were present at the hearing when evidence for both sides was introduced. It does not appear that any of the appellants were ever prevented from filing their objections or presenting their views to the board.\\nTo justify a direct appeal to this court appellants assert that the validity of section 73 \\u2014 5 of the Revised Cities and Villages Act, (Ill. Rev. Stat. 1955, chap. 24, par. 73\\u20145,) is in issue. Appellees, however, both in their brief and in a motion taken with the case, challenge our jurisdiction and urge the cause should be transferred to the Appellate Court. As grounds for transfer it is contended, first, that appellants have no standing to attack the validity of a statute that does not affect them and, second, that the alleged invalidity was neither properly raised nor essential to the decision in the case. Inasmuch as this court has only such jurisdiction as is conferred upon it by law, (Ill. Rev. Stat. 1955, chap, 110, par. 75,) the conflicting claims relative thereto command our first consideration.\\nSection 73 \\u2014 5 of the Revised Cities and Villages Act, the validity of which is claimed by appellants to be in issue, is a segment of the article conferring authority upon municipalities to enact and administer zoning regulations, is captioned \\\"Appeals to board of appeals,\\\" and provides in part: \\\"An appeal to the board of appeals may be taken by any person aggrieved or by any officer, department, board, or bureau of the municipality. The board of appeals shall fix a reasonable time for the hearing of the appeal and give due notice thereof to' the parties and decide the appeal within a reasonable time.\\\" (Emphasis supplied.) As applied to this case it is to be seen that the aggrieved saving and loan association and the building commissioner were the parties to the appeal. Appellants, who merely suggest without citation of authority or argument, complain that section 73 \\u2014 5 is constitutionally deficient in that it does not prescribe what is \\\"due notice\\\" or define the \\\"parties\\\" upon whom notice is to be given.\\nThe rule is well established that this court will not determine the constitutionality of statutory provisions where the party urging the invalidity is not in any way aggrieved by their operation. (Liberty National Bank of Chicago v. Collins, 388 Ill. 549, 559; City of Edwardsville v. Jenkins, 376 Ill. 327, 332; People, for use of City of Altamont v. James, 328 Ill. 262, 266.) Where a constitutional question of such abstract nature serves as the only basis for our jurisdiction, a direct appeal will not be entertained. (People v. Day, 313 Ill. 531, 533.) Here appellants were not \\\"persons aggrieved\\\" by the decision of the building commissioner which prompted the appeal to the zoning board of appeals nor, at the time the hearing was set and notice given as required by section 73 \\u2014 5, were they parties to the appeal. They could not, therefore, be injuriously affected by the operation of the section and may not complain of its invalidity. Indeed, in the argument presented, appellants do not claim to have been \\\"parties\\\" entitled to notice but contend that because property owners other than the immediate parties to an appeal might be aggrieved, section 73 \\u2014 5 should provide for notice to such owners. Apart from the fact that we will not take jurisdiction to determine hypothetical questions, it is also to be pointed out that public notice of a board's hearings is provided for in section 73 \\u2014 4(c).\\nTo give this court direct appellate jurisdiction on the ground the validity of a statute is involved, the statute must be the foundation of some asserted right or of some defense interposed, so that a determination of the validity of the statute is essential to the decision of the case; if the issues can be fairly decided without reference to the statute, its constitutionality cannot be said to be involved, and its validity will not be determined. (Hawthorne Kennel Club v. Swanson, 339 Ill. 220; Jenisek v. Riggs, 381 Ill. 290; People v. Brickey, 396 Ill. 140.) Here the validity of section 73\\u20145 was not the primary inquiry of the court, and its validity or invalidity was not essential to the construction to be placed on the zoning ordinance. The validity of the statute is not involved so as to give us jurisdiction on direct appeal.\\nThe cause is transferred to the Appellate Court for the First District.\\nCause transferred.\"}"
ill/2798535.json ADDED
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1
+ "{\"id\": \"2798535\", \"name\": \"Hartman-Clark Brothers Company, Claimant, vs. State of Illinois Respondent\", \"name_abbreviation\": \"Hartman-Clark Bros. v. State\", \"decision_date\": \"1931-12-08\", \"docket_number\": \"No. 1849\", \"first_page\": \"37\", \"last_page\": \"39\", \"citations\": \"7 Ill. Ct. Cl. 37\", \"volume\": \"7\", \"reporter\": \"Illinois Court of Claims Reports\", \"court\": \"Illinois Court of Claims\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T00:11:42.998340+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hartman-Clark Brothers Company, Claimant, vs. State of Illinois Respondent.\", \"head_matter\": \"(No. 1849 \\u2014\\nHartman-Clark Brothers Company, Claimant, vs. State of Illinois Respondent.\\nOpinion filed December 8, 1931.\\nHartman-Clark Brothers Company, pro se.\\nOscar E. Carlstrom, Attorney General; Carl I. Dietz, Assistant Attorney General, for respondent.\", \"word_count\": \"442\", \"char_count\": \"2701\", \"text\": \"Mr. Justice Roe\\ndelivered the opinion of the court:\\nThis is a suit brought by the claimant, Hartmann-Clark Brothers Company, a corporation, of the City of Peoria, County of Peoria, State of Illinois, against the defendant, State of Illinois, to recover damages caused by the cancellation of road construction contracts Nos. 4543, 4555, 4556, 4557, 4558, 4559, 4574 and 4587 on State Bond Issue Route No. 9, Sections 46-X and 46-X-l, 48 and 48-X, and Route No. \\u2022 88, Section 126, Route No. 165, Section 124-X, awarded on the 16th day of September, 1931, and Route No. 48, Section 137, and Route 120, Section 115, awarded on the 21st day of September, 1931.\\nThe facts in this case are as follows: That after the complainant commenced performance under the said contracts it received a notice from the respondent on the 6th day of October, 1931, through its Division of Highways, Department of Public Works'and Buildings, that no payments could be made for work done under the contracts for the reason that the \\\"Prevailing Wage Law\\\" under which the contracts had been let was held to be invalid and void by the courts of this State and that in the event the claimant proceeded further under the said contracts, it did so at its own peril. When this notice was received the complainant had already completed work under all the contracts except one and thereafter the greater part of complainant's forces and machinery remained idle from October 6th to November 2nd, 1931, thereby necessitating considerable expense in addition to the cost of work completed, for which the claimant asked damages, and the State was then and there so notified.\\nThereupon, the Division of Highways, Department of Public Works and Buildings, of the State of Illinois, through its Director and Chief Highway Engineer, after making deductions for cement sacks salvaged, reached an agreement in settlement of the damages caused as aforesaid and stipulated to make payment in the sum of $20,648.59. The Attorney General has approved of the said settlement and stipulation; but the Division of Highways could not pay the claim and therefore recommended that a claim be filed with this court.\\nAs there is no dispute as to the facts presented in the claimant's declaration and the evidence establishes the claimant's right of action, the court is of the opinion that the claim is reasonable and should be paid. The court accordingly awards the claimant the sum of $20,648.59.\"}"
ill/2852241.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"2852241\", \"name\": \"Illinois Publishing and Printing Company, Appellee, v. The Peoples Gas Light and Coke Company, Appellant\", \"name_abbreviation\": \"Illinois Publishing & Printing Co. v. Peoples Gas Light & Coke Co.\", \"decision_date\": \"1914-04-01\", \"docket_number\": \"Gen. No. 18,662\", \"first_page\": \"627\", \"last_page\": \"628\", \"citations\": \"185 Ill. App. 627\", \"volume\": \"185\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T20:31:47.487993+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Illinois Publishing and Printing Company, Appellee, v. The Peoples Gas Light and Coke Company, Appellant.\", \"head_matter\": \"Illinois Publishing and Printing Company, Appellee, v. The Peoples Gas Light and Coke Company, Appellant.\\nGen. No. 18,662.\\n(Not to be reported in full.)\\nAbstract of the Decision.\\n1. Municipal Court op Chicago, \\u00a7 29 \\u2014when striking affidavit of merits and claim for set-off from files is error. In an action to recover pay for publishing advertisements, defendant filed an affidavit of merits alleging that the defendant in pursuance of a written contract with plaintiff purchased a contract for advertising space in another publication subsequently absorbed by plaintiff and alleging that it was the duty of plaintiff to publish advertisements for defendant and apply the charges on the contract for space purchased by defendant. Defendant also filed a claim of set-off for breach of contract. Held that the court erred in striking the affidavit of merits and the claim of set-off from the files.\\nAppeal from the Municipal Court of Chicago; the Hon. Habry Olson, Judge, presiding.\\nHeard in the Branch Appellate Court at the October term, 1912.\\nReversed and remanded.\\nOpinion filed April 1, 1914.\\nStatement of the Case.\\nAction by Illinois Publishing and Printing Company against The Peoples Gas Light and Coke Company to recover pay for publishing advertisements in the Chicago Examiner at the instance of the defendant,' the plaintiff being a corporation engaged in printing and publishing a newspaper' known as the Chicago Examiner. Judgment was entered in favor of plaintiff on a directed verdict for $1,767.40. From the judgment, defendant appeals.\\nSears, Meagher & Whithey, for appellant; James G. Meagher and Edwih Hedrick, Jr., of counsel.\\nBoy D. Keehh, for appellee.\\nSea Illinois Notes Digest, Veis. XI to XV, same topic and section number.\\nSee Illinois Notes Digest, Yols. XI to XV, same topic and section number.\", \"word_count\": \"403\", \"char_count\": \"2472\", \"text\": \"Mr. Presiding Justice Graves\\ndelivered the opinion of the court.\\n2. Set-oee and recoupment, \\u00a7 10 \\u2014when claim for set-off not for unliquidated damages. A claim of set-off for breach of contract to publish advertisement held not for unliquidated damages, where there was no conflict as to the value of the space used or as to how much in dollars and cents the space used represents, and the amount still due under the contract being a mere matter of subtraction.\\n3. Appeai and ebror, \\u00a7 969 \\u2014when written instrument not presented for review. A writing which was not introduced in evidence and nowhere preserved in the record is not presented for review.\"}"
ill/2894108.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"2894108\", \"name\": \"GLORIA ANDERSON, Plaintiff-Appellant, v. RICK'S RESTAURANT & COCKTAIL LOUNGE et al., Defendants-Appellees\", \"name_abbreviation\": \"Anderson v. Rick's Restaurant & Cocktail Lounge\", \"decision_date\": \"1977-02-02\", \"docket_number\": \"No. 61196\", \"first_page\": \"992\", \"last_page\": \"1002\", \"citations\": \"45 Ill. App. 3d 992\", \"volume\": \"45\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T01:15:51.257947+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"GLORIA ANDERSON, Plaintiff-Appellant, v. RICK\\u2019S RESTAURANT & COCKTAIL LOUNGE et al., Defendants-Appellees.\", \"head_matter\": \"GLORIA ANDERSON, Plaintiff-Appellant, v. RICK\\u2019S RESTAURANT & COCKTAIL LOUNGE et al., Defendants-Appellees.\\nFirst District (3rd Division)\\nNo. 61196\\nOpinion filed February 2, 1977.\\nWilliam H. Warvel and Joseph A. Tere, both of Chicago, for appellant.\\nHeineke & Schrader, of Chicago, for appellees.\", \"word_count\": \"4559\", \"char_count\": \"27122\", \"text\": \"Mr. JUSTICE McNAMARA\\ndelivered the opinion of the court:\\nOn May 19, 1971, plaintiff filed a two count complaint in the circuit court of Cook County against Neil Yaeger doing business as Rick's Restaurant and Cocktail Lounge. Count I was predicated upon the Dramshop Act (Ill. Rev. Stat. 1971, ch. 43, par. 135), and alleged that Yaeger was the owner of certain premises known as Rick's Restaurant & Cocktail Lounge located at 9560 Grand Avenue in Franklin Park, Illinois; that Yaeger personally or by his agents sold or gave alcoholic liquors to an intoxicated person who, after consuming said liquors on said premises, injured plaintiff. Count II realleged that Yaeger was the owner of the above premises and charged that plaintiff, while a customer on the premises, was attacked by a third person whom defendant should have known was of a wild and unpredictable nature; and that defendant failed to provide plaintiff with the safe use of the premises. Roth counts sought judgment against Neil Yaeger d/b/a Rick's Restaurant & Cocktail Lounge.\\nOn the same day that the complaint was filed summons was issued directing the sheriff to serve Neil Yaeger in care of Rick's Restaurant & Cocktail Lounge. On the following day Neil Yaeger was served personally. In July 1971 Yaeger answered Count I only in which answer he denied all allegations except the existence of the Dramshop Act. On April 10,1974, after obtaining leave of court, Yaeger, through another law firm, filed an answer to Count II in which he denied all its allegations.\\nOn May 14, 1974, during a deposition, Yaeger stated that Rick's Restaurant & Cocktail Lounge was owned by Rick's Incorporated. Yaeger was vice-president of the corporation and manager of the business. His parents were the corporation's sole stockholders, but their active participation was confined to his father's sweeping out the premises in the morning and doing work on the books in the afternoon.\\nOn August 29, 1974, the matter was assigned out for trial by the assignment judge. The trial judge indicated that trial would begin on September 3. On that date, approximately 15 months after the statute of limitations had run, plaintiff filed a motion pursuant to section 46(4) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 46(4)) to amend her complaint on its face by adding Rick's Inc. as a party defendant and to change the name of defendant to Rick's Inc. On the same date, Neil Yaeger, still represented by two law firms, filed petitions for summary judgment as to both counts. The trial court set a hearing for September 11 on plaintifFs motion to amend her complaint and on Yaeger's motions for summary judgment.\\nThe petition for summary judgment as to Count II contained the language that it was made by Neil Yaeger doing business as Rick's Restaurant & Cocktail Lounge and was signed by defense counsel as \\\"attorney for defendant Neil Yaeger d/b/a Rick's Restaurant & Lounge.\\\" When plaintiff s counsel called that wording to the court's attention, the judge asked defense counsel if he wished the \\\"doing business as\\\" portion stricken. When defense counsel characterized the language as a clerical error and requested that it be stricken, the trial court struck that portion of the petition.\\nAt that same hearing, the trial court granted plaintiff s motion to amend the complaint to add Rick's Inc. as a party defendant. The trial court also allowed defendant Neil Yaeger's motions for summary judgment as to both counts of the complaint. The court then asked plaintiff s counsel if he wished summons to issue against the added defendant, Rick's Inc. Counsel replied that under section 46 of the Civil Practice Act he did not believe it was necessary for summons to issue. Shortly thereafter, the trial court on its own motion and citing the above colloquy, dismissed the case as to Rick's Inc. for want of prosecution on the grounds that there was no defendant properly before the court. Plaintiff appeals from that order dismissing the case as to defendant Rick's Inc. Rick's Inc., by one of the law firms representing Yaeger, has filed a special and limited appearance in this court, insisting that no court has acquired jurisdiction over it. Rick's Inc., however, by leave of court, has filed a response to plaintiffs brief.\\nAn interpretation of section 46(4) of the Civil Practice Act is necessary to resolve the issue. The section reads in pertinent part as follows:\\n\\\"A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (a) the time prescribed or limited had not expired when the original action was commenced; (b) failure to join the person as a defendant was inadvertent; (c) service of summons was in fact had upon the person, his agent or partner, as the nature of the defendant made appropriate, even though he was served in the wrong capacity or as agent of another, \\u00b0 (d) the person, within the time that the action might have been brought or the right asserted against him, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him; \\u00b0 \\u00b0 Ill. Rev. Stat. 1973, ch. 110, par. 46(4).\\nPlaintiff contends that under the circumstances of this case it was not necessary to have summons issue in order for the court to acquire jurisdiction over the added defendant. Defendant counters by arguing that the provisions of section 46(4) (c) apply only when service of process is actually made upon a subsequently added defendant. Defendant also maintains that the failure to join Rick's Inc. was not inadvertent as required by section 46(4) (b).\\nDefendant's argument that plaintiff's failure to join Rick's Inc. was not inadvertent may be disposed of summarily. The contention rests on the fact that plaintiff did not seek to add defendant as a party until the matter was assigned out for trial. In the first place, the argument was not made in the trial court and therefore is waived. Moreover, the trial court, in allowing plaintiff to add Rick's Inc. as a party defendant, tacitly rejected defendant's contention. More importantly, the record reveals that plaintiff first learned that Rick's Restaurant and Cocktail Lounge was a corporation on May 15,1974, during Neil Yaeger's discovery deposition. Plaintiff was granted leave to add Rick's Inc. on September 11, less than four months later. This court has held timely an amendment sought by plaintiff eight months after it was discovered the wrong defendant was before the court. (Bates v. Wagon Wheel Country Club, Inc. (1971), 132 Ill. App. 2d 161, 266 N.E.2d 343.) We hold that plaintiffs failure to join Rick's Inc. was inadvertent, and that the motion made in September 1974 conformed with the requirements of section 46(4) (b) of the Civil Practice Act.\\nThe more crucial question is whether it was necessary after obtaining leave of court to add Rick's Inc. as a party defendant for plaintiff to have service of process issue against the corporation in order that the trial court acquire jurisdiction over it. We believe that any discussion of the issue should include a reference to section 46(1) of the Civil Practice Act, which reads as follows:\\n\\\"At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand.\\\"\\nOur courts have continually acknowledged that section 46 of the Civil Practice Act is to be liberally construed (Davis v. Hoeffken Bros., Inc. (1965), 60 Ill. App. 2d 139, 208 N.E.2d 370) to the end that cases be decided on their merits and not by procedural technicalities. (Birchfield v. Wabash-Monroe Garage & Parking Corp. (1969), 113 Ill. App. 2d 178, 252 N.E.2d 89.) The joint committee comments regarding section 46(4) of the Civil Practice Act state as follows:\\n\\\"Subsection (4) was added in 1955 to cover the situation in which the plaintiff sues the wrong defendant but serves process upon the agent of the right defendant, and the Statute of Limitations runs on the claim before rectification of the mistake.\\\"\\nIn their review of the 1955 amendment to section 46 of the Civil Practice Act, Messrs. Jenner and Tone stated in 50 Nw. U. L. Rev. 612, 619-20 (1955):\\n\\\"Under new Section 46(4) no action is barred by any limitation provision of a statute or contract if certain terms and conditions are met. The provision applies only when service of process is actually made upon the subsequently named defendant sought to be charged, or his agent, as in Fitzpatrick v. Pitcairn, though he may have been served in the wrong capacity or as agent of another. \\u00ab e <* \\\"\\nRick's Inc. claims that the above passage indicates that the added defendant or his agent, although already served albeit in the wrong capacity, must be served with process again in order for section 46(4) to apply. We view the passage rather, as a positive assertion that if service has been made on the agent of the right defendant and if, as in the present case, all of the other terms and conditions set forth in section 46(4) are fulfilled, then it is not necessary to again serve summons on the same agent of the added defendant.\\nIn Silver v. Lee Shell Equipment Corp. (1961), 31 Ill. App. 2d 266,175 N.E.2d 287, plaintiffs had sued a nonexistent corporation assuming that the two individuals who were later sought to be made parties defendants were doing business in corporate form. One of the two individuals had been served as agent for the nonexistent corporation. The statute of limitations expired before the plaintiffs discovered their mistake and sought to rectify it by filing an amended complaint making the individuals additional parties defendants. The trial court held that section 46(4) did not apply and dismissed the suit against the individual defendants. This court reversed the trial court's finding and, in language pertinent to the present case, stated at pages 270-71:\\n\\\"To us it appears that the legislature sought to provide a remedy for the inequities growing out of the confusion that may result from the changing entities under which contemporary business and industry is conducted. At the same time the legislature created conditions which would safeguard against the undermining of the statute of limitations. [Citations.] In other words, it took account of the problem that lawyers in our time have of determining the right defendant. That is particularly true in a densely populated city where one may deal for years with a business and not know the character of its organization \\u2014 whether corporate, partnership, individual or a common law trust.\\nThe primary basis for allowing such an amendment is knowledge of the suit through actual service on the person sought to be added or substituted or his partner or agent within the period of the statute of limitations, albeit he was served in the wrong capacity. [Citations].\\nIn the instant case, the individual defendants had knowledge of the suit by reason of the service on I.W. Shell. They had in fact investigated it and taken an active part in the defense. It is a most appropriate case for application of section 46(4). This statute so ably formulated by its proponents must not be hamstrung by a narrow construction of its salutary provisions.\\\"\\nAlso see Latshaw v. Humphreys Leather Goods Co. (1972), 5 Ill. App. 3d 98, 283 N.E.2d 71.\\nIn Ingram v. MFA Insurance Co. (1974), 18 Ill. App. 3d 560,309 N.E.2d 690, plaintiff obtained a default judgment against MFA Insurance Company. Summons had been served on George M. Campbell as MFA's agent. In seeking to vacate the judgment and to quash service of summons, MFA offered the testimony of Campbell and its attorney that MFA was a nonentity and merely a trade name for a group of companies, and that Countryside Casualty Company was the actual corporation. In affirming the judgment for plaintiff, this court held that where summons is served upon a party and the circumstances are such to indicate that he is the person intended to be sued, he is subject to the judgment even though the process and judgment did not refer to him by his correct name. In that case, this court not only upheld the judgment for plaintiff but exercised its authority under Supreme Court Rule 362(f) to amend the name of the party defendant to \\\"Countryside Casualty Company, a Missouri Corporation, d/b/a MFA Insurance Company.\\\"\\nIn the present case, at the time Neil Yaeger was served with summons, he was vice-president, and as such, an authorized agent of Rick's Inc. for service of process on the corporation. (Ill. Rev. Stat. 1973, ch. 110, par. 13.3.) Rick's Inc. was operating Rick's Restaurant & Cocktail Lounge, and Yaeger was also general manager of the business. It is apparent from the record that Rick's Inc. had notice of the pendency of the litigation from the time of service of process on Yaeger. In that regard, it is significant to note that even in Yaeger's motions for summary judgment, one of the law firms defending Yaeger described him as doing business as Rick's Restaurant & Cocktail Lounge. The agent of the right defendant in fact had been timely served; the right defendant was aware of the litigation from the outset; and the purpose of issuing summons had been accomplished. Here, there is no denial of the agency of the individual in fact served with summons, nor of notice of the suit by the correct defendant. Rick's Inc., the unnamed corporation, was personally served with summons through Neil Yaeger, its authorized officer and agent for service of process. The complaint clearly indicated that the party intended to be sued was doing business as Rick's Restaurant & Cocktail Lounge located at 9560 Grand Avenue in Franklin Park, Illinois. The fact that summons was directed to Neil Yaeger who was alleged to be doing business as Rick's Restaurant & Cocktail Lounge at the specified address amounted only to a misnomer. (Janove v. Bacon (1955), 6 Ill. 2d 245, 250, 128 N.E.706.) It is to be noted that section 21(3) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 21(3)) provides that misnomer of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proofs that the court requires. We believe that under the circumstances of this case, there was no need to have summons issue against Rick's Inc., whether it be considered an added or substituted party defendant. It is presumed that the legislature does not intend inconveniences or injustice. (Illinois National Bank v. Chegin (1966), 35 Ill. 2d 375, 220 N.E.2d 226.) We are of the opinion that under the interpretation of section 46(4) (c) urged by defendant requiring re-service of process on Rick's Inc.'s agent, a useless act would be called for.\\nIn Robinson v. Chicago National Bank (1961), 32 Ill. App. 2d 55, 176 N.E.2d 659, cited by Rick's Inc. for its proposition that new summons must issue, the court held that section 46(4) was inapplicable for the very reason that the trustee of a land trust was not the agent for the beneficiaries for the purpose of service of process. It is interesting to note that the holding in Robinson was changed by legislative amendment to section 46(4)(c) adding specific reference to trustees.\\nFor the reasons stated, the order of the circuit court of Cook County dismissing the cause is reversed, and the cause is remanded for further proceedings consistent with the holding of this opinion.\\nReversed and remanded.\\nMEJDA, J., concurs.\"}"
ill/2906555.json ADDED
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1
+ "{\"id\": \"2906555\", \"name\": \"The People of the State of Illinois, Plaintiff-Appellee, v. Ruben Williams, Defendant-Appellant\", \"name_abbreviation\": \"People v. Williams\", \"decision_date\": \"1970-10-30\", \"docket_number\": \"No. 53650\", \"first_page\": \"149\", \"last_page\": \"157\", \"citations\": \"131 Ill. App. 2d 149\", \"volume\": \"131\", \"reporter\": \"Illinois Appellate Court Reports, Second Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T22:42:28.431508+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The People of the State of Illinois, Plaintiff-Appellee, v. Ruben Williams, Defendant-Appellant.\", \"head_matter\": \"The People of the State of Illinois, Plaintiff-Appellee, v. Ruben Williams, Defendant-Appellant.\\n(No. 53650;\\nFirst District\\nOctober 30, 1970.\\nGerald W. Getty, Public Defender, of Chicago, (William J. Martin, James B. Haddad, and Theodore A. Gottfried, Assistant Public Defenders, of counsel,) for appellant.\\nEdward V. Hanrahan, State\\u2019s Attorney, of Chicago, (Robert A. NoveHe, Anthony M. Montemurro, and Lawrence J. Bolon, Assistant State\\u2019s Attorneys, of counsel,) for the People.\", \"word_count\": \"2843\", \"char_count\": \"16767\", \"text\": \"Mr. PRESIDING JUSTICE BURMAN\\ndelivered the opinion of the court:\\nThe defendant, Ruben Williams, was indicted and convicted of the murder of Robert Fleming on October 15, 1967. The defendant was sentenced to serve a minimum of thirty-five and a maximum of fifty years in the Illinois State Penitentiary.\\nOn appeal, the defendant contends (1) that the trial court erred in admitting each of five statements elicited from the defendant in violation of Miranda v. Arizona (1966), 384 U.S. 436, (2) that the admissible evidence does not prove that the defendant was guilty beyond a reasonable doubt, (3) that the prosecutor's statement of personal opinion in the closing argument constitutes reversible error, and (4) that the sentence imposed was grossly excessive.\\nWe first consider the admissibility of two oral statements made by the defendant to Kenneth Fowler, an Indiana State Trooper. On October 15, 1967, Fowler investigated a traffic accident on the Indiana Tollway in which the defendant was involved. At the time of the accident the defendant was driving the automobfie of the deceased, Robert Fleming. As a routine part of the investigation Trooper Fowler asked the defendant for identification. The defendant, who did not present a driver's license, gave Fowler a registration card bearing the name of Robert Fleming. After further questioning the defendant gave Fowler a credit card which also bore the name of Robert Fleming. Fowler then took the defendant to a pofice station for a breathalizer test. At the station Fowler read the following warning and waiver to the defendant.\\nWARNING AND WAIVER\\nWarning as to Rights\\nBefore we ask you any questions, it is our duty as police officers to advise you of your rights and to warn you of the consequences of waiving your rights.\\nYou have the absolute right to remain sfient.\\nAnything you say to us can be used against you in court.\\nYou have the right to talk to an attorney before answering any questions and to have an attorney present with you during questioning.\\nYou have this same right to the advice and presence of an attorney whether you can afford to hire one or not. We have no way of furnishing you with an attorney, but one will be appointed for you, if you wish, if and when you go to court.\\nIf you decide to answer questions now without an attorney present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to an attorney.\\nWaiver\\nI have read the above statement of my rights, and it has been read to me. I understand what my rights are. I wish to make a voluntary statement, and I do not want an attorney. No force, threats or promises of any kind or nature have been used by anyone in any way to influence me to waive my rights. I am signing this statement after having been advised of my rights before any questions have been asked of me by the police.\\nX\\nMark Witnessed\\nCertification\\nI hereby certify that the foregoing warning and waiver were read by me to the person who has affixed his (her) signature above, and that he (she) also read it and signed it in my presence this 18th day of Oct. 1967, at 1:00 o'clock P.M. at LaPorte, Indiana.\\nSignature \\u2014 Police Officer\\nWitness\\nAfter the defendant read the warning and waiver, he signed the waiver by marking an \\\"x\\\" on it in the presence of Fowler. Subsequently the defendant was taken before a justice of the peace and was jailed in lieu of fines under the name of Robert Fleming, on charges of reckless driving and driving without a license.\\nTrooper Fowler met with the defendant again on October 20, 1967. Prior to any questioning, Fowler read to the defendant the same warning and waiver which he had read to the defendant on October 15, 1967. The defendant refused to sign the second warning and waiver. According to Fowler the defendant then admitted in response to various questions that his name was Ruben Williams, that he had borrowed Robert Fleming's automobile, that he had met Fleming in a bar, that he and Fleming had gone to a hotel where they had had a relationship as a man and woman, and that he and Fleming had had a disagreement. At this point the defendant refused to answer further questions and Fowler ceased questioning him.\\nThe defendant points to the sentence in the warning, \\\"We have no way of furnishing you with an attorney, but one will be appointed for you, if you wish, if and when you go to court\\\" and contends that he was inadequately informed of his right to have appointed counsel present during the interrogation because the above quoted sentence in the warning negates the idea that a lawyer will be appointed prior to any questioning.\\nThe rule in Miranda v. Arizona, 384 U.S. 436 at 444 is that\\n\\\" Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.\\\"\\nLaw enforcement officials need not use any particular set of words and phrases to inform an accused of his rights as long as the words used impart to the accused a clear and understandable warning of all his rights. We agree with the 10th Circuit Court of Appeals when it wrote while considering the adequacy of similar Miranda warnings in Coyote v. United States, (10th Cir., 1967), 380 F.2d 305 at 308:\\n\\\"Surely Miranda is not a ritual of words to be recited by rote according to didactic niceties. What Miranda does require is meaningful advice to the unlettered and unlearned in language which he can comprehend and on which he can knowingly act. We will not indulge semantical debates between counsel over the particular words used to inform an individual of his rights. The crucial test is whether the words in the context used, considering the age, background and intelligence of the individual being interrogated impart a clear, understandable warning of all his rights.\\\"\\nThe warnings which were read to the defendant informed him (1) that he had a right to remain silent, (2) that anything he said could be used against him in court, (3) that he had a right to talk to a lawyer before and during questioning, (4) that he had a right to a lawyers advice and presence even if he could not afford to hire one, (5) that a lawyer would be appointed for him, if and when he went to court, and (6) that he had a right to stop answering questions at any time until he talked to a lawyer. The defendant by signing the waiver acknowledged that he had read the warning and that he understood his rights. The above warnings when read in combination, clearly and understandably informed the defendant that he was entitled to appointed counsel prior to questioning.\\nOther jurisdictions have considered the adequacy of warnings identical or substantially similar to the warnings given to the defendant. We agree with the conclusions of Jones v. State (Ind., 1969), 252 N.E.2d 572 (identical warning), People v. Swift (1969), 32 A.D.2d 183, 300 N.Y.S. 639 (substantially similar warning), and Steel v. State (1969), 246 Ak. 74, 436 S.W.2d 800 (substantially similar warning). We note too, that Fendley v. United States (5th Cir., 1967), 384 F.2d 923 (substantially similar warning), Lathers v. United States (5th cir., 1968), 396 F.2d. 524 (similar, but the warning did not state that the defendant was entitled to appointed counsel prior to interrogation), and Square v. State (1969), 283 Ala. 548, 219 So.2d 377, (substantially similar warning) reach contrary conclusions.\\nThe defendant next contends that his oral statement to Trooper Fowler on October 20, 1967, was improperly admitted because the evidence in the record does not demonstrate that he knowingly and voluntarily waived his rights prior to making the statement. The defendant did refuse to sign the written waiver on October 20, 1967, but a refusal to sign a written waiver is not by itself proof that a subsequent statement is involuntary. (People v. Dewey (1969), 42 Ill.2d 148, 246 N.E.2d 232.) The voluntariness of a statement must be determined by an evaluation of the \\\"totality of the circumstances,\\\" surrounding the giving of a statement. Fikes v. Alabama, 352 U.S. 191; People v. Bey (Ill. 1969), 259 N.E.2d 800.\\nThe defendant had made incriminating statements prior to his arrest and custodial interrogation when on October 15, 1967, he presented the deceased's registration card and credit card as identification to Trooper Fowler who was conducting a routine accident investigation. After the defendant was taken into custody on October 15, 1967, he was adequately warned of his rights. He signed a waiver of his rights and he made a short statement. On October 20, 1967, he was again informed of his rights. He answered questions about his true identity and about the reason that he possessed an automobile owned by another person. He exercised his right to remain silent when the questioning turned to possible conflicts with Robert Fleming. The \\\"totality of the circumstances\\\" surrounding the giving of the statement to Trooper Fowler on October 20, 1967, demonstrates that the defendant was adequately informed of his rights, that the defendant knew his rights, and that the defendant voluntarily made the statements.\\nWe next consider the admissibility of the two oral statements made to the Chicago police and the written statement made to the Assistant State's Attorney. William Havensek, a Chicago homicide investigator testified that on October 21, 1967, he transported the defendant from La Porte, Indiana, to Chicago; that when they reached Chicago, he advised the defendant of his rights prior to any questioning; and that the defendant acknowledged that he knew his rights.\\nWhen first questioned by the Chicago police, the defendant told the police that he and the deceased had gone to a hotel for their sexual pleasure, that he had never been to the deceaseds apartmnt and that a camera found in his possession was a gift from his brother. After the police confronted him with various evidence, the defendant stated that the deceased had telephoned him on the evening of October 14; that he had gone to the decedent's apartment; that while at the apartment he and the deceased had had drinks, had taken pills and had had sexual relations; that he and the deceased had argued; that he had picked up a lamp and had struck the deceased twice on the head, and that he had taken the deceased's keys and had driven away in the deceased's auto- . mobile. The defendant then indicated that he wished to make a written statement, and the police notified the State's Attorney's Office.\\nClark M. Donigan, an Assistant State's Attorney, testified that on October 21, 1967, he went to a police station, talked to policemen, and before questioning the defendant, advised him of his constitutional rights by reading from a card prepared by his office. He advised the defendant that if he needed and could not afford a lawyer, the State would supply one. The defendant stated that he wanted a lawyer and did not want to make a statement. The interrogation ceased. After a while, the defendant voluntarily stated that he did not want a lawyer. The written transcript of the statement reveals the following:\\n\\\"Mr. Donigan: All right. Well, Ruben, I told you about a lawyer and I told you if you haven't got the money, the judge or someone of the officers will appoint a lawyer to defend you, but we are here, we have no lawyer here. But your case will come up in corut Monday, maybe and you can ask for a lawyer there and the judge will give you a lawyer. Now, you still want to make the statement without a lawyer being present here?\\nRuben Williams: Yes, I'll make one.\\nQ. You will what?\\nA. I'll make one.\\\"\\nThe defendant contends that the written statement to the Assistant State's Attorney was inadmissible because the interrogation continued after the defendant requested counsel. The defendant has an absolute right to the presence of an appointed or retained attorney during a custodial interrogation. (Miranda v. Arizona.) The fact that the defendant requests the assistance of an attorney, however, does not preclude the defendant from subsequently making a statement without an attorney present if the statement is made knowingly and voluntarily. The state has a heavy burden to demonstrate that the statement was made knowingly and voluntarily. (Miranda v. Arizona.) The defendant was repeatedly and adequately informed of his rights, and the defendant specifically stated that he would give a written statement without an attorney present. There are no aHegations that the statement was coerced. The record in this case demonstrates that the statement was made both knowingly and voluntarily.\\nThe defendant next contends that the two oral statements made to the police and the written statement made to the Assistant State's Attorney should be excluded as the fruit of the unlawfully obtained statement to Trooper Fowler on October 20, 1967. We need not consider this contention because we have held that the statement given on October 20, 1967, was lawfully obtained.\\nWe find no merit to the contention that the lawfully admitted evidence is insufficient to sustain the conviction. In this argument, the defendant erroneously assumes that we will hold that the five statements were improperly admitted and that the other proof might only sustain an auto theft conviction.\\nIt is next contended that the prosecutor's injection of his personal opinion into the closing argument deprived the defendant of a fair and impartial trial. The defendant complains of the following remarks:\\n\\\"I would like to say that Mr. Abrams could almost make you think that limburger cheese makes you smell like Chanel Number 5 but not quite. This man, this defendant is guilty beyond any reasonable doubt. I pray to God that Mr. Stamos and myself can make you understand the evidence the way we do, because there is no doubt, based on this evidence, that this man is guilty of murder.\\\"\\nThe defense counsel objected to these remarks as an expression of a personal belief, and this objection was sustained. The jury was also fully instructed that counsel's comments were not evidence and that they should disregard any statement or argument made by the attorneys which was not based on the evidence. It is impossible to lay down a general rule in regard to what shall or shall not be said in argument to the jury, and what remarks are laid to the door of argument made by the defense. We do not believe that these remarks in the context of the trial so prejudiced the defendant that a reversal is required.\\nIt is also contended that the sentence imposed was grossly excessive. The defendant was convicted of murder and was sentenced to serve 35 to 50 years in the Illinois State Penitentiary. We are urged to exercise the discretionary authority granted to us under the Supreme Court Rule 615(b) to reduce sentences. Sentences are to be proportion ate to the seriousness of the offense. (Ill. Rev. Stat. 1967, ch. 38 par. 1 \\u2014 2(c).) The involved sentence is within the statutory limits. When a sentence is imposed within the limits prescribed by statute, a reviewing court will not disturb that sentence unless it appears that the penalty imposed constitutes a great departure from the fundamental law, its spirit, and its purpose or that it is manifestly in excess of the proscription of Article II, Section 11 of the Illinois Constitution requiring that all penalties be proportioned to the nature of the offense. (People v. Loyd (1970), 125 Ill.App.2d 196, 260 N.E.2d 63.) The trial court in a hearing on aggravation and mitigation commented that it took into consideration the defendant's age and the fact that he had an inconsequential record of prior wrongdoing and for those reasons he did not follow the State's recommendation of a much larger sentence. The trial court is in a better position to make a sound determination as to the punishment to be imposed than are courts of appeal. (People v. Taylor (1965), 33 Ill.2d 417, 211 N.E.2d 673.) Upon a complete review of the record we cannot say that the court's sentence was improper.\\nThe judgment of conviction and sentence is affirmed.\\nJudgment affirmed.\\nMURPHY and ADESKO, JJ., concur.\"}"
ill/2922834.json ADDED
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1
+ "{\"id\": \"2922834\", \"name\": \"Joseph King and Emma F. King, Appellants, v. Uriah T. S. Rice, Trustee. William E. Harpster et al., Appellees\", \"name_abbreviation\": \"King v. Rice\", \"decision_date\": \"1917-10-11\", \"docket_number\": \"\", \"first_page\": \"60\", \"last_page\": \"66\", \"citations\": \"208 Ill. App. 60\", \"volume\": \"208\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T18:14:09.204155+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Joseph King and Emma F. King, Appellants, v. Uriah T. S. Rice, Trustee. William E. Harpster et al., Appellees.\", \"head_matter\": \"Joseph King and Emma F. King, Appellants, v. Uriah T. S. Rice, Trustee. William E. Harpster et al., Appellees.\\nEquity, \\u00a7 146 \\u2014when Mil is multifarious. Where a bill alleged a sale of certain lands, part of a larger tract, by complainants to one defendant who was to pay the purchase price therefor upon a mortgage for a larger amount then existing upon the entire tract, and supposed to be held by another defendant to whom such purchase price was paid and who executed and filed a release of the mortgage as to the lands sold, leaving the remaining lands only subject to the mortgage, and also the execution by complainants of a new note and mortgage upon the remaining lands to include the supposed remaining indebtedness secured by the original mortgage and an additional loan, the old mortgage to be released and the new one filed to replace it, and alleged further that the old mortgage had never been released and was held by another of the defendants, together with the new mortgage, without any credit thereon for the payment made by the purchaser of the small tract, held that the bill was multifarious, as it included two distinct transactions requiring separate decrees and separate defenses.\\nAppeal from the Circuit Court of Moultrie county; the Hon. G\\u00e9okoe A. Sentee, Judge, presiding. Heard in this court at the April term, 1917.\\nAffirmed.\\nOpinion filed October 11, 1917.\\nHenley & Douglas and E. J. Miller, for appellants.\\nF. M. Harbaugh, for appellee William E. Harpster.\\nSee Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.\", \"word_count\": \"2061\", \"char_count\": \"11685\", \"text\": \"Mr. Justice Eldredge\\ndelivered the opinion of the court.\\nThis is an appeal from a decree entered in the Circuit Court of Moultrie county sustaining a demurrer to the amended bill, of complainant and dismissing the same for want of equity.\\nThe bill was filed by Joseph King and Emma P. King, his wife, and it is averred therein that Joseph King on December 9, 1912, was the owner of a certain tract of land containing 65 acres; that on January 17, 1909, they executed a mortgage or trust deed thereon to secure a loan for $2,500, evidenced by a note for said amount, payable to the order of themselves at the office of said Bice, bearing interest at the rate of 6 per cent, per annum, the principal payable January 1,1914, and the interest payable semiannually, secured by 10 interest notes; that on December 1, 1912, complainants contracted to sell 16 acres of said land to one William Harpster and on December 9, 1912, executed and\\\" delivered to said Harpster a warranty deed therefor; that the price agreed upon for said conveyance was $2,000, which Harpster agreed to pay to King by paying the same on the aforesaid mortgage or trust deed, thus reducing said mortgage indebtedness to $500; that Harpster filed said deed for record and went into possession of the lands and has remained in possession thereof from thence hitherto, claiming to own the same by virtue of said conveyance; that Harpster attempted to comply with his undertaking in regard to paying the said $2,000, and went to the office of said Bice and paid to the latter the said sum of $2,000, on or about December 17, 1912, and thereupon Bice executed and delivered to Harpster a partial release of said trust deed, the said release purporting to release the said 26 acres of land from the lien of said trust deed and purporting to leave said trust deed on the remaining 39 acres, owned by King, which said partial release was filed for record; that on December 9, 1912, com plainants went to Bice and arranged to borrow an additional $400 from him and arranged also to pay the remaining $500 of the $2,500 note and mortgage, on which said Harpster had claimed he had paid $2,000 and thus release in full said $2,500 mortgage or trust deed; that Bice consented to make said loan of $400 and release in full said $2,500 mortgage or trust deed so as to remove the lien thereof from the 39 acres owned by King, being the remainder of his land which had not been conveyed to said Harpster; and to accomplish this they arranged with Bice to execute a new note and mortgage for $900, securing the same by giving a new mortgage on said 39 acres of land, and that they executed said note for $900 and the mortgage securing the same; that $500 of the consideration mentioned in said $900 mortgage and note represents the remaining $500 of the consideration in said $2,500 mortgage, so that said two mortgages, so far as $500 of the consideration in each is concerned, represent one and the same debt; that when they executed the $900 note and mortgage, Bice promised and agreed to release in full said $2,500 mortgage and trust deed and they, relying on said promise, gave said second mortgage as aforesaid; that thereafter they never received any notice to pay any interest on the $2,500 note and mortgage which they believed had been released and paid in full; that in the month of July, 1913, they learned that said $2,500 mortgage had not been released and that Bice was insolvent and did not have said $2,500 note and mortgage in his possession at the time complainants gave him said $900 note and mortgage, and that Bice had not released said $2,500 note and mortgage and was not the owner nor the agent of the owner nor in possession of said note or mortgage when Harpster paid him the said $2,000; that since the financial failure of Bice they have been informed that the State National Bank of Mattoon has in its possession said $2,500 note and mortgage, and claims to be an inno cent purchaser thereof for value prior to the time Harpster paid said $2,000 thereon, and said bank claims the full lien of said $2,500 note and mortgage; and said bank also claims to be the owner and holder of said $900 note and mortgage and claims the benefit of the full amount of said $900 lien thereunder against said 39 acres of land, thus claiming a double lien for the same debt; that one Miller claims to have some interest in said $2,500 trust deed and note; that said bank claims that Bice had no authority to make said partial release of said $2,500 mortgage or trust deed and that the same is null and void; that Bice has been adjudged an involuntary bankrupt, and one Powell has been appointed trustee of his estate; that if it be a fact that Bice was without authority to execute said partial release and receive said $2,000 from Harpster, then complainant King has never received the purchase price for the 26 acres of land conveyed to Harpster, and that the latter owes him $2,000, the price therefor with lawful interest thereon from the date of said deed; that said Harpster has since incumbered said 26 acres of land by placing a mortgage thereon to secure the sum of $2,480; that the court should find that the $2,500 note and mortgage or trust deed is paid in full and that the same is a cloud upon the title of complainants to said 39 acres of land, and the same should be released, canceled and removed; that said tract of land should be cleared of all incumbrances except the $900 mortgage aforesaid, and that all of the other pretended liens and claims of the defendant are but clouds upon the title of complainants; that all of these matters and controversies were occasioned by the payment by said Harpster of the purchase price of the land so purchased by him from complainants, to the said Bice as aforesaid, and that all the matters alleged constitute one and the same subject-matter, being occasioned as aforesaid; that both mortgages are long past due and the bank is threatening to foreclose them, thus incur ring large sums in costs against complainants by such foreclosure suit; that said Harpster has refused to obtain a credit of $2,000 on said $2,500 note and mortgage or trust deed from the bank, from Miller, from Bice,, or his trustee in bankruptcy, or from any other source, although he agreed to pay said $2,000 on said mortgage at the time of said transaction above named; that not having paid said $2,000 as aforesaid and complainant King not having received any credit for said $2,000, it became and was the duty of said Harpster to pay complainant King said $2,000 in cash in lieu of paying the same on said mortgage indebtedness, which he has failed to do, but the said Harpster refuses to pay to complainant King said $2,000 or any other sum and has refused to remove any of said clouds or liens or reduce said mortgage indebtedness on complainant's land; that he permits said $2,500 trust deed or mortgage to remain a lien thereon for its full face value contrary to his agreement with complainant, who is entirely without remedy in the premises to compel the said Harpster to secure credit for said $2,000 on said $2,500 mortgage or trust deed; that the acts of said Harpster and of the other defendants have resulted in a cloud being left on complainant's land for $2,500, the same being the trust deed or mortgage for said amount, and complainants will necessarily be involved in a large number of suits and litigations and in a multiplicity of suits on account of said transactions, as well as suffer irreparable loss and injury, unless they are permitted to maintain this bill against all the parties connected with said transaction so as to get the rights of all the parties therein adjusted, so far as pertains to the title to said 39 acres of land.\\nThe demurrer was sustained to the bill on the ground that it was multifarious. It is apparent upon the face of the bill that it involves two complete and different transactions: First, the sale of the 26 acres to Harpster for the sum of $2,000, which the latter agreed to pay upon the indebtedness evidenced by the trust deed and note for $2,500; second, the transaction between the complainants and Bice wherein the new loan for $900 and the mortgage securing the same were involved. Harpster had nothing to do with this last transaction between complainants and Bice. He is not concerned in it in any way. His only obligation to complainants is to pay the $2,000 for the purchase price of the land purchased by him from them in accordance with his agreement. Complainants have a distinct remedy against Harpster and a distinct remedy against .Bice. If the allegations in the bill are true that Harpster, in consideration for the conveyance to him of the tract of land mentioned, agreed to pay the purchase price of $2,000 therefor on the indebtedness of complainants, evidenced by the $2,500 note and trust deed, and has failed to do so, so that complainants have failed to receive credit for the same on said indebtedness, then the remedy of complainants against Harpster is by a bill to foreclose their vendor's lien on the land conveyed for the purchase price thereof. Koch v. Roth, 150 Ill. 212; Croft v. Perkins, 174 Ill. 627; Blomstrom v. Dux, 175 Ill. 435; Lewis v. Shearer, 189 Ill. 184. By their subsequent transaction with Bice they stand to lose $500 by being compelled to pay that sum twice, that amount of the same indebtedness being embraced in both the $2,500 note and trust deed and the $900 note and mortgage. Their remedy against Bice is by an appropriate action based upon the fraud alleged.\\nThe bill cannot be sustained upon the theory that it is brought to remove a cloud from the title to the land nor upon the theory that it is necessary to save a multiplicity of suits. The grievances complained of are too remote and distinct from each other. They are independent and would require separate decrees and separate defenses. First Nat. Bank of Lincoln v. Starkey, 268 Ill. 22.\\nThe bill is multifarious and subject to demurrer on that ground, and the decree of the Circuit Court must therefore be affirmed.\\nAffirmed.\"}"
ill/2959631.json ADDED
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1
+ "{\"id\": \"2959631\", \"name\": \"CHARLES LIDDLE, Plaintiff-Appellee, v. JUAN CEPEDA, Defendant and Third-Party Plaintiff (Moss and Hillison, Appellant; Gregory Liddle, Third-Party Defendant-Appellee)\", \"name_abbreviation\": \"Liddle v. Cepeda\", \"decision_date\": \"1993-11-04\", \"docket_number\": \"No. 3-93-0075\", \"first_page\": \"892\", \"last_page\": \"896\", \"citations\": \"251 Ill. App. 3d 892\", \"volume\": \"251\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T19:06:20.216352+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CHARLES LIDDLE, Plaintiff-Appellee, v. JUAN CEPEDA, Defendant and Third-Party Plaintiff (Moss and Hillison, Appellant; Gregory Liddle, Third-Party Defendant-Appellee).\", \"head_matter\": \"CHARLES LIDDLE, Plaintiff-Appellee, v. JUAN CEPEDA, Defendant and Third-Party Plaintiff (Moss and Hillison, Appellant; Gregory Liddle, Third-Party Defendant-Appellee).\\nThird District\\nNo. 3-93-0075\\nOpinion filed November 4, 1993.\\n\\u2014 Rehearing denied December 14, 1993.\\nMoss & Hillison, of Chicago (Gregory R. Spelson, of counsel), for appellant.\\nFrank P. Andreano, of Joliet, for appellees.\", \"word_count\": \"1685\", \"char_count\": \"10151\", \"text\": \"JUSTICE STOUDER\\ndelivered the opinion of the court:\\nThe law firm of Moss & Hillison appeals from an order of the circuit court granting attorney fees to the plaintiff. We find that the circuit court did not abuse its discretion in awarding attorney fees to the plaintiff, but we remand the cause for a recalculation of the amount of the fees owed.\\nThe plaintiff, Charles Liddle, filed a complaint against the defendant, Juan Cepeda, for $1,908.60 in property damage to his automobile. The complaint alleged that Cepeda was responsible for paying him this amount as a result of an automobile accident that occurred on October 26, 1991. The plaintiff obtained the defendant's name from a police report of the accident. The defendant filed an answer and third-party complaint for contribution against Gregory Liddle, the son of the plaintiff and the driver of the plaintiff's vehicle at the time of the accident. The third-party complaint described the defendant as having been the driver of the vehicle and alleged five specific acts of negligence on the part of Gregory Liddle.\\nAt trial, it became apparent that the defendant was not the driver of the vehicle at the time of the accident. The defendant initially testified that he had been the driver and proceeded to describe how the accident occurred. After awhile, the defendant became confused. Following a sidebar conference, the defendant changed his story and testified that it was his son who was involved in the accident and that he had been lying to protect him. Both parties moved for a directed verdict, and the judge granted the defendant's motion. The plaintiff also moved for sanctions in the form of attorney fees, pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137). The judge stated that he would start to conduct a hearing on the Rule 137 motion and that he would put the defendant on the stand.\\nThe court then called the defendant as a witness. The defendant speaks English poorly and testified with the aid of an interpreter. The defendant testified that his first contact with the law firm of Moss & Hillison was in November 1991 when his wife spoke to an attorney at the firm. He never personally spoke to an attorney until the day of the trial. Upon questioning by an attorney from Moss & Hillison, the defendant admitted that his wife filled out an insurance form that listed him as the driver, and also that he spoke to an attorney from Moss & Hillison a few weeks previously. The defendant also received letters from the firm. Upon questioning by counsel for the plaintiff, the defendant testified that his attorneys never requested that he come into their office to talk about the accident. The defendant was shown the third-party complaint for contribution and could not remember if he had ever seen it before. He testified that Moss & Hillison never asked his permission to file it.\\nThe court granted the plaintiff's motion for attorney fees. The court stated in a written order that attorney John Moss had signed a pleading without anyone from his firm ever speaking to his client. The third-party complaint for contribution alleged that Juan Cepeda was the driver of the vehicle and also alleged five specific acts or omissions of Gregory Liddle that constituted negligence. The court found that these allegations were made without reasonable inquiry, as no one from the firm spoke to the defendant until three weeks prior to trial. The court ordered Moss & Hillison to pay the plaintiff's attorney fees in the amount of $1,550 plus costs. This figure was based on an affidavit filed by the plaintiff.\\nMoss & Hillison first argue on appeal that the trial court erred in sanctioning defense counsel for not pursuing a reasonable inquiry regarding their client's pleadings. The decision to impose sanctions is within the sound discretion of the trial judge and will not be reversed on appeal absent an abuse of discretion. (Yassin v. Certified Grocers of Illinois, Inc. (1990), 133 Ill. 2d 458, 551 N.E.2d 1319.) An appellate court reviewing imposition of sanctions considers whether (1) the circuit court's decision was an informed one; (2) the decision was based on valid reasons that fit the ease; and (3) the decision followed logically from the application of the reasons stated to the particular circumstances of the case. Kubiak v. City of Kewanee (1992), 228 Ill. App. 3d 605, 592 N.E.2d 1200.\\nMoss & Hillison claim that the trial court erroneously employed a hindsight analysis in sanctioning them. They claim that, because their client lied to them, they had no way of knowing that they were filing a pleading on behalf of the wrong party. Unfortunately, Moss & Hillison's understanding of this case is no better now than it ever was. Their entire argument on this issue focuses on the fact that they could not have known that their client was the wrong party. What Moss & Hillison either do not recognize or do not understand is that the trial court was equally concerned with the specific acts of negligence alleged in the third-party complaint. The defendant alleged that the plaintiff moved at an unreasonable speed, failed to keep a proper lookout, failed to give proper warning to any vehicle involved in the alleged incident, operated an improperly equipped vehicle, and disobeyed traffic signs, signals or ordinances. The court found that there had been no reasonable inquiry with respect to these allegations. The court stated in making its ruling that it was clear that the defendant never authorized or even saw the third-party complaint before it went out. The judge further stated, \\\"I'm not sure exactly where Mr. Moss came up with the allegations, since he never even talked to his own client.\\\"\\nIt is clear from the record that there was no basis for these specific allegations of negligence. The defendant was not consulted prior to filing of the third-party complaint, no evidence was introduced that the plaintiff moved at an unreasonable rate of speed, had an improperly equipped vehicle, failed to give proper warning, or disobeyed any traffic signs or ordinances. These statements did not even make sense in the context of how the accident occurred. Further, the attorney for Moss & Hillison did not explain at the sanctions hearing the basis for these allegations. The duty imposed upon counsel is to make a reasonable inquiry into the facts to support a legal claim before pleadings are filed, not after. (Beno v. McNew (1991), 213 Ill. App. 3d 720, 572 N.E.2d 295.) An attorney is not entitled to make up facts, put them in a pleading, and then hope something remotely similar comes up at trial. The trial judge's decision to grant the motion for attorney fees was an informed one that was based on valid reasons that fit the case. Defense counsel has not demonstrated an abuse of discretion by the circuit court.\\nMoss & Hillison also argue that the procedure by which they were sanctioned was improper. They complain that the judge called the sanctions hearing on his own volition and did not give advance notice. They also argue that the petition for fees was submitted at the last minute and that the supporting affidavit was not filed until later. This argument is made for the first time on appeal; defense counsel never objected to any of the proceedings and failed to ask for a continuance. Even though an order of court may by void ab initio for lack of due process, such as notice, a defect in notice can be waived. (Williamsburg Village Owners' Association, Inc. v. Lauder Associates (1990), 200 Ill. App. 3d 474, 558 N.E.2d 208.) Preservation of a question for review requires an appropriate objection in the court below, and failure to object constitutes a waiver. (Williamsburg, 200 Ill. App. 3d 474, 558 N.E.2d 208.) Rule 137 specifically allows the trial court to impose sanctions on its own initiative. Defense counsel participated in the hearing and never raised any procedural objections, either at the hearing or in the post-trial motion. Defense counsel also failed to ask for a continuance and declined the court's invitation to have someone else from Moss & Hillison come to testify about the circumstances surrounding the filing of the pleading. Any procedural objections have therefore been waived.\\nAs a final matter, we note that the court awarded the plaintiff all of the attorney fees expended in this matter. Rule 137 states, in part, that the sanction for filing a pleading in violation of the rule, \\\"may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading.\\\" (134 Ill. 2d R. 137.) The first six legal expenses listed on the plaintiff's supporting affidavit are for matters that took place before filing of the third-party complaint. These expenses, therefore, could not have been incurred because of the filing of the third-party complaint and should not have been awarded by the circuit court. The affidavit lists all of the services performed and the total hours expended. The total hours are multiplied by $100 to reach a total amount of $1,550. Unfortunately, the affidavit does not list the amount of time spent on each individual service. Therefore, we are unable to reduce the amount of the award ourselves and must remand the matter for a new determination of the proper amount of the sanction.\\nIn sum, we affirm the decision of the circuit court of Will County to award attorney fees to the plaintiff, but remand the cause for a new hearing on the proper amount of the sanction. The plaintiff is directed to file a new supporting affidavit with the circuit court that lists the specific amounts of time expended for each separate legal service.\\nAffirmed and remanded with directions.\\nMcCUSKEY, P.J., and BRESLIN, J., concur.\"}"
ill/2963198.json ADDED
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1
+ "{\"id\": \"2963198\", \"name\": \"Grant Newell, Admr. v. Catharine Montgomery et al.\", \"name_abbreviation\": \"Newell v. Montgomery\", \"decision_date\": \"1889-05-16\", \"docket_number\": \"\", \"first_page\": \"58\", \"last_page\": \"64\", \"citations\": \"129 Ill. 58\", \"volume\": \"129\", \"reporter\": \"Illinois Reports\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T23:44:15.306664+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Grant Newell, Admr. v. Catharine Montgomery et al.\", \"head_matter\": \"Grant Newell, Admr. v. Catharine Montgomery et al.\\nFiled at Ottawa May 16 , 1889.\\n1. Administration of estates\\u2014sale of land to pay debts\\u2014power to settle conflicting titles\\u2014constitutionality of act of June 15,1887. Prior to the act of June 15,1887, the county court had no power, in a proceeding by an administrator for an order to sell land for the payment of debts, to call before it adverse claimants to the land, and adjudicate upon their rights before ordering the land to be sold.\\n2. The act of June 15,1887, which gives the county and probate courts power and jurisdiction, on application of administrators for leave to sell real estate for the payment of debts, to investigate and determine all questions of conflicting or controverted titles, to remove clouds, etc., is a valid enactment, and is not in contravention of the constitution of the State.\\n3. The constitution, in conferring upon probate courts jurisdiction in cases of sales of the real estate of deceased persons for the payment of their debts, in no way attempts to define or limit the procedure in cases of that kind, but that is left entirely to legislative discretion. It was, therefore, competent for the legislature to prescribe any procedure which, in its judgment, is appropriate.\\n4. Laches\\u2014not imputed to party in possession. \\\"Where a party has been in the actual possession of land all the time under an equitable title thereto, laches can not be imputed to him as a bar to equitable relief.\\nAppeal from the Appellate Court for the First District;\\u2014\\u25a0 heard in that court on appeal from the Probate Court of Cook county; the Hon. J. C. Knickerbocker, Judge, presiding.\\nMr. Lynden Evans, for the appellant.\\nMr. W. H. Stead, for the appellees.\", \"word_count\": \"2084\", \"char_count\": \"12026\", \"text\": \"Mr. Justice Bailey\\ndelivered the opinion of the Court s\\nThis was a petition filed in the Probate Court of Cook county, by Grant Newell, administrator, with the will annexed, of the estate of Patrick Terry, deceased, to sell real estate for the payment of debts. The petition shows that the personal estate of the decedent is exhausted, leaving a deficiency of $1587.85, and that the decedent died seized in fee of the south half of lot seven, block fifty-five, in State's addition to Ottawa, in La Salle county, that being all of the real estate of which he was the owner. As originally filed, the petition made the heirs of Patrick Terry, the devisees under his will, and a man in possession of the land, parties defendant. Subsequently the petition was amended so as to show that Catherine Montgomery, the widow, and William J. Montgomery and others', the children and heirs at law of Bobert M. Montgomery, deceased, claimed to have some interest in said real estate, and to make them also parties defendant.\\nSaid widow and heirs answered alleging, in substance, that the lot described in the petition, together with a large amount of other lands, were owned by said Bobert M. Montgomery, in his life time, and that after his death, his widow and heirs were involved in litigation in reference thereto, which litigation resulted in a decree of the Circuit Court of LaSalle county, establishing a lien thereon in favor of Peter Dunlevy and others for about $5450; that said property was sold under said decree by the master in chancery of said court on the 9th day of January, 1874, to satisfy said decree, interest and costs; that said widow and children were then members of the Eoman Catholic Church at Ottawa, said Patrick Terry being the parish priest in charge of said church; that said widow and children were without business experience, and that said Terry thereupon volunteered to aid them in saving at least a part of the property about to be sold; that said property was sold in parcels for various sums, aggregating the precise amount due on the decree, including interest and costs, said Terry being the purchaser of all the land sold; that the lot in question was struck qff and sold to him for $100; that the master subsequently conveyed all of the lands sold to Terry, but that in the whole transaction he acted as the agent, friend and adviser of. said widow and heirs; that in paying for said lands he used only $306.80 of his own money, and to make up the residue of the purchase money, he immediately, with the consent of said widow and heirs, sold one tract of the land for $2300, and mortgaged another for $3000, and afterwards sold the tract mortgaged for $700 in excess of the mortgage, receiving said sum of $700 himself and being thus more than reimbursed for the money advanced by him; that ever since the sale, said widow and heirs had been in possession of the lot in question in this suit by their tenants and had received the rents therefrom ; that it was through the inadvertence of said Terry, and not through any actual or intentional fraud, that he had failed to convey said lot to them; that during his life time he frequently expressed his intention to make such conveyance, but that his death intervened before he had carried such intention into effect; that by reason of the premises, said widow and heirs are the true and rightful owners of said lot, and that said lot ought not to be subjected to the payment of the debts of said Terry.\\nThe cause being heard on pleadings and proofs, a decree was rendered, finding that said Terry, at the time of his death, held the title in fee to said lot only in trust for said widow and heirs, and that said lot was not subject to the payment of the debts of said Terry, and ordering that the petition be dismissed. Said decree was thereupon taken by the petitioner to the Appellate Court by appeal, and was there affirmed, and by a further appeal the record is now brought to this court.\\nIt is urged that the probate court has no power, in a proceeding to sell real estate for the payment of debts, to call before it adverse claimants to the land and adjudicate upon their rights before ordering the land to be sold. Such was doubtless the rule prior to the act of June 15,1887, amending sections 99, 100 and 101 of the act in regard to the administration of estates. Smith v. McConnell, 17 Ill. 135; Phelps v. Funkhouser, 39 id. 401; Cutter v. Thompson, 51 id. 390; Gridley v. Watson, 53 id. 186; Shoemate v. Lockridge, id. 503; Le Moyne v. Quimby, 70 id. 399.\\nBy said amendatory act, the powers of county and probate courts in proceedings to sell lands for the payment of debts are greatly enlarged. That act provides that all persons holding liens against the real estate described in the petition, or any part thereof, or having or claiming any interest therein, in possession or otherwise, shall be made parties; that the practice in such cases shall be the same as in cases in chancery, and that the court may settle and adjust all equities, and all questions of priority, between all parties interested therein, and may also investigate and determine all questions of conflicting or controverted titles arising between any of the parties to such proceeding, and may remove clouds from the title to any real estate sought to be sold, and invest the purchasers with a good and indefeasible title to the premises sold. Laws of 1887, page 3.\\nIt is not claimed that the terms of the amendatory act are not broad enough to warrant the proceedings taken in this case, but the point made by the appellant is, that the act attempts to confer upon county and probate courts a jurisdiction not authorized by the Constitution. The constitutional provision as to the jurisdiction of county courts is found in section 18, article 6 of the Constitution, and is as follows: \\\"County courts shall be courts of record, and shall have original jurisdiction of all matters of probate, settlement of estates of deceased persons, appointment of guardians and conservators, and settlement of their accounts, in all matters relating to-apprentices, and in proceedings for the collection of taxes and assessments, and such other jurisdiction as may be provided for by general law.\\\" Section 20 of the same article, after authorizing the General Assembly to provide for the establishment of probate courts in each county having a population of over fifty thousand, makes the following provision as to the jurisdiction of such courts: \\\"Said courts, when established shall have original jurisdiction of all probate matters, the settlement of estates of deceased persons, the appointment of guardians and conservators and settlement of their accounts, in all matters relating to apprentices, and in cases of sales of real estate of deceased persons for the payment of debts.\\\"\\nIt will be seen that the Constitution, in conferring upon probate courts jurisdiction in cases of sales of the real estate of deceased persons for the payment of their debts, in no way attempts to define or limit the procedure in cases of that character. That is left entirely to legislative discretion. It was therefore competent for the General Assembly to prescribe any procedure which in its judgment was appropriate. There was then no constitutional objection to assimilating it to that which obtains in courts of chancery. Such procedure is certainly as appropriate for the purpose as any which the laws of the State provide or recognize. Nor is there any constitutional objection to a provision requiring all parties interested in the land to be brought before the court and have their rights litigated and ascertained prior to a sale. In case of most judicial .sales such provision has always existed. The theory is that the estate in the land which it is proposed to sell can be sold more advantageously and with the expectation of realizing a better price, after the interests of all parties have been determined, so that the purchaser may know precisely the nature and extent of the estate for which he is bidding. A procedure which requires an adjudication of the rights of all parties in interest before a sale is certainly not inappropriate to cases of sales of the lands of deceased persons for the payment of debts, its advantages being'just as manifest there as in case of other judicial sales. That it has not prevailed in probate courts heretofore is not because it was expressly or impliedly prohibited by the constitution, but because it was not provided for by the statute. We see no reason then for holding the amendatory act of 1887 as in any respect repugnant to the Constitution.\\nThe only remaining question winch need be noticed is, whether the decree is supported by the evidence. We are of the opinion that it is. The principal \\\"witness whose testimony was heard was Mr. Maloney, an attorney of Ottawa, w ho, though not an attorney in the ease, was an intimate personal friend of the decedent at the time of the transactions in question and so continued up to the date of the latter's death. Said witness was able to testify in relation to said transactions partly from personal knowledge and partly from repeated conversations with the decedent in relation thereto. His version of the transaction accords substantially with that stated by the Montgomerys in their answers. He also testifies to various conversations with the decedent not long prior to the latter's death, in which the decedent admitted that he had no interest in said lot and requested the witness to make out a deed conveying said lot from him to Mrs. Montgomery, but that such deed was not made out or executed, partly by reason of the witness' negligence, and partly because of the witness' suggestion that Mrs. Montgomery was contemplating a sale of the lot, and that in that case the deed might be made directly to the purchaser.\\nThe doctrine of laches cannot be invoked as a bar to the equitable title of the Montgomerys, for the reason that they are shown to have been in possession of said lot and in the receipt of the rents therefrom ever since the day of the sale. Maloney testifies that such was the fact, and there is nothing in the record tending to rebut his testimony in that respect. The judgment of the Appellate Court will be affirmed.\\nJudgment affirmed.\"}"
ill/2983031.json ADDED
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1
+ "{\"id\": \"2983031\", \"name\": \"Burdette D. Carleton and Nellie B. Carleton, appellants, v. Edythe L. Mayer, appellee\", \"name_abbreviation\": \"Carleton v. Mayer\", \"decision_date\": \"1920-04-30\", \"docket_number\": \"Gen. No. 25,098\", \"first_page\": \"632\", \"last_page\": \"633\", \"citations\": \"218 Ill. App. 632\", \"volume\": \"218\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T17:53:40.030788+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Burdette D. Carleton and Nellie B. Carleton, appellants, v. Edythe L. Mayer, appellee.\", \"head_matter\": \"Burdette D. Carleton and Nellie B. Carleton, appellants, v. Edythe L. Mayer, appellee.\\nGen. No. 25,098.\\nBill to review a degree of divorce, Bill dismissed, Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.\\nAffirmed.\\nOpinion filed April 30, 1920.\\nCertiorari denied by Supreme Court (making opinion final).\\n\\u00a3>. S. Wentworth and David B. Maloney, for appellants. James Todd and Wharton Plummer, for appellee.\", \"word_count\": \"90\", \"char_count\": \"576\", \"text\": \"Mr. Presiding Justice Matchett\\ndelivered the opinion of the court.\"}"
ill/3017809.json ADDED
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1
+ "{\"id\": \"3017809\", \"name\": \"Robert L. Finley, Appellee, v. Federal Life Insurance Company, Appellant\", \"name_abbreviation\": \"Finley v. Federal Life Insurance\", \"decision_date\": \"1918-04-05\", \"docket_number\": \"\", \"first_page\": \"66\", \"last_page\": \"68\", \"citations\": \"211 Ill. App. 66\", \"volume\": \"211\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T22:30:56.739684+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robert L. Finley, Appellee, v. Federal Life Insurance Company, Appellant.\", \"head_matter\": \"Robert L. Finley, Appellee, v. Federal Life Insurance Company, Appellant.\\n(Not to be reported in full.)\\nAppeal from the Circuit Court of Randolph county; the Hon. Lotus Beeneettiei!, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).\\nAffirmed.\\nOpinion filed April 5, 1918.\\nRehearing denied and opinion modified and refiled June 22, 1918.\\nStatement of the Case.\\nAction by Robert L. Finley, plaintiff, against Federal Life Insurance Company, defendant, to recover on \\u2022 a policy of accident insurance. From a judgment for plaintiff for $2,500, defendant appeals.\\nC. A. Atkinson, A. C. Bollinger and J. Fred Gilster, for appellant.\\nWilliam M. Schuwerk and William H. Schuwerk, for appellee.\\nSee Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.\\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative. Quarterly, same topic and section number.\", \"word_count\": \"807\", \"char_count\": \"4928\", \"text\": \"Mr. Justice Higbee\\ndelivered the opinion of the court.\\nAbstract of the Decision.\\n1. Insurance, \\u00a7 601 \\u2014 what is presumption against self-destruction. \\\"While, in an action to recover on an insurance policy insuring against injury resulting from external, violent and purely accidental means, the burden is on plaintiff to show that the injury was accidental and not self-inflicted, he may invoke the presumption that men do not ordinarily take their own lives or inflict injury upon themselves, this presumption not being conclusive however.\\n2. Insurance, \\u00a7 667* \\u2014 when shown that injury was accidental. In an action to recover on an accident insurance policy, where there was no eyewitness save plaintiff and he testifies that the injury was accidental, such evidence, which is fortified by the presumption against one's purposely injuring himself, is sufficient to support a verdict for plaintiff, even though defendant introduces evidence that plaintiff was in straitened circumstances and in need of money to settle a serious charge against him, and that the injury was caused by a gun which he had borrowed a few days before, stating that he intended to go hunting at noon, whereas it appeared that he had no hunting license.\\n3. Insurance, \\u00a7 686* \\u2014 when question whether injury was accidental is for jury. In an action to recover on an accident policy, where the evidence as to whether the injury was accidental is conflicting, the question whether it was or was not of that character is for the jury.\\n4. Appeal and error, \\u00a7 1411* \\u2014 when finding based on conflicting evidence not disturbed. In an action to recover on an accident policy where the jury are correctly instructed in regard to the effect of falsity in warranties or material representations by plaintiff, and the evidence as to the truth of the representations by plaintiff, which are claimed to be false while conflicting, tends to sustain the finding of the jury, their verdict will not be disturbed.\\n5. Insurance, \\u00a7 1177* \\u2014 what evidence is inadmissible to show that representations in accident policy that habits were correct is false. In an action to recover on an accident insurance policy, it is not proper to admit evidence that on two different occasions, one several years before plaintiff applied for a policy and the other a few months before, plaintiff had made improper proposals to two of his female patients, for the purpose of showing that plaintiff's representation in his policy that his habits of life were correct and temperate was false.\\n6. Insurance, \\u00a7 690* \\u2014 when instruction on liability on accident policy, to which defense of falsity of answers in application is made, is not erroneous. In an action to recover on an accident insurance policy in which defendant sets up the falsity of plaintiff's answer, in his application, to the question whether his habits were correct and temperate, an instruction at plaintiff's request that if the jury believe \\\"from the evidence\\\" that defendant issued the policy, that the policy was based on the application, that the answers bj plaintiff to the questions in the application \\\"were true at the time they were made,\\\" and that plaintiff \\\"lost his foot by accident as charged in the declaration,\\\" the verdict shall be for plaintiff, is not subject to the objection that it confines the question of plaintiff's habits to the day the application was made, especially where plaintiff's habits were several times referred to in defendant's instructions as \\\"at the time the application for the policy was made,\\\" nor is it subject to the objection that it assumes that an accident happened.\\n7. Appeal and ekbob, \\u00a7 1241 \\u2014 when error in instructions may not he complained of. One cannot complain of error in the adverse party's instructions when a like error appears in those given at his own request.\\n8. Appeal and ebbob, \\u00a7 1241* \\u2014 when error may not he complained of. One cannot complain on appeal of an instruction given at his own request.\"}"
ill/3048675.json ADDED
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1
+ "{\"id\": \"3048675\", \"name\": \"Illinois Correctional Industries, Claimant, v. The State of Illinois, Respondent\", \"name_abbreviation\": \"Illinois Correctional Industries v. State\", \"decision_date\": \"1992-03-24\", \"docket_number\": \"No. 90-CC-2030\", \"first_page\": \"316\", \"last_page\": \"322\", \"citations\": \"44 Ill. Ct. Cl. 316\", \"volume\": \"44\", \"reporter\": \"Illinois Court of Claims Reports\", \"court\": \"Illinois Court of Claims\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T23:18:25.228963+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Illinois Correctional Industries, Claimant, v. The State of Illinois, Respondent.\", \"head_matter\": \"(No. 90-CC-2030\\nIllinois Correctional Industries, Claimant, v. The State of Illinois, Respondent.\\nOrder filed May 14, 1991.\\nOrder filed March 24, 1992.\\nIllinois Correctional Industries, pro se, for Claimant.\\nRoland W. Burris, Attorney General (Phillip McQuillan, Assistant Attorney General, of counsel), for Respondent.\", \"word_count\": \"1636\", \"char_count\": \"9935\", \"text\": \"ORDER\\nMontana, C.J.\\nClaimant Illinois Correctional Industries (hereinafter referred to as ICI) brought this claim seeking payment in the amount of $220,632.15 for various housekeeping, clothing, and dietary items allegedly \\\"sold\\\" to the Respondent's Department of Corrections (hereinafter referred to as DOC) for use at Stateville Correctional Center. In its standard lapsed appropriation form complaint, Claimant alleged that it made demand for payment to DOC but its demand was refused on the grounds that the funds appropriated for the payment had lapsed. The Respondent filed a stipulation agreeing to our making an award in the full amount sought. The case is now before us for approval of the stipulation.\\nThis Court is not bound by such stipulations and based on the record as it now exists and other matters of public record of which we take\\\" judicial notice, we are hesitant to approve the stipulation at bar for the following reasons.\\nFirst, it is necessary to examine what the Claimant bringing this suit actually is. The Claimant is not a private corporation, partnership, or other business entity. ICI is only a division of DOC. Therefore what we have in this case is the DOC suing itself.\\nWhile the concept of the State suing itself may seem strange or even preposterous, it sometimes does serve a useful purpose from an accounting perspective in that it can serve as a vehicle for moving money among the various funds. This Court has indulged such claims in the past primarily for the purpose of allowing an agency to collect on \\\"debts\\\" owed to a revolving fund from another agency or to make a petty cash fund whole after the appropriation from which payments could have been made has lapsed.\\nIn the case at bar ICI is seeking payments into the Correctional Industries' revolving fund. The term \\\"revolving fund\\\" is used to describe a mechanism set up to finance an operation of State government for which the primary clients are State agencies. A service agency is designated to provide a good or service to other (user) State agencies. The service agency either produces the goods or services directly or purchases them from outside vendors. A fund is established to enable the service agency to sell to user agencies. Proceeds from the sales are deposited into the fund and are then available to buy more inventory or provide more services. Revolving funds are set up to make accounting transfers among agencies when it is decided that some support service ought to be provided on a centralized basis under one State agency, rather than allowing all agencies to purchase the goods or services from a private vendor. With such centralization, benefits of control, economies of scale, and efficient allocation of resources can be achieved. ICI's revolving fund finances operations at the several State penitentiaries which involve inmates manufacturing many items needed in the day-to-day operation of the prisons, for the governmental operations of all State agencies, and certain other not-for-profit entities. In addition to centralization, the ICI operation attempts to coordinate its work with vocational rehabilitation programs for inmates.\\nA revolving fund is created with an initial appropriation of general revenue monies intended to cover all of the activity's start-up costs. The fund's prices are to be set at a level to allow the fund to break even. In theory, the fund should be self-sustaining. In practice, additional infusion of money is often required. In the case at bar, because DOC did not pay itself, the ICI fund is short $220,632.15 and DOC is in the seemingly incongruous position of having to sue itself.\\nIn the ordinary case where an agency seeks reimbursement for its revolving fund by filing a lapsed appropriation claim (and DOC has been the only one to do so in recent years), the Court of Claims has gone along with the agency and treated the claim just like any other claim. Awards have been made and paid to ICI when other agencies did not pay for the goods produced by ICI and sold to the agencies because the appropriations for such payments lapsed. This case is different. From the vouchers attached to the complaint, we see that the purchases which gave rise to this claim were made in November of 1988 through the end of the fiscal year. This is not a case of just one instance of an oversight, but apparently a pattern which continued for two-thirds of the fiscal year. (It does not appear that DOC is seeking to charge itself interest under the Prompt Payment Act for what appears to have been an intentional disregard of its own bills.) This case is also different because DOC did not have enough money to pay itself. Purchases of this nature were to come from funds appropriated under the commodities line item appropriation. Both departmental reports on file show only $1,508.78 lapsed in that line item. The reports do indicate, however, that DOC had anticipated supplemental funding which never materialized.\\nThe initial response to the claim was a recommendation, which is an unusual pleading. The recommendation reads in relevant part as follows:\\n\\\"1. This is a claim against the Department of Corrections.\\n2. We have no reason to doubt that Claimant acted in good faith to provide the goods billed.\\n3. Although a Department may not obligate itself beyond the appropriation provided it, the Department, too, acted in good faith based upon its belief that supplemental funding would be provided to pay for the Constitutionally mandated needs of the inmates.\\n4. We therefore recommend that the Court of Claims recommend that the General Assembly appropriate funds to pay this claim.\\\"\\nA motion to withdraw the recommendation was filed shortly thereafter, which will be allowed, but some discussion of the recommendation will serve to better illustrate the Court's position. While the provision of the basic needs of food, clothing, and shelter, such as what likely consist of the purchases in this case, is constitutionally mandated, we are not persuaded that the basic needs were not paid for. We seriously question whether the constitutional mandate could be enforced in the constitutional courts when the State has already paid for the goods provided with ICI revolving fund monies. As for the recommendation that this Court recommend that the General Assembly appropriate funds to pay this claim, it is apparent from the departmental reports and recommendation that DOC sought the supplemental appropriation and the General Assembly refused. The Court of Claims' function is not to review the decisions of the General Assembly.\\nThereafter a second response to the claim was filed. This response was a stipulation agreeing to our entering an award in the full amount claimed based on a second departmental report. This report indicates at paragraphs 11 and 12 that DOC had lapsed funds which could have been transferred to the commodities line item under the 2% transfer statute, Ill. Rev. Stat., ch. 127, par. 149.2. Those funds were said to be in the corrections recovery fund, No. 231-42692-1900-00-99. This proffered source is not transferable under the 2% transfer statute and we cannot base an award on such.\\nHowever,- it may be possible that the corrections recovery fund could have been used to pay the expenses directly without transfer into another line item. That fund is a State trust fund created pursuant to \\u00a76z\\u201413 of the State Finance Act, Ill. Rev. Stat., ch. 142z\\u201413. According to the terms of that statute, the money is held by the State Treasurer and \\\"spent at the direction of the Director of the Department.\\\" The report indicates that over $1.1 million lapsed at. the end of fiscal year 1989.\\\". However, the appropriation of 231 Trust Fund'money to DOC does not appear in the State Comptroller's 1989 publication entitled - Illinois Appropriations. \\\"We find it' unlikely that the director's discretion to spend money from that fund is totally unfettered.\\nBefore taking final action on the pending stipulation, we want the record augmented to show some evidence that the 231 Trust Fund money was appropriated in fiscal year 1989, how much of the appropriation lapsed that year, and whatever guidelines exist as to how that money may be spent. Further, we want the record to reflect why that trust fund money was not used to pay these bills during the 90-day grace period contained in \\u00a725 of the Finance Act following the end of the fiscal year 1989 when it became certain that supplemental funding would not materialize.\\nSince this claim arose the General Assembly has, in the appropriations process, reviewed the levels of funding for the ICI revolving fund in fiscal years 1990 and 1991 and made its decisions. We point out that any award made by this Court would have to be approved by the General Assembly prior to payment due to the size of the award and its source. Under no circumstances is our final decision to be interpreted as a review of those legislative determinations.\\nIf Claimant wants to continue prosecution of this claim, it is hereby ordered that the Claimant or Respondent supplement the record in accordance with this order within 60 days of the date of this decision; if Claimant fails to respond or request an extension within said time, this claim is denied. It is further ordered that the pending motion is granted.\\nORDER\\nMontana, C.J.\\nThis court, having considered the Attorney General's motion to dismiss, and being fully advised in the premises,\\nIt is therefore ordered that the claim of Illinois Correctional Industries against the State of Illinois Department of Corrections is dismissed.\\nSo ordered.\"}"
ill/3074283.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"3074283\", \"name\": \"Standard Oil Company of Indiana, Appellee, v. Union Club Motor Livery, Appellant\", \"name_abbreviation\": \"Standard Oil Co. v. Union Club Motor Livery\", \"decision_date\": \"1923-02-13\", \"docket_number\": \"Gen. No. 28,014\", \"first_page\": \"50\", \"last_page\": \"62\", \"citations\": \"228 Ill. App. 50\", \"volume\": \"228\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T23:13:32.698073+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Standard Oil Company of Indiana, Appellee, v. Union Club Motor Livery, Appellant.\", \"head_matter\": \"Standard Oil Company of Indiana, Appellee, v. Union Club Motor Livery, Appellant.\\nGen. No. 28,014.\\n1. Agency \\u2014 proof of relationship. Agency between plaintiff and one who sold gasoline to defendant at a reduced price and to whom defendant paid such price in advance is not shown by evidence that such salesman agreed to deliver gasoline made either by plaintiff or another oil company, that thereafter deliveries were made first by the other company and later by plaintiff, that although such de liveries were invoiced to defendant at the market price and so received by him the invoices were forwarded to the salesman and thereafter received from him receipted paid by the oil companies, where it appears that the invoices for the deliveries sued on were never returned, that such deliveries were billed at the market price by plaintiff without any reduction and payments made to plaintiff were credited to defendant at the market price, and where there is no evidence that such salesman represented himself to be agent of the plaintiff or that he acted with plaintiff\\u2019s knowledge or assent or that plaintiff dealt with him on that basis or that he paid plaintiff less than the market price on previous deliveries.\\n2. Agency \\u2014 proof of relationship. In an action by an oil company for the purchase price of gasoline sold to defendant where the defense is raised that such gasoline was bought from a purported agent to whom payment in advance was made, the fact that such purported agent had a book which contained a list of deliveries of gasoline made to defendant which was identical with the invoices sent by plaintiff to defendant is not evidence of agency where it is not shown how or where the purported agent secured such book and plaintiff is not in any way connected therewith.\\n3. Agency \\u2014 proof of relationship. In an action for the purchase price of gasoline delivered to and accepted by defendant by plaintiff, the fact that the gasoline sued for was part of a large quantity delivered during a considerable period of time and that as to the deliveries sued upon a different method of billing on the invoices was used by plaintiff is not evidence that a salesman, with whom defendant had dealt originally and who agreed to furnish gasoline manufactured by plaintiff at a rate under the market price for which defendant paid in advance the amount stated, was then acting as plaintiff\\u2019s agent where the bills in question contained nothing to indicate that the various deliveries were to be treated differently or that any reduction in price was to be made and credits thereon show that no such reduction was contemplated.\\ni. Pleading \\u2014 variance between summons and declaration. The fact that a copy of a summons served on defendant referred to plaintiff as the Standard Oil Company of Illinois and its name appeared in the declaration as of Indiana does not show any variance where the summons required defendant to answer unto the Indiana company.\\n5. Pleading \\u2014 waiver of variance. Variance between the summons and the declaration is waived by defendant by pleading generally to the declaration.\\n6. Haemless and pee judicial ebbob \\u2014 triviality of error. The fact that a judgment is for two cents less than the verdict and that no remittitur was filed is not ground for reversal.\\nAppeal by defendant from the Superior Court of Cook county; the Hon. Oscar Hebel, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1922.\\nAffirmed.\\nOpinion filed February 13, 1923.\\nCertiorari denied by Supreme Court (making opinion final).\\nO\\u2019Brien, Rutledge & Bates, for appellant.\\nMayer, Meyer, Austrian & Platt and Harry A. Daugherty, for appellee; Alfred S. Austrian and Robert J. Folonie, of counsel.\", \"word_count\": \"3805\", \"char_count\": \"23016\", \"text\": \"Mr. Justice Gridley\\ndelivered the opinion of the court.\\nThis is an appeal from a judgment against defendant for $5,925.67, entered after a directed verdict for plaintiff by the superior court of Cook county on July 8, 1922, in an action in assumpsit commenced April 6, 1921, wherein plaintiff sought to recover for the value of certain gasoline delivered to defendant during the months of October, November and December, 1920.\\nThe case is similar in its essential facts to Sinclair Refining Co. v. W. J. Newman Co., 224 Ill. App. 401,. decided by this Appellate Court in March,, 1922, on appeal from the municipal court of Chicago. In that case the municipal court after a trial found the issues in .favor of the defendant and entered judgment against the plaintiff for costs, but that judgment was reversed with a finding of facts and judgment entered here for the plaintiff for the value of the gasoline delivered. One of the ultimate facts found by this court was that one Henry Sewell was not the agent of the plaintiff. Subsequently defendant's application for a writ of certiorari was denied by the Supreme Court. In the present case after a trial before a jury, at which much evidence both oral and documentary was introduced by the respective parties, the court on plaintiff's motion instructed the jury to find the issues in its favor and to assess its damages at $5,925.69, the value of the gasoline shown to have been delivered to defendant. Such a verdict was returned and, after defendant's motions for a new trial and in arrest of judgment had been overruled, the judgment appealed from ivas entered.\\nPlaintiff's declaration consists of the common counts, attached to which is a statement of an account, dated February 28, 1921, addressed the defendant and headed \\\"Statement rendered,\\\" showing deliveries of gasoline on 39 different days during said months, the number of gallons delivered \\u2022 each day, the market price per gallon, and the total charge of $5,925.69. Defendant filed a plea of the general issue; also an affidavit of merits in which it is alleged that it \\\"entered into a contract with plaintiff for a certain quantity of gasoline to be delivered to it as required\\\"; that at that time it \\\"paid plaintiff for said gasoline in advance through plaintiff's agent\\\"; that plaintiff is still indebted to it for failure to deliver 21,947 gallons purchased under the contract; and that defendant is not indebted to plaintiff in any sum, and \\\"did not purchase the items mentioned in the bill of particulars at the various prices therein mentioned.\\\" Defendant also gave notice that under its plea it would insist upon the trial that plaintiff, the Sinclair Refining Company and a third oil company combined and confederated together to get defendant's business, and that of other business houses in Chicago, away from the independent oil companies and for that purpose employed Henry Sewell as confidential agent; that Sewell acted as such agent, together with one Whalen, secretary to plaintiff's vice president, and with Robert Stewart and James Stewart, sons of Colonel Stewart, chairman of plaintiff's board of directors, and with one Francis M. Baker, city sales manager of the Sinclair Refining Company, and with others; that \\\"plaintiff company had full knowledge of the contract entered into between said Sewell and said Stewarts, acting' for plaintiff, and the defendant\\\"; that pursuant to said contract plaintiff delivered some of the gasoline so purchased for which defendant paid said Sewell and said Stewarts in full, but that plaintiff has failed to carry out all of its contract and is still indebted to defendant; and that defendant never purchased any gasoline or had any dealings whatever with the Standard Oil Company, of Illinois.\\nThe evidence disclosed the following facts in substance: The defendant company was engaged in the garage and motor livery business in Chicago. One J. R. Emery was its president. During portions of the year 1919, and in January, 1920, defendant had been purchasing considerable quantities of gasoline for use in its business through a Mr. Hollingshead, and at prices varying from iy2 cents to 3 cents below the current market price. Early in February, 1920, Henry Sewell called upon Emery, told him that he had a large business in Chicago selling well-known brands of gasoline to many consumers at rates below the current price, and solicited defendant's trade. He gave Emery the names of some of his customers and suggested that Emery communicate with them. Emery did so. On February 14, 1920, Sewell called again and further negotiations were had, resulting in the making of a written contract between Sewell and defendant as per the following instrument, which Sewell on that day personally signed and delivered to defendant:\\n\\\"Received of Union Club Motor Livery $11,500. Payment in full for 50,000 gallons of gasoline, standard grade, either Red Crown or Sinclair preferred, which I agree to deliver on demand.\\n(Signed) Henry Sewell.\\\"\\nInstead of paying the amount stated, Emery at the time gave Sewell defendant's check payable to Sewell's order for $8,750. This was at the -rate of 17y2 cents per gallon, instead of 23 cents, disclosed from said instrument and the then market price. Sewell thereupon telephoned the Sinclair Company and directed it to begin delivering gasoline to defendant on the next day. Thereafter Sewell cashed the check, and thereafter the Sinclair Company made frequent deliveries up to May 26, 1920, delivering during the period about 30,000 gallons in all. It appears that under the prevailing custom a customer's tank is filled by the tank wagon of the supplying company at varying short periods as long as the customer desires, but the arrangement exists only during the wishes of both parties and either may end it. As the invoices for this gasoline, so delivered by the Sinclair Company, were received, defendant forwarded the same to Sewell and received them back receipted by that company. After May 26, plaintiff, instead of the Sinclair Company, made deliveries of gasoline to defendant, and the invoices were handled in the same way and returned receipted to defendant. By July 1, 1920, defendant had received the 50,000 gallons which Sewell had agreed to deliver. On July 13, 1920, Sewell executed and delivered to defendant a second contract as follows:\\n\\\"Received of Union Motor Livery Company the sum of $13,000, being payment in full for 50,000 gallons of standard grade gasoline, Red Crown, Sinclair or Victory preferred, which I agree to deliver during the season of 1920 and 1921.\\n(Signed) Henry Sewell.\\\"\\nInstead of paying the $13,000 mentioned, Emery at the time gave Sewell defendant's check payable to his order for $10,000, which check Sewell subsequently cashed. The amount paid was at the rate of 20 cents per gallon, instead of 26 cents, disclosed from said contract and the then market price. Defendant's bookkeeper' testified that, immediately upon the making of this second contract, \\\"we opened an account in that book indicating we had paid Henry Sewell $10,000 on account of that contract.\\\" This action and the payment of the money to Sewell discloses that at that time defendant believed it was dealing solely with Sewell in the transaction. Thereafter and until December 9, 1920, defendant from time to time received gasoline from plaintiff to the amount of 50,000 gallons. As to those invoices which defendant received for the gasoline delivered up to September 30, 1920, these were forwarded to Sewell and returned to defendant, marked \\\"paid\\\" by plaintiff. As to the invoices which defendant received for the gasoline delivered during the months of October and November, and during December up to December 9, 1920 (the deliveries for which the present action is brought), these were forwarded by defendant to Sewell on December 27, 1920, but defendant never received them back. During the remainder of the month of December, 1920, and during the months of January and February, 1921, defendant continued to receive gasoline, and the invoices for the respective deliveries, from plaintiff. For all of these deliveries after December 9, defendant made payments by its checks and got receipts therefor from plaintiff. During the period of the deliveries in question, the market price of standard grade gasoline was 27 cents per gallon. With each delivery of gasoline made to defendant during said period a copy of a delivery ticket and an invoice, on plaintiff's forms then in use, were delivered to defendant, showing the number of gallons delivered, the price at 27 cents per gallon and the total price. One Andrew Olson was an employee of defendant and during said period it was his duty to receive gasoline and check the quantities put in defendant's tank. His signature appears upon the 39 delivery tickets or receipts, introduced in evidence, wherein he receipted for the amount of gasoline as shown thereon in each instance. Emery testified: \\\"The bills or receipts which came to me during the period from February, 1920, right on through the whole period from the Standard Oil Company, were at the various market prices as existed at the time the goods were bought. Irrespective of any agreement or understanding with Sewell about reductions, none of these bills were for any price under the market.\\\" Plaintiff's invoice for a particular delivery was as a rule filled out by its billing department from the signed delivery ticket or receipt, and the charge made on its books about three days after the actual delivery, and this explains why the charges against defendant, as shown in the \\\"statement rendered,\\\" are at later dates than the date of the actual deliveries to defendant as shown from the delivery tickets.\\nPlaintiff's undisputed evidence disclosed that during the period mentioned it delivered to defendant gasoline of the total value, at the then market price of 27 cents per gallon, of $5,925.69, for which it had not received payment. Unless defendant's evidence sufficiently tended to establish its affirmative defense, viz., that in Sewell's said transactions with it he was acting as plaintiff's agent and with plaintiff's knowledge and consent, we think that the trial court was fully warranted in directing the verdict for plaintiff and in entering the judgment. (Peter Cooper's Glue Factory v. Devoe & Raynolds Co., 178 Ill. App. 298; Thompson v. Douglass, 35 W. Va., 337; Barnes v. Shoemaker, 112 Ind. 512.) In the Barnes case (p. 514) it is said: \\\"If the person ordering the goods receives notice before the goods are appropriated or, converted that they have been furnished by another, and is also notified that they are furnished upon such terms as import that the person supplying the goods contemplated a sale upon terms stated, and the person who sent the order afterwards receives and appropriates them, he thereby assents to and ratifies the filling of the order, and snch assent and ratification relate back and give the order the same effect as if it had been originally given to the person who filled it.\\\"\\nMuch evidence, oral and documentary, was introduced by defendant in its endeavor to prove facts sufficiently tending to show that Sewell in his transactions with defendant was acting as the agent of plaintiff, so as to warrant the submission of that issue to the jury. We have carefully examined the-facts proven and are of the opinion that, with all their legitimate inferences, they Were insufficient to require the court to submit the case to the jury. The following portions of the opinion of this court in the Sinclair case (224 Ill. App. 401) above mentioned are applicable to the present case (p. 408):\\n\\\"Plaintiff never received any part of the money paid by defendant to Sewell, except as payments were made to it for daily deliveries of gasoline. Sewell was a clever schemer, who gained the confidence of consumers of gasoline who were willing and anxious to buy at less than the market price. He never pretended to represent any company engaged in the business of supplying gasoline, but in a secret and confidential way induced his business acquaintances to believe that he could and did deliver gasoline to them at a reduced price. The contention that Sewell was the agent of plaintiff in these transactions is wholly unsustained by the evidence. The written evidence of the contracts in question shows that they were between defendant and Sewell. Neither Carroll (in the present case, Emery), the authorized representative of defendant, nor the defendant itself, ever received any information or understood that they were dealing with any person other than Sewell. Sewell was not an agent of plaintiff, and the record does not disclose any authority in him, real, apparent or implied, by which he was authorized to act for plaintiff. # (409) It cannot be contended successfully that there was any ratification by plaintiff of the transactions between Sewell and defendant, for the reason that plaintiff had no knowledge of these transactions. (410) The fact that neither Carroll (Emery), the official representative of defendant, nor any other representative of defendant, ever made any inquiry of plaintiff or any of its agents or representatives as to the transactions with Sewell indicates that defendant never considered that it was dealing with any person other than Sewell.\\\"\\nIn the present case the testimony of defendant's witnesses, Emery and Miss Vickery, president of and bookkeeper for defendant, respectively, clearly discloses, we think, that Sewell never represented to defendant that he was an agent of plaintiff; that defendant never dealt with him on such a basis; that defendant never made any inquiries of plaintiff, at least until after the gasoline in question was delivered and used by defendant, as to whether Sewell was plaintiff's agent or had authority to make any contract in its behalf for the delivery of any gasoline or to act for it in any way; and that defendant in its dealings with plaintiff never in fact paid it any amount less than that called for in the invoices. Emery was not particularly interested in knowing whether Sewell was plaintiff's agent or not. \\\"When under the two contracts mentioned he made the respective payments of $8,750 and $10,000, he relied solely on Sewell's responsibility. \\\"Where or how Sewell procured the gasoline was a matter of indifference to him, just so long as defendant received the gasoline contracted for.\\nIn their printed argument here filed, counsel for defendant call particular attention to certain testimony of Miss Vickery, defendant's bookkeeper, as tending to show Sewell's agency. She testified in substance that, at a time when deliveries were being made under the second contract and Sewell was making payments at market prices on the invoices as received by defendant and after being checked over by him, she once went to Sewell's office at his request to check over certain invoices; that he opened a book wherein was an account headed with defendant's name; that the invoices which she had brought were then checked over with a certain list, which Sewell exhibited and which was identical with said invoices, as to number of gallons, price per gallon, date, and the total amount due; that said invoices, which she had brought, had been prior to that time in her sole possession; and that she had never before communicated to Sewell the facts therein contained. There was no evidence introduced showing how or from whom Sewell procured the book and list or that plaintiff had brought about such possession. The facts, as testified to, do not alone, or in connection with other facts in evidence, even tend to show that Sewell was plaintiff's agent or had its authority to enter into the said contracts with defendant or that defendant in dealing with Sewell was really dealing with plaintiff. Counsel also comment on the fact that, in a certain statement of account, dated December 31, 1920, and which plaintiff rendered defendant, the items of deliveries thereon, after December 9, 1920, are separated by a line from the prior deliveries in December and the balances due for the October and November deliveries, and that said items of deliveries after December 9 and in that month have a cross-mark (x) in front of each. And counsel contend that, because of this, the gasoline delivered after December 9 was sold on a different basis than that delivered before, and that the statement of account \\\"shows that appellant was only to account for the items marked \\u00a3x,' which were all subsequent to December 9.\\\" We cannot agree with the contentions. Every item on the statement is a charge against defendant. The items which have cross-marks were paid by defendant's check ip Jpnpary, 1921, and the statement on its face, showing a credit \\\"Jan. 7. By Cash $2,690.03\\\" and the balance due of \\\"$5,925.69,\\\" discloses that it was not received by defendant until after plaintiff had received said check, the amount of which, according to the testimony, defendant had directed should be applied to the deliveries subsequent to December 9th. And there is nothing contained on this statement, taken alone or in connection with the other facts and circumstances in evidence, even tending to show that Sewell was plaintiff's agent, or that plaintiff was bound by his contract of July 13, 1920, in selling to defendant 50,000 gallons of gasoline at a price lower than the market price, or that plaintiff authorized any payment to be made to him on that basis. Counsel also direct our attention to many other facts and circumstances disclosed by the evidence as tending to show that Sewell represented plaintiff as its agent. We deem it unnecessary to discuss them. Suffice it to say that we have considered all the evidence, and all of counsel's points bearing upon the question of Sewell's agency, and are of the opinion, as above expressed, that the trial court was fully justified in directing a verdict for plaintiff and in entering the judgment appealed from. And we do not think that the trial court committed any reversible error in its rulings upon the admission or exclusion of evidence.\\nCounsel also contend that there was a variance between the summons and the declaration, in that in the copy of the summons, which was served upon it, it was stated that the plaintiff was the Standard Oil Company of Illinois, while in the declaration plaintiff's name appears as the Standard Oil Company of Indiana. The summons as contained in the transcript shows that defendant was required to answer unto \\\"Standard Oil Company, a corporation organized under the laws of the State of Indiana.\\\" Hence, there was no variance, But even, if there was? de fendant waived the point by pleading generally to the declaration. (Simons v. Waldron, 70 Ill. 281; Fonville v. Monroe, 74 Ill. 126.)\\nCounsel also urge as a ground for reversal that although the verdict returned was for $5,925.69, the judgment was for $5,925.67, two cents less, and no remittitur was filed. \\\"The difference is so trivial that it is not worthy of further attention.\\\" (Heartt v. Rhodes, 66 Ill. 351, 357.) De minimis non curat lex.\\nFor the reasons indicated the judgment of the superior court is affirmed.\\nAffirmed.\\nBarnes, P. J., and Morrill, J., concur.\"}"
ill/3100784.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"3100784\", \"name\": \"Laura F. Lynch, appellee, v. Herbert Nieman, appellant\", \"name_abbreviation\": \"Lynch v. Nieman\", \"decision_date\": \"1924-10-07\", \"docket_number\": \"Gen. No. 29,252\", \"first_page\": \"609\", \"last_page\": \"609\", \"citations\": \"235 Ill. App. 609\", \"volume\": \"235\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T01:15:31.006634+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Laura F. Lynch, appellee, v. Herbert Nieman, appellant.\", \"head_matter\": \"Laura F. Lynch, appellee, v. Herbert Nieman, appellant.\\nGen. No. 29,252.\\nOpinion filed October 7, 1924.\\nRemittitur filed October 15, 1924.\\nPreston Boyden and Joseph H. Hinshaw, for appellant; Dana R. Simpson, of counsel. Charles Daniels, for appellee.\", \"word_count\": \"47\", \"char_count\": \"308\", \"text\": \"Mr. Justice Gridley\\ndelivered the opinion of the court.\"}"
ill/3159413.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"3159413\", \"name\": \"G. C. Christensen, Appellee, v. Frances Blinstrup et al., Defendants. Appeal of William Klein, Jr. et al., Appellants\", \"name_abbreviation\": \"Christensen v. Blinstrup\", \"decision_date\": \"1936-03-02\", \"docket_number\": \"Gen. No. 38,583\", \"first_page\": \"163\", \"last_page\": \"165\", \"citations\": \"284 Ill. App. 163\", \"volume\": \"284\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T01:15:30.185385+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"G. C. Christensen, Appellee, v. Frances Blinstrup et al., Defendants. Appeal of William Klein, Jr. et al., Appellants.\", \"head_matter\": \"G. C. Christensen, Appellee, v. Frances Blinstrup et al., Defendants. Appeal of William Klein, Jr. et al., Appellants.\\nGen. No. 38,583.\\nOpinion filed March 2, 1936.\\nHarold O. Mulks, of Chicago, for appellants.\\nJohn A. Bloomingston and Harold Rivkin, both of Chicago, for appellee.\", \"word_count\": \"733\", \"char_count\": \"4296\", \"text\": \"Mr. Presiding Justice McSurely\\ndelivered the opinion of the court.\\nThis is an appeal from an order appointing a receiver in a foreclosure proceeding. The order is inter locutory and the appeal should have followed the practice prescribed for appeals from interlocutory orders (Practice Act, ch. 110, \\u00b6 206, Ill. State Bar Stats. 1935) and Rule 21 of this court, which requires that abstracts and briefs of the appellant shall be filed within seven days after filing the record in this court, and the appellee's brief within the next five days. The case was not docketed in this court as an interlocutory appeal but proceeded as an ordinary appeal; extensions of time were asked for to file a complete record and abstracts and briefs, far beyond the time contemplated by the statute and our rules; the receiver was appointed September 5, 1935, a short record was filed October 5, 1935, the complete record was filed November 6th, appellant's brief filed November 18th, and appellees' brief December 3rd. This was in violation of provisions controlling appeals from interlocutory orders, and for this reason the appeal will be dismissed.\\nHowever, we have considered this appeal upon its merits. The complaint was in the ordinary form, seeking a foreclosure of a trust deed and asking for the appointment of a receiver; subsequently, in August, 1935, the attorney for plaintiff presented a petition representing that there were instalments of principal and interest due on the indebtedness to the amount of over $55,000; that the taxes for the year 1928 had not been paid and that the premises had been sold for the nonpayment of the taxes for that year; that the premises had also been forfeited for nonpayment of the general property taxes for the years 1929, 1930 and 1931; that the taxes for 1932, 1933 and 1934 have not been paid; that the premises were in the village of Justice Park, Illinois, about 10 or 15 miles from the Chicago city limits, improved with a two-story building the first floor of which is used as a tavern; that the building is about 25 years old; that the fair market value of the premises does not exceed $25,000. Defendants filed an answer and reference was had to a master in chancery who reported, recommending the appointment of a receiver; the chancellor overruled exceptions to the report and appointed a receiver of the premises.\\nDefendants make a number of points in their brief but the argument does not follow the points as made. Objection seems to be made to the verification of the complaint, which was sworn to in the State of California before a notary public, whose seal is attached, and counsel cite Pfeil v. Loeb, 255 Ill. App. 484, and Blanke v. Hammel, 256 Ill. App. 251, where similar certificates were held insufficient as not showing any authority in the notary to administer oaths. Apparently the statute relating to Evidence was not called to the attention of this court in those cases and was not in the present case. But we find that chap. 51, pars. 57 and 58, provide that we shall take judicial notice of the laws enacted by any State or territory of the United States, and the California law (Political Code of California, 1931, vol. 1, sec. 794) authorizes a notary public to administer oaths.\\nIt is said that the appointment of a receiver upon a mere petition was erroneous, but the complaint as well as the petition asked for the appointment of a receiver. Upon the showing made the court did not abuse its discretion in appointing a receiver. The fact that the premises had been sold for taxes and that the taxes had not been paid for many years, together with the showing of the scant value of the property, was sufficient to justify the appointment.\\nFor the reasons first above stated, namely, that this was an interlocutory appeal, improperly docketed in this court as an appeal from a final order and so treated in the filing of the record, the abstract and briefs, the appeal is ordered dismissed.\\nAppeal dismissed.\\nMatchett and O'Connor, JJ., concur.\"}"
ill/3164077.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"3164077\", \"name\": \"Buildings Development Company, Appellee, v. B/G Sandwich Shops, Inc., Appellant\", \"name_abbreviation\": \"Buildings Development Co. v. B/G Sandwich Shops, Inc.\", \"decision_date\": \"1934-12-19\", \"docket_number\": \"Gen. No. 37,463\", \"first_page\": \"126\", \"last_page\": \"132\", \"citations\": \"278 Ill. App. 126\", \"volume\": \"278\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T01:15:31.954645+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Buildings Development Company, Appellee, v. B/G Sandwich Shops, Inc., Appellant.\", \"head_matter\": \"Buildings Development Company, Appellee, v. B/G Sandwich Shops, Inc., Appellant.\\nGen. No. 37,463.\\nOpinion filed December 19, 1934.\\nMarkheim & Allie, of Chicago, for appellant; A. R. Miller, of Chicago, of counsel.\\nWind, Wind & Can an, of Chicago, for appellee; Michael M. Wind, of counsel.\", \"word_count\": \"1809\", \"char_count\": \"10361\", \"text\": \"Mr. Justice Wilson\\ndelivered the opinion of the court.\\nThis is an appeal from a judgment of the municipal court of Chicago for the sum of $2,200, in four cases which were consolidated in the trial court by agreement. Each of the four cases was a suit by the plaintiff, Buildings Development Company, for rent for certain premises occupied by the .defendant, B/G Sandwich Shops', Inc. in the City of Milwaukee in the State of Wisconsin. The first case was for rent for the month of December, 1932; the second for rent for January, 1933; the third for rent for February, 1933, and the fourth for rent for the month of March, 1933. All claimed to be due under the same written lease. The instrument sued on was for a term of 15 years commencing May 1, 1929, and defendant entered into possession and paid the rent until the first day of December, 1932. From the pleadings in the cause it can be inferred that the defendant continued in possession of the premises after that date and did not repudiate the lease.\\nMarch 28,1927, the plaintiff, Buildings Development Company, executed a certain trust deed in which one M. Ernest Greenebaum, Jr. was named as trustee, which deed of trust was recorded in the office of the registrar of deeds in Milwaukee county, Wisconsin, and mortgaged the premises in question as security for the indebtedness described in said trust deed.\\nMay 25,1932, an action was instituted by the trustee in the circuit court of Milwaukee county, Wisconsin, to foreclose the lien of said trust deed, which foreclosure suit is still pending and undisposed of.\\nPlaintiff in its additional statement of claim sets out the fact that the lease in question was assigned to the trustee named in the trust deed but for the sole and only purpose of securing the payment of the amount accrued and to become due under such mortgage; that it was expressly understood that said assignment was for the purpose of further securing the trust deed on the premises; that no default has been declared by the assignee; that no demand for the delivery' of said lease has been made by the assignee; that said assignment has never been acted upon or exercised by the assignee nor has the defendant been called upon to make payments to the assignee thereunder; that the assignee has made no claim for rent from the plaintiff under said assignment and that the defendant at all times has paid the rent accruing under said lease to the plaintiff, Buildings Development Company.\\nThe defendant in its amended affidavit of merits denies none of these allegations, but charges that the facts are within the knowledge of the plaintiff and that it is, therefore, unable to specifically answer the same. The amended affidavit of merits further sets forth the statute in the State of Wisconsin which provides that conveyances of land by a corporation must be signed by its president and countersigned by its secretary and charges that said lease was not countersigned by the secretary as required by statute, and craved oyer.\\nAn order was granted giving plaintiff leave to file a copy of the lease and assignment and on September 26, 1933, a photostatic copy of the lease sued on was filed. This lease bears the signature of the president and of the secretary of the plaintiff corporation.\\nUpon the hearing of the cause in the trial court a motion to strike the amended affidavit was sustained and upon defendant's election to stand by its amended affidavit of merits judgment was entered in favor of the plaintiff.\\nFirst, it is assigned as error in this court that the lease in question shows on its face that it was assigned possibly by the plaintiff on October 26, 1932, to the trustee under the trust deed and that it does not appear that it has been reassigned to the plaintiff;\\nSecond, that the plaintiff being a Wisconsin corporation, and the premises leased situated in that State, the lease was not countersigned by the secretary and therefore void; and\\nThird, that the trustee under the trust deed, prior to the accrual of the rent sued on, took possession of the demised premises because of defects existing under the terms of the trust deed and that such taking resulted in a constructive eviction and terminated the lease.\\nSince the filing of the appeal in this court the Supreme Court of Wisconsin has passed upon a similar question, as a result of which it has been conceded that the third and last objection is untenable. The case referred to is Zimmermann v. Walgreen Co., 215 Wis. 491, 255 N. W. 534. The action in that case is very much like the one at bar. The trust deed in that case contained the identical clauses contained in the trust deed here. The action was for rent and was brought by the Buildings Development Company which is also the plaintiff in this proceeding and the trust deed was to Greenebaum, as trustee. Prior to the bringing of the suit for rent, Greenebaum, as trustee, had started foreclosure proceedings under the trust deed and held the lease under an assignment as collateral security. After stating the law in that State to the effect that the legal title does not pass under a trust deed, but only a lien right, the court in its opinion says:\\n\\\"Neither the court's order, nor the assignment of the lease as collateral, deprived the Buildings Development Company, as mortgagor, of its legal title under its 99-year leasehold, or enlarged the landlord's rights, in view of the lease held by the defendant, from mere constructive possession to actual possession, so as to deprive the defendant, as lessee under the Buildings Development Company, of its right under its lease to continue in the actual possession of the premises described in that lease.\\n\\\"It is the settled law of this state that the legal title and right of possession does not vest in the mort gagee, but continues in the mortgagor until terminated by a sale on foreclosure, or by contract between the parties, and that even when a receiver is appointed in a foreclosure action to prevent waste, the- collected rents and income of the mortgaged land do not belong to the mortgagee or to the receiver, but they are conserved and applied on the mortgage debt for the mortgagor's benefit. Likewise, as is stated in a note in 14 A. L. E. 664, 'Whether a lease of real estate previously mortgag*ed is terminated by a foreclosure action and sale is held by the majority of the decisions to depend on the joinder of the lessee as a party to the foreclosure action'; and it has been held in a number of cases that such termination does not occur until the premises are actually sold on foreclosure in such action.\\\"\\nThe lessee in the case at bar was not joined as a party to the foreclosure proceedings and in view of the allegations in the amended statement of claim the rent was still due and payable to the owner of the fee, n\\u00e1mely, Buildings Development Company, plaintiff herein. There is no allegation in the affidavit of merits to the effect that the tenant, B/Gf Sandwich Shops, Inc., had been notified to pay its rent to any other than the plaintiff.\\nThe second assignment of error is based on the proposition that the lease was not signed by the secretary of the corporation. The photostatic copy of the lease, after order of court and after oyer craved, shows that it was so signed. It is insisted, however, that it was not signed at the time of the execution but only after suit was started.\\nWe are referred to the case of Wineburgh v. Toledo Corp., 125 Ohio St. 219. A reading of this case, however, discloses the facts to be that the tenant there vacated the premises and refused to pay the accruing instalments due under the lease. In the case at bar, however, there was no repudiation of the lease at any time and so far as the record discloses the tenant may still be in possession.\\nThe case of Galloway v. Hamilton, 68 Wis. 651, cited by both sides was an action by a third party who recovered a judgment and sought equitable relief to set aside the .conveyance on the ground that it was not signed by the secretary. The court in its opinion says:\\n\\\"In this case the deed was never countersigned by the secretary, and, as we understand his testimony, he subsequently refused to sign the instrument when presented to him some few weeks after its date. It is claimed that the act of the president in executing the deed was subsequently ratified. But, if it was, the ratification could not affect the plaintiff's lien, which had previously attached. For 'the general rule as to the effect of ratification by one of the unauthorized acts of another respecting the property of the former, is well settled. The ratification operates upon the act ratified precisely as though authority to do the act had been previously given, except where the rights of third parties have intervened between the act and the ratification. The retroactive efficacy of the ratification is subject to this qualification. The intervening rights of third persons cannot be defeated by the ratification. In other words, it is essential that the party ratifying should be able not merely to do the act ratified at the time the act was done, but also at the time the ratification was made.' Cook v. Tullis, 18 Wall. 332, 338; Taylor v. Robinson, 14 Cal. 401; Story on Agency, \\u00a7 241-244.\\\"\\nIt will be noted in the case at bar that no intervening rights had accrued and a reading of the opinion in the case cited would indicate that a ratification by the subsequent signing of the secretary of the corporation and before repudiation would be effective. A number of cases have been cited by counsel for plaintiff to the effect that the statute is not mandatory, but we do not believe it necessary to pass upon that question.\\nWe are of the opinion that the ratification by the secretary, with the tenant still in possession and the lease in operation, ivas a sufficient ratification to validate the instrument.\\nWe see no reason for disturbing the judgment of the municipal court and for .the reasons stated in this opinion, the judgment is affirmed.\\nJudgment affirmed.\\nHebel, P. J., and Haul, J., concur.\"}"
ill/3178942.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"3178942\", \"name\": \"THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARRY BENTLEY, Defendant-Appellant\", \"name_abbreviation\": \"People v. Bentley\", \"decision_date\": \"1980-08-29\", \"docket_number\": \"No. 79-937\", \"first_page\": \"1033\", \"last_page\": \"1037\", \"citations\": \"87 Ill. App. 3d 1033\", \"volume\": \"87\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T01:15:52.010681+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARRY BENTLEY, Defendant-Appellant.\", \"head_matter\": \"THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARRY BENTLEY, Defendant-Appellant.\\nThird Distict\\nNo. 79-937\\nOpinion filed August 29, 1980.\\nRobert Agostinelli and Stephen Omolecki, both of State Appellate Defender\\u2019s Office, of Ottawa, for appellant.\\nBruce Black, State\\u2019s Attorney, of Pekin (John X. Breslin and Rita Kennedy, both of State\\u2019s Attorneys Appellate Service Commission, of counsel), for the People.\", \"word_count\": \"1738\", \"char_count\": \"10026\", \"text\": \"Mr. JUSTICE BARRY\\ndelivered the opinion of the court:\\nDefendant Harry Bentley was convicted by a jury in the Circuit Court of Tazewell County of the offense of theft (Ill. Rev. Stat. 1977, ch. 38, par. 16 \\u2014 1(a)). He was subsequently sentenced to the Department of Corrections for a term of five (5) years. On appeal from his conviction he contends that the circumstantial evidence introduced by the State was insufficient to prove him guilty beyond a reasonable doubt of the offense of theft under an accountability theory (Ill. Rev. Stat. 1977, ch. 38, par. 5 \\u2014 2(a)). We agree, and accordingly reverse.\\nAt approximately 8 p.m. on August 10, 1979, a theft occurred at the Liquor Station, a liquor store located in Morton, Illinois. Working at the store the night of the theft were Catherine Clark and her nephew. Ms. Clark, a witness for the State, testified that at about 8 p.m. the defendant and his co-defendant, Douglas Taylor, entered the store. No one else was in the store at the time. While Taylor walked to the back of the store and out of Ms. Clark's view, the defendant walked down the first two aisles.\\nAs Bentley walked down the second aisle, he picked up a bottle of chocolate mint cordial and asked Clark if she had any smaller bottles. Clark responded by telling Bentley that they had miniature bottles. After the defendant told Clark that he would purchase one of the miniature bottles, Clark went to the cash register and rang up the sale. Bentley at first handed Clark a $2 bill to pay for the 84-cent purchase, but then stated he did not want to use the $2 bill and wished to purchase something else. The defendant then walked to the end of the counter, which was about six or seven feet from the cash register, and pointed to a bottle of wine. Leaving the drawer of the cash register open, Clark followed the defendant to the end of the counter. The cash register was located about six feet from the door, and was visible from where both Bentley and Ms. Clark were standing.\\nWhile the defendant looked at the bottle of wine, he dropped some coins behind the counter. Stating that he had a bad back, he asked Ms. Clark to pick up the coins for him. Ms. Clark did so, and handed the coins back to the defendant. Although she testified on direct examination that he dropped the coins a second time, on cross-examination she admitted that in a statement she gave to a Morton police detective there was no reference to the coins being dropped a second time. Ms. Clark also testified on direct examination that the defendant told her \\\"Now, don't be afraid of me. Come on. I won't hurt you.\\\"\\nAfter the defendant made this alleged statement, Ms. Clark stated she heard the bell on the door ring. Because she was picking up the coins at the time, she did not see who had entered or left the store. She asked the defendant \\\"who went out,\\\" and the defendant replied that he didn't see anybody. Immediately, Ms. Clark ran to the cash register and found that all of the $20 bills were missing. A subsequent check of the cash register receipts revealed that approximately $618 had been stolen. After Ms. Clark telephoned the police, Bentley was joined at the counter by Taylor. The two men purchased a bottle of wine and a can of soda pop.\\nOfficer Mike Burgess testified that he arrived at the liquor store in response to a radio dispatch. Upon entering, he saw the defendant and Taylor talking to Ms. Clark. After asking Bentley and Taylor for some identification, he asked them how they got to the liquor store. In response they said they had hitchhiked. Burgess then took Bentley and Taylor outside and asked them to empty their pockets. Burgess testified that the defendant had several dollars' worth of change in his pockets and carried coins in every pocket of his clothing.\\nAn auxiliary police officer, Dwayne Snyder, testified that he drove past the liquor store at approximately 8 p.m. on the night of the theft. Snyder was driving his private vehicle, a 1976 pickup truck. At that time he observed a white Cadillac parked along the side of the liquor store. Although someone was sitting in the Cadillac, he could not tell how many people were inside. He also saw two black males standing near the right front corner of the Cadillac between the car and the store. Snyder testified that the two men, whom he could not identify, \\\"stood at the edge of the door and kind of peeked around the door into the, in through the glass of the door for a few seconds\\\" and then entered the store. Snyder then drove around the block and came back to the store because he wanted to get the Cadillac's license plate number. As he neared the store, he saw a black male come out of the store and enter the Cadillac on the driver's side. The Cadillac then drove out onto the street. Snyder followed the Cadillac, and as he did so received a radio dispatch that the liquor store had been robbed. The Cadillac first circled the block and returned to the corner on which the liquor store was located, and then proceeded around town, finally stopping at the Ro-Bo Car Wash. The car wash is located approximately four blocks from the liquor store. Snyder, who had followed the Cadillac to the car wash, was joined there by another police officer and apprehended the driver of the Cadillac, Bobby Stapleton, and his companion, Janet Barnes, a white female. Stapleton and Barnes were then taken back to the liquor store, and at that time they were informed that they, Taylor and the defendant were under arrest. When Barnes was subsequently searched at the police station, $600 in $20 bills was found in her pantyhose.\\nOn appeal from his conviction for theft, the defendant contends that the evidence introduced by the State was insufficient to prove his guilt under an accountability theory beyond a reasonable doubt. Whenever the issue on appeal from a criminal conviction is whether the State has met its burden of proof, the responsibility of a reviewing court is clear. \\\" '[I]t is always the duty of this court to examine the evidence in a criminal case, and if it is so improbable or unsatisfactory as to raise a serious doubt of defendant's guilt the conviction will be reversed.' \\\" People v. Howard (1979), 74 Ill. App. 3d 870, 875, 393 N.E.2d 1084, 1088, quoting People v. Coulson (1958), 13 Ill. 2d 290, 296, 149 N.E.2d 96, 99.\\nIn the case at bar the State's case against Bentley was comprised entirely of circumstantial evidence. \\\" 'The rule is that to support a conviction based on circumstantial evidence, the facts produced must not only be consistent with the defendant's guilt, but they must also be inconsistent with any reasonable hypothesis of innocence. This rule does not contemplate that the trier of facts is required to search out a series of potential explanations compatible with innocence and elevate them to the status of a reasonable doubt, but a jury's verdict will be reversed on grounds of insufficient evidence where there is a reasonable and well founded doubt of guilt and the verdict is found to be palpably contrary to the weight of the evidence [citation]'.\\\" People v. Wright (1976), 43 Ill. App. 3d 458, 460-61, 357 N.E.2d 224, 226, quoting People v. Harris (1975), 34 Ill. App. 3d 906, 908, 340 N.E.2d 327, 329.\\nExamining the evidence introduced by the State in this case, we believe the jury verdict of guilty was erroneous and consequently a reversal is mandated. This is not a case in which the'jury, in order to acquit the defendant, was required to \\\"search out a series of possible explanations compatible with innocence and elevate them to the status of a reasonable doubt.\\\" (Wright, 43 Ill. App. 3d 458, 460-61, 357 N.E.2d 224, 226; compare People v. Hancock (1978), 65 Ill. App. 3d 694, 382 N.E.2d 677; People v. Johnson (1975), 32 Ill. App. 3d 36, 335 N.E.2d 144; People v. Minish (1974), 19 Ill. App. 3d 603, 312 N.E.2d 49.) Rather, this is a case in which the State simply failed to exclude every reasonable hypothesis of innocence. (See Wright-, People v. Trapps (1974), 22 Ill. App. 3d 1029, 318 N.E.2d 108.) Every action taken by the defendant in this case is capable of innocent interpretation. We find no inculpatory inference to be drawn from the fact that when first seen the defendant was standing near Stapleton's car, that he looked into the store before entering, that he apparently changed his mind about what he wanted to purchase, or that he dropped the coins on the floor. Further, and most importantly, there is absolutely no evidence linking the defendant with Stapleton. Contrary to the prosecutor's assertion during both the opening statement and closing argument, there is no evidence in the record that the defendant got out of Stapleton's car, nor do we believe that to be a reasonable inference to be drawn from the evidence presented. Regarding the defendant's \\\"you don't have to be afraid of me\\\" comment to Ms. Clark, its probative value is considerably lessened by the fact that the precise context in which it was made is unknown. From the record we cannot ascertain what motivated the defendant to make that statement. We decline to draw an inculpatory. inference from a statement capable of a number of innocent interpretations equally as reasonable as the one which is adverse to the defendant.\\nBecause we believe that the evidence introduced by the State is insufficient to prove the defendant guilty beyond a reasonable doubt, we need not reach the merits of the other issues raised by the defendant on appeal.\\nThe judgment of the Circuit Court of Tazewell County is reversed.\\nReversed.\\nALLOY, P. J., and SCOTT, J., concur.\"}"
ill/3225407.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"3225407\", \"name\": \"Lenka Liptak, Appellee, v. The Security Benefit Association, Appellant\", \"name_abbreviation\": \"Liptak v. Security Benefit Ass'n\", \"decision_date\": \"1931-09-12\", \"docket_number\": \"\", \"first_page\": \"512\", \"last_page\": \"516\", \"citations\": \"262 Ill. App. 512\", \"volume\": \"262\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T18:40:14.426779+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lenka Liptak, Appellee, v. The Security Benefit Association, Appellant.\", \"head_matter\": \"Lenka Liptak, Appellee, v. The Security Benefit Association, Appellant.\\nOpinion filed September 12, 1931.\\nTerry, Gueltig & Powell, A. W. Fulton and Jos. F. Sheen, for appellant.\\nM. B. Sullivan, for appellee.\", \"word_count\": \"1171\", \"char_count\": \"6669\", \"text\": \"Mr. Justice Fulton\\ndelivered the opinion of the court.\\nThis is a suit in assumpsit on a benefit certificate issued by The Security Benefit Association, a fraternal benefit society, on the life of Julius Liptak, the appellee being Lenka Liptak, wife of the insured.\\nThe declaration consisted of one count alleging the issuance of the certificate by appellant on the life of Julius Liptak for $1,000 on November 26, 1921; the death of the insured on November 15,1929; that proofs of death were made in apt time; that all the conditions of the policy were complied with prior to death and subsequent thereto, and that there was due to appellee the sum of $1,000 and interest at 5 per cent from the date proofs were furnished. No general issue was filed by the defendant, but it filed a special plea setting up that the contract of insurance consisted of the written application, the benefit certificate and the by-laws of the society.\\nThe plea further sets up a by-law known as section 112 providing in substance that any member who failed to pay any monthly assessment before the last day of the month would stand suspended without further notice or action on the part of the association, its officers or local council; also section 114, which provided for reinstatement within 60 days if the member was in good health at the time of making payment for reinstatement.\\nPlea further alleged failure on the part of insured to, pay assessment due for the month of June; that payment later in July was made for the purpose of reinstatement and that Liptak at that date was not in good health, and the money paid to company during July was tendered back to the insured and that in any event amount due should not exceed $958.\\nReplication was filed by appellee denying the failure to pay June assessment during the month and alleging payment of same to one J. R. DeBow, agent of appellant.\\nAt the beginning of the trial on the examination of the jury, after the jury was sworn and before opening statements were made and before the taking of any testimony, the appellant made a motion asking to take the lead in the examination of the jury and that it was entitled to open and close the case. Counsel for appellant stated that for the purpose of the motion he would admit that benefit certificate sued on was regularly issued to Julius Liptak; that he was the husband of the beneficiary; that he was a member up to the end of May, 1929; that Julius Liptak died on November 13, 1929; that notice and proofs of death were furnished appellant by the beneficiary, and that the by-laws referred to in the certificate were the by-laws he produced and tendered in court. .\\nAt the close of the evidence and before argument the appellant renewed its motion to open and close the argument. Appellee's attorney objected to each and all of said motions and in each case the objection was sustained. Both at the close of the plaintiff's testimony and at the close of all the evidence the appellant moved for a directed verdict and each time the motion was denied.\\nThe appellee offered no instructions and the court gave six instructions requested by the appellant. The jury returned a verdict for $1,000 in favor of the appellee. Motion for a new trial was overruled, judgment entered and appeal brought to this court.\\nThe appellant contends that the failure to allow the appellant to open and close the case was prejudicial and reversible error; that the evidence failed to show payment to the proper officer of the June 1929 assessment, during the month of June, and that by reason thereof the insured was suspended and because he was in bad health he was not legally reinstated by payment-in July; that the court erred in not granting a motion for a directed verdict, and that the rulings of the court throughout the trial were erroneous and prejudicial to the appellant.\\nAppellant insists that the denial of its motions throughout the trial for the right to take the lead in the case and to open and close the testimony as well as in the argument to the jury, deprived it of a substantial right and was sufficient error to reverse the case.\\nWhile it is true that appellant did not file a general issue but relied on the defense set forth in its special plea, and while the facts which appellant offered to admit before any proofs were taken, would ordinarily constitute a prima facie case in suits of this character, still the special plea affirmatively alleged the nonpayment of the June, 1929, assessment during that month and also alleges that under no circumstances could the recovery be more than $958. With this situation confronting her, appellee insisted upon her right to put in testimony first and to open and close the case.\\nIn the case of Atkinson v. National Council of Knights & Ladies of Security, 193 Ill. App. 215 on page 223, the court said: \\\"At the close of all the evidence the defendant asked to open and close the argument to the jury, and assigns error that the court refused that request. It had admitted before the introduction of evidence 'that the plaintiff has a prima facie case and all they need to do in the first instance is to introduce the contract of insurance and proof of loss.' This left appellee to open the case in introduction of evid.enee, which she did; and whether under the pleadings she was compelled to do so or not, appellant cannot complain that the court at its suggestion treated the issues as requiring proof in the first instance by the plaintiff; and having conducted the trial on that theory to the close of the evidence it was not error to refuse the request.\\\"\\nWhile in this case appellant made its motion to take the lead at the earliest opportunity and renewed its motion at every step during the trial, it is our opinion that the court had the right to exercise his discretion as to the conduct of the trial, and the denial of the motions of appellant was not reversible error.\\nThe question of whether or not the June assessment was actually paid during that month and the question of agency and authority of J. R. DeBow to collect the assessments for appellant were pure questions of fact and the jury were fully empowered to pass upon those questions adversely to the appellant if they thought the evidence warranted it.\\nWe believe the testimony is amply sufficient to sustain the verdict of the jury on the questions of fact.\\nWe do not find any substantial error in the record and the judgment is affirmed.\\nAffirmed.\"}"
ill/3262288.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"3262288\", \"name\": \"Armer E. Johnson, appellant, v. Frank G. Hogland, appellee\", \"name_abbreviation\": \"Johnson v. Hogland\", \"decision_date\": \"1930-05-22\", \"docket_number\": \"Gen. No. 8,187\", \"first_page\": \"658\", \"last_page\": \"658\", \"citations\": \"257 Ill. App. 658\", \"volume\": \"257\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T17:00:23.699855+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Armer E. Johnson, appellant, v. Frank G. Hogland, appellee.\", \"head_matter\": \"Armer E. Johnson, appellant, v. Frank G. Hogland, appellee.\\nGen. No. 8,187.\\nOpinion filed May 22, 1930.\\nRehearing denied June 24, 1930.\\nLathrop, Lathrop, Brown & Lathrop, for appellant. Hall & Dusher, for appellee.\", \"word_count\": \"42\", \"char_count\": \"279\", \"text\": \"Mr. Presiding Justice Boggs\\ndelivered the opinion of the court.\"}"
ill/3279568.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"3279568\", \"name\": \"City of Wheaton, appellee, v. Mary E. Oliver, appellee. Annie Graf, appellant\", \"name_abbreviation\": \"City of Wheaton v. Oliver\", \"decision_date\": \"1935-09-18\", \"docket_number\": \"Gen. No. 8,934\", \"first_page\": \"614\", \"last_page\": \"614\", \"citations\": \"281 Ill. App. 614\", \"volume\": \"281\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T00:37:32.054525+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"City of Wheaton, appellee, v. Mary E. Oliver, appellee. Annie Graf, appellant.\", \"head_matter\": \"City of Wheaton, appellee, v. Mary E. Oliver, appellee. Annie Graf, appellant.\\nGen. No. 8,934.\\nOpinion filed September 18, 1935.\\nRehearing denied and supplemental opinion filed November 7, 1935.\\nHarry W. Standidge, for appiellant. Hadley, Weaver & Woodward, for appellee Mary E. Oliver; Harry G. Weaver and Palmer Leren, of counsel.\", \"word_count\": \"59\", \"char_count\": \"386\", \"text\": \"Mr. Justice Dove\\ndelivered the opinion of the court.\"}"
ill/3285188.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"3285188\", \"name\": \"Edith Browder, Appellant, v. Peter Beckman, Appellee\", \"name_abbreviation\": \"Browder v. Beckman\", \"decision_date\": \"1934-06-04\", \"docket_number\": \"\", \"first_page\": \"193\", \"last_page\": \"199\", \"citations\": \"275 Ill. App. 193\", \"volume\": \"275\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T23:29:31.360099+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Edith Browder, Appellant, v. Peter Beckman, Appellee.\", \"head_matter\": \"Edith Browder, Appellant, v. Peter Beckman, Appellee.\\nOpinion filed June 4, 1934.\\nT. A. O\\u2019Connor, for appellant.\\nFarmer, Klingel & Baltz, for appellee.\", \"word_count\": \"1605\", \"char_count\": \"9203\", \"text\": \"Mr. Presiding Justice Edwards\\ndelivered the opinion of the court.\\nEdith Browder, appellant, brought suit in the circuit court of St. Clair county against Peter Beckman, appellee, who is her son-in-law, to recover damages for injuries sustained by her, as she claimed, from the wanton and reckless use of his automobile.\\nThe facts, which are not seriously disputed, are that on May 14, 1932, appellee, his wife and three small children, went to visit appellant at her home in Ava; that they stayed there that night, and the next morning, accompanied by appellant, drove out in the country to visit appellant's sick son; that they then returned to her home, where she was to leave the party; that appellee and the children alighted, his wife saying she desired to drive down the road some two miles and get eggs and chickens for family use; whereupon appellee and his wife engaged in an angry argument about her doing so. While this talk was taking place, appellant, who was upwards of 70 years of age, was endeavoring to get out of the car, having hold of its side with one hand,\\\" and one foot off the running board, toward the ground, when appellee, who could see appellant, and who was aware of her situation, directed his wife to start up the car and get her errand done, as he desired to get home and get some sleep, he being a baker by trade, who worked nights; whereupon the wife started the car suddenly, thereby throwing appellant violently to the ground, in consequence of which she sustained a fractured wrist and other injuries which will be referred to later.\\nThere was a trial before a jury, a verdict for appellant in the sum of $322.75, upon which the court rendered judgment, after first overruling motions for a new trial and in arrest of judgment, to reverse which judgment in her favor, appellant has prosecuted this appeal. Appellee, by assignment of cross error, contends that the evidence does not justify a finding for appellant, and asks that the judgment be reversed with a finding of fact.\\nAppellant contends that the judgment should be reversed and the cause remanded for a new trial, and in support urges three grounds: \\u2014 that the court improperly refused to permit the wife of appellee to testify when called by appellant; that certain errors were committed in the giving of instructions at the instance of appellee, and that the verdict is grossly inadequate.\\nWe will consider the assignments of error in the order above enumerated. Upon a careful consideration of the evidence, we are constrained to hold that whether appellee, knowing of the position of danger in which appellant was, in trying to alight from the car, considering her age and the fact that appellee at the time was angry, was guilty of wilful and wanton conduct which showed a reckless indifference to consequences in directing his wife to start the car, in view of all the circumstances, was a question of fact, and the jury's finding thereon should not be disturbed, unless some error of law intervened, or there was that appearing from which it might be inferred that the verdict was the result of passion or prejudice, which we do not find in the record. Hence we are of opinion that a reversal, with finding of fact as to the question of liability, would not be warranted.\\nAppellant called the wife of appellee as a witness, offering to prove by her that she was, at the time of the accident, the agent of her husband, and acting under his direction and command; that she started the car while appellant was in the act of alighting; that because of the sudden start, the latter was thrown to the ground and injured; that appellant was a hale woman before the accident, and ever since has been ailing as a consequence. Objection to the offer was sustained, and appellant assigns two reasons why the proffered evidence was admissible: \\u2014 first, under the so-called necessity rule, upon the theory that no one could testify to just what took place between appellee and the driver of the car except the driver who is the wife of appellee. The answer to this is that both appellant and appellee were present, were cognizant of all that was taking place, and both could, and did, testify fully to all that occurred; hence, there being other witnesses to the accident, it cannot be said the testimony of the wife was indispensable, under the necessity rule. Bolkhardt v. Edwards, 230 Ill. App. 640.\\nThe other contention is that she was competent under section 5 of the Evidence Act, Cahill's St. ch. 51, If 5, which provides that an exception to the rule excluding the testimony of a wife for or against her husband exists \\\"in all matters of business transactions where the transaction was had and conducted by such married woman as the agent of her husband.\\\"\\nIn Donk Bros. Coal & Coke Co. v. Stroetter, 229 Ill. 134, it is stated to be the law that in order for the wife to become a competent witness, it must appear that she was authorized to transact some business for her husband, and that she did so. To the same effect is Kirman v. Hutchinson, 254 Ill. App. 469.\\nIn our opinion, appellee's wife was not transacting any business for her husband, by his authorization, which would render her competent as a witness within the statutory exception. However, in any event, the offer to prove was properly rejected. It embraced, among other things, the physical condition of appellant, both before and after the accident, \\u2014 matters which manifestly did not relate to any business transaction of or in behalf of appellee. The rule is that where an offer of proof embraces evidence which is in part inadmissible, the whole offer .may be rejected. Donnan v. Donnan, 256 Ill. 244; Harman v. Indian Grave Drain. Dist., 217 Ill. App. 502. The ruling of the trial judge in rejecting the offer was right.\\nIt is next urged that the court erred in instructing the jury, at the instance of appellee, that the burden of proof was upon the appellant to make out her case by a preponderance of the evidence, inasmuch as the only testimony was that produced by appellant, none being offered by appellee, and that where such is the case, the instructions could but serve to confuse and mislead the jury, citing in support Cohen v. City of Chicago, 197 Ill. App. 377.\\nThe jury found a general verdict for appellant, hence it is apparent that the instructions did her no harm, and she has no ground for complaint.\\nLastly, the contention is made that the verdict is grossly inadequate. The undisputed proof shows that appellant suffered a comminuted compound fracture of the left forearm, an inch above the wrist, which was infected, and followed by lockjaw, the ulna or small bone protruding through the flesh; that as a consequence, there is a deformity of the arm, and a limitation of its motion of about 50 per cent, which condition is permanent. She was also internally injured, and still suffers pain in the abdomen; has difficulty in walking; that she is a widow, who made her living, prior to the accident, by working out, but is as yet unable to work; that she is 73 years of age, and before the injury was in ordinary good health.\\nThe obligations actually incurred were the bills of Dr. McKelvey, $100; Dr. Shumaker, $142.25; St. Elizabeth's Hospital, $70.50; Burke Funeral Home, $10; or a total of $322.75, the amount of the verdict. It is thus obvious that the jury deliberately allowed appellant for the actual incurred expense attendant upon the injury, and nothing for pain or suffering or for the deformity of the arm, for its permanent partial loss of use, or for her inability to work since the accident. The jury were instructed that these were proper elements of damage, and to be considered by them as such, yet manifestly they ignored the instruction and refused to be bound by it.\\nUnder the evidence appellant was either entitled to recover, or she was not. If there was a liability in her favor, she merited an award based upon the elements of damage which the undisputed testimony showed she had sustained, and which it is demonstrated with mathematical certainty she was, in part, denied.\\nWhat moved the jury to render the verdict which it returned, is of course, not known, but it is certain they did not follow the court's instruction as to the amount of damages which the uncontradicted proof showed she had a right to recover, if the appellee was, in fact, liable to her, as the jury found. Having decided that she was entitled to an award, the jury were bound, in making same, to take into consideration all of the elements of damage which were proven. This they did not do, for which reason the amount of the verdict, upon the record, was inadequate. Where such is true, and it is obvious that a jury have failed to take into consideration proper elements of damage which have been clearly proven, a new trial should be awarded. Paul v. Leyenberger, 17 Ill. App. 167; Kilmer v. Parish, 144 Ill. App. 270. The court should have sus-' tained the motion for a new trial.\\nThe judgment is reversed and the cause is remanded.\\nReversed and remanded.\"}"
ill/3328084.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"3328084\", \"name\": \"The People of the State of Illinois, Defendant in Error, v. Robert A. Bain, Plaintiff in Error\", \"name_abbreviation\": \"People v. Bain\", \"decision_date\": \"1932-11-14\", \"docket_number\": \"Gen. No. 35,678\", \"first_page\": \"192\", \"last_page\": \"196\", \"citations\": \"268 Ill. App. 192\", \"volume\": \"268\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T18:13:03.911917+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The People of the State of Illinois, Defendant in Error, v. Robert A. Bain, Plaintiff in Error.\", \"head_matter\": \"The People of the State of Illinois, Defendant in Error, v. Robert A. Bain, Plaintiff in Error.\\nGen. No. 35,678.\\nHeard in the first division of this court for the first district at the February term, 1932.\\nOpinion filed November 14, 1932.\\nDeneen, Healy & Lee, for plaintiff in error; Donald N. Schaffer, of counsel.\\nJohn A. Swanson, State\\u2019s Attorney, for defendant in error; Angus Roy Shannon, Elwood G. Godman and Edward R. Johnston, of counsel.\", \"word_count\": \"1109\", \"char_count\": \"6259\", \"text\": \"Mr. Presiding Justice McSurely\\ndelivered the opinion of the court.\\nBy this writ of error Robert A. Bain seeks the reversal of an order committing him to jail for 10 days for a direct contempt of court, based upon alleged false testimony given by him as a witness upon a hearing upon the petition of the receiver in the case of Seaborg v. John Bain, Inc., a corporation.\\nHe has petitioned this court for a writ of mandamus, commanding the trial judge to sign a bill of exceptions to show what was said or done in the matter, but we held that as this was alleged to be a direct contempt, criminal in its nature, it must on review be considered on the order alone, and that a bill of exceptions has no proper place in the record. People ex rel. Robert A. Bain v. Feinberg, 266 Ill. App. 306.\\nIt follows that the order of commitment must be scrutinized carefully in order to determine whether it sets out the facts constituting the offense so fully and certainly as to show that the court was authorized to make the order. The order recites that the matter came on before the court on a petition of the receiver to discover assets belonging to the estate of John Bain, Inc.; .\\\"that at said hearings Robert Bain testified that neither he nor his father, John Bain, nor his brother, John H. Bain, had any interest in the South Side Agency & Loan Corporation, a company conducting its affairs and business and having its office in the city of Chicago.\\\" He further testified that neither of these persons held any stock directly or indirectly in this corporation and had no investment therein. The order recites \\\"that it was necessary and material upon said hearing to ascertain and determine what finan cial interest, if any, the said John Bain, John H. Bain and Robert Bain had in said company. That at a subsequent hearing in said first above entitled cause held on November 18, 1931, with the same parties-present and represented as above found, the said Robert Bain again being called to testify and being sworn, testified that he had paid Mr. Crawford One Hundred Dollars ($100.00) at the time of the organization of said South Side Agency & Loan Corporation to be invested for him, in the stock of said Company, and that said Craw-' ford was holding said stock in said corporation for him, and also testified that the said company in reality belonged to John Bain, Robert Bain and John H. Bain, and that said respondent then and there admitted in open court that the said testimony given by him under oath at the previous hearing of the subject matter was not true.\\\" The order then recites that Robert Bain \\\"was and is guilty of a willful, deliberate and direct contempt\\\"; . . . \\\"that the said.conduct of Robert Bain was a direct contempt\\\"; . . . \\\"that it is ordered that the respondent, Robert Bain, on the facts as above found, occurring in open court, be and he is hereby for said contempt committed to the County Jail for a period of ten (10) days, or until otherwise discharged by the process of law.\\\"\\nThe order is fatally vulnerable in two respects. It does not affirmatively show that Robert A. Bain was present in court when the order was entered. That this is necessary has been repeatedly held. Rawson v. Rawson, 35 Ill. App. 505; People v. Saylor, 238 Ill. App. 142; Tunnell v. People, 253 Ill. App. 422; Barclay v. Barclay, 184 Ill. 471. It is argued that as the order recites that a hearing was had on November 18, 1931, the law will presume that the order of commitment was entered on that date and that Robert Bain was present in court at the time. In a criminal contempt proceeding no presumptions of law' obtain* Cases involving civil contempt are not in point. The presence of the alleged contemnor cannot be inferred but must be shown affirmatively by the record. Harris v. People, 130 Ill. 457; People v. McGrane, 336 Ill. 404; People v. Moran, 342 Ill. 478; People v. Saylor, 238 Ill. App. 142; Tunnell v. People, 253 Ill. App. 422.\\nFurthermore, the mandamus proceedings, which is an adjunct to the present cause, show that it was admitted by the demurrer to the petition that Robert A. Bain was not in fact present in court when the order of commitment was made.\\nThe second reason for holding the order void is that no facts appear therein from which we can determine whether the alleged false testimony was material 'to the issues heard. The order must set forth the facts so fully and certainly as to show that the contempt was actually committed. People v. Hogan, 256 Ill. 496; People v. Rockola, 346 Ill. 27. The assertion in the order that it was material to ascertain what financial interest Robert A. Bain had in the South Side Agency & Loan Corporation, is merely a conclusion and does not show that this inquiry was material in an investigation of the assets of John Bain, Inc. People v. Freeman, 256 Ill. App. 233, is cited by counsel for the State as holding to the contrary, but an examination of the opinion and of the record in that case shows that the testimony is set forth in full in the form of questions and answers in the order of commitment. It was virtually a bill of exceptions, from which the reviewing court could ascertain the materiality of the testimony. The same is true in the case of People v. Rockola, 346 Ill. 27.\\nThe instant order contains nothing from which we can determine the materiality of questions touching the interest of Robert A. Bain in another corporation different from the corporation which was the subject of the investigation.\\nFor the reasons stated we hold that the order of commitment is void and it is therefore reversed.\\nOrder reversed.\\nO 'Connor, J., concurs.\"}"
ill/3333600.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"3333600\", \"name\": \"Adam Mixes, appellee, v. Keig-Stevens Baking Company, appellant\", \"name_abbreviation\": \"Mixes v. Keig-Stevens Baking Co.\", \"decision_date\": \"1932-03-15\", \"docket_number\": \"Gen. No. 8,452\", \"first_page\": \"617\", \"last_page\": \"617\", \"citations\": \"265 Ill. App. 617\", \"volume\": \"265\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T00:37:40.243070+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Adam Mixes, appellee, v. Keig-Stevens Baking Company, appellant.\", \"head_matter\": \"Adam Mixes, appellee, v. Keig-Stevens Baking Company, appellant.\\nGen. No. 8,452.\\npresiding. Heard in this court at the October term, 1931.\\nOpinion filed March 15, 1932.\\nWelsh & Welsh and Hyer & Gill, for appellant. Hall & Dusher, for appellee.\", \"word_count\": \"46\", \"char_count\": \"298\", \"text\": \"Mr. Justice Wolfe\\ndelivered the opinion of the court.\"}"
ill/3336884.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"3336884\", \"name\": \"Ruth E. Abbott, appellee, v. Louis Stein, trading as Stone Permanent Wave System, appellant\", \"name_abbreviation\": \"Abbott v. Stein\", \"decision_date\": \"1930-11-03\", \"docket_number\": \"Gen. No. 34,470\", \"first_page\": \"641\", \"last_page\": \"641\", \"citations\": \"259 Ill. App. 641\", \"volume\": \"259\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T17:18:01.222218+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ruth E. Abbott, appellee, v. Louis Stein, trading as Stone Permanent Wave System, appellant.\", \"head_matter\": \"Ruth E. Abbott, appellee, v. Louis Stein, trading as Stone Permanent Wave System, appellant.\\nGen. No. 34,470.\\nHeard in the first division of this court for the first district at the June term, 1930.\\nOpinion filed November 3, 1930.\\nYale & Yale, for appellant. No appearance for appellee.\", \"word_count\": \"57\", \"char_count\": \"354\", \"text\": \"Mr. Presiding Justice Matchett\\ndelivered the opinion of the court.\"}"
ill/3371277.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"3371277\", \"name\": \"FRANK MORSE, Plaintiff-Appellant, v. JOHN VIRGIL NELSON, Sheriff, et al., Defendants-Appellees\", \"name_abbreviation\": \"Morse v. Nelson\", \"decision_date\": \"1977-05-09\", \"docket_number\": \"No. 76-355\", \"first_page\": \"895\", \"last_page\": \"899\", \"citations\": \"48 Ill. App. 3d 895\", \"volume\": \"48\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T23:24:18.561130+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FRANK MORSE, Plaintiff-Appellant, v. JOHN VIRGIL NELSON, Sheriff, et al., Defendants-Appellees.\", \"head_matter\": \"FRANK MORSE, Plaintiff-Appellant, v. JOHN VIRGIL NELSON, Sheriff, et al., Defendants-Appellees.\\nFifth District\\nNo. 76-355\\nOpinion filed May 9, 1977.\\nRehearing denied May 19, 1977.\\nDennis J. Hogan, of Murphysboro, for appellant.\\nStephen L. Spomer, of Metropolis, for appellees.\", \"word_count\": \"1601\", \"char_count\": \"9653\", \"text\": \"Mr. JUSTICE EBERSPACHER\\ndelivered the opinion of the court:\\nThis an appeal from an order of the circuit court of Massac County dismissing plaintiff s complaint with prejudice. The complaint, filed by Frank Morse, is styled designating Frank Morse and the People of the State of Illinois for the use of Frank Morse as plaintiffs. The complaint was brought against John Virgil Nelson, sheriff of Massac County, and his surety, Western Surety Company.\\nThe complaint alleges that on March 2, 1975, Morse was arrested in Massac County and was brought to the county jail where he was held in custody by Sheriff Nelson for several days thereafter. Count I of the complaint charges that Nelson as sheriff \\\"did not faithfully discharge\\\" the office of sheriff because: (1) he \\\"failed to support Article I, Section 7 of the Illinois Constitution\\\" in that he \\\"unduly detained\\\" Morse \\\"without any competent authority commitment,\\\" and (2) he \\\"failed to support the Constitution of the State of Illinois\\\" by detaining Morse \\\"under the color of a warrant process, the issuance of which he knew had been obtained after, not before the arrest.\\\" Count II of the complaint charges that Nelson had a duty \\\"to obey\\\" 42 U.S.C. \\u00a71983 and that he \\\"breached\\\" that duty as sheriff when he \\\"unduly detained and falsely imprisoned\\\" Morse, under color of Nelson's official position, depriving Morse of a right \\\"to be free from undue detention\\\" under \\\"Article I, Section 7 of the Illinois Constitution.\\\" Count III of the complaint is substantially the same as count II except that it alternatively alleges that Nelson was the \\\"de facto Sheriff of Massac County.\\\" Each of the three counts prays for a judgment in the amount of *10,000.\\nIn response to the complaint, defendants filed a motion to dismiss asserting 13 separate grounds thereof, and an affidavit by the Massac County clerk, in support of one of the grounds raised, in which the clerk states, in effect, that plaintiff failed to comply with the one-year notice of injury requirement of section 8 \\u2014 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1975, ch. 85, par. 8 \\u2014 102).\\nThe record shows that thereafter plaintiff filed a \\\"motion to reconsider\\\" which states that the trial court had orally ordered a dismissal of the complaint on the ground that notice pursuant to section 8 \\u2014 102 had not been given. The motion then appears to request a rehearing on the other grounds stated in defendants' motion to dismiss. The record further shows that on the day after the motion to reconsider was filed, the trial court filed a written order dismissing the complaint with prejudice. The order gives no indication of the basis for the dismissal. Plaintiff thereafter filed a notice of appeal and a \\\"notice of withdrawal of motion to reconsider.\\\"\\nIn plaintiff's brief on appeal, plaintiff appears to be raising the issue of whether the trial court erred in dismissing each count of the complaint since each count states a cause of action and \\\"no justification had been affirmatively pleaded\\\" by defendant Nelson. However, we find it difficult to address the argument presented in support thereof by plaintiff since the argument is often confusing, obtuse and sometimes bordering on the undecipherable. An appellant's counsel has a duty to provide in his brief lucid and persuasive argument. (See Seidenfeld, Professional Responsibility before Reviewing Courts, 25 DePaul L. Rev. 264, 276 (1976).) As we stated in In re Estate of Kunz, 7 El. App. 3d 760, 763, 288 N.E.2d 520, 523:\\n\\\"Reviewing courts are entitled to have the issues clearly defined, to be cited pertinent authorities and are not a depository in which an appellant is to dump the entire matter of pleadings, court action, argument and research as it were, upon the court.\\\"\\nMoreover, a resolution of the issues presented is made no easier where the facts and pleadings in this cause are equally confusing and where the appellee only states in his brief, although perhaps understandably, that he \\\"has been unable to formulate any meaningful response\\\" to his opponent's argument.\\nThis appeal is presented by the same counsel as was the appeal in Coleson v. Spomer, 31 Ill. App. 3d 563, 334 N.E.2d 344, in which an equally confusing brief and record was submitted.\\nIn the record, plaintiff s motion to reconsider indicates that the trial court dismissed his complaint because the court found that a section 8 \\u2014 102 notice of injury had not been served on the county clerk. On appeal, plaintiff's only comment on this matter is that:\\n\\\"[T]he argument that the County Clerk should have been given notice borders on being an insult to the intelligence of this superior reviewing Court capable of taking judicial notice of actions or inactions of record keeping 'persons' in inferior tribunals.\\\"\\nThis statement, of course, does not address the question of whether a notice of injury was required for the type of claims plaintiff attempted to bring in the case at bar. We note that it has been held that the notice requirement of section 8 \\u2014 102 is limited to civil actions arising from \\\"injuries\\\" or \\\"accidents\\\" (Public Litho Service, Inc. v. City of Chicago, 8 Ill. App. 3d 315, 290 N.E.2d 677), and section 8 \\u2014 102 has been held inapplicable to civil rights actions brought pursuant to federal civil rights statutes (Luker v. Nelson (N.D. Ill. 1972), 341 F.Supp. 111). In any event the trial court's written order dismissing the complaint, which was filed after the filing of plaintiff's motion to reconsider, does not state which of the 13 grounds raised by defendants was the basis for the order. On appeal an order of the lower court will be affirmed if there exists any ground for such affirmance. (Sears v. First Federal Savings & Loan Association 1 Ill. App. 3d 621, 275 N.E.2d 300.) Moreover, as we have mentioned, plaintiff's contentions are directed at the sufficiency of his complaint to state a cause of action. We therefore will direct our attention to this issue.\\nInitially, we note that the record does not show that plaintiff sought to amend his pleadings nor does he now contend that he should have been allowed to amend the complaint. We therefore consider plaintiff as having elected to stand on his pleadings.\\nPlaintiff contends that count I of the complaint sufficiently states a cause of action based on false imprisonment and that counts II and HI each sufficiently states a cause of action under 42 U.S.C. \\u00a71983. In addition, plaintiff curiously urges the additional point that no \\\"justification\\\" was pleaded by defendants. This point, however, has no bearing on the sufficiency of the complaint itself.\\nIn determining the sufficiency of a complaint a court must accept as true all well-pleaded facts and all reasonable inferences drawn therefrom. (Dear v. Locke, 128 Ill. App. 2d 356, 262 N.E.2d 27.) While pleadings are to be liberally construed, and formal or technical allegations are unnecessary, a complaint must nonetheless contain the substantial averments of fact necessary to state a cause of action. (Fanning v. LeMay, 38 Ill. 2d 209, 230 N.E.2d 182.) Mere allegations of legal conclusions are insufficient and such conclusions need not be accepted by a court. (Shlensky v. Wrigley, 95 Ill. App. 2d 173, 237 N.E.2d 776.) A complaint is subject to a motion to dismiss where the well-pleaded facts do not entitle one to a recovery. (Burke v. Sky Climber, Inc., 57 Ill. 2d 542, 316 N.E.2d 516.) The determination of whether a particular allegation constitutes a fact or conclusion must be made from the context of the pleading with a view to whether the language gives sufficient information to the opponent and to the court of the character of evidence to be introduced or of the issues to be tried. Van Dekerkhov v. City of Herrin, 51 Ill. 2d 374, 282 N.E.2d 723.\\nApplying these principles, we find that stripped of its conclusory language, count I of the complaint merely alleges that plaintiff was arrested and held in custody for several days. False imprisonment consists of an unlawful detention, confinement or restraint. (Shelton v. Barry, 328 Ill. App. 497, 66 N.E.2d 697; McKendree v. Christy, 29 Ill. App. 2d 195, 172 N.E.2d 380.) Virtually no facts are alleged showing the unlawfulness of the arrest or subsequent detention. (Watters v. De La Matter, 109 Ill. App. 334.) The allegation to the effect that plaintiff's commitment to jail was without competent authority is a bare conclusion which, in addition, is also inconsistent with the allegation, without more, the plaintiff was \\\"arrested.\\\" The allegation that a \\\"warrant process\\\" (apparently a five-count criminal charge) was issued after the arrest does not, on its face, vitiate the lawfulness of the original arrest or detention and, if anything, it may suggest an opposite conclusion. So too, we find counts II and III equally vague and conclusory, fully justifying a dismissal thereof. (See United Housing Foundation, Inc. v. Forman (1975), 421 U.S. 837, 859, 44 L. Ed. 2d 621, 636, 95 S. Ct. 2051, 2064.) In addition, these counts while alleging they state a claim under 42 U.S.C. \\u00a71983, in fact, purport to assert rights provided by our State constitution and not the Federal Constitution or laws.\\nConsequently, we affirm the order of the circuit court of Massac County dismissing each count of the complaint.\\nAffirmed.\\nJONES and KARNS, JJ., concur.\"}"
ill/3372118.json ADDED
@@ -0,0 +1 @@
 
 
1
+ "{\"id\": \"3372118\", \"name\": \"Gregory T. Van Meter, administrator of the estate of Stanley Opst, deceased, appellee, v. City of Chicago, appellant\", \"name_abbreviation\": \"Van Meter v. City of Chicago\", \"decision_date\": \"1927-06-07\", \"docket_number\": \"Gen. No. 31,466\", \"first_page\": \"614\", \"last_page\": \"614\", \"citations\": \"245 Ill. App. 614\", \"volume\": \"245\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T00:37:51.599957+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Gregory T. Van Meter, administrator of the estate of Stanley Opst, deceased, appellee, v. City of Chicago, appellant.\", \"head_matter\": \"Gregory T. Van Meter, administrator of the estate of Stanley Opst, deceased, appellee, v. City of Chicago, appellant.\\nGen. No. 31,466.\\nOpinion filed June 7, 1927.\\nFrancis X. Busch, Corporation Counsel, and John J. Kelly, City Attorney, for appellant; Daniel V. Gallery, Assistant Corporation Counsel, of counsel. Hermann P. Haase, for appellee.\", \"word_count\": \"62\", \"char_count\": \"412\", \"text\": \"Mr, Presiding Justice Gridley\\ndelivered the opinion of the court.;\"}"