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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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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diff --git a/ill/2553197.json b/ill/2553197.json
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+"{\"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.\"}"
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+"{\"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.\"}"
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diff --git a/ill/2588661.json b/ill/2588661.json
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+"{\"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.\\\"\"}"
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diff --git a/ill/2591318.json b/ill/2591318.json
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+"{\"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.\"}"
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diff --git a/ill/2592113.json b/ill/2592113.json
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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).\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
\ No newline at end of file
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index 0000000000000000000000000000000000000000..6d075eb8f45d7c1ce28879bcd98c2c5a3aaba64c
--- /dev/null
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@@ -0,0 +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.\"}"
\ No newline at end of file
diff --git a/ill/2852241.json b/ill/2852241.json
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index 0000000000000000000000000000000000000000..feb6a4976b1281826dda6b79e73ddac5fec2aa58
--- /dev/null
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+"{\"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.\"}"
\ No newline at end of file
diff --git a/ill/2894108.json b/ill/2894108.json
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index 0000000000000000000000000000000000000000..bb14bf70335d58f8f0ab0f87d9cc2a6020a04be7
--- /dev/null
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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+"{\"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.\"}"
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--- /dev/null
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+"{\"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.\"}"
\ No newline at end of file
diff --git a/ill/3159413.json b/ill/3159413.json
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--- /dev/null
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@@ -0,0 +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.\"}"
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+"{\"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.\"}"
\ No newline at end of file
diff --git a/ill/3178942.json b/ill/3178942.json
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--- /dev/null
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+"{\"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.\"}"
\ No newline at end of file
diff --git a/ill/3225407.json b/ill/3225407.json
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index 0000000000000000000000000000000000000000..dc7351ebed1556fd35f51464896a5cd7c47e4bf0
--- /dev/null
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@@ -0,0 +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.\"}"
\ No newline at end of file
diff --git a/ill/3262288.json b/ill/3262288.json
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--- /dev/null
+++ b/ill/3262288.json
@@ -0,0 +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.\"}"
\ No newline at end of file
diff --git a/ill/3279568.json b/ill/3279568.json
new file mode 100644
index 0000000000000000000000000000000000000000..fe24a06680bdc99a7545e03a7c120ad0f5b2b096
--- /dev/null
+++ b/ill/3279568.json
@@ -0,0 +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.\"}"
\ No newline at end of file
diff --git a/ill/3285188.json b/ill/3285188.json
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index 0000000000000000000000000000000000000000..7fe45d98a825d29e7fcdc1379fdacc7ff7a6662d
--- /dev/null
+++ b/ill/3285188.json
@@ -0,0 +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.\"}"
\ No newline at end of file
diff --git a/ill/3328084.json b/ill/3328084.json
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index 0000000000000000000000000000000000000000..1e7dbfa48c4e42b1b4ca98c268415c39fee751c7
--- /dev/null
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@@ -0,0 +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.\"}"
\ No newline at end of file
diff --git a/ill/3333600.json b/ill/3333600.json
new file mode 100644
index 0000000000000000000000000000000000000000..3d6dc693b7dbf4f97e3013fb301e773353b19c34
--- /dev/null
+++ b/ill/3333600.json
@@ -0,0 +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.\"}"
\ No newline at end of file
diff --git a/ill/3336884.json b/ill/3336884.json
new file mode 100644
index 0000000000000000000000000000000000000000..cf9ea2450b4229e87a01f91ad6c2274b57c65617
--- /dev/null
+++ b/ill/3336884.json
@@ -0,0 +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.\"}"
\ No newline at end of file
diff --git a/ill/3371277.json b/ill/3371277.json
new file mode 100644
index 0000000000000000000000000000000000000000..50274a46e734673e1391a15a30b9f7e6624c27a0
--- /dev/null
+++ b/ill/3371277.json
@@ -0,0 +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.\"}"
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+"{\"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.;\"}"
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+"{\"id\": \"3418332\", \"name\": \"Elisabeth P. Mills, Appellee, v. William A. Susanka, Appellant\", \"name_abbreviation\": \"Mills v. Susanka\", \"decision_date\": \"1945-12-20\", \"docket_number\": \"Gen. No. 43,254\", \"first_page\": \"367\", \"last_page\": \"374\", \"citations\": \"327 Ill. App. 367\", \"volume\": \"327\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T01:15:38.263259+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Elisabeth P. Mills, Appellee, v. William A. Susanka, Appellant.\", \"head_matter\": \"Elisabeth P. Mills, Appellee, v. William A. Susanka, Appellant.\\nGen. No. 43,254.\\nHeard in the third division of this court for the first district at the October term, 1944.\\nOpinion filed December 20, 1945.\\nReleased for publication January 8, 1946.\\nOde L. Rankin, of Chicago, for appellant.\\nBradburn & Dammann, of Chicago, for appellee.\", \"word_count\": \"2214\", \"char_count\": \"13089\", \"text\": \"Mr. Presiding Justice Kiley\\ndelivered the opinion of the court.\\nThis is an action in equity filed May 24, 1939, in which plaintiff seeks a retransfer to her of 15 shares, the controlling segment, of the stock of the Pabst Pharmaceutical Company, referred to herein as Corporation. The decree, based on a master's report, impressed a trust on the 15 shares in plaintiff's favor and ordered their return to her. Susanka has appealed.\\n. Pabst was the inventor and patentee of certain medical formulas. From 1914 to 1931 he produced the medicines under the name of the Pabst Chemical Company, not incorporated. Susanka was his friend and had sold the Company essential oils for many years. In 1931 Pabst was indebted to his son Adolf Pabst, his daughters Mrs. Keith and Mrs. Mills, and to Susanka. He agreed with these debtors to form a corporation, transfer his assets to it and to liquidate the debts through the issuance of stock of the corporation. The Corporation was thereafter organized, with 48 percent of the stock issued to Susanka and 52 percent to Pabst and his children named hereinabove. Susanka was also given a Corporation note. Pabst dominated the corporate affairs, although he held but one share of stock, until his death in November, 1937.\\nIn 1932 the Red Star Laboratory sued Pabst in the Federal District Court for damages for violation of copyright. The trial commenced in December of 1936. A verdict was expected on January 2, 1937. On that morning there was a meeting in the corporate offices, attended by the Pabsts and Hicks, who was a corporate employee and officer. Plaintiff was expected, but had been delayed in her trip from the West. These conferees adjourned to meet Susanka at his.Gas Station. Attorney Berglund attended this later meeting to represent the Pahsts. At the Gas Station an agreement was made under which 15 of plaintiff's 100 shares were transferred to Susanka. He gave his check for $375 and a note for a like amount, both payable to plaintiff. Subsequently, the check was cashed and the proceeds returned to him. The note was never paid. In the pleadings and at the trial plaintiff tendered the note and defendant tendered payment. Each refused the other's tender.\\nThe Bed Star suit resulted in a verdict and judgment against Pabst for $25,000. Malice was found to be the gist of the action and a capias issued for his arrest. A subsequent creditor's bill to enforce payment of the judgment was instituted against the Corporation stockholders. This suit was directed at setting aside the stock holdings. The federal court decided it adversely to Bed Star. It found that the transaction between the stockholders and the Corporation was bona fide. After the legal proceedings were finally disposed of, demand was made upon Susanka for a return of the 15 shares of stock. He refused the demand, claiming ownership under the transfer which he claims was a bona fide sale.\\nThe master found that Susanka and Pabst \\\"were also good friends and associated together socially\\\" ; that the Corporation was capitalized at $25,000, 48 percent thereof representing $12,000 was issued to Susanka and $13,000 issued to the Pabsts; that the balance of Susanka's debt was represented by a Corporate note for $3,607.16; that Susanka understood that he was a minority stockholder and was agreeable; that Pabst and his associates anticipated the verdict against him in the copyright suit; that Hicks had been an employee of Pabst for many years prior to the Corporation, and thereafter became a Secretary, working intermittently from 1932 to 1935; that thereafter the employment of Hicks was regular; that he was' elected Director and Vice President in 1936 and served thereafter in that capacity; that Hicks told Pabst and his associates during the trial that the Red Star attorney informed him that should a judgment be entered against Pabst, a creditor's suit would be instituted against the Corporation stockholders to show that Pabst was the actual owner of the stock; that at the meeting on the morning of January 2nd, Hicks informed Pabst and his children that Susanka was worried lest in such a probable creditor's suit Red Star would gain control of the Corporation, putting Susanka at a disadvantage; that Hicks advised Pabst to allay Susanka's fears by inducing Pabst's children to . transfer 15 shares to Susanka, so that even though the creditor's suit should succeed against the stock of the Pabst children, Susanka would have management and control; that Pabst, therefore, agreed upon Hicks' advice to meet Susanka and make the transfer; that at the Gas Station meeting Attorney Berglund advised Susanka there was no basis for his fear, since Pabst's children were bona fide owners and that, moreover, Red Star could follow the 15 shares to Susanka in the event of a creditor's suit; that Susanka persisted in his fears and asserted that the 15 shares would be safer in his hands; that the Pabst family and Susanka, therefore, agreed that plaintiff transfer 15 shares to Susanka to hold the same until there was no longer danger of acquisition by Red Star, then to be reassigned plaintiff; that Susanka desired the purported sale to appear legitimate; that, accordingly, the check and note were executed but the proceeds of the check were returned to him; and that the parties present agreed that plaintiff was to receive no benefit from either the check or the note.\\nOn the basis of those findings the master further found that no consideration was paid plaintiff by Susanka for the purported assignment; that no consider ation was intended to be paid; that it was not intended Susanka should become the actual owner; and that plaintiff has continued to be and still is in equity the rightful owner.\\nThe vital question is whether equity should lend its aid to plaintiff on the facts found by the master. The general rule is that where the grantor and grantee of property carry out the transaction in fraud of creditors, equity will leave the parties where it finds them. Rosenbaum v. Heubner, 277 Ill. 360; Bellin v. Bloom [217 Ind. 656], 28 N. E. (2d) 53; 24 Am. Juris. 267; 37 C. J. S. 1098. Where such a grantor sues to enforce a contract to reconvey, equity will not intervene where the parties are equally guilty. 24 Am. Jur. 270; 37 C. J. S. 1100; Lang v. Lang, 284 Ill. 148; Ford v. Caspers, 128 Fed. Rep. (2d) 884. Where the, parties are not equally guilty, equity may give relief to the one who is comparatively innocent, not for the sake of that party, but on the ground of public policy. Duncan v. Dazey, 318 Ill. 500, 524; Herrick v. Lynch, et al., 150 Ill. 283. Where, however, a conveyance for the purpose of defrauding creditors is induced by one in whom confidence has been reposed by the grantor, a court of equity will give relief notwithstanding fraud. Lang v. Lang, 284 Ill. 148; Prickett v. Prickett, et al., 379 Ill. 181.\\nPlaintiff contends Susanka was a fiduciary. The only finding which has any bearing upon the relationship of Susanka to plaintiff is that Susanka and Pabst were friends and associated together socially. She was not present when the agreement was made by her relatives and the others present at the Gas Station to transfer 15 shares of her stock to Susanka. The master found that Susanka persisted in his fears of the creditor's suit and thus induced the transfer. He also found, however, that Berglund, the lawyer, advised that there was no basis for Susanka's fear and insisted that the corporate organization was valid and that even if the affairs were justified, 15 shares would be traced to Susanka. Thus, it would seem that the Pabsts had Berglund's advice to offset Susanka's persistence in his fears. Moreover, the master had already found that pursuant to Hicks ' entreaties to allay Susanka's fears, Pabst agreed to transfer the stock before going to meet Susanka.\\nUnder these circumstances we see no basis for any contention that there was a fiduciary relationship of which Susanka took advantage to induce the conveyance. Certainly, there can be none that he induced plaintiff to make the transfer. This was necessary. Lang v. Lang, 284 Ill. 148. Plaintiff was not present. It is clear from the findings that if she were induced to make the transfer it was by her father on a later day. We shall not consider, therefore, contentions based upon the alleged fiduciary relation.\\nPlaintiff was not present when the agreement was made but later adopted the transaction and executed the documents and performed the actions to carry it out. There is no question that her object, regardless of the motive, was to place the stock, which was the balance of power, beyond the grasp of Red Star, probable suitors in an expected creditor's action. It seems quite clear, therefore, that under the findings of the master, plaintiff and Susanka were equally guilty.\\nA further element in the case before us is the conduct of plaintiff in the creditor's suit. Susanka there, in his answer, stated that he had purchased the 15 shares and was the bona fide owner of 256 shares. Plaintiff filed an answer in which she stated only that she was the owner of \\\"certain shares.\\\" She is presumed to have known the contents of Susanka's answer. She objected in no way to the claim of Susanka that he was the bona fide owner of the 15 shares. She permitted the Court to determine the case without disclosing her claim. She made no claim until that case had been disposed of and time for appeal had passed.\\nPlaintiff relying on Rossow v. Peters, 277 Ill. 436, says that since no creditors or third persons were injured in the transaction with Susanka, she should be permitted to enforce Susanka's alleged agreement to retransfer. In that case Rossow conveyed his homestead to defraud creditors. The court decided his creditors could have no interest in the homestead, which was exempt property, could not be defrauded of it and the intention to defraud was, therefore, impossible of fulfillment. It decided that Rossow could compel reconveyance of the homestead. It referred to the conflict of decisions on the question whether property fraudulently conveyed could be recovered where none was harmed. It then said that the general rule to which we have hereinbefore referred to, does not obtain where neither creditors nor third persons are injured or defrauded. It is this last statement in the Rossow case upon which plaintiff relies.\\nThe case of Rosenbaum v. Huebner is reported in the same volume as the Rossow case, at page 360. There Rosenbaum conveyed property to Huebner, while a suit was pending against him, to place it beyond a possible judgment. Later, in furtherance of the scheme, Huebner conveyed to Rosenbaum's relatives. Rosenbaum, in the suit, sought to recover the property in a cross-bill. The court held that, because of the fraud which prompted Rosenbaum to make, or have made, the two conveyances, equity would leave the parties where it found them.\\nAn important distinction between these two cases is that in the Rossow case the conveyance was of property exempt from claims of creditors; in the Rosenbaum case the property was, as in the instant case, not exempt property. In the Rosenbaum case furthermore, as well as in the instant case, no third parties were harmed. It is true that in the Rosenbaum case it is not disclosed how the pending litigation terminated, so that it cannot be said that later there may not have been a judgment creditor. In the instant case the litigation had terminated.\\nWhen the transaction with Susanka was carried out, the creditor's suit was not pending, as was the suit in the Rosenbaum case. The transaction, however, was tiarried out under the threat and fear of the creditor's suit. The influence on the transferor was present in both instances. Where anticipated danger of litigation has influenced the conveyance, equity will not interpose to restore to the transferor the title to property. Rosenbaum v. Huebner. Under all the circumstances in this case we believe that that rule is decisive of this case against plaintiff. We believe the Rosenbaum case and not the Rossow case is the precedent we should follow.\\nFor the reasons given we believe that the plaintiff should not be permitted to recover back the stock she transferred. It may be said that this decision will benefit Susanka who does not deserve the benefit. If true, the courts have held that such an evil is less than the evil which would follow giving relief under circumstances such as are presented' in this case. We need consider no other points.\\nThe decree of the Circuit Court is reversed and the cause remanded with directions to dismiss the complaint for want of equity.\\nDecree reversed and cause remanded with directions.\\nBurke and Lews, JJ., concur.\"}"
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+"{\"id\": \"3440037\", \"name\": \"William L. Beeler et al. Defendants in Error, vs. James B. Barringer, Exr., Plaintiff in Error\", \"name_abbreviation\": \"Beeler v. Barringer\", \"decision_date\": \"1911-12-21\", \"docket_number\": \"\", \"first_page\": \"288\", \"last_page\": \"295\", \"citations\": \"252 Ill. 288\", \"volume\": \"252\", \"reporter\": \"Illinois Reports\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T18:36:14.977313+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William L. Beeler et al. Defendants in Error, vs. James B. Barringer, Exr., Plaintiff in Error.\", \"head_matter\": \"William L. Beeler et al. Defendants in Error, vs. James B. Barringer, Exr., Plaintiff in Error.\\nOpinion filed December 21, 1911.\\n1. Wills\\u2014right to elect a conversion or re-conversion does not depend upon right to present enjoyment. The right of a devisee to elect a conversion or re-conversion of money into land or land into money is not dependent upon the devisee\\u2019s right to the present enjoyment of the gift at the time the election is made.\\n2. Same\\u2014right to elect a re-conversion cannot defeat time for distribution. The right of a devisee to elect to take the land instead of the proceeds of the sale thereof defeats the intention of the testator to distribute his estate in money, but it cannot defeat his intention as to the time for distribution, so as to give the beneficiaries the use and enjoyment of the gift at an earlier period than if no election had been made.'\\n3. Same\\u2014when equity may direct a re-conversion. Where a will devises the residue of the testator\\u2019s property to the executor, with directions to convert the land and personalty into money and divide the proceeds among the testator\\u2019s four children as they respectively become of age, a court of equity may direct a re-conversion so that the children will retain the land even though some of them are minors, if they all agree thereto and it appears to be for their best interests; but in such case the control and management of the land should be left in the hands of the executor, as trustee, until the time for distribution.\\nWrit os Error to the Circuit Court of Montgomery county; the Hon. Thomas M. Jett, Judge, presiding.\\nAmos Miller, and D. R. Kinder, for plaintiff in error.\\nJ. T. Bullington, and Lane & Cooper, for defendants in error.\", \"word_count\": \"2740\", \"char_count\": \"15423\", \"text\": \"Mr. Justice Farmer\\ndelivered the opinion of the court:\\nThis is a writ of error sued out to, review a decree of the circuit court of Montgomery county for the re-conversion of personal property into real estate.\\nIt appears from the allegations of the amended bill that Joseph Beeler died testate February 4, 1907. He left surviving him Frances E. Beeler, his widow, and William L. Beeler, Bertie F. Beeler, Della P. Beeler and Joseph E. Beeler, his only children and heirs-at-law.' At the time of\\u00bb Joseph Beeler's death, besides a considerable amount of personal property, he owned a homestead in the city of Hillsboro whereon he resided with his family, and also two farms in Montgomery county,\\u2014one of 320 acres and the other of 97 acres. By the second- paragraph of his will he gave his widow the homestead and $3000 in money in lieu of all interest she might otherwise have in his estate as his widow. By the third paragraph he gave his oldest son, William L. Beeler, $1000, to be paid to him on his arriving at the age of twenty-one years. By the fourth paragraph the testator devised the residue of his estate to James B. Barringer (whom he nominated in the will as executor) in trust, with directions to convert the personal estate into money as soon after the testator's death as could be- done consistently with the best interests of the estate. The testator directed that the executor or trustee keep the farm of 320 acres rented until such time as in the judgment of said executor it could be sold for the best price, but the will directed that it be sold within three years after the testator's death. The testator expressed a desire that the other farm should be kept so that his sons might have land to farm, but authorized its sale at such time as the executor might deem best. The will directed that the testator's property, and his personal estate, should be reduced to money, and after the payment, of the legacies to his widow and oldest son it be divided into four equal parts, and one part paid to each of his four children as they arrived at the age of twenty-one years, respectively. The will further directed that the executor or trustee keep the proceeds of the sale invested in safe securities, at the best rate of interest obtainable, until the time for distribution. All four of the testator's children were complainants in the bill. Three of them, being minors, appeared by their guardian, L. V. Hill, who had been duly appointed by the probate court of Montgomery county and had qualified as such guardian. William If. Beeler, the oldest son, is an adult. Bertie E. Beeler was seventeen, Della P. Beeler thirteen and Joseph EBeeler ten years of age at the time of the hearing in the circuit court. The bill, after describing the land and the purposes for which it was being used, alleged that it was for the best interest of all four of the children to have, own and enjoy the land, rather than the money that might arise from the sale by the executor; that all four of said children of the testator had signed a writing electing to take the land instead of the proceeds of its sale; that said writing was also signed by the guardian of the minor children ; that it was under seal, acknowledged before a notary public and recorded in the office of the recorder of deeds; that the guardian had reported said election to the probate court and the same had been approved by said court. The bill further alleged that the executor threatened to and had given notice that he would sell the land at public sale on a day named, and prayed that he be enjoined from making such sale and that the court confirm the election of complainants to take the land or make the election for the minors, if necessary, and that the executor be decreed to release, by quit-claim, all interest in said land as executor or trustee. A temporary injunction was granted, and after a hearing upon bill, answer and replication the court entered a decree in accordance with the prayer of the bill. The executor has sued out this writ of error to review that decree.\\nThere is no controversy upon the proposition that under the will the defendants in error took no title to the land; that where land is devised and by the terms of the will is directed to be converted into money and the money distributed to the devisees and legatees, it is a devise of money and not of land. Neither is there any controversy that under such a devise, if the devisees are under no disability and all agree to do so, they may elect to take the land instead of the money. Plaintiff in error also concedes that a \\\"court of equity may, if it appears to be to the advantage of an infant, direct a re-conversion in his behalf, if at the time of such re-conversion the infant is presently entitled to the fund.\\\" It is contended, however, that the right to elect a re-conversion only exists where the beneficiary, whether adult or minor, is entitled to the present enjoyment of the fund or property.\\nBy the will of-their father defendants in error would become entitled to the possession and use of the gift upon their respectively attaining the age of twenty-one years; But one of them had arrived at that age when the bill in this case was filed and the decree entered thereon, and the youngest was but ten years old. We do not think the right of a devisee to elect a conversion or re-conversion of money into land or land into money is dependent upon his right to the present enjoyment of the gift at the time the election is made. It is true, there is a dictum to the contrary in Hetsel v. Barber, 69 N. Y. 11, but the question was not involved in that case. In Hale v. Hale, 146 Ill. 227, and Gorman v. Mullins, 172 id. 349, a conversion of land into money before certain beneficiaries were entitled to the enjoyment of the gift was sustained. In the Hale case the testator was a resident of the State of Massachusetts. He left a large estate, consisting of real and personal property. Some of his real estate was situated in the city of Chicago. Among other things, the will provided for the payment of life annuities of different amounts to a number of persons, relatives of the testator, and at the death of the last annuitant the residue of the estate, together with the accumulated interest, was to be equally divided among the testator's grandchildren. The executors and trustees under the will filed a bill to sell the land belonging to said estate situated in this State, and alleged that it was non-productive and was causing great expense in taxes and special assessments, and that it was to the best interest of all parties interested that it be converted into money for their benefit. Three of the parties interested in the distribution of the estate at the death of all the annuitants were minors and several of the annuitants were living at the time the bill was filed. The circuit court decreed a sale of the Illinois land. The case was brought to this court for review and the decree of the circuit court was affirmed. In the opinion the rule of conversion and re-conversion is elaborately discussed and many authorities cited and reviewed. Among other things the court said, on page 249: \\\"The next question is whether the court below, sitting as a court of chancery, had the power to authorize the sale of the lands in question and the re-investment of the proceeds. Decisions are to be found in the English reports which hold that courts of equity have no power, by virtue of their general jurisdiction over minors, to order the sale of the minor's real estate for the purpose of education, maintenance or investment, and that is probably the prevailing doctrine in England. The same rule seems to have been adopted by some of the courts of this country. The principal reason for denying this jurisdiction in England appears to be, that by changing the nature of the minor's estate from real to personal or from pergonal to real, the rights of third persons who will be entitled in case of the minor's death will be materially affected, as in that country real and personal property descend in different channels. That reason, it is very manifest, does not obtain in this country, as here both species of property go by descent or distribution to the same persons. The interference of the court, therefore, in sanctioning a conversion of the property from real to personal or from personal to real does not materially affect the rights of the persons who, in case of the minor's death, may become entitled to succeed to his estate. But even in England cases are to be found where the power to authorize a change in the nature of the estate of minors has been exercised and upheld, where such changes were manifestly for the minor's benefit. (See Inwood v. Turner, 1 Ambler, 417; Earl of Winchelsea v. Norcliff, 1 Vern. 434.) In this country, from an early day, courts of the highest respectability have refused to follow the English rule, and have held that where it is for the benefit of the minor, courts of equity have the power, by virtue of their general jurisdiction over the estates of minors and others under disability, to authorize a change from real to personal and from personal to real.\\\" In Gorman v. Mullins, supra, the devise was of real estate to the testator's sister, two full brothers and a half brother, to hold and rent and divide the annual net income equally among them until a nephew and niece of the testator arrived at the age of twenty-one, when the property was to be turned over to them. The''half brother died and one of the other brothers released his interest in the property to his brother and sister before the nephew and niece became twenty-one years of age. The brother and sister, who were entitled to all the net income from the property, filed a bill alleging that the property was rapidly deteriorating in value; that it was of no rental value, and would continue to decrease until the nephew and niece arrived at the age of twenty-one. The bill alleged it could be sold for a fair value for manufacturing purposes, and prayed that complainants be authorized to sell it and invest the proceeds in interest-bearing securities for their benefit and the benefit of the nephew and niece. The .nephew and niece were made defendants to the bill. A decree was entered authorizing the sale of the property by the brother and sister of the testator and the investing of the proceeds until the nephew and niece arrived at the age of twenty-one, when the brother and sister were directed to turn over the proceeds of the sale, without interest, to the nephew and niece, in equal shares. The nephew and niece brought the case to this court by writ of error and this court affirmed the decree of the circuit court.\\nIn both these cases, when the conversion occurred there were minors who were interested in the gifts when the time for distribution should arrive, but the time for the distribution and the enjoyment \\u00f3f the gifts by the minors had not arrived when the conversion was authorized. While in those cases there was a conversion of land into money, the law is equally applicable to a re-conversion of money into land. The principles are the same. There is this difference between the Hale and Gorman cases and the case at bar: In neither of those cases was the gift accelerated, and the minors for whose benefit, among others, the conversion was decreed did not go into the possession or enjoyment of the gift immediately upon the property becoming converted, while in this case the decree perpetually enjoins the executor from \\\"selling the land, and directs him to release to them, by quit-claim, all right or interest in its control or enjoyment.\\nW\\u00e9 are of opinion there was no error in decreeing a re-conversion and enjoining the sale of the land, but that part of the decree directing the trustee and executor to release and turn the land over to the minors at once was erroneous. The duty was imposed by the will upon the trus tee of managing and controlling the property of the minors until they, respectively, arrived at the age of twenty-one years. Until the land was sold he was to manage and control the land, and when it was sold the proceeds were to be invested by him in safe securities at the best rate of interest obtainable, and kept so invested by him until the time fixed for distribution arrived. Re-conversion defeats the distribution of the testator's property in money, but the right of re-conversion does not carry with it the right to defeat the will of the testator that the possession and enjoyment of the property should be postponed until the beneficiaries, respectively, became twenty-one years old. Under the evidence the chancellor was justified in concluding that it was for the best interests of the minor defendants in error that they take the land instead of the proceeds of its sale, but the election to do so did not authorize a disregard of the will fixing the time at which the beneficiaries should come into its enjoyment. The control and management of the property of the minor defendants in error should be left in the trustee until the time fixed by the will for distribution.\\nThe decree, therefore, for re-conversion and enjoining the sale of the land by the executor and trustee will be affirmed, but that part of said decree directing the executor and trustee to quit-claim and release the property to the beneficiaries will be reversed and the cause will be remanded to the circuit court, with directions to enter a decree in accordance with the views expressed in this opinion. The costs of this appeal will be taxed to the executor, to be paid in due course of administration.\\nAffirmed in part, reversed in part and remanded.\"}"
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+"{\"id\": \"3499790\", \"name\": \"FRANCIS G. STOKES, Plaintiff-Appellee, v. WILBUR D. WELLS, Defendant-Appellant\", \"name_abbreviation\": \"Stokes v. Wells\", \"decision_date\": \"1986-06-02\", \"docket_number\": \"Nos. 85\\u20141232, 85\\u20141490 cons.\", \"first_page\": \"714\", \"last_page\": \"718\", \"citations\": \"144 Ill. App. 3d 714\", \"volume\": \"144\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T21:28:28.713385+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FRANCIS G. STOKES, Plaintiff-Appellee, v. WILBUR D. WELLS, Defendant-Appellant.\", \"head_matter\": \"FRANCIS G. STOKES, Plaintiff-Appellee, v. WILBUR D. WELLS, Defendant-Appellant.\\nFirst District (1st Division)\\nNos. 85\\u20141232, 85\\u20141490 cons.\\nOpinion filed June 2, 1986.\\nKeck, Mahin & Cate, of Chicago (Robert K. Nieman, of counsel), for appellant.\\nShearer, Blood, Agrella & Boose, of St. Charles (Kenneth L. Kaergard, of counsel), for appellee.\", \"word_count\": \"1589\", \"char_count\": \"9433\", \"text\": \"JUSTICE O'CONNOR\\ndelivered the opinion of the court:\\nDefendant, Wilbur Wells, appeals from the denial of his motion to set aside a judgment by confession on a promissory note entered in favor of plaintiff, Francis Stokes. Defendant contends that the judgment is not valid because the statutory requirement that he reside in Cook County at the time of filing of this action was not met. We agree.\\nIn 1983, defendant and his wife executed a promissory note payable to the order of plaintiff. One of its provisions allowed for confession of judgment upon default. On February 17, 1984, plaintiff filed suit for confession of judgment in the circuit court of Cook County, alleging that \\\"one or more of the defendants reside in this county.\\\" On February 22, 1984, judgment by confession was entered against defendant. The judgment was confirmed on the morning of October 16, 1984. That afternoon defendant appeared specially to file a motion to set aside the judgment by confession and dismiss plaintiff's complaint for lack of jurisdiction. He alleged that he was a resident of Missouri and not of Cook County. The motion was denied and the judgment was confirmed. On December 7, 1984, another attempt to challenge the confession of judgment was denied. On January 7, 1985, defendant filed a \\\"motion for rehearing or, in the alternative, for modification or vacation of judgment.\\\" It is from the denial of this motion that defendant appeals.\\nAs a threshold matter, plaintiff asserts that defendant's appeal should be dismissed because he failed to file security for costs required of nonresidents by section 5\\u2014101 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 5\\u2014101), in a manner consistent with his position that he was not a resident of Cook County. This contention apparently was not raised in the court below and Supreme Court Rule 364 governs security for costs in a appellate context. (87 Ill. 2d R. 364.) Under that rule, dismissal is discretionary, not mandatory. (See Lyons Brothers Lumber & Fuel Co. v. Shepherd (1980), 81 Ill. App. 3d 213, 220, 400 N.E.2d 975.) Under the circumstances of this case, dismissal is not warranted.\\nThe only remaining issue on this appeal is whether defendant resided in Cook County at the time when suit was filed. If he did not, then the circuit court of Cook County was not the proper venue under section 2\\u20141301(c) of the Code of Civil Procedure. Section 2\\u20141301(c) provides in pertinent part:\\n\\\"The application to confess judgment shall be made in the county in which the note or obligation was executed or in the county in which one or more of the defendants reside or in any county in which is located any property, real or personal, owned by any one or more of- the defendants. A judgment entered by any court in any county other than those herein specified has no force or validity, anything in the power to confess to the contrary notwithstanding.\\\" Ill. Rev. Stat. 1983, ch. 110, par. 2\\u20141301(c).\\nThe trial court refused to vacate the judgment by confession based solely on its finding that defendant resided in Cook County for purposes of section 2\\u20141301(c). In making its finding, the trial court relied on the \\\"flexible approach\\\" to the issue of residency adopted by the Federal district court in United States v. Scott (N.D. Ill. 1979), 472 F. Supp. 1073, aff'd (N.D. Ill. 1980), 618 F.2d 109, cert. denied (1980), 445 U.S. 962, 64 L. Ed. 2d 238, 100 S. Ct. 1650. The Scott court recognized that the term \\\"reside\\\" has no fixed legal definition, (472 F. Supp. 1073, 1076), and in deciding the meaning of \\\"reside\\\" in a Federal venue statute pertaining to internal revenue prosecutions looked to: (1) the situation-existing at the time of enactment which the statute was designed to cure; (2) the legislative history of the stat ute; and (3) the plain meaning of the term considered within the context of the statute. 472 F. Supp. 1073, 1076.\\nIn Scott, these factors reflected a legislative concern that a defendant receive a convenient forum, but did not require that he be prosecuted where he is domiciled. Defining domicile as residence and the intent to reside indefinitely in a particular place, the Scott court implicitly recognized that a person can reside in more than one place, but can have only one domicile. (United States v. Scott (N.D. Ill. 1979), 472 F. Supp. 1073, 1078.) Accordingly, the Scott court found that defendant resided in the Northern District of Illinois for purposes of the venue statute, notwithstanding his claim that he was domiciled elsewhere, because he maintained an apartment in the Northern District, gave that address as his \\\"permanent residence\\\" on a passport application, and signed his tax returns there. 472 F. Supp. 1073, 1077.\\nEven if we accept that the extended analysis of Scott is appropriate in the case at bar, we do not believe that it supports the trial court's decision. Although the abuses which section 2\\u20141301(c) was designed to cure and its legislative history are somewhat obscure, the parties agree that the history behind the statute reflects an interest in protecting defendants from abuses of powers to confess judgment. (See Investors Commercial Corp. v. Metcalf (1957), 13 Ill. App. 2d 99, 140 N.E.2d 924; see also French v. Willer (1888), 126 Ill. 611, 18 N.E. 811.) In keeping with that interest, courts require that the statute be strictly complied with in confessing judgment. Investors Commercial Corp. v. Metcalf (1957), 13 Ill. App. 2d 99, 102, 140 N.E.2d 924.\\nTurning to the meaning of \\\"reside\\\" in the context of this statute, section 2\\u20141301(c) regulates the procedure to be followed in entering a judgment by confession and limits the venue in which judgment may be confessed. (Green v. Walsh (1955), 5 Ill. App. 2d 535, 539, 126 N.E.2d 398; May v. Chas. O. Larson Co. (1940), 304 Ill. App. 137, 149, 26 N.E.2d 139.) One of the limitations specified by the plain language of section 2\\u20141301(c) is the requirement that one or more of defendants reside in the county at the time of filing. A judgment entered in any other county is void. Ill. Rev. Stat. 1983, ch. 110, par. 2\\u20141301(c); Green v. Walsh (1955), 5 Ill. App. 2d 535, 126 N.E.2d 398.\\nIn order to establish residency for purposes of section 2\\u2014 1301(c), courts require something more than mere physical presence or periodic visits. (See Zipperman v. Wiltse (1943), 317 Ill. App. 654 (abstract of opinion).) In Zipperman, the evidence established that a married woman, who cosigned a note with her husband, resided in Cook County for purposes of the predecessor of section 2\\u20141301(c) rather than in the county where her husband resided because she was legally separated from her husband, had an abode and a place of business in Cook County and spent every business day there. 317 Ill. App. 654.\\nInterpreting \\\"reside\\\" in section 2\\u20141301(c) as connoting that defendant has a settled abode or makes his home in the county at the time of filing (see Black's Law Dictionary 1176 (5th ed. 1979)) furthers the interest in preventing abuses of powers to confess judgment, and is consistent with the rule giving statutory language its plain and ordinary meaning. Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 194, 381 N.E.2d 222 (stating general rule).\\nApplying the foregoing law to the evidence submitted by plaintiff, we believe the trial court's finding of residency must be reversed. Plaintiff does not dispute that defendant resided in Missouri, but he asserts that defendant also resided in Cook County for purposes of section 2\\u20141301(c). Plaintiff stresses that defendant frequently stayed in a company-owned apartment in Cook County which he referred to as his home in the area. It is undisputed, however, that the company (in which defendant was an officer and shareholder) gave up the apartment well before the initiation of this litigation. Plaintiff also points to the fact that defendant was served with process in Cook County as demonstrating a continuing presence in Cook County. However, this is not persuasive evidence of residence since defendant was served after filing of this action at a branch office of his company, not at his abode or residence. Finally, the allegation in plaintiff's verified complaint that defendant was-a resident of Cook County cannot, without more, establish residency. Even assuming that defendant maintained business interests in Cook County, we find that the evidence submitted by plaintiff, whether considered separately or in combination, does not sufficiently demonstrate that defendant resided in Cook County at the time of filing of this confession of judgment action.\\nIn view of our determination and the fact that the trial court decided defendant's motion on the basis of residency, the judgment of the trial court is void. (Ill. Rev. Stat. 1983, ch. 110, par. 2\\u20141301(c); Green v. Walsh (1955), 5 Ill. App. 2d 535, 539-40, 126 N.E.2d 398.) Consequently, the order appealed from is reversed and the cause remanded with instructions to vacate the judgment and dismiss the suit.\\nReversed and remanded with instructions.\\nCAMPBELL and BUCKLEY, JJ., concur.\"}"
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diff --git a/ill/3529223.json b/ill/3529223.json
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+"{\"id\": \"3529223\", \"name\": \"THE WORNER AGENCY, INC., Plaintiff-Appellee, v. MORRIS DOYLE et al., d/b/a Doyle Construction Company, Defendants-Appellants\", \"name_abbreviation\": \"Worner Agency, Inc. v. Doyle\", \"decision_date\": \"1985-06-10\", \"docket_number\": \"No. 4\\u201484\\u20140739\", \"first_page\": \"850\", \"last_page\": \"861\", \"citations\": \"133 Ill. App. 3d 850\", \"volume\": \"133\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T20:34:53.239132+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE WORNER AGENCY, INC., Plaintiff-Appellee, v. MORRIS DOYLE et al., d/b/a Doyle Construction Company, Defendants-Appellants.\", \"head_matter\": \"THE WORNER AGENCY, INC., Plaintiff-Appellee, v. MORRIS DOYLE et al., d/b/a Doyle Construction Company, Defendants-Appellants.\\nFourth District\\nNo. 4\\u201484\\u20140739\\nOpinion filed June 10, 1985.\\nTepper & Gwinn, P.C., of Urbana (John Gwinn, of counsel), for appellants.\\nDobbins, Fraker, Tennant, Joy & Perlstein, of Champaign (D. Cameron Dobbins, of counsel), for appellee.\", \"word_count\": \"4003\", \"char_count\": \"23950\", \"text\": \"JUSTICE WEBBER\\ndelivered the opinion of the court:\\nDefendants appeal from an order of the circuit court of Champaign County which awarded a money judgment to the plaintiff. Although the basis for the judgment is disputed by the defendants, a fair assessment of the entire record leads to the conclusion that it was a finder's fee growing out of a construction contract obtained by defendants from a third party not involved in this litigation.\\nThis case was before us on a previous occasion. (The Worner Agency, Inc. v. Doyle (1984), 121 Ill. App. 3d 219, 459 N.E.2d 633.) After remandment, a bench trial was held on the merits with the results just described. On appeal, defendants raise several issues which may be briefly cataloged as: (1) want of consideration for the agreement for a finder's fee, (2) breach of fiduciary duty by the plaintiff, (3) violation of the Real Estate License Act, and (4) failure of plaintiff to prove it was the procuring cause of the transaction.\\nA brief summary of the evidence adduced at trial is in order. Eldon Worner, president of plaintiff, was a close friend, advisor, and confidant of Mrs. Alberta Cattell, the president and principal shareholder of the Institute of Personality and Aptitude Testing (IPAT). IPAT was seeking new quarters and Cattell sought Worner's advice on the matter. Eventually a tract of land was purchased and a firm engaged to draw plans and specifications for a new building. Worner advised Cattell on both matters. Bids were then sought on the construction project and Worner suggested two firms. During a discussion of potential bidders, Dr. Sam Krug, IPAT's general manager, suggested defendants, of whom Worner had no personal knowledge. He investigated them, and based upon what he learned, recommended that they be allowed to bid. Three bids were received, one from each of the firms suggested by Worner and one from defendants, who were the successful bidder.\\nPrior to the bidding process Worner made arrangements for a meeting between himself and Krug and one of the defendants on November 19, 1980. A set of preliminary plans was delivered, and Morris Doyle signed a statement typed on Worner letterhead, which provided:\\n\\\"If Doyle Construction Co. should receive the bid to build an office building for Mrs. Cattell or the I.P.A.T. organization, a 3% real estate commission will be paid The Worner Agency of Rantoul on the total cost of the building. If the land is purchased separately by the buyer, this cost would not be included in the cost of building.\\nThe commission will be paid within 15 days of final settlement day, date of occupancy, or within one year of above date, whichever occurs first.\\\"\\nThis document provides the centerpiece for this litigation as well as the prior proceedings here and in the trial court. Worner testified that the document represented a common form of transaction when a broker brought a customer to a builder and quoted Doyle as saying that he was accustomed to such a transaction, having done it many times. Both of the other bidders had similar arrangements with Worner. Worner stated that usually such arrangements were mere oral agreements \\u2014 \\\"If we bring them a buyer they pay a finder's fee.\\\"\\nIt further appeared from Womer's cross-examination that he received a commission on the sale of the building lot to IPAT as well as a commission on the sale of the former IPAT premises. He reviewed all the bids on the new building and determined that the Doyles' was the lowest. He reiterated that the Doyle bid did not originate with him.\\nKrug, IPAT's general manager, corroborated much of Worner's testimony. He stated that during the entire construction, planning, and relocation of IPAT, Cattell relied heavily on Worner's advice. He understood throughout that Worner would be compensated; although uncertain as to the exact method, he believed that IPAT would ultimately bear the cost as part of the new construction. He corroborated the fact of the meeting with Morris Doyle and the conversation regarding the agreement as recounted by Womer. Prior to that meeting he had had no contact with the Doyle firm, it being Worner's function to initiate bids. On cross-examination Krug stated that one of Morris Doyle's sons had worked on his (Krug's) house and that the suggestion that defendants be allowed to bid came from him. He understood that Womer's role was complete when the bidding process was complete. Apparently Krug himself represented IPAT when extras and credits were discussed during construction.\\nMorris and Grover Doyle, defendants, were called by the plaintiff Worner as adverse witnesses. Morris corroborated the events in the meeting of November 19, 1980, with Worner and Krug. He identified certain plaintiff's exhibits, one of which bore the legend \\\"3% Real. Fee $5000.\\\" He stated that the \\\"3%\\\" was in Grover's handwriting but the rest was neither his nor Grover's. It \\\"seemed\\\" to him that he told Grover that Worner was \\\"looking for a fee,\\\" but he could not be certain.\\nGrover Doyle also identified certain plaintiff's exhibits and corroborated Morris' testimony about the \\\"3% Real. Fee $5000.\\\" Various exhibits contained different final cost figures for the project. On one of them it was shown as $169,454.98, and on that sheet appeared \\\"chg. this on taxes-$5100-Realty?\\\"\\nAt another location on the same sheet appeared:\\n\\\"$169,630.24\\n5,100.\\n174,730.\\\"\\nHe stated that the first note was \\\"for tax purposes,\\\" and that the \\\"final payment\\\" statement showing the final cost of the job indicated $196,935.10, less a credit of $264.\\nBoth Morris and Grover testified that they have not paid Worner a fee, that they have never told Worner th?t they were not going to pay a fee, and that they have never told Worner that they do not believe a fee is due under the agreement.\\nWorner was recalled as an adverse witness for. the defendants, and, after reiteration of the events about the meeting of November 19, 1980, he was asked about prior commissions from builders. He testified:\\n\\\"In real estate, with 10 salesmen in each office, many times we brought people looking for houses, and they don't see what they want in a used house, so they say what about new ones. Then we take them to a builder. And, in real estate, we seem to have a common understanding between builders and ourselves that, if we bring them a buyer \\u2014 a finder's fee \\u2014 we get paid, and we set the commission at that [sic] time we take them to the person. Other times they do have spec houses listed in our multiple listing book, and the fee is set and explained and all, but, on a spec house or a new house built for a builder, there \\u2014 they are usually happy to have us bring them a customer.\\nQ. [By defense counsel] On a spec house?\\nA. No. On an individual house wanted by a customer or buyer on their draw \\u2014 their idea of what they want built for them.\\nQ. You have, also, done that on spec houses, haven't you \\u2014 had commissions on selling builders\\u2014\\nA. Oh, sure. Spec builders just give a general \\u2014 if you sell our house we will pay you three percent, two percent, one percent, whatever.\\\"\\nMorris Doyle testified that there had been no relationship with Worner prior to the November 1980 meeting, nor with Krug nor Mrs. Cattell, and that he had no knowledge of the IPAT project until that meeting.\\nGrover Doyle testified that the contractor's final affidavit as to the cost of the IPAT job contained no provision for a fee. He dismissed the various indications on the exhibits (i.e., $5100) as \\\"tax doodling.\\\" He also stated that the Doyle company benefited from having the opportunity to bid on the job.\\nAfter hearing final arguments, the trial court several weeks later entered a short order from the bench finding in favor of the plaintiff and against the defendants in the sum of $5,900.13 with interest from October 30, 1981. The figure apparently represents 3% of the final cost of $196,935.10 minus $264.\\nBefore proceeding to the other issues raised by the defendants, we first must comment briefly on a matter of legal taxonomy. Defendants claim that \\\"finder's fee\\\" is nowhere mentioned in the pleadings and that the case concerns a real estate commission, which is the language used in the agreement. Therefore, they argue, the law of real estate commissions must govern. We do not agree.\\nAll of the evidence at trial supports the conclusion that the agreement was for a finder's fee, not for a real estate commission. The agreement itself is ambiguous in this regard. It first provides for a \\\"real estate commission,\\\" but the balance of the language implies that the amount payable is a referral, or finder's, fee for new construction business. The latter is not a \\\"real estate commission\\\" in the usual sense of the term; i.e., a commission on the sale or lease of real estate.\\nIn URS Corp. v. Ash (1981), 101 Ill. App. 3d 229, 427 N.E.2d 1295, the \\\"four corners\\\" approach to ambiguous documents was rejected. In the instant case, all of the parol evidence in the record, together with the trial court's implicit finding, demonstrates that a finder's fee was the subject matter of the dispute. There is no evidence in the record which would sustain a finding of a real estate commission.\\nDefendants' first principal contention is that the agreement is void for lack of consideration and mutuality of obligation. In support of the thesis, they argue that plaintiff provided no services for the construction of the building and that plaintiff lacked any obligation to work for the acceptance of defendants' bid.\\nPlaintiff has raised some procedural questions in reply to defendants' arguments. It first contends the lack of consideration is an affirmative defense and defendants did not carry their burden of proof. In our prior opinion in this case, we noted that lack of consideration, as opposed to failure of consideration, is not an affirmative defense. (The Worner Agency, Inc. v. Doyle (1984), 121 Ill. App. 3d 219, 222-23, 459 N.E.2d 633, 635.) It was plaintiff's burden to establish the existence of consideration.\\nAs to mutuality, plaintiff argues that lack of mutuality is no defense as to wholly executed contracts and that complete performance may remedy lack of mutuality at the contract's inception. It also argues that defendants have waived the issue by failing to raise it in the trial court and that it was up to defendants to establish lack of mutuality as an affirmative defense. In our opinion, mutuality is only a specialized form of consideration. Defendants did raise the defense of lack of consideration at trial, and thus this issue has not been waived. Moreover, we noted in our initial decision in this litigation that want, as opposed to failure, of consideration is not an affirmative defense. (121 Ill. App. 3d 219, 222-23, 459 N.E.2d 633, 635.) Thus, the burden is on Worner to establish that the alleged contract was supported by adequate consideration.\\nThe classic and time-honored definition of consideration is \\\"anything which is of benefit to one of the parties to a contract or a detriment or disadvantage to the other.\\\" (12 Ill. L. & Prac. Contracts sec. 71 (1983).) Mutuality, in its most elemental sense, means that both parties to a contract must be bound by mutual obligations. (Kraftco Corp. v. Koblus (1971), 1 Ill. App. 3d 635, 274 N.E.2d 153.) Mutuality is a characteristic of contracts which are largely unperformed and executory in nature where no consideration has flowed to either party. In this situation, mutuality is a substitute for consideration. It follows that mutuality becomes a nonissue where consideration has otherwise been conferred upon one of the parties to the contract. (See Armstrong Paint & Varnish Works v. Continental Can Co. (1921), 301 Ill. 102, 133 N.E. 711.) In our opinion there was consideration here for the defendants' promise to pay a finder's fee, and thus the question of mutuality disappears from the case.\\nThe general rule is that if the alleged consideration for the promise has been conferred prior to the promise upon which alleged agreement is based, there is no valid contract. As with all general rules, there are exceptions. These are where (1) the consideration was rendered at the request of the promisor; (2) the alleged consideration was of a \\\"beneficial\\\" or \\\"meritorious\\\" nature which placed the promisor under a moral duty or obligation such that consideration for the promise will be implied; (3) the promise is to pay a \\\"debt due in conscience,\\\" such as a promise to support an illegitimate child; or (4) the promise is founded upon an antecedent legal obligation, such as a debt which has become barred by the statute of limitations. (Carson v. Clark (1833), 2 Ill. 113, 114-15.) Not every benefit conferred upon an individual is deemed to create a moral duty to repay which forms consideration for a promise of the person benefited to pay for the benefit. For instance, no consideration is deemed to exist where a benefit is imposed against another's will, such as where its nature or the manner of conferring it is repugnant to the feelings and wishes of the party benefited. Rather, all circumstances must be of such a nature as to presuppose a request for the benefit. 2 Ill. 113, 116.\\nThe question in the instant case is whether it falls within one of the exceptions. The record is clear that any consideration for the defendants' promise was performed before the signing of the agreement: Worner's informing the Doyles of the IPAT project, delivering preliminary plans for the building, and putting the Doyles in touch with IPAT officers. The record is also clear that Worner played no part subsequent to the November 1980 meeting.\\nObviously, the case is not one of a \\\"debt due in conscience\\\" nor one founded upon an antecedent legal obligation. There is some basis for saying that the consideration was rendered at the request of the defendants, i.e., Morris Doyle's agreeing to meet with IPAT officers. Performance may ameliorate an initial lack of consideration if the performance is clearly invited. Compare Illinois Commerce Com. v. Central Illinois Public Service Co. (1975), 25 Ill. App. 3d 79, 322 N.E.2d 520; Air Conditioning Training Corp. v. Majer (1944), 324 Ill. App. 387, 58 N.E.2d 294.\\nMore apropos to the instant case is the exception of \\\"beneficial\\\" or \\\"meritorious\\\" consideration, imposing a moral obligation yielding an implied consideration. There are no Illinois cases which have addressed this principle in the context of a finder's fee. There are a handful from other jurisdictions.\\nIn Schaller v. Litton Industries, Inc. (E.D. Wis. 1969), 307 F. Supp. 126, 131-32, the plaintiff identified a certain corporation as a possible merger candidate for the defendant corporation and informed the defendant corporation of this fact. At the same time, the plaintiff told the defendant that he would expect a reasonable fee for his services in arranging the merger. At first, the defendant told the plaintiff that he would have to look to the merger candidate for his fee, but requested of the plaintiff basic information regarding the merger candidate. Negotiations were then begun, but they subsequently broke off. Later, however, the negotiations were reopened on the suggestion of a third party and a merger accomplished. The court held that these facts adequately established the existence of an implied contract between the parties for the payment of a finder's fee, since a sufficient relationship existed between the plaintiff's activities and the merger to entitle the plaintiff to such a fee.\\nIn Swingle v. Myerson (1973), 19 Ariz. App. 607, 609, 509 P.2d 738, 740, the plaintiff advised the defendant of the availability for sale of a savings and loan association, and told the defendant at the time that he informed the defendant of the opportunity that he expected to be compensated for bringing the defendant and seller together if the sale were made. Following the defendant's purchase of the association, the court held that the defendant was entitled to recover a finder's fee on the basis of quantum meruit, despite the lack of an express contract between the parties.\\nIn Bellanca Corp. v. Bellanca (1961), 53 Del. 378, 383-89, 169 A.2d 620, 623-26, the plaintiff attended the first meeting of persons who desired to effectuate a corporate merger, at which most of the confidential financial details were stated. The court held that this evidence was sufficient to support findings that the plaintiff arranged the meeting in the expectation of receiving payment, and that the corporate seller, through its directors, had accepted the benefit of his services in the knowledge that compensation would be expected therefor.\\nFinally, in Kaiser v. Fadem (Okla. 1955), 280 P.2d 728, 733, the plaintiff disclosed the existence of and showed a gasoline plant which was for sale to the defendant, who was interested in purchasing a gasoline plant. Subsequently, the defendant purchased the plant and agreed to compensate the plaintiff for his services. The court held that the plaintiff-finder was entitled to a fee under the agreement since the moral obligation of the purchaser created by the receipt of material benefit from the plaintiff was a sufficient substitute for the consideration which was otherwise lacking in the agreement.\\nWe find the cases from our sister States persuasive. In the instant case the defendants admitted that they had benefited from the plaintiff's actions and that they would not have known about the IPAT job if the plaintiff had not arranged the meeting of November 1980. There is sufficient evidence in the record that a benefit was conferred on the defendants, and this benefit is deemed adequate consideration for their promise to pay the finder's fee.\\nDefendants' second principal issue is that of breach of fiduciary duty. They maintain that Worner was in a fiduciary capacity as agent of Mrs. Cattell and IPAT and that by accepting a fee from an adverse party he would breach that duty.\\nInitially, we hold that this issue has been waived by the defendants. In our prior opinion in this case it was said (The Worner Agency, Inc. v. Doyle (1984), 121 Ill. App. 3d 219, 222, 459 N.E.2d 633, 635):\\n\\\"The test of whether a defense is affirmative and must be pleaded by a defendant is whether the defense gives color to the opposing party's claim and then asserts new matter by which the apparent right is defeated. The admission of the apparent right is inferable from the affirmative defense.\\\"\\nA defense that a contract is void because it resulted from breach of a fiduciary duty is clearly affirmative in nature because while admitting the prima facie validity of the contract, it asserts the new matter of the breach of a fiduciary duty to destroy the contract's validity.\\nNowhere in Doyles' affirmative defense is it asserted that the November 19, 1980, agreement is the product of a breach of fiduciary duty. Moreover, Doyles' written closing argument submitted to the circuit court on August 29, 1982, contains no mention of a breach of fiduciary duty defense.\\nPoints raised for the first time on appeal are considered waived. J.R. Sinnott Carpentry, Inc. v. Phillips (1982), 110 Ill. App. 3d 632, 443 N.E.2d 597.\\nEven if the matter of waiver were ignored, no different result would ensue by which the agreement for a finder's fee would become void. Although there was no express fiduciary relationship between Worner and Cattell and such a relationship is not to be lightly inferred (De Witt County Public Building Com. v. County of De Witt (1984), 128 Ill. App. 3d 11, 469 N.E.2d 689), there is some basis in the evidence for saying that it did exist, at least insofar as the selection of a bidder for the new IPAT building was concerned. Cattell sought out and relied on Worner's advice and followed that advice; however, Cattell herself has made no claim against Worner and in fact offered herself to pay the finder's fee if it were not forthcoming from Doyles. In effect, Cattell waived any purported breach of Womer's fiduciary obligation.\\nMore importantly, if the Doyles' theory were upheld, it would put an end to all finders' fees. The nature of such a fee raises an inherent conflict between an owner's interest in a low bid and a broker's interest in a higher fee, but Worner's testimony as to how finders' fees are handled is uncontradicted. It has been held that the peculiarities of a particular trade or type of business may make seemingly impregnable doctrines of law inapplicable. De Witt County Public Building Com. v. County of De Witt (1984), 128 Ill. App. 3d 11, 469 N.E.2d 689.\\nIn the circumstances of this case, there would also, appear an indication of unjust enrichment of the Doyles. As has been pointed out, the Doyles' worksheets contained entries which showed a disposition to include the finder's fee as part of their bid, notwithstanding Grover Doyle's testimony about \\\"tax doodling.\\\" There is also Krug's testimony which indicated that IPAT expected that Worner would be paid a fee for his assistance in selecting a contractor. The Doyles apparently still retain the $5,100 which under the prevailing practices of the real estate and construction industry rightfully belongs to Worner.\\nIn sum, the issue has been waived by the defendants and is without merit in any event.\\nDefendants next contend that Worner was in violation of section 18(e)(5) of the Real Estate License Act of 1983 (Ill. Rev. Stat. 1983, ch. Ill, par. 5818(e)(5)) which provides in substance that a broker or salesman may not act in a transaction for more than one party without the written acknowledgement of all parties to the transaction. The short answer is that the Act applies to \\\"brokers\\\" and \\\"salesmen,\\\" not to \\\"finders.\\\" There is a generic difference, as we have already held, between a finder's fee and a real estate commission. It follows that the same difference exists as between finders on the one hand and brokers and salesmen on the other hand. The contention is without merit.\\nFinally, .defendants contend that Worner was not the procuring cause of the transaction. Case law is clear that a finder must establish that his services were the \\\"procuring cause.\\\" Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill. App. 3d 834, 422 N.E.2d 86; Modern Tackle Co. v. Bradley Industries, Inc. (1973), 11 Ill. App. 3d 502, 297 N.E.2d 688.\\nNo hard and fast definition of \\\"procuring cause\\\" is feasible; it will depend on the circumstances of each case. Generally, in real estate law, a broker is the procuring cause of sale if he was instrumental in bringing the buyer and the seller together and if a sale was thereafter made as a result. (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 408 N.E.2d 1069.) Despite the differences in functions performed, the same general principles apply to finders.\\nIn the instant case the defendants argue that it was Krug's suggestion which brought them into the picture; hence, Krug was the procuring cause and Womer was not. The theory ignores reality. Worner was in charge of clearing all bidders and held a veto power over them. It was his recommendation which resulted in Cattell's acceptance of the Doyles' bid and thus he was \\\"instrumental\\\" in bringing them together. (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 408 N.E.2d 1069.) Womer, under the circumstances here, was the procuring cause.\\nFor all the foregoing reasons, the judgment of the circuit court of Champaign County is affirmed.\\nAffirmed.\\nMcCULLOUGH and TRAPP, JJ., concur.\"}"
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+"{\"id\": \"3576147\", \"name\": \"EDWARD MALEK III, a Minor by his Mother and Next Friend, Sherry Malek, Plaintiff and Petitioner-Appellee, v. LEDERLE LABORATORIES, a Division of American Cyanamid, Defendant and Respondent-Appellant\", \"name_abbreviation\": \"Malek v. Lederle Laboratories\", \"decision_date\": \"1987-02-09\", \"docket_number\": \"No. 85\\u20143447\", \"first_page\": \"493\", \"last_page\": \"502\", \"citations\": \"152 Ill. App. 3d 493\", \"volume\": \"152\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T00:40:15.701036+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"EDWARD MALEK III, a Minor by his Mother and Next Friend, Sherry Malek, Plaintiff and Petitioner-Appellee, v. LEDERLE LABORATORIES, a Division of American Cyanamid, Defendant and Respondent-Appellant.\", \"head_matter\": \"EDWARD MALEK III, a Minor by his Mother and Next Friend, Sherry Malek, Plaintiff and Petitioner-Appellee, v. LEDERLE LABORATORIES, a Division of American Cyanamid, Defendant and Respondent-Appellant.\\nFirst District (1st Division)\\nNo. 85\\u20143447\\nOpinion filed February 9, 1987.\\nBaker & McKenzie, of Chicago (Francis D. Morrissey, Thomas F. Bridgman, Miles J. Seyk, and John C. Filosa, of counsel), for appellant.\\nMcDowell & Colantoni, Ltd., of Chicago (Anthony M. Colantoni, of counsel), for appellee.\", \"word_count\": \"3621\", \"char_count\": \"22888\", \"text\": \"PRESIDING JUSTICE QUINLAN\\ndelivered the opinion of the court:\\nPlaintiff, Sherry Malek, as mother and next friend of the minor plaintiff, Edward Malek III, brought a personal injury action to recover damages against several defendants, including Lederle Laboratories (Lederle). In December 1982, the case proceeded to trial against Lederle only, and at the conclusion of the trial, the jury found in favor of defendant and against plaintiff on all counts. Judgment was subsequently entered on that verdict. Thereafter, plaintiff filed a petition pursuant to section 2 \\u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 \\u2014 1401) requesting that the judgment be va cated and a new trial ordered. Following a hearing, the trial court granted plaintiff's petition. Defendant's motion for reconsideration was subsequently denied, and the defendant now appeals.\\nWe reverse.\\nThe facts pertinent to this appeal are as follows. The plaintiff filed a two-count complaint directed against defendant Lederle which included a count for strict products liability and a count for negligence. The complaint alleged that the minor plaintiff had been given vaccinations of diphtheria tetanus pertussis (DTP) manufactured and marketed by Lederle under the brand name Tri-Immunol. The complaint further alleged that the Tri-Immunol vaccine manufactured by Lederle was unreasonably dangerous in that it was not accompanied by adequate warnings and that Lederle was negligent in failing to properly test the vaccine. Following the entry of the jury's verdict in favor of defendant, plaintiff's post-trial motion was denied, and, thereafter, the verdict was affirmed on appeal. (Malek v. Lederle Laboratories (1984), 125 Ill. App. 3d 870, 466 N.E.2d 1038.) However, prior to this court's affirmance of the trial court's judgment, plaintiff had filed a section 2\\u2014 1401 petition (Ill. Rev. Stat. 1983, ch. 110, par. 2 \\u2014 1401), asserting as the basis for her petition that there was newly discovered evidence.\\nIn her petition under section 2 \\u2014 1401, plaintiff alleged that evidence had been withheld by the defendant which would have caused a different result at the trial of this case. In particular, the plaintiff set forth the following basis for her contentions. On March 31, 1981, during the course of discovery, plaintiff's attorney filed the following request for production:\\n\\\"(f) Any and all correspondence, pamphlets, brochures, advertisements, promotional materials, displays, doctor's letters, newsletters, reports, articles, labels and inserts containing the drug DTP and/or Pertussis.\\\"\\nPlaintiff asserted that in response to this request, defendant made certain documents available for inspection at its headquarters at Pearl River, New York, on October 22 and 23, 1981, and that one of plaintiff's attorneys, Boyd McDowell, visited defendant's headquarters and inspected all documents for reproduction and delivery to the office of plaintiff's attorneys. Attached to plaintiff's complaint was Boyd McDowell's affidavit, which contended that certain documents that fell within the purview of the above request were withheld by the defendant.\\nPlaintiff further alleged in her petition that on March 26, 1982, by letter to counsel for defendant Lederle, plaintiff requested that Lederle produce:\\n\\\"Any and all reported pertussis vaccine reaction claims, including but not limited to convulsions, seizures, shock and paralysis, in the possession of Dr. Szumski, as indicated in his deposition, or in the possession of the Professional Services Department.\\\"\\nPlaintiff said that in response to this request, defendant did produce 31 product complaints, but only 14 of those complaints had been received by defendant prior to December 5, 1978, the date on which plaintiff was vaccinated with Tri-Immunol. In support of this allegation, plaintiff attached the affidavit of Allen McDowell, another of plaintiff's attorneys.\\nPlaintiff also contended in her petition that the defendant had \\\"fraudulently\\\" failed to disclose and produce all the documents that fell within the purview of the above discovery requests. Plaintiff later amended her petition to specifically contend that defendant \\\"fraudulently, wrongfully, and/or mistakenly failed to fully disclose and produce all the documents.\\\" In support of these allegations of fraud, plaintiff alleged that in the case of Yankovich v. Lederle Laboratories, which was then pending in the circuit court of Cook County, plaintiff's attorneys there (plaintiff's attorneys in the instant case also served as plaintiff's attorneys in Yankovich), filed a request for production substantially identical to the request for production filed in the Malek case. However, the plaintiff contended that during an inspection of documents at defendant's New York headquarters, which was similar to the inspection that took place in the Malek case, defendant Lederle produced over 60 additional complaints of severe reactions to Tri-Immunol, as well as additional correspondence which had not been produced by Lederle in the Malek case. Plaintiff claimed that these additional documents disclosed in the Yankovich case fell within the scope of the request for production filed in the Malek case. The additional complaints and correspondence produced in Yankovich were attached to plaintiff's petition as exhibits 1 through 71. Also, the plaintiff specifically asserted that the failure to discover these documents was not due to any negligence or lack of diligence on her part or on the part of her attorneys and that had these documents been produced in the Malek case and had the documents been determined to be admissible and received into evidence, the jury would have necessarily reached a verdict for plaintiff.\\nAdditionally, the plaintiff also filed her section 2 \\u2014 1401 petition with this court during her original appeal from the judgment entered against her and requested an order staying the judgment of the trial court. This court denied plaintiff's request for a stay, and, as stated previously, subsequently affirmed the trial court's judgment. Malek v. Lederle Laboratories (1984), 125 Ill. App. 3d 870, 466 N.E.2d 1038.\\nFollowing the affirmance by this court, defendant Lederle filed a response to plaintiff's petition and amended petition in the trial court which essentially denied the allegations of both. On July 16, 1985, the trial court granted plaintiff's petition, vacated the original verdict in favor of defendant, and ordered a new trial. As stated earlier, Lederle then filed a motion for rehearing which was denied on October 25, 1985, and on November 21,1985, Lederle filed its notice of appeal.\\nSection 2 \\u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \\u2014 1401) provides a procedure whereby final orders and decrees may be vacated after 30 days. To prevail on a section 2 \\u2014 1401 petition, a plaintiff must prove first that if the grounds for relief had been known at trial, it would have prevented the entry of judgment against the petitioner, and second, that the failure to discover and present the ground for relief was not the result of the petitioner's own lack of diligence. (Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 210, 473 N.E.2d 955.) Consistent with the strong judicial policy favoring the finality and stability of judgments, courts have long held that a section 2 \\u2014 1401 petition is not to be used as a device to relitigate issues already decided or to put in issue matters which have previously been or could have been adjudicated. (Union National Bank & Trust Co. v. Green (1979), 80 Ill. App. 3d 32, 34-35, 399 N.E.2d 313.) A section 2 \\u2014 1401 petition was not intended as a procedure whereby a litigant may be relieved of the consequences of his own mistake or negligence, and the burden is on the petitioner to rebut the presumption that the verdict is correct and to demonstrate that there has been no lack of due diligence. (Ulrich v. Glyptis (1967), 79 Ill. App. 2d 447, 454, 224 N.E.2d 581.) While section 2 \\u2014 1401 has been developed to provide trial courts with the equitable powers necessary to grant relief and prevent injustice, it was never intended to give a party a new opportunity to do that which should have been done at an earlier proceeding. Petrauskas v. Motejunas (1971), 133 Ill. App. 2d 293, 296, 272 N.E.2d 805.\\nDefendant Lederle, in its brief, submits that there exists a third requirement that a litigant seeking relief under section 2 \\u2014 1401 must prove. Specifically, it contends that the petitioner must affirmatively prove that the party against whom the relief is sought fraudulently or intentionally withheld documents or evidence. In support of its contention, the defendant has cited the cases of Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 473 N.E.2d 955, as well as Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253.\\nHowever, the defendant has misinterpreted the holdings in those cases. The issue concerning whether the party against whom relief is sought fraudulently or intentionally withheld documents is not a separate and distinct requirement, but, rather, it is an element necessarily subsumed into the determination of whether the petitioner has exercised due diligence in discovering and presenting the ground for relief. See Lubbers v. Norfolk & Western Ry. Co. (1983), 118 Ill. App. 3d 705, 454 N.E.2d 1186, aff'd (1985), 105 Ill. 2d 201, 473 N.E.2d 955.\\nTo adequately consider the merits of plaintiff's section 2 \\u2014 1401 petition here, it is necessary to review the history of the discovery in this case. Prior to trial, on or about May 21, 1981, plaintiff served defendant Lederle with a \\\"request for production of documents,\\\" which included paragraph (f), the substance of which was set forth earlier in this opinion. On August 3, 1981, in a supplemental response to plaintiff's \\\"request for production of documents,\\\" defendant Lederle advised plaintiff that it objected to providing any records prior to 1977 since its product, Tri-Immunol, only had an 18-month shelf life, thus making any data prior to 1977, defendant contended, irrelevant to plaintiff's case.\\nOn August 27, 1981, the trial judge who had been supervising the discovery in this case entered an order concerning some of defendant Lederle's objections to plaintiff's interrogatories and directed the production of certain documents and files for plaintiff's inspection at defendant's Pearl River, New York, facility. While the exact details of the order are unclear, it does appear from the record that the trial court failed to consider plaintiff's request in paragraph (f) or defendant's objections to it. On September 28, 1981, defendant wrote to plaintiff to advise her that the documents ordered produced by the trial judge would be available at Lederle's Pearl River, New York, facility on October 22 and 23, 1981. In its letter, however, defendant made it clear that this inspection would only be permitted according to the terms that defendant had set forth in its supplemental response to plaintiff's request (f), on August 3, 1981. Plaintiff did not respond to the letter, nor did she challenge defendant's statements concerning plaintiff's request (f).\\nOn October 27, 1981, following the inspection of the documents at defendant's New York facility, counsel for Lederle again wrote to all counsel of record, including plaintiff's counsel, and set out in detail the documents that had been requested by the parties as a result of the inspection. This letter also made it quite clear that it was defendant's position that it would only produce complaints and correspondence relating to neurological symptoms for the years 1977 and 1978. The defendant further indicated in the letter that the documents it had pro duced were, thus, in full compliance with the plaintiff's discovery requests, as modified by its August 3, 1981, supplemental response. Again, the plaintiff failed to indicate any objections to the defendant's assertions or its productions.\\nWe find, based on this record, that the plaintiff has failed to meet her burden of establishing that she is entitled to relief pursuant to section 2 \\u2014 1401. Clearly the plaintiff was guilty of a lack of due diligence by failing to object to defendant's modification of plaintiff's request (f), which the defendant restated on several occasions, and also by failing to object to the documents produced by the defendant. The plaintiff could have refused defendant's limited production offer and requested the trial court to order the defendant to comply with its original production request. However, for whatever reason, the plaintiff failed to do so and instead accepted the defendant's limited production and proceeded to trial. Furthermore, the plaintiff can hardly contend that she was unaware of defendant's position or was deceived by the defendant since the defendant had filed a written objection to the plaintiff's production request and, as noted above, restated this position in writing on several occasions.\\nTherefore, the evidence contained in exhibits 1 through 71 was not newly discovered within the meaning of the statute, since, if plaintiff had acted with due diligence she could have discovered the evidence and, if relevant and admissible, used it at the trial. As stated earlier, section 2 \\u2014 1401 was not intended to give a party a second opportunity to do that which should have been done at prior proceedings. See Petrauskas v. Motejunas (1971), 133 Ill. App. 2d 293, 272 N.E.2d 805.\\nWe also believe the cases cited by the plaintiff are distinguishable from the present situation. In fact, these cases support the defendant's position and actually warrant a result contrary to the decision of the trial court.\\nIn Ostendorf, the court there noted:\\n\\\"[A] litigant exercises ordinary diligence in pretrial discovery when he poses interrogatories reasonably calculated to elicit the information important to his case. If his opponent then suppresses information within the scope of the interrogatories in such a way as to prevent the inquirer from realizing what has occurred, the failure to discover the information is the result of the former's fault, not the latter's negligence.\\\" (Emphasis added.) Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 284-85, 433 N.E.2d 253.\\nWhile the supreme court in Ostendorf did grant the plaintiffs' petition, the court specifically found there that the defendant knowingly gave false answers to interrogatories and intentionally withheld, without filing an objection to plaintiffs' production request, test reports and other information demanded by the interrogatories. Such action, under the circumstances, the court concluded, inevitably tended to mislead opposing counsel into the belief that further inquiry was not needed and that he had received all that was available.\\nSimilarly, in Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 473 N.E.2d 955, the defendant there introduced affirmative evidence at trial that a railroad crossing had been checked at two-week intervals for each of the 12 months preceding the accident and the signals were found to have been in working order. Later, a new trial was granted on the basis of newly discovered evidence when it was disclosed that the crossing had not, in fact, been checked during any of the six weeks prior to the accident and that the defendant there had deliberately falsified records to indicate that the crossing had been checked.\\nClearly the situations presented in Ostendorf and Lubbers are substantially different from the situation presented in the instant case. The record here is void of any evidence that defendant attempted to mislead the plaintiff or to affirmatively conceal any of the information sought in plaintiff's request (f). Rather, as previously indicated, defendant openly told plaintiff on at least two occasions that it was refusing to provide information and records prior to 1977 because such information was, in its judgment, irrelevant to the issues in this case. Plaintiff's failure to challenge defendant's objections to production if she deemed that particular information necessary to a suitable disposition of her case, demonstrated a lack of due diligence on her part, which could not be attributed to any inappropriate action on the part of the defendant.\\nFurthermore, we find that contrary to plaintiff's assertions here, the discovery request in Yankovich was not, under the circumstances, identical to the discovery request in Malek even though it included the same paragraph (f). The discovery request in Yankovich was, we believe, broader than the discovery request in Malek, since the discovery in Yankovich was not subject to the objection that defendant filed in the Malek case. Also in the Yankovich case, subsequent to the inspection of documents at Lederle's Pearl River, New York, facility, plaintiff specifically requested Lederle's complaint files for the years 1957 through 1982 inclusive. No such similar request was made in Malek, and the defendant in Yankovich made no objection to this request. Thus, the documents that plaintiff requested and received in Yankovich, and which now form the basis for her section 2 \\u2014 1401 peti tion (exhibits 1 though 71), were not, contrary to her claims, the result of the same production request because of the different circumstances surrounding the request in the two cases, i.e., defendant Lederle's objection in Malek and plaintiff's specific request in Yankovich.\\nWe further note that the trial court in its ruling improperly described the requirement of diligence that a petitioner must demonstrate under a section 2 \\u2014 1401 petition and, thus, applied an incorrect test when it found that the plaintiff had been diligent. The court erroneously concluded that there was no issue concerning the petitioner's diligence, stating:\\n\\\"The question of diligence is not [present] * here, the record shows that petitioner acted diligently in filing its [2 \\u2014 1401] petition.\\\"\\nHowever, the law is clear that the diligence required of a petitioner relates both to the discovery of the evidence as well as to the timeliness of plaintiff's post-trial petition. (See Lubbers v. Norfolk & Western Ry. Co. (1983), 118 Ill. App. 3d 705, 454 N.E.2d 1186.) In the context of a section 2 \\u2014 1401 petition based on the discovery of new evidence, diligence requires that a party be free from fault or negligence relating to the evidence claimed to have been withheld or not presented. (See Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 173, 433 N.E.2d 253.) Accordingly, the relevant inquiry in such circumstances is not whether the petitioner was diligent in filing its petition, but, rather, whether the petitioner lacked diligence in failing to discover or present the evidence or documents. In other words, as we have stated previously, the failure to present the evidence must not have been the result of the petitioner's own lack of diligence.\\nHere, the trial court erred by failing to address defendant's contention that petitioner's failure to discover the documents was the direct result of petitioner's own lack of diligence. Contrary to the trial court's observation, due diligence was an issue here and was not satisfied by the plaintiff's diligence in filing her 2 \\u2014 1401 petition in apt time.\\nThe second requirement that the petitioner here was required to meet in order for her to succeed on her section 2 \\u2014 1401 petition was that if the grounds allegedly entitling her to relief under section 2\\u2014 1401 had been made known at the trial, it would have prevented the entry of the judgment against her. (See Lubbers v. Norfolk & Western Ry. Co. (1984), 105 Ill. 2d 201, 473 N.E.2d 955.) While consideration of this second requirement is not necessary to our decision here, we further believe that the petitioner in the present case has also failed to meet this requirement as well as the due diligence requirement.\\nIn reviewing the alleged \\\"newly discovered\\\" evidence set forth in exhibits 1 through 71, which is the basis upon which plaintiff seeks a new trial, we find that evidence concerning the issues involved in exhibits 1 through 71 was, in fact, introduced at the trial. Exhibits 1 through 71 are merely cumulative evidence and are not of a conclusive or controlling character and, therefore, would not have prevented entry of the judgment in this case. See Ulrich v. Glyptis (1967), 79 Ill. App. 2d 447, 224 N.E.2d 581; Kirchoff v. Tzinberg's Park \\\"N\\\" Shop Food Stores, Inc. (1955), 7 Ill. App. 2d 201, 129 N.E.2d 279.\\nAlthough, as plaintiff correctly asserts, a section 2 \\u2014 1401 petition is addressed to the sound discretion of the trial court, a reviewing court is, nevertheless, justified in disturbing the judgment of the trial court where, as here, there has been an abuse of discretion. (Beverly Bank v. Pentagon Investment Co. (1981), 100 Ill. App. 3d 1074, 472 N.E.2d 835.) Plaintiff argues that she is entitled to a new trial to insure that justice is done in this case. However, as this court held in Petrauskas v. Motejunas (1971), 133 Ill. App. 2d 293, 296-97, 272 N.E.2d 805, the interests of justice in these circumstances are more compelling than the personal interests of either party:\\n\\\"Prompt disposition of litigation already backlogged many years on our crowded court calendars compels the exercise of restraint in granting new trials in cases where available facts could have been discovered by diligent investigation. That which would best serve the interests of the dilatory party is not the only factor to be considered. Danforth v. Checker Taxi Co., Inc. (1969), 114 Ill. App. 2d 471, 253 N.E.2d 114.\\\" 133 Ill. App. 2d 293, 296-97, 272 N.E.2d 805.\\nThus, we find that based on the record and consistent with the policy of preventing the relitigation of matters that should have been properly litigated in the original trial, the plaintiff failed to meet the requirements for the granting of a section 2 \\u2014 1401 motion, and the trial court here improperly granted the petition.\\nAccordingly, for all the foregoing reasons, the judgment of the circuit court of Cook County granting plaintiff's section 2 \\u2014 1401 petition is reversed, and the original judgment in favor of defendant Lederle is hereby reinstated.\\nJudgment reversed.\\nCAMPBELL and O'CONNOR, JJ., concur.\"}"
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+"{\"id\": \"3628275\", \"name\": \"WILLIAM J. O'BOYLE, Plaintiff-Appellee, v. PERSONNEL BOARD OF THE CITY OF CHICAGO et al., Defendants-Appellants\", \"name_abbreviation\": \"O'boyle v. Personnel Board\", \"decision_date\": \"1983-11-23\", \"docket_number\": \"No. 82\\u20142657\", \"first_page\": \"650\", \"last_page\": \"659\", \"citations\": \"119 Ill. App. 3d 648\", \"volume\": \"119\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T20:23:42.135971+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"WILLIAM J. O\\u2019BOYLE, Plaintiff-Appellee, v. PERSONNEL BOARD OF THE CITY OF CHICAGO et al., Defendants-Appellants.\", \"head_matter\": \"WILLIAM J. O\\u2019BOYLE, Plaintiff-Appellee, v. PERSONNEL BOARD OF THE CITY OF CHICAGO et al., Defendants-Appellants.\\nFirst District (4th Division)\\nNo. 82\\u20142657\\nOpinion filed November 23, 1983.\\nJames D. Montgomery, of Chicago (Jerome A. Siegan and Cheryl L. Smalling, of counsel), for appellants.\\nJ. Peter Dowd, of Jacobs, Burns, Sugarman & Orlove, of Chicago, for appellee.\", \"word_count\": \"3743\", \"char_count\": \"22371\", \"text\": \"JUSTICE LINN\\ndelivered the opinion of the court:\\nPlaintiff-appellee, William O'Boyle, filed a complaint and a writ of certiorari in the Cook County Circuit Court for review of an order of defendant-appellant, Personnel Board of the City of Chicago et al. (Personnel Board), finding him in violation of the city's residency ordinance and suspending him for 60 days from his duties as a lieutenant with the Chicago Fire Department. The circuit court reversed the decision of the Personnel Board, holding that there were inadequate findings of fact to support the suspension and that the record did not justify a finding of nonresidency.\\nOn appeal, the Personnel Board claims that its finding that plaintiff violated the residency ordinance was not against the manifest weight of the evidence. We agree.\\nWe reverse the decision of the circuit court and affirm the decision of the Personnel Board.\\nFacts\\nPlaintiff, a Chicago fire department lieutenant since 1977, was charged by the fire department with violating the city's residency ordinance, which requires that \\\"[a]ll officers and employees in the classified career service of the city * shall be actual residents of the city.\\\" Municipal Code of Chicago, 1979, ch. 25, par. 25-30.\\nPrior to September 1979, employees of the fire department against whom evidence of nonresidence was brought were given an undetermined period in which to comply with the ordinance by moving into the city. On August 15, 1979, the fire commissioner issued an order, stiffening the established policy:\\n\\\"Effective September 1, 1979, any member found in violation of the residency requirement of the City of Chicago and the Chicago Fire Department will be suspended by the Commissioner for thirty (30) days and charges will be filed with the Personnel Board of the City of Chicago seeking said members discharge.\\\"\\nThe charges, issued against plaintiff on October 25, 1979, stated that \\\"on or about September 18, 1979, he [plaintiff] was not an ac tual resident of the City.\\\" The matter was heard before a board-appointed hearing officer on November 30, 1979. The hearing officer submitted a report of his findings and recommendations along with the transcript of proceedings of the hearing to the Personnel Board for a final decision. Included in the evidence before the Personnel Board was the following adduced testimony.\\nPlaintiff testified that he has been married to his wife, Annette, since 1965. In 1972, the couple, as joint tenants, purchased a home in Palos Hills, Illinois. Plaintiff admitted to residing there with his wife and two children from 1972 to 1975. On May 10, 1976, a year after plaintiff allegedly moved out of his Palos Hills home and filed for legal separation, due to his wife's refusal to move into the city, plaintiff's third child was born. Annette and the three children continued to reside in Palos Hills, where the children attended school, until November 16, 1979, when plaintiff and his family moved into their new home at 9015 South Hamilton in Chicago.\\nAnnette O'Boyle testified that in September 1975, plaintiff asked her to move back into the city and that she refused to do so. Plaintiff filed for a legal separation, which Mrs. O'Boyle neither agreed to nor wanted. On September 21, 1976, a judgment was entered by the circuit court, permitting plaintiff to maintain a separate residence from his wife. The court did not, however, make any adjudication as to plaintiff's'obligation for support because Annette had not filed a petition or complaint for separate maintenance or for support. Despite the absence of any such adjudication, plaintiff gave his wife approximately $700 to $750 each month, thereby providing the sole means of maintaining the Palos Hills home throughout the entire \\\"separation\\\" period. Mrs. O'Boyle testified that plaintiff gave her money \\\"whatever-whenever\\\" she needed it.\\nPlaintiff testified that, upon leaving the Palos Hills home, he moved in with his parents at 7949 South Richmond in Chicago. Plaintiff's father, Wilbert O'Boyle, testified that his son came to live with him in September 1975 because he \\\"wanted a place to live in Chicago.\\\" Mr. O'Boyle stated that plaintiff brought only his clothes when he moved in. When asked whether plaintiff visited his wife and children in Palos Hills during this period, Mr. O'Boyle stated that \\\"all the time he [plaintiff lived with me he would go out there to see them,\\\" on an average of once a week. Mr. O'Boyle testified that plaintiff stayed overnight on these occasions.\\nPlaintiff testified that in July 1978, he was summoned by Captain James Ryan, director of internal affairs of the Chicago fire department. According to Captain Ryan, he met with plaintiff to in form him of the numerous residency complaints that had been lodged against him and to discuss his residency status. Plaintiff informed Captain Ryan that he had been seeing his family five or six times a month. When Captain Ryan admonished that the city requirements only permitted such visits twice a year, plaintiff declared that he was \\\"going to see [his] kids.\\\" He stated, \\\"If I can see my kids seven days a week, I'm going to try to see them as much as I could.\\\" Ryan informed plaintiff that if he wanted to continue to see his wife, she would have to move into the city, and he would have to sell the Palos Hills property. Ryan warned him that he could not have \\\"dual residencies.\\\"\\nPlaintiff informed the hearing officer that in September 1977, he and his father purchased a building at 2535 West 59th Street in Chicago and that he moved into this building in July 1978. He maintained a second-floor, one-bedroom apartment in the building until he moved with his family into their new home in November 1979.\\nCaptain Ryan testified that during 1978 and 1979, he received numerous complaints concerning plaintiff's residency status. In March and April of 1979, Ryan received between 10 and 15 complaints from the mayor's office, the office of professional review and the fire commissioner's office. By September 1979, Captain Ryan had received from 25 to 35 complaints about plaintiff's residency. An investigation of plaintiff's residence status ensued.\\nDonald McGreal, an investigator with the internal affairs division of the Chicago fire department, conducted a surveillance of the Pa-los Hills Home. McGreal testified that he observed plaintiff exiting the Palos Hills residence at approximately 5:45 a.m. on four separate occasions, and at approximately 2:00 p.m. on a fifth occasion, during the months of March and April of 1979.\\nThomas Plant, an investigator from the office of budget and management, testified that in September 1979, he interviewed one woman who lived next door to plaintiff's parents' home and another who lived next door to the Palos Hills home. The former woman stated that plaintiff, who allegedly resided with his parents until July 1978, lived in Palos Hills. The latter woman identified plaintiff as her neighbor in Palos Hills.\\nFurther testimony included that of Annette O'Boyle, who stated that plaintiff did any painting and needed repairs on the Palos Hills home. She testified that her husband was in the aluminum business as a sideline and that he and his partner stored a lot of the material in the garage in Palos Hills. Plaintiff came frequently to Palos Hills during the summer of 1979 to pick up the material. She stated that in March and April of 1979, when she suffered headaches that lasted weeks at a time, plaintiff came to care for the children and spent the night on the average of twice a week. She admitted that from the time she and plaintiff purchased the Palos Hills home in 1972 until they sold it and moved in November 1979, the house expenses were totally paid by plaintiff, whose money also went to pay all utility, water and electricity bills.\\nPlaintiff testified that from summer 1978 through May 1979, he was in Palos Hills \\\"two and three times, four, five times a month.\\\" He testified that in March and April of 1979 he started staying with his wife \\\"more often\\\" and that in May 1979, he and his wife reconciled and agreed to put their Palos Hills house up for sale. As of May 1979, plaintiff attempted to spend \\\"as much as time as possible\\\" with his children in light of the reconciliation, staying overnight two or three times a week. Plaintiff testified that from July 1978 until November 1979 he was \\\"definitely out at Palos Hills\\\" each Sunday to spend the day with his family.\\nCaptain Ryan testified that plaintiff had not taken possession of Chicago property nor transferred his children from Palos Hills to Chicago schools prior to September 1979. The department allowed plaintiff until the end of a 30-day extension, granted in August 1979, to buy a home in Chicago before charges for residency violation were brought. Plaintiff did not take possession of a Chicago home until mid-November 1979.\\nIn his written report to the Personnel Board, the hearing officer found that \\\"while plaintiff presented substantial evidence establishing ownership and presences at a certain Chicago residence, there was more substantial evidence reflecting an actual residence in Palos Hills.\\\"\\nThe Personnel Board, noting that its decision was based on the findings of the hearing officer and a review of the transcript of the proceedings, decided to retain plaintiff in his position as lieutenant but to suspend him for a period of 60 days.\\nPlaintiff filed a petition for writ of certiorari and a three-count complaint. Count I of the complaint alleged that the Personnel Board's decision was (i) against the manifest weight of the evidence; (ii) not based on legal standards properly stated and applied; and, (iii) not based on necessary findings of fact. In its order of October 6, 1982, the trial court reversed the decision of the Personnel Board as being contrary to the manifest weight of the evidence and remanded the cause for disposition in a manner consistent with the order. The court dismissed counts II and III as moot, and therefore those counts are not before this court. This appeal followed.\\nOpinion\\nThis action for judicial review of an administrative decision was brought before the circuit court on a writ of certiorari. The proper standard for review of an agency decision in a certiorari proceeding, as set forth by this court in Caldbeck v. Chicago Park District (1981), 97 Ill. App. 3d 452, 458, 423 N.E.2d 230, 235, is as follows:\\n\\\"In a certiorari proceeding, the court must ascertain * whether there is anything in the record which fairly tends to sustain the action of the agency. (Quinlan & Tyson, Inc. v. City of Evanston (1975), 25 Ill. App. 3d 879, 324 N.E.2d 65.) The reviewing court may not weigh the evidence or judge its probative value but rather only must determine whether the decision is supported by the evidence or is manifestly against the weight of the evidence. Kallas v. Board of Education (1973), 15 Ill. App. 3d 450, 304 N.E.2d 527.\\\"\\nThe findings and conclusions of fact of the agency, charged with the primary responsibility of adjudication in a specialized area, are to be held prima facie true and correct. (General Electric Co. v. Illinois Fair Employment Practices Com. (1976), 38 Ill. App. 3d 967, 975-76, 349 N.E.2d 553, 560-61.) If the issue before the reviewing court is merely one of conflicting testimony and credibility of witnesses, the administrative board's decision should be sustained. Keen v. Police Board (1979), 73 Ill. App. 3d 65, 70-71, 391 N.E.2d 190, 195.\\nIn order for a court of review to find that an agency's decision is against the manifest weight of the evidence so as to justify substituting its judgment for the discretion of the board, the court must be able to conclude that \\\"all reasonable and unbiased persons, acting within the limits prescribed by the law and drawing all inferences in support of the finding, would agree that the finding is erroneous,\\\" (Daniels v. Police Board (1976), 37 Ill. App. 3d 1018, 1023, 349 N.E.2d 504, 508), and that the opposite conclusion is clearly evident. (Jenkins v. Universities Civil Service Merit Board (1982), 106 Ill. App. 3d 215, 219, 435 N.E.2d 804, 807.) That an opposite conclusion might be reasonable or that the court might have reached a different conclusion is not adequate to set aside the agency's decision. Knop v. Department of Registration & Education (1981), 96 Ill. App. 3d 1067,1075-76, 421 N.E.2d 1091,1097.\\nIn short, if there is anything in the record which fairly supports the action of the agency, the decision is not against the manifest weight of the evidence and must be sustained on judicial review. (Caldbeck v. Chicago Park District (1981), 97 Ill. App. 3d 452, 458, 423 N.E.2d 230, 235.) Here, defendant argues on appeal that the action taken by the Personnel Board was not against the manifest weight of the evidence. We agree.\\nIn the statement of charges filed by the Personnel Board on October 24, 1979, plaintiff was charged with violating chapter 25, section 30 of the city's Municipal Code \\\"in that on or about September 18, 1979, he was not an actual resident of the City of Chicago.\\\" The decision of the Personnel Board sustaining the charges was made on March 19, 1980. The order of the trial court reversing the board's decision was entered on October 6, 1982. Since the rendering of these decisions, our supreme court has interpreted the term \\\"actual resident\\\" as used in the context of chapter 25, section 30 of the municipal code:\\n\\\"We consider that in the context here 'residence' was intended to be synonymous with domicile, which has been defined as 'the place where a person lives and has his true, permanent home, to which, whenever he is absent, he has an intention of returning.' Peirce v. Peirce (1942), 379 Ill. 185, 192.\\\"\\n(Fagiano v. Police Board (1983), 98 Ill. 2d 277, 283.)\\n\\\"[T]he issue to be decided by a board is principally of determining the employee's intent.\\\"\\n(Fagiano v. Police Board (1983), 98 Ill. 2d 277, 287.) In light of this clarification, we must turn to the applicable law governing domicile to determine whether the Personnel Board's decision is supported by evidence which shows that plaintiff was not domiciled in the city as of September 19,1979.\\nA person may never have more than one domicile (Miller v. Police Board (1976), 38 Ill. App. 3d 894, 898, 349 N.E.2d 544, 548); once established, a domicile continues until a new one is acquired. (Stein v. County Board (1967), 85 Ill. App. 2d 251, 257, 229 N.E.2d 165, 168, affirmed (1968), 40 Ill. 2d 477, 240 N.E.2d 668.) It is evident and undisputed that plaintiff was domiciled with his wife and children in their Palos Hills home from 1972 through 1975. The issue, then, is whether plaintiff acquired a new domicile at any time after 1975 and prior to September 19,1979.\\nAn essential element in the acquisition of a new domicile is the abandonment of the former domicile. (In re Estate of Jackson (1977), 48 Ill. App. 3d 1035, 1037, 363 N.E.2d 919, 921.) In Illinois, affirmative acts of abandonment of the former domicile must be proved to sustain the abandonment required to effect a change of domicile. (Rosenshine v. Rosenshine (1978), 60 Ill. App. 3d 514, 517, 377 N.E.2d 132, 135.) There must be an actual abandonment of the first with an intent not to return to it, and a new domicile acquired with the intent of making it a true and permanent home. (Coronet Insurance Co. v. Jones (1977), 45 Ill. App. 3d 232, 237, 359 N.E.2d 768, 772.) The burden of proof of a person's intent to change his domicile rests on the party seeking to prove change of domicile. In re Estate of Jackson (1977), 48 Ill. App. 3d 1035, 1037, 363 N.E.2d 919, 921.\\nIn the landmark case of Kreitz v. Behrensmeyer, our supreme court set forth the considerations to be taken into account when determining if a party has acquired a new domicile:\\n\\\"We have frequently held, that when a party leaves his residence, or acquires a new one, it is the intention with which he does so that is to control. Hence the shortest absence, if at the time intended as a permanent abandonment, is sufficient, although the party may soon afterwards change his intention; while, on the other hand, an absence for months, or even years, if all the while intended as a mere temporary absence for some temporary purpose, to be followed by a resumption of the former residence, will not be an abandonment. On the question of intention, the declaration of the party, though admissible, is not necessarily conclusive, because it may be disproved by his acts, \\u2014 as thus: If a party were to remove his family to a particular district, there build and furnish them a home, keep his property there, return there constantly, as leisure allowed, and remain there with his family during sickness and unemployed time, this would constitute his residence, notwithstanding he might be employed in labor in another district, and claim that to be his residence, (The People v. Holden, 28 Cal. 124,) for, on questions of domicile, less weight is given to the party's declarations than to his acts.\\\" (Kreitz v. Behrensmeyer (1888), 125 Ill. 141, 195,17 N.E. 232, 253.)\\nIn a modernized, more succient form, the Restatement (Second) of Conflict of Laws sec. 18, comment g (1971), states that \\\"[t]he primary intention required for the acquisition of a' domicile of choice is an intention to make a home rather than an intention to acquire a domicile.\\\"\\nThe intent required to effect a change of domicile is typi cally absent in cases such as the instant case where civilian public employees change residence merely to comply with employment demands.\\n\\\"Generally, a change of residence occasioned by the exercise of duties in connection with holding a public office or being employed in the governmental civilian service does not bring about a change of domicil in the absence of a concurrent intention to abandon the old domicil and acquire a new one. In other words, one who resides at a place for the purpose of carrying out his public duties does not thereby acquire a new domicil or lose the domicil which he had before undertaking such duties.\\\" (Annot., 129 A.L.R. 1382, 1392 (1940).)\\n\\\"[I]n the absence of an intention to make a change of domi-cil independently of the fact of public service.\\\" (Annot., 129 A.L.R. 1382, 1401 (1940).\\nWhether a party has abandoned one domicile and acquired a new one is a question of fact. (Rosenshine v. Rosenshine (1978), 60 Ill. App. 3d 514, 517, 377 N.E.2d 132, 135.) As previously noted, the agency's findings of fact are to be held prima facie true and correct.\\nThe issue in the instant case, then, necessarily becomes whether the record before the Personnel Board contained any evidence to support the finding that plaintiff had not abandoned his Palos Hills domicile and had, therefore, not acquired a new domicile in the city. The board could so find, if plaintiff failed to prove that he moved to the apartment in the city with the intent to. make it his permanent home rather than with the intent to satisfy the residency requirement.\\nOur review of the record, as highlighted by the relevant testimony set forth above, leads us to conclude that the Personnel Board had before it sufficient evidence to support this finding. Moreover, it is clear from the transcript of the trial court proceedings that the trial judge reached the same conclusion as the Personnel Board on the issue of plaintiff's intent, namely, that plaintiff's intent was to comply with the residency ordinance. This is apparent from the trial judge's statement:\\n\\\"*** [A]s the Illinois Supreme Court and other courts have held in a great number of cases, that the question of residency is largely a question of intent.\\nAnd there's absolutely no findings of fact.\\nI don't criticize the hearing officer in this case because I don't think that they could make findings of fact in this re cord relating to O'Boyle's intent. Because it's clear, in my judgment, in this record O'Boyle's intent was to comply with the obscured ordinance relating to residency in the City of Chicago.\\\"\\nHaving thus correctly discerned plaintiff's intent, the exact intent which prohibits a person from acquiring a new domicile and which supports the action of the Personnel Board, the trial judge rather enigmatically reversed the agency's decision.\\nWhat was \\\"clear\\\" to the trial court judge was undoubtedly also clear to the Personnel Board and remains equally clear to this appellate court. That the board's decision was not supported by detailed factual findings, as plaintiff contends, in no way clouds this clarity. There is no statutory requirement for detailed and specific findings of fact by an administrative agency. (Suttle v. Police Board (1973), 11 Ill. App. 3d 576, 579, 297 N.E.2d 174, 176.) Where the testimony before the administrative agency is preserved for review in the record, specific findings of fact by the agency are not necessary for judicial review. Massey v. Fire & Police Com. (1960), 26 Ill. App. 2d 147, 149-50, 167 N.E.2d 810, 812.\\nAlso without merit is plaintiff's second argument in which he suggests that the trial court could have reversed the decision of the Personnel Board based on the invalidation of the residency ordinance in the case Bastian v. Personnel Board (1982), 108 Ill. App. 3d 672, 439 N.E.2d 142. Plaintiff's argument is rendered nugatory by our supreme court's finding that the residency ordinance is not unconstitutional and its subsequent vacation of Bast\\u00edan in the consolidated case of Fagiano v. Police Board (1983), 98 Ill. 2d 277.\\nFor the reasons set forth, we reverse the decision of the trial court and reinstate the decision of the Personnel Board.\\nTrial court reversed, Personnel Board decision reinstated.\\nROMITI, P.J., and JOHNSON, J., concur.\\nAs this matter came before the Personnel Board, judicial review cannot be sought pursuant to the Administrative Review Act, and a petition for a writ of certiorari is proper. Meylor v. Boys (1981), 101 Ill. App. 3d 148, 150, 427 N.E.2d 1023, 1024-25.\"}"
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+"{\"id\": \"3637453\", \"name\": \"CLAUDETTE DYBACK, Plaintiff and Counterdefendant-Appellant, v. ARTHUR J. WEBER et al., Defendants and Counterplaintiffs-Appellees\", \"name_abbreviation\": \"Dyback v. Weber\", \"decision_date\": \"1985-07-05\", \"docket_number\": \"No. 84-0974\", \"first_page\": \"426\", \"last_page\": \"447\", \"citations\": \"134 Ill. App. 3d 426\", \"volume\": \"134\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T22:46:30.169962+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CLAUDETTE DYBACK, Plaintiff and Counterdefendant-Appellant, v. ARTHUR J. WEBER et al., Defendants and Counterplaintiffs-Appellees.\", \"head_matter\": \"CLAUDETTE DYBACK, Plaintiff and Counterdefendant-Appellant, v. ARTHUR J. WEBER et al., Defendants and Counterplaintiffs-Appellees.\\nSecond District\\nNo. 84\\u20140974\\nOpinion filed July 5, 1985.\\n\\u2014 Rehearing denied August 6, 1985.\\nREINHARD, J., dissenting in part.\\nPatrick A. Salvi and Kerry A. Forman, both of Waukegan, for appellant.\\nClayton P. Voegtle, of Snyder, Clarke, Dalziel & Johnson, of Waukegan, for appellees.\", \"word_count\": \"8387\", \"char_count\": \"48954\", \"text\": \"JUSTICE UNVERZAGT\\ndelivered the opinion of the court:\\nThe plaintiff, Claudette Dyback, sued the defendants, Arthur J. Weber and Francis E. Weber, doing business as Weber Brothers Construction Company, in the circuit court of Lake County, for damages caused by fire to a house owned by the plaintiff. The defendants had been hired by the plaintiff to repair the unoccupied house which had previously been damaged by a fire caused by lightning.\\nThe cause came on for jury trial on plaintiff's first amended complaint in three counts. Count I charged the defendants were guilty of negligence in not maintaining sufficient security on the premises, and in improperly maintaining kerosene heaters on the premises; count II alleged the defendants were liable to plaintiff under the theory of res ipsa loquitur; and count III was predicated on a breach of warranty.\\nAt the close of the plaintiff's evidence, the defendants moved for a directed verdict on all three counts. The trial court directed a verdict of not guilty as to defendants on all three counts. Plaintiff appeals the judgment directing verdicts as to counts I and II. No appeal is taken from the judgment as to count III.\\nThe plaintiff presents four issues on appeal: (1) whether the court erred in directing a verdict as to count II based on res ipsa loquitur; (2) whether the court erred in directing a verdict as to count I alleging negligence; (3) whether the court erred in excluding certain testimony proffered by plaintiff's expert witness; and (4) whether the court improperly considered matters which were not in evidence.\\nA review of the evidence presented shows that plaintiff, Claudette Dyback, contracted with the defendants, Arthur J. Weber and Francis E. Weber, d/b/a/ Weber Brothers Construction Company, for reconstruction work to her home in Arlington Heights. The house had been damaged by a fire caused by lightning in the summer of 1977. A second fire, which occurred on December 28, 1978, prompted the instant suit.\\nAfter the trial court granted the defendants' motion for a directed verdict, the jury was then waived, and the cause proceeded on defendants' counterclaim against plaintiff for payment for work performed up until the time of the fire. The trial court entered judgment in defendants' favor on the counterclaim against plaintiff in the amount of $10,780.72 plus costs. The plaintiff does not appeal the judgment on the counterclaim.\\nArthur J. Weber testified as an adverse party under section 2\\u2014 1102 of the Civil Practice Law. (Ill. Rev. Stat. 1983, ch. 110, par. 2\\u2014 1102.) Work on the plaintiff's house began in October 1978, and continued on and off two to three days a week until the second fire occurred. The house was unoccupied, and there was no heat. Plaintiff gave the defendants a key to gain entrance to the house, and they were in charge of locking up and securing the residence at the end of each work day. Defendants brought a heater called a \\\"salamander\\\" into the house the latter part of November or the first part of December. The heater was a used one, and had been purchased about a year earlier. It was a tube-shaped heater with a capacity for fuel oil or kerosene of about nine gallons. The heater was moved from room to room during the work, and at the conclusion of each work day was stored in the bedroom behind the living room on the first floor. Defendants also stored their tools overnight in the same bedroom because they would be out of sight there. The heater was filled with fuel oil which the defendants brought to the house.\\nThe fire in question took place at 3 a.m., on Thursday, December 28, 1978. The witness testified that Monday was Christmas, and that he and his brother worked on the house at least one or two days that week. He could not recall for sure if they had been working on the house on Wednesday, but if so it would have been until about noon that day. There were no pilot lights on in the house while they were working there because the gas was not turned on. To his knowledge, no one had broken into the house during the period of time when they were working at the house. He felt there was probably some fuel oil left in the tank before the fire, but he could not recall whether they had used the heater during the last time they worked at the house before the fire. The heater was left on the premises, although it could have been loaded into one of the brother's trucks and unloaded the next time it was needed.\\nThe fire substantially destroyed the house, more so than after the first fire. The heater was still in the back bedroom after the fire. It had a 6-foot cord, and the nearest outlet was 10 to 15 feet away. The witness did not recall either using or unplugging the heater the day before the fire. Only the witness and his brother had control of the heater. The fire burned the rubber tires off the heater. The witness testified at the time he was doing this work, he smoked about a pack and a half of cigarettes a day. \\\"While working at the house, he would dispose of cigarettes by trying to flip them out of the window before they were out.\\nThe witness also testified he did not think the key they had for the house fit both the back and the front door, but he could not recall which one it did fit. The only live outlet was in the dining room area and with an extension cord, they could plug the heater in and move it toward the living room. He never saw any evidence of vandalism in the house. He and his brother had nothing to do with getting the furnace that was damaged from the first fire fixed, and the furnace was not operating the day before the fire. The witness testified that not all of the upstairs windows had glass in them.\\nThe plaintiff, Claudette Dyback, testified she purchased the house in 1974 and was the sole owner. Because she was not at the house and the defendants had to get in and out periodically, she gave them a key as they requested. When the contract was signed, it was discussed that the defendants \\\"would have full responsibility of the house until the said house was reconstructed and done and the key turned back over to [plaintiff].\\\"\\nShe visited the house on occasion during the progress of the work. When she saw the house late on the morning of December 28, it was about 90% demolished as a result of the fire. The house was eventually condemned, and she had the house razed.\\nOn cross-examination, plaintiff testified the defendants' work was not to include decorating; i.e., washing the walls, painting. The house had a front and back door, and sliding glass doors in the front. The key she gave the defendants only opened either the front or back door, and it was the only key for that door. She had other keys to doors for the house, but not to the two outside storm doors which locked from inside. There were interior doors inside the storm doors, and she had a key to one of those doors.\\nA little window in the living room downstairs was not intact after the first fire, and she had requested the defendants to replace it. She was not aware that anybody had tried to break into the house be tween the first and second fires, nor had she cautioned the defendants to watch out for any such activity. She may have had some things stored in the downstairs office bedroom, but most of the big items had been taken out and put in storage. She told the defendants to lock the house, and take care of it.\\nOn redirect examination, plaintiff testified she did not know the heater was on the premises. During construction while the defendants were there working, she only used the door the defendants had opened to go into the house.\\nOn re-cross-examination, plaintiff testified all the floor coverings on the first floor, such as carpeting, were taken out after the first fire.\\nJames Miller testified as an expert witness for the plaintiff. He reviewed a report prepared by Ken Schultz, an employee of Russell & Associates, as to the investigation of the fire. The report contained a narrative, photographs, and a diagram. He also reviewed the two defendants' and plaintiff's depositions, a forensic chemist's report as to the chemical analysis of samples taken by Schultz, and fire reports from the fire department.\\nThe witness attributed the fire to the fuel oil from the salamander heater. His opinion was based on the fact there was no carpeting or padding on the floor, and bare wood is almost impossible to burn unless something on top of it is burning. The Russell report, photos and narrative indicated heavy charring to the entire area of the living room and a portion of the bedroom. The charring went down at least one-half inch to three-quarters of an inch. That indicated to Miller that something must have been on that surface, burning, to cause such a degree of damage. The fire burned downward, whereas fire normally burns upward.\\nMiller was asked to explain the difference between his opinion and that of Schultz in the Russell report, whose impression was that the fire was caused or may have been caused by a person or persons unknown. He stated Schultz did not have the benefit of the forensic chemist's report of the analysis of the five samples taken from the house. One taken from the fuel tank of the salamander was identified as a substance similar to fuel oil with a kerosene base. One taken from the attic area showed the presence of naptha, but no accelerants were found on the bedroom floor, living room floor and hallway even though Schultz' report indicated that he detected accelerants in those three areas.\\nMiller was asked whether the fire would have occurred if the user of the salamander would have used ordinary care in its maintenance and use. The defendants objected to this question, and plaintiff made an offer of proof that Miller would say that the fire would not have occurred had ordinary care been exercised. During argument, plaintiff stated the negligence claimed was that the heater was not taken out of the house each day, and that one of the possible sources of ignition was smoldering cigarettes. Plaintiff was allowed to proceed with questioning of Mr. Miller; counsel asked him what relationship he would draw from the salamander that was on the premises and the fire. Miller noted that the Russell report described the fire trail in the bedroom where the salamander was, and the heavy degree of charring in the living room, and that the photo of the salamander showed its undercarriage and wheels were heavily damaged and distorted and even melted from the high heat. The heavy damage to the living room and bedroom floor and the underside portion of the salamander, coupled with the fact of very little damage above the level of the floor and the heater, caused Miller to attribute the fire to the fuel oil from the salamander. He concluded the oil was from the salamander heater because one of the defendant's depositions indicated the tank was half full and the report from Russell & Associates indicated very little fuel left when he took a sample for the forensic chemist. Miller had no idea what caused the ignition of the fire. He testified a still-lit cigarette would not have been consistent with the type of ignition that could ignite the fuel oil.\\nHe did not attribute the fire to arson, because the report from Russell & Associates and the fire department did not indicate any forcible entry had been made into the residence. Miller was asked what various types of ignition would be sufficient to ignite fuel oil. Miller testified:\\n\\\"Fuel oil, of kerosene base, normally has to either be heated sufficiently to vaporize to then bum, or to provide a wick of some type through capillary action and then heat applied to that capillary action to kerosene so that the minute particles can vaporize. That's why with the new kerosene heaters they have out now, that's why the kerosene does not bum.\\nIn theory you could put your cigarette out right in kerosene, unless you held it long enough to let it vaporize, you know, but I'm saying if you put it down into kerosene, it will go out. You need a wick basis for it to vaporize to then subsequently burn.\\\"\\nWhen asked again to state what types of ignitions he has seen that have been sufficient to ignite fuel oil, defendants' objection to the question as immaterial was sustained. Over objection, Miller was allowed to testify that in his opinion the fire would not have occurred had the salamander not been there.\\nOn cross-examination, Miller testified he did not know whether the salamander heater tank leaked. He had no idea how the oil got on the floor but he believed that somehow that oil left the tank, was ignited by some means, and caused the fire.\\nHe formulated his opinion that fuel oil left the tank because one of the defendant's depositions indicated the tank was at least half full, and Schultz' report indicated that when he looked in the salamander there was some fuel in it. Schultz' inspection was done in February of 1979; the fire occurred December 28,1978.\\nPlaintiff renewed her request that she be allowed to ask Miller whether the fire would have occurred if the user of the salamander had used ordinary care in its use and maintenance. The request was denied.\\nSchultz took five samples to be examined by a forensic chemist. Only one of the samples, the one taken directly from the salamander tank, indicated any fuel oil. Another sample taken from the attic showed naptha. The other three samples taken from the hallway leading to the kitchen, the stairway leading upstairs, and from the middle of the living room floor, did not show any accelerant. Miller testified an accelerant is anything that either speeds up a fire or produces a much higher heat. An accelerant is anything flammable, anything of a hydrocarbon base or some other chemical base; naptha and fuel oil both have a hydrocarbon base.\\nAccording to Schultz' report, which the witness was relying on, the fire started at the front door in the living room. There was heavy charring upstairs in the attic adjacent to where the evidence of naptha was found, with the fire burning downward, indicating at some point in time there were two separate fires. It was Schultz' opinion that the burn pattern found upstairs in the attic where a hole was burned completely through the floor indicated that a flammable liquid was poured on the floor of the attic.\\nMiller agreed there was nothing in Schultz' report to indicate that he believed the salamander caused the fire. There was no indication in the report that the salamander leaked. The report indicated it appeared the fire burned on the floor level below the salamander, but there was no burning on the salamander itself caused by oil.\\nIn formulating his opinion, Miller testified he reviewed records from the Prospect Heights fire department, including a letter of March 3 addressed to Arthur Weber by Fire Chief Gould of the Prospect Heights fire department. This letter indicated it was his department's opinion the portable heater located in the room behind the liv ing room could not have been the cause of the fire because it was not plugged in and because that area was not the source of the fire. Chief Gould was on the scene of the fire at the time of the fire and immediately following it. Miller stated he never talked directly with Chief Gould or any of the firefighters.\\nThe witness' review of the depositions indicated to him that the wall separating the bedroom from the living room was only a studded wall not having been plastered or drywalled. He made that conclusion because drywall was just ordered, but he admitted there was nothing in the depositions to indicate whether or not any of the drywall was intended for that particular wall, so it could have been a completed wall and his assumption of only studs might be mistaken.\\nMiller agreed that the scorching of the bottom side of the tank of the salamander would not in and of itself indicate there was oil that caused the fire. He agreed further that the burn pattern found by Schultz would in and of itself not lead to the conclusion that oil caused the fire. He disagreed that Schultz' report did not indicate it was Schultz' conclusion based on the burn pattern that accelerants were poured on the floor. Miller also disagreed with the conclusion reached by Schultz on the final page of his report indicating that the fire was set by a person or persons unknown at the time. He disagreed that they poured some product throughout the second floor area as well as the first floor area and ignited it just prior to exiting the building, probably through the front door.\\nMr. Miller admitted the only time he visited the burned structure, in January of 1980, he went there solely to measure the premises for an evaluation of the loss, not to investigate the origin of the fire. He measured the entire perimeter of the building. He did not go inside the building. He conducted his inspection entirely from the exterior, except to the extent that he could see inside.\\nThe investigation by Schultz was conducted more than 30 days following the fire. There was nothing in the reports or materials which were reviewed by Miller which would indicate if the heater or premises remained unchanged from the time of the fire until the time of Schultz' inspection. Miller stated it was his opinion that the fire did not start in the same room as the heater.\\nOn redirect examination, Miller testified his investigation showed the fire was not caused by any weather conditions or wire malfunction. Miller explained that one of the reasons he felt fuel oil caused the fire was because Schultz' report indicated the presence of accelerants, yet three of the samples tested were negative for accelerants. Since fuel oil burns about 99.9% pure, it would explain the negative results obtained when the samples were tested for hydrocarbons. Miller testified over objection that naptha is another hydrocarbon base that, through further distillation, is used primarily in spray painting, and also in the cleaning of brushes. The reports he reviewed did not show any area of forced entry.\\nMiller was questioned on re-cross-examination about his opinion that the ceiling joists had fallen on the living room floor and were part of the reason the chemical analysis failed to show the presence of any accelerant in that sample. Schultz' report indicated that once the fire reached the ceiling joists, they were totally consumed by the fire. Miller agreed the photographs taken a month or so after the fire only showed the-joints missing, not falling.\\nDefendant Francis E. Weber testified under section 2 \\u2014 1102 of the Civil Practice Law as an adverse party. (Ill. Rev. Stat. 1983, ch. 110, par. 2 \\u2014 1102.) The witness testified he had no way of knowing whether plaintiff had retained a key for the house or not. He did not recall ever arriving there and finding her already in the house. He and his brother had other jobs going on at the same time as plaintiff's. Plaintiff never interfered with their work. About two weeks before the fire, they brought a salamander fuel heater onto the premises. When they left the job site at the end of the day they would leave the heater there and always put it in the rear bedroom. He testified that in using the heater, it would be necessary for it to be moved out of the bedroom and into the living room. At the end of the day, they would move it into the back bedroom because otherwise someone might see it and they were fearful of someone stealing it or lighting it. He testified that possibly he was even more fearful of it being lit. They did not remove the heater from the premises on a daily basis because they did not see any sense in hauling it back and forth every day. It would have been somewhat inconvenient to remove it from the premises each day. One person could lift it onto a pickup truck, and both he and his brother had pickup trucks. The witness did not recall if they had been at the house on Tuesday or Wednesday before the fire.\\nWeber testified that during the day they moved the heater to the living room. Most of the work to be done was upstairs, so the heater was placed near the stairway. They never took the heater upstairs. If the heater was full of oil it could not be moved with ease onto their truck. If it was full of oil he could lift it up, but he would not want to lift it up and carry it out. If he were to have removed it he would have to take it off the truck at his home and move it into a garage each night and reverse the procedure to bring it back because his truck is left outside overnight. The same would be true for his brother. The heater was not used the last day they were on the premises before the fire. It was not even moved out of the room where it was stored.\\nRes ipsa loquitur\\nThe plaintiff contends the trial court erred in directing a verdict for the defendants at the close of her evidence, and argues she had established a prima facie case of res ipsa loquitur in negligence. Based on our review of the record, we agree with her contention.\\nPlaintiff and the defendants do not dispute the nature of, or the requirements for the application of, the res ipsa loquitur doctrine. As recently described in Curtis v. Goldenstein (1984), 125 Ill. App. 3d 562, 564:\\n\\\"The res ipsa loquitur doctrine permits the trier of fact to draw an inference of negligence based upon circumstantial evidence if the plaintiff can demonstrate three things: (1) that her injury is of the kind that ordinarily does not occur in the absence of negligence; (2) the injury was caused by an agency or instrumentality within the defendants' exclusive control; and (3) the injury was not due to any voluntary act or neglect on the part of the plaintiff. (Spidle v. Steward (1980), 79 Ill. 2d 1.)\\\"\\nAlthough not dispositive here because the third element set forth above is not at issue, it is nevertheless curious to note that every recent case \\u2014 save one \\u2014 recites these same three elements, despite the fact Illinois adopted comparative negligence four years ago, and a plaintiff's freedom from contributory negligence no longer need be pleaded or proved in negligence. (Alvis v. Ribar (1981), 85 Ill. 2d 1.) Plaintiff's original complaint filed February 13, 1981, pleaded her freedom from contributory negligence in both counts I and II; counts I and II of her first amended complaint, filed June 7, 1982 (after the June 8, 1981, effective date of the Alvis decision), did not include such pleadings. Although discussed in the context of an instructional error, the court in Mileur v. Briggerman (1982), 110 Ill. App. 3d 721, 728, found there is \\\"no sound reason why a plaintiff must prove freedom from contributory negligence in a res ipsa loquitur case when he is not required to do so in other negligence actions.\\\"\\nThe point is noted here in view of the fact that the duty of the trial court in the first instance is to decide whether, as a matter of law, the res ipsa loquitur doctrine applies at all. Curtis v. Golden-stein (1984), 125 Ill. App. 3d 562, 564; Guebard v. Jabaay (1983), 117 Ill. App. 3d 1, 11; Spidle v. Steward (1980), 79 Ill. 2d 1, 7. As stated in the Spidle case:\\n\\\"[T]he trial court must also determine, as a matter of law, (1) whether plaintiff's pleaded facts would ever establish the three elements of control, lack of contributory negligence [this element now obviated per Alvis] and the improbability of injury without negligence, and (2) whether those elements, as pleaded, gave sufficient notice to the defendant of the res ipsa loquitur cause of action.\\\" 79 Ill. 2d 1, 7.\\nPlaintiff's first amended complaint as a matter of law gave defendants sufficient notice of the res ipsa loquitur cause of action. Plaintiff's complaint pleaded a duty owed to her by the defendants, their exclusive control over her home, the fact of the fire and the allegation that the occurrence would not have taken place in the ordinary course of things if the defendants had not failed to use proper care in the direction, control, management and maintenance of her realty.\\nOn a motion for directed verdict, the role of the trial judge is to view all of the evidence in the light most favorable to the nonmovant (plaintiff here) and decide whether a verdict for the nonmovant could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510.) The defendants' motion for a directed verdict here was made at the close of the plaintiff's case. It has been stated that:\\n\\\" ' \\\"A motion to instruct the jury to find for the defendant is in the nature of a demurrer to the evidence, and the rule is that the evidence so demurred to, in its aspect most favorable to the plaintiff, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff. The evidence is not weighed, and all contradictory evidence or explanatory circumstances must be rejected. The question presented on such motion is whether there is any evidence fairly tending to prove the plaintiff's declaration. In reviewing the action of the court of which complaint is made we do not weigh the evidence, \\u2014 we can look only at that which is favorable to appellant. [Citations.]\\\" [Citation.]' [Citations.]\\\" Arado v. Epstein (1944), 323 Ill. App. 194, 197.\\nThe quantum of proof which a plaintiff must give in order to draw from the defendant explanatory evidence (i.e., in order to shift the burden of proof to the defendant), must be dependent upon the circumstances of each case. (Oakdale Building Corp. v. Smithereen Co. (1944), 322 Ill. App. 222, 227.) When the plaintiff's proof shows the defendants' charge or management of a thing in connection with which an accident happens, which in the ordinary course of things does not happen if those who have the management use proper care, the duty of explanation is thrown upon those having charge of the thing, particularly when information concerning the thing itself is within the particular or peculiar knowledge of the defendant. (Edmonds v. Heil (1948), 333 Ill. App. 497, 508-09.) \\\"The application of the doctrine [of res ipsa loquitur] presents principally the question of the sufficiency of circumstantial evidence to justify the inference of negligence and the rule is based largely on the consideration that where the control of the thing which has caused the injury or damage is exclusively in the defendant, it is within his power to produce evidence of the actual cause, which the plaintiff is unable to present.\\\" Edmonds v. Heil (1948), 333 Ill. App. 497, 510; see also Politakis v. Inland Steel Co. (1983), 118 Ill. App. 3d 249, 252.\\nPlaintiff acknowledges that although the mere occurrence of a fire is not sufficient to invoke the doctrine of res ipsa loquitur, circumstances beyond the fact of the fire may be shown to have existed which justify application of the doctrine. (Hahn v. Eastern Illinois Office Equipment Co. (1976), 42 Ill. App. 3d 29, 31.) Specifically, plaintiff points to these surrounding circumstances which in her opinion gave rise to an inference of negligence: (1) that there was no gas service at the house at the time; (2) that there was only limited electrical service to the premises, and that faulty wiring was not considered a cause of the fire; (3) that on the last day on which the defendants were in the house before the fire they left kerosene fuel and the salamander heater on the premises; (4) that plaintiff's expert was of the opinion that kerosene was the accelerant that provided the fuel for the fire; and (5) there was no evidence of forced entry to the premises.\\nDefendants contend plaintiff's evidence failed to establish that the accident was of the kind that ordinarily does not occur in the absence of someone's negligence, or that the instrumentality causing the injury was within the exclusive control of the defendants. They argue the evidence strongly pointed to arson. In so arguing, however, defendants attack the credibility of the plaintiff's expert witness and refer to explanatory and contradictory evidence given during cross-examination and clarification testimony. The credibility of the witnesses and the weight of the evidence are matters to be decided by the trier of fact (Sandburg-Schiller v. Rosello (1983), 119 Ill. App. 3d 318, 336), and on a defendant's motion for directed verdict at the close of the plaintiff's case, all contradictory evidence or explanatory circumstances must be rejected. Arado v. Epstein (1944), 323 Ill. App. 194, 197.\\nThe testimony of plaintiff's expert witness indicated the un contained presence of two types of accelerants; naptha upstairs on the floor in the attic and fuel oil on the floor downstairs in the living room. There was evidence lit cigarettes were disposed of by \\\"trying to flip them out of the window.\\\" Plaintiff's expert testified there was no evidence that either a weather condition or a wire malfunction was the cause of the fire. (Cf. Collgood, Inc. v. Sands Drug Co. (1972), 5 Ill. App. 3d 910, 917, where a fire occurred in an area under the exclusive management and control of defendant and plaintiff offered evidence to rule out faulty wiring or fixtures as the most likely alternative cause, the court determined those circumstances and the fact of the occurrence itself were sufficient to raise the presumption of defendant's negligence in res ipsa loquitur.) The house was unoccupied, and defendants were the only ones allowed access to the house during construction. \\u2022 The fact plaintiff had keys to the house does not negate the element of control established in the defendants. The presence of some control or possession in another does not necessarily destroy the application of the res ipsa loquitur doctrine; the nature of the surrounding circumstances and of the intervening control or possession in another determine whether or not the doctrine may be applied. (Erckman v. Northern Illinois Gas Co. (1965), 61 Ill. App. 2d 137, 148.) \\\"The usual requirement that the accident-causing instrumentality must be under the exclusive control of the defendant doesn't mean actual physical control at the time of the accident, if the instrumentality or dangerous agency is one which it is defendant's responsibility to maintain at all times and which responsibility cannot be delegated by consent, agreement or usage.\\\" Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 450.\\nWe note here the defendants' view that their exclusive control has not been established because \\\"what instrumentality started the fire is unknown\\\" is far too narrow a -view of the control that need be shown. As Dean Prosser states:\\n\\\"The injury must either be traced to a specific instrumentality or cause for which the defendant was responsible, or it must be shown that he was responsible for all reasonably probable causes to which the accident could be attributed.\\\" (Emphasis added.) Prosser, Torts sec. 39, at 218 (4th ed. 1971).\\nThe reason for the exclusive control requirement is that it must appear that the negligence of which the doctrine warrants an inference is probably that of defendant and not of another; \\\" '[t]he requirement as it is generally applied is more accurately stated as one that the evidence must afford a rational basis for concluding that the cause of the accident was probably \\\"such that the defendant would be re sponsible for any negligence connected with it.\\\" ' [Citations.]\\\" Loizzo v. St. Francis Hospital (1984), 121 Ill. App. 3d 172, 176.\\nThe plaintiff testified she did not use a key to get into the house, because she only went there when the defendants were working and there was already an open door. One of the defendants testified they never encountered plaintiff already on the premises when they arrived to work on the house. There were no signs of an unauthorized entry into the house, which fact would have tended to decrease the exclusivity of the defendants' control of the premises. Defendants' rhetorical inquiry in their brief concerning the \\\"unexplained\\\" presence of naptha and how it came to be on the premises, and the fact the exact cause of the ignition of the fire is unknown, highlight the need to apply the doctrine in this case, since by virtue of their control of the premises, the defendants were in a better position to have reason to know the answers than the plaintiff. Given the circumstances of the uncontained accelerants, the admitted means of cigarette disposal, the lack of a natural, weather-related cause or a wire malfunction, and the control of the premises established in the defendants, an inference of fault in the defendants is justified and they should be held to the duty to come forward and make explanation. \\\"This is no more than the doctrine of res ipsa loquitur requires.\\\" Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 451.\\nAccordingly, the judgment of the circuit court of Lake County as to count II is reversed and the cause is remanded.\\nNegligence\\nCount I of plaintiff's first amended complaint alleged defendants specifically breached the duty of care owed to the plaintiff by virtue of one or more of the following negligent acts or omissions which proximately caused her damages:\\n\\\"a) Acted in such a manner as to be the proximate cause of Plaintiff's damages;\\nb) Failed to properly secure, maintain and supervise the premises;\\nc) Improperly maintained heaters on the premises;\\nd) Allowed lit cigarettes to be dropped on the premises;\\ne) Was otherwise negligent in connection with the Plaintiff's property.\\\"\\nPlaintiff argues the court erred in directing a verdict for the defendants on count I based on its finding that:\\n\\\"It appears to the Court that the evidence is clear that the expert is basing his opinion merely on guess and conjecture.\\\"\\nPlaintiff acknowledges the law in Illinois is that an expert is not permitted to guess or state an opinion based on mere conjecture. (Schwartz v. Peoples Gas Light & Coke Co. (1962), 35 Ill. App. 2d 25, 31-32.) Plaintiff contends, however, that the expert's opinion here that the kerosene from the salamander heater was the accelerant which gave rise to the fire was based on specific facts, not conjecture. Specifically, the burn pattern in the living room and bedroom, the charring on only the underside of the heater, and the fact a bare wood floor would not ignite and burn as it did in the absence of something burning on top of it, all combined to cause the expert to conclude that an accelerant was present. Further, because earlier investigators detected accelerants but chemical analysis failed to show any hydrocarbon residue, the expert concluded the accelerant was kerosene or No. 1 fuel oil since they burn about 99.9% pure. Finally, the expert concluded that the accelerant came from the salamander heater, because one of the defendant's depositions indicated that the last time they were on the premises, the heater was more than half full, and Schultz' report indicated there was very little fuel oil left.\\nContrary to plaintiff's assertion, defense counsel did ask the expert to account for the difference between his opinion as to the cause of the fire and the other investigators' opinions; he attributed the difference to the fact the other investigators did not have the benefit of the results of the chemical analysis of the three samples taken from the first floor which failed to show any residue of hydrocarbons, thus \\u2014 in his opinion \\u2014 indicating the accelerant was clean-burning kerosene or fuel oil that caused the burning of the bare wood floor in the manner it did.\\nWe agree with the plaintiff that the expert's opinion as to the source of the fuel oil was not a \\\"guess.\\\" It has been held that an expert may give an opinion based on facts otherwise not in evidence if of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. (See Wilson v. Clark (1981), 84 Ill. 2d 186, 193-96.) The expert's opinion here clearly was based on Schultz' investigative report and the deposition of one of the defendants. Whether these documents are of a type reasonably relied upon by experts in the particular field has not been questioned here.\\nDespite our agreement with plaintiff on this point, we nevertheless conclude the court did not err in directing a verdict for the defendants on this count. It is the court's judgment and not its reasoning which matters. In pronouncing judgment, the court also stated:\\n\\\"The fire did not start, according to your own expert, in the room where the salamander was located. He said it's caused by fuel oil from the salamander on the floor of the living room and bedroom. There is no evidence whatsoever that this salamander was ever in disrepair or leaked or handled in an improper manner where they spilled oil on the floor or did anything like that. There is absolutely nothing in this record at all to indicate that either one of these defendants did anything improper.\\nThe Court finds as a matter of law that merely leaving the unit there ove\\\" night without more and the precautions that they took could not be negligence.\\\"\\nA reviewing court, when deciding the question of the propriety of directing a verdict for the defendant at the close of plaintiff's evidence, is precluded from weighing the evidence or reconciling conflicts, and is required to consider the evidence in its aspect most favorable to plaintiff. (McKendree v. Christy (1961), 29 Ill. App. 2d 195.) Viewing the evidence in its aspect most favorable to the plaintiff, the evidence fails to prove the specifically alleged conduct of the defendants proximately caused the plaintiff's injury. Even accepting arguendo the plaintiff's expert's opinion that the fuel oil caused the fire, there is no evidence any act or omission of the defendants caused the oil to leave the tank, or that the tank leaked or was in disrepair. Further, the evidence failed to show that any act or omission of the defendants alleged by the plaintiff caused the ignition of the fuel oil. Plaintiff's expert himself testified a cigarette could be doused by dipping it into kerosene without igniting the kerosene. He further testified the length of time between the defendants' last departure from the premises and the time the fire was reported would negate a smoldering cigarette by itself as a cause of ignition. He testified fuel oil or kerosene base could be ignited if heated sufficiently to vaporize first, or if a wick-type object effected a sort of capillary action and heat was then applied so that the minute particles would then vaporize. It is undisputed the heater was not plugged in, and there was no evidence of any other source of heat in the house.\\nAs defendants argue, plaintiff's evidence failed to show any act or omission on their part to keep the premises secure. With regard to unsecured windows, plaintiff testified the only window not intact after the first fire was \\\"the little one in the dining room,\\\" and that she had asked the defendants to replace it. She did not testify whether or not the window had been replaced by the defendants, and there is no evidence as to the size of the window or whether it could have been considered a security risk. According to the record, the only other windows that may not have had glass were the upstairs windows but, as defendants note, there was no evidence the windows might not have been otherwise secured by being boarded up, and so forth.\\nConsequently, we conclude the plaintiff's evidence failed to prove any specific act or omission of the defendants alleged to be negligent which proximately caused the injury.\\nWe note here the opposite conclusions reached as to the propriety of the court's judgment on counts I and II are not mutually exclusive. It has been held that when the plaintiff alleges res ipsa loquitur and attempts to prove it at trial, an alternative pleading and attempted proof of specific negligence will not preclude his recovery in general negligence, so long as the evidence of specific negligence does not show the instrumentality unequivocally, such that no other possible inference of negligence can be drawn. (Collgood, Inc. v. Sands Drug Co. (1972), 5 Ill. App. 3d 910, 911.) The inference of negligence raised by the doctrine of res ipsa loquitur does not \\\"disappear\\\" when specific evidence of negligence is admitted. (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 397.) As stated in Erckman v. Northern Illinois Gas Co. (1965), 61 Ill. App. 2d 137, 149-50:\\n\\\"To hold that proof of specific negligence precludes the application of the res ipsa doctrine could lead to the absurd result of weak proof of specific negligence voiding a strong inference of general negligence. Such a rule would compel a plaintiff to elect, before the disclosures of proof, which theory he would adopt; it is without justification. If there is an inference of general negligence and proof of specific negligence, but reasonable men may differ as to the effect of this evidence, it should then be for a jury to determine under which theory, if any, the plaintiff should prevail.\\\"\\nPlaintiff's evidence here failed to show unequivocally the instrumentality which proximately caused the fire. Plaintiff's evidence still allows the inference of defendants' general negligence as we have discussed regarding the res ipsa loquitur count.\\nMatters not in evidence\\nPlaintiff contends the court improperly judged the credibility of her expert witness and considered and weighed matters not in evidence when it directed a verdict for defendants on the res ipsa loquitur count. Plaintiff specifically points to the court's comments in ruling:\\n\\\"Naptha was on the property, the fire burned from the top down, the fire did not start in the room where the unit was located, and therefore, the Motion for Directed Verdict is well taken and granted.\\\"\\nPlaintiff argues those matters were not properly in evidence as a part of her case, and should not have been considered by the court in ruling on the defendants' motion for directed verdict.\\nSince we have reversed the judgment as to the res ipsa loquitur count, we need not resolve this issue.\\nExclusion of expert's testimony\\nUse and maintenance of heater\\nPlaintiff complains the court improperly excluded testimony of her expert witness as to \\\"whether the fire of December 28, 1978, would have occurred if the user of the salamander had used ordinary care in its use and maintenance.\\\" She proffered that the witness would have answered that the fire would not have occurred if the user had exercised ordinary care in its maintenance and use. The court noted that although experts can give opinions on ultimate issues, it did not believe the expert was qualified to give his opinion on that question, since it was plaintiff's position that defendants were negligent simply because they left the heater on the premises rather than removing it each time they finished working at the house.\\nPlaintiff argues the testimony should have been allowed because she pleaded res ipsa loquitur which does not require proof of any specific acts of negligence. Plaintiff relies on Hahn v. Eastern Illinois Office Equipment Co. (1976), 42 Ill. App. 3d 29, in support of her argument.\\nHahn is distinguished by the defendants on the basis the fire there was determined to have started in the furnace itself, whereas the heater here itself was not shown to have been the origin of the fire. The court in Hahn determined that res ipsa loquitur was inapplicable to that case because the proof adduced left no room in which an inference of negligence could be raised, and plaintiff had not introduced any evidence which showed defendant to have been negligent. (42 Ill. App. 3d 29, 32, 34.) Further, although the court there stated it could see no reason why the ultimate issue of ordinary care differed from any other ultimate issue on which expert testimony is available, it found the error was not reversible since it did not affect the outcome of the case. There was no question presented in that case, however, as to whether the expert was qualified to give such testimony had it not been erroneously disallowed.\\nIn the case at bar, plaintiff herself indicates the court found her witness to be an expert \\\"in the area of determining the cause and origin of fires.\\\" Thus, it is clear plaintiff's expert was not qualified as an expert to give an opinion concerning the use and maintenance of salamander heaters by residential reconstruction workmen. Further, the question posed was not the type of \\\"ultimate question\\\" which might have been posed in a res ipsa loquitur cause of action, since its focus was defendants' specific acts of negligence vis-a-vis the heater.\\nWe conclude the court did not err in excluding this testimony.\\nPossible sources of ignition\\nThe last issue raised by plaintiff in this appeal is that the court erred in excluding her expert's testimony in response to her question:\\n\\\"But based on your experience in the field, what types of ignitions or types of situations have you seen that have been sufficient to ignite fuel oil?\\\"\\nDefendants objected to the question on the ground of materiality, and the court sustained the objection after argument.\\nDefendants' initial argument here is that the issue has not been preserved by plaintiff or review since it was not included in her post-trial motion. We find the defendants' argument untenable, since a post-trial motion is not needed to perfect an appeal where a trial court directs a verdict at the end of plaintiff's case. Keen v. Davis (1967), 38 Ill. 2d 280; American National Bank & Trust Co. v. J & G Restaurant, Inc. (1981), 94 Ill. App. 3d 318.\\nAs phrased, plaintiff's question clearly would have elicited an immaterial response since its basis would not have been limited to adduced facts in the case at bar, and would not have been an aid to the jury in its role as trier of fact. Further, the extent of the potential usefulness to the jury of the excluded testimony cannot even be assessed on this record, because plaintiff failed to make an offer of proof as to what her expert's testimony would have been. Thus, we conclude plaintiff failed to preserve the issue for review. Moore v. Farmers Insurance Exchange (1982), 111 Ill. App. 3d 401, 412.\\nFor the reasons stated, the judgment of the circuit court of Lake County is reversed as to count II and that matter is remanded to trial; the judgment as to count I is affirmed.\\nAffirmed in part, reversed in part, and remanded.\\nHOPF, J., concurs.\"}"
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+"{\"id\": \"4261004\", \"name\": \"PATRICK K. McGINTY, Plaintiff-Appellee, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant-Appellant\", \"name_abbreviation\": \"McGinty v. Norfolk Southern Railway Co.\", \"decision_date\": \"2005-11-03\", \"docket_number\": \"No. 5\\u201404\\u20140683\", \"first_page\": \"934\", \"last_page\": \"944\", \"citations\": \"362 Ill. App. 3d 934\", \"volume\": \"362\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T22:02:01.412779+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"PATRICK K. McGINTY, Plaintiff-Appellee, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant-Appellant.\", \"head_matter\": \"PATRICK K. McGINTY, Plaintiff-Appellee, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant-Appellant.\\nFifth District\\nNo. 5\\u201404\\u20140683\\nOpinion filed November 3, 2005.\\nDONOVAN, P.J., dissenting.\\nKurt E. Reitz and Heath Hooks, both of Thompson Coburn, L.L.P., of Belleville, for appellant.\\nDavid R. Jones and Christie R. Schmieder, both of Pratt & Tobin, P.C., of East Alton, for appellee.\", \"word_count\": \"4261\", \"char_count\": \"26121\", \"text\": \"JUSTICE McGLYNN\\ndelivered the opinion of the court:\\nNorfolk Southern Railway Company (Norfolk Southern) appeals from the trial court's September 29, 2004, denial of its motion to dismiss on the basis of interstate forum non conveniens. On December 2, 2004, we granted Norfolk Southern's petition for leave to appeal pursuant to Supreme Court Rule 306(a)(2) (166 Ill. 2d R. 306(a)(2)). There is no dispute that venue in Madison County, Illinois, is proper, because Norfolk Southern does business in Madison County. See 45 U.S.C. \\u00a7 56 (2000). On appeal, Norfolk Southern argues that there is no connection between the claim filed and Madison County, Illinois, and that, therefore, under the doctrine of interstate forum non conveniens, the claim should have been dismissed.\\nThe plaintiff, Patrick K. McGinty (McGinty), alleges repetitive-trauma injuries to his back, neck, shoulders, and knees. He claims that these injuries occurred over the 30-year duration of his employment with Norfolk Southern, for whom he worked as a laborer/ machinist and special agent. McGinty filed his claim in Madison County circuit court pursuant to provisions of the Federal Employers' Liability Act (45 U.S.C. \\u00a7 51 et seq. (2000)).\\nMcGinty resides in Liberty, Missouri, a community close to Kansas City. At no time during his Norfolk Southern employment did McGinty live in Madison County or anywhere else in Illinois. McGinty alleges that there was a brief period of time during which he performed Norfolk Southern work in Madison County. In essence, McGinty claims that because his injuries are of a repetitive type and because he did work at least some period of time in Madison County, at least some of his injuries occurred in Madison County. During his deposition, McGinty was unable to specifically tie his injuries to any one accident, incident, or other reportable condition that occurred during his Madison County employment.\\nIn his 30-year employment history, McGinty worked out of Moberly, Missouri, Wentzville, Missouri, St. Louis, Missouri, and Kansas City, Missouri. The Madison County work took place during the time frame when McGinty worked out of St. Louis, Missouri, and, while not specified, did take place more than 15 years ago. Neither party has any witnesses located in Madison County, or anywhere else in Illinois. All of McGinty's treating physicians or other healthcare providers are located in the Kansas City, Missouri, area. He alleged that the pain and/or physical problems with which he suffered were not present when he worked out of St. Louis, Missouri, but did show up over, approximately, the last 13-year period when he worked out of Kansas City.\\nNorfolk Southern filed its forum non conveniens motion seeking to have the case dismissed, arguing that the case would be more properly filed in Jackson County, Missouri. The trial court's September 29, 2004, order denying the motion simply states, \\\"The motion is hereby denied.\\\" No rationale for the denial was included in the order.\\nThe only issue on appeal is whether or not the trial court erred in reaching its conclusion that allows the case to proceed in Madison County. On appeal from an order granting or denying a motion to dismiss, we must determine whether or not the trial court abused its discretion. Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 176-77, 797 N.E.2d 687, 696 (2003); Ferguson v. Bill Berger Associates, Inc., 302 Ill. App. 3d 61, 70, 704 N.E.2d 830, 836-37 (1998).\\nForum non conveniens is essentially an equitable doctrine. Bland v. Norfolk & Western Ry. Co., 116 Ill. 2d 217, 223, 506 N.E.2d 1291, 1294 (1987). The doctrine presumes that there is more than one appropriate forum relative to jurisdiction and venue. Wieser v. Missouri Pacific R.R. Co., 98 Ill. 2d 359, 364, 456 N.E.2d 98, 100 (1983). The trial court retains discretionary power to decline the exercise of jurisdiction and to direct the lawsuit to an alternative forum that would more appropriately serve the parties' convenience. Washington v. Illinois Power Co., 144 Ill. 2d 395, 399, 581 N.E.2d 644, 645 (1991). The convenience of the parties is at the heart of the doctrine. Hefner v. Owens-Corning Fiberglas Corp., 276 Ill. App. 3d 1099, 1101, 659 N.E.2d 448, 451 (1995).\\nThe doctrine of forum non conveniens is applicable on both an intrastate basis and an interstate basis. Dawdy, 207 Ill. 2d at 176, 797 N.E.2d at 696. The identical concerns of convenience and fairness apply to both types of forum non conveniens situations.\\nTo determine if the doctrine of forum non conveniens applies, a court must balance private-interest factors affecting the convenience of the litigants and public-interest factors impacting the court's administration. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67 S. Ct. 839, 843 (1947). The balancing analysis requires an evaluation of the relevant factors in their entirety rather than an emphasis on any single factor. Peile v. Skelgas, Inc., 163 Ill. 2d 323, 336-37, 645 N.E.2d 184, 190 (1994).\\nPrivate-interest factors include the \\\"relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious!.,] and inexpensive.\\\" Gulf Oil Corp., 330 U.S. at 508, 91 L. Ed. at 1062, 67 S. Ct. at 843. Some of the other private-interest factors taken into consideration include the residence of the plaintiff (Peile, 163 Ill. 2d at 337-38, 645 N.E.2d at 191) and the complexity of the litigation. Mowen v. Ulinois Valley Supply Co., 257 Ill. App. 3d 712, 717, 629 N.E.2d 176, 180 (1994).\\nPublic-interest factors include court congestion, an interest in having \\\"localized controversies decided at home,\\\" and the burden of jury duty upon local citizens in an unrelated forum. Gulf Oil Corp., 330 U.S. at 509, 91 L. Ed. at 1063, 67 S. Ct. at 843.\\nIn Peile v. Skelgas, Inc., the Illinois Supreme Court restated its position that forum non conveniens remains a viable doctrine, and it reiterated the importance of a flexible consideration of the private- and public-interest factors. Peile, 163 Ill. 2d at 336-37, 645 N.E.2d at 190-91. While the court confirmed that the plaintiff's choice is entitled to substantial deference, the court noted that the right is seriously diminished when the forum selected is not his or her county of residence and where the forum is not the situs of the injury. Peile, 163 Ill. 2d at 337-38, 645 N.E.2d at 191. No single interest factor should be accorded primary or conclusive emphasis. Dawdy, 207 Ill. 2d at 180, 797 N.E.2d at 698, citing Jones v. Searle Laboratories, 93 Ill. 2d 366, 373, 444 N.E.2d 157, 160 (1982). Affording major significance to any one of the factors would result in a weakening of the flexibility of the forum non conveniens doctrine. Dawdy, 207 Ill. 2d at 180, 797 N.E.2d at 698 (relying on Bland, 116 Ill. 2d at 227, 506 N.E.2d at 1295 (relying on Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249-50, 70 L. Ed. 2d 419, 432, 102 S. Ct. 252, 263 (1981))). All of the factors must be weighed in their entirety. Dawdy, 207 Ill. 2d at 175-76, 797 N.E.2d at 695 (relying on Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101, 107-08, 554 N.E.2d 209, 212 (1990)).\\n\\\"In considering an interstate forum non conveniens motion filed in a suit pending in an Illinois court, the focus is on Illinois's connections with the litigation and whether the applicable public- and private-interest factors favor Illinois or an appropriate forum in another state.\\\" (Emphasis omitted.) Skidmore v. Gateway Western Ry. Co., 333 Ill. App. 3d 947, 950, 776 N.E.2d 333, 336 (2002).\\nIn 2002, the Illinois Supreme Court reaffirmed the doctrine of forum non conveniens in First American Bank v. Guerine, 198 Ill. 2d 511, 764 N.E.2d 54 (2002). Rather than weighing each factor in determining whether a case should be dismissed, Guerine, which was an intrastate forum case, required an approach in which the court \\\"evaluate[s] the total circumstances of the case,\\\" in order to determine if the defendant has proven that the balance of factors strongly favors a transfer. Guerine, 198 Ill. 2d at 518, 764 N.E.2d at 59.\\nThis case turns on the repetitive nature of McGinty's injuries in that, theoretically at least, some part of his overall injury occurred in Madison County. Madison County would not be the only appropriate forum, however. Following McGinty's argument, any county where he worked throughout the entirety of his railroad career would be proper. The plaintiffs choice of forum is entitled to great deference, and although the deference is somewhat minimized due to the fact that he does not reside in that county, McGinty argues that his choice should still be granted great deference because the injury \\\"occurred\\\" in Madison County.\\nNorfolk Southern counters with the argument that merely working in Madison County for a short period of time is insufficient to warrant maintaining the case in Madison County. Norfolk Southern distinguishes cases where an actual injury or accident occurred in Madison County, arguing that because McGinty cannot point to one precise incident in Madison County, his injury essentially could not have occurred there. See Brummett v. Wepfer Marine, Inc., 111 Ill. 2d 495, 490 N.E.2d 694 (1986) (the plaintiff suffered a traumatic fall while the vessel on which he worked was docked at Lock Number 26 near Alton, Illinois); Peterson v. Monsanto Co., 181 Ill. App. 3d 677, 537 N.E.2d 1030 (1989) (where a chemical exposure occurred within Madison County, Illinois); Weaver v. Midwest Towing, Inc., 116 Ill. 2d 279, 507 N.E.2d 838 (1987) (injuries resulting from a continuous benzine gas exposure over a short period of time while working on a vessel traveling the upper Mississippi River to and including passage through the Alton Lock and Dam system in Madison County, Illinois).\\nAs stated above, this case turns on an acceptance of the theory that a repetitive injury over the span of an entire career fixes venue and forum in any county that the employee performed so much as one minute of work. If we accept this theory, as the trial court did, then no matter how remote in time the employment at issue was, the \\\"injury\\\" occurred in Madison County. We believe that this stretches the bounds of the forum, non conveniens doctrine and cannot, at least in this situation, be solely utilized to fix Madison County as an appropriate forum. In a typical injury case where the location of the injury is the forum chosen by the plaintiff, the connection between the county and the injury is significant. The site of the injury and the county's interest in the outcome of the litigation are naturally tied, and complete deference to the plaintiffs choice is virtually automatic, because there is a presumption that the choice is convenient because the litigation is being decided in its home county. Skidmore, 333 Ill. App. 3d at 956, 776 N.E.2d at 340. We understand that, by definition, a repetitive trauma is an injury that occurs over and over again. We are unwilling, however, to equate a repetitive injury to that of a one-time incident, injury, or exposure that more directly ties an injury to a particular county. If we equated the two types of injuries, any truck driver with a repetitive injury could claim Madison County as a convenient forum simply because there are many interstate highways that run through the county and the truck driver at some point in time drove on one of those highways. We will not afford this type of repetitive injury the same deference as accidents and exposures that solely occur in Madison County. To hold otherwise could promote unfavored forum-shopping. Dawdy, 207 Ill. 2d at 173-75, 797 N.E.2d at 694-95.\\nBecause McGinty does not remember much of anything relative to his Madison County work history, and due to the nonspecific repetitiveness of the injury and its remoteness in time \\u2014 more than 15 years ago \\u2014 we will only afford slight deference to his choice of forum on the basis of the injury situs. Other factual situations may warrant different treatment, but this injury's connection with Madison County is simply too tenuous to receive automatic deference.\\nWe will briefly discuss the relevant private- and public-interest factors.\\nIn this case, the private-interest factors involving the relative ease of access to sources of proof and the availability and cost of obtaining willing and unwilling witnesses can be discussed together. Neither of these private-interest factors favors Madison County. None of the potential witnesses resides in Madison County, or anywhere near Madison County. McGinty and his wife both reside near Kansas City, Missouri. All of McGinty's coworkers reside in or near Kansas City. Seven listed doctors and other medical providers all live and work in and around Kansas City. The employees of McGinty's janitorial business all live near Kansas City. Jackson County, Missouri, is the location of these witnesses, and Jackson County is approximately 265 miles from Madison County, Illinois. The reality is that there would be no \\\"ease of access\\\" to these witnesses, and the cost to bring many or all of them to a trial in Madison County would be quite high.\\nWe must address the possibility of a view of the premises, however remote that likelihood is. Dawdy, 207 Ill. 2d at 178-79, 797 N.E.2d at 697. In this situation, a view of the premises could conceivably include whatever location in Madison County where McGinty was occasionally sent to work when he worked out of the St. Louis railroad yard. However, because the injury alleged is a repetitive one with no specific accident site, it is just as likely that a view could be arranged at any of the Missouri locations where McGinty worked. Any view, if ordered by the trial court, would necessarily be representative of the type of work in which McGinty engaged over the many years of his employment, and not the site of a discrete incident. Consequently, this factor does not support McGinty's forum choice over Jackson County, Missouri.\\nThe only other private-interest factor referenced by McGinty's attorneys favoring the Madison County forum choice was the location of the attorneys' offices \\u2014 in Madison County and neighboring St. Clair County, Illinois. As the Illinois Supreme Court stated, \\\"While a court may consider this factor, 'little weight should be accorded it.' \\\" Dawdy, 207 Ill. 2d at 179, 797 N.E.2d at 697, quoting Boner v. Peabody Coal Co., 142 Ill. 2d 523, 534, 568 N.E.2d 883, 888 (1991). So, although it may be entitled to very little weight, this factor does favor Madison County.\\nTurning to the public-interest factors, we conclude that the court-congestion factor weighs in favor of Jackson County, Missouri, in that the average time for a trial to proceed from filing to verdict in Madison County was 28.9 months, while the average time in Jackson County, Missouri, was approximately 12 months. Administrative Office of the Illinois Courts, 2002 Annual Report of the Illinois Courts, Statistical Summary 53; Office of State Courts Administrator, 2002 Annual Report Supplement 180 (Missouri).\\nTo the extent that a part of the repetitive injury occurred in Madison County, then the citizens of Madison County would have a very slight interest in deciding the controversy. Given the lack of any other connection to the county, we are unable to say that merely occasionally working in Madison County more than 15 years ago vests the citizens of Madison County with more than a modest interest in the controversy's outcome. We find that in this particular factual situation, jury duty would impose a burden upon the citizens of Madison County.\\nEvaluating the factors in their totality, we are unable to reach the same conclusion that the trial court reached. We conclude that the factors strongly favor Jackson County, Missouri, over Illinois. Accordingly, we find that the trial court abused its discretion in denying Norfolk Southern's motion to dismiss.\\nFor the foregoing reasons, the judgment of the circuit court of Madison County is hereby reversed, and the cause is dismissed.\\nReversed; cause dismissed.\\nWELCH, J., concurs.\"}"
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+"{\"id\": \"4287396\", \"name\": \"ROBERT STEPEK, Plaintiff-Appellee, v. JOHN DOE, Defendant (John Doe 2, Defendant-Appellant; The Catholic Bishop of Chicago, a Corporation Sole, Third-Party Defendant-Appellant)\", \"name_abbreviation\": \"Stepek v. Doe\", \"decision_date\": \"2009-06-10\", \"docket_number\": \"No. 1\\u201408\\u20142140\", \"first_page\": \"739\", \"last_page\": \"757\", \"citations\": \"392 Ill. App. 3d 739\", \"volume\": \"392\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T23:05:49.610852+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ROBERT STEPEK, Plaintiff-Appellee, v. JOHN DOE, Defendant (John Doe 2, Defendant-Appellant; The Catholic Bishop of Chicago, a Corporation Sole, Third-Party Defendant-Appellant).\", \"head_matter\": \"ROBERT STEPEK, Plaintiff-Appellee, v. JOHN DOE, Defendant (John Doe 2, Defendant-Appellant; The Catholic Bishop of Chicago, a Corporation Sole, Third-Party Defendant-Appellant).\\nFirst District (3rd Division)\\nNo. 1\\u201408\\u20142140\\nOpinion filed June 10, 2009.\\nMURPHY, P.J., specially concurring.\\nTaylor Miller, LLC, of Chicago (John R. Adams and Frank C. Stevens, of counsel), for appellant John Doe 2.\\nBurke, Warren, McKay & Serritella, P.C., of Chicago (James A. Serritella, James C. Geoly, and Susan M. Horner, of counsel), for appellant Catholic Bishop of Chicago.\\nDeutsch, Levy & Engle, Chtrd., of Chicago (Phillip J. Zisook, Brian D. Saucier, and Leon F. Farbman, of counsel), for appellee.\", \"word_count\": \"7661\", \"char_count\": \"48842\", \"text\": \"JUSTICE QUINN\\ndelivered the opinion of the court:\\nPlaintiff, Reverend Robert Stepek, filed a lawsuit alleging defamation and intentional infliction of emotional distress against defendants John Doe 1 and John Doe 2 (the Does) based on the Does' statements during disciplinary proceedings within the Roman Catholic Church, Archdiocese of Chicago, alleging that plaintiff had sexually abused them as minors. The Does filed claims for contribution and indemnity against the third-party defendant, the Catholic Bishop of Chicago (Catholic Bishop). The Catholic Bishop filed a motion to dismiss plaintiffs claims, pursuant to section 2 \\u2014 619(a)(1) of the Illinois Code of Civil Procedure (735 ILCS 5/2 \\u2014 619(a)(1) (West 2006)). The Catholic Bishop's motion asserted that under the United States and Illinois Constitutions and the Illinois Religious Freedom Restoration Act (775 ILCS 35/1 et seq. (West 2006)), the circuit court lacked subject matter jurisdiction over claims arising solely from statements made within the clergy disciplinary process of the Catholic Church (the Church). Doe 2 also filed a motion for summary judgment alleging that the circuit court lacked subject matter jurisdiction.\\nOn February 7, 2008, the circuit court denied the Catholic Bishop's motion to dismiss and Doe 2's motion for summary judgment. The circuit court subsequently denied defendants' motions to reconsider or for the entry of a finding to permit an interlocutory appeal under Supreme Court Rule 308 (155 Ill. 2d R. 308). Defendants then filed motions, pursuant to Supreme Court Rule 383 (155 Ill. 2d R. 383), seeking the entry of a supervisory order directing the circuit court to dismiss plaintiffs complaint for lack of subject matter jurisdiction.\\nOn July 17, 2008, the Illinois Supreme Court granted in part defendants' motions for supervisory order, directing the circuit court to certify for appeal, pursuant to Supreme Court Rule 308, the question concerning subject matter jurisdiction in this case, and directing this court to allow the appeal and answer the certified question. On July 28, 2008, the circuit court certified the following question for interlocutory appeal:\\n\\\"Whether the circuit court of Cook County has subject matter jurisdiction over causes of action for defamation and intentional infliction of emotional distress arising from allegedly false statements accusing a priest of criminal sexual abuse of children when those statements were made to an ecclesiastical body of the Archdiocese of Chicago convened for the purpose of regulating the clergy[.]\\\"\\nDefendants timely filed a joint application for leave to appeal on August 8, 2008, and this court allowed the application on August 25, 2008.\\nI. FACTUAL BACKGROUND\\nOn June 14, 2002, the United States Conference of Catholic Bishops approved a \\\"Charter for the Protection of Children and Young People,\\\" with revisions adopted on November 13, 2002 (USCCB Charter). The USCCB Charter addressed the Catholic Church's commitment to deal appropriately and effectively with cases of sexual abuse of minors by priests, deacons, and other church personnel (i.e., employees and volunteers). In the Charter, the bishops promised to reach out to those who have been sexually abused as minors by anyone serving the Church in ministry, employment, or a volunteer position, whether the sexual abuse was recent or occurred many years ago. The bishops stated that they would be as open as possible with the people in parishes and communities about instances of sexual abuse of minors, with respect for the privacy and the reputation of the individuals involved. They claimed to have committed themselves to the pastoral and spiritual care and emotional well-being of those who have been sexually abused and of their families. In addition, the bishops stated that they will work with parents, civil authorities, educators, and various organizations in the community to make and maintain the safest environment for minors.\\nIn an effort to ensure that each diocese in the United States of America would have procedures in place to respond promptly to allegations of sexual abuse of minors, the United States Conference of Catholic Bishops, on June 14, 2002, also decreed \\\"Essential Norms for Diocesan/Eparchial Policies Dealing with Allegations of Sexual Abuse of Minors by Priests or Deacons,\\\" revised November 13, 2002 (USCCB Essential Norms). The USCCB Essential Norms constitute particular law for all the dioceses/eparchies of the United States and were deemed complementary to the universal law of the Church, which the Church characterizes as having traditionally considered the abuse of minors a grave delict and punished the offender with penalties, not excluding dismissal from the clerical state if the case so warrants.\\nThe USCCB Essential Norms directed each diocese to establish a written policy on the sexual abuse of minors by priests and deacons, as well as by other church personnel. The USCCB Essential Norms also directed that each diocese designate a competent person to coordinate assistance for the immediate pastoral care of persons who claim to have been sexually abused when they were minors by priests or deacons. The USCCB Essential Norms further authorized each bishop to form an ecclesiastical body in his diocese, a \\\"Review Board,\\\" to function as a confidential consultative body to assist and advise the bishop in disciplining clergy accused of the sexual abuse of minors.\\nIn accordance with the USCCB Essential Norms, on July 15, 2003, the Archdiocese of Chicago revised its \\\"Policies for Education, Prevention, Assistance to Victims and Procedures for Determination of Fitness for Ministry\\\" (Policies). The Policies set forth the procedures used by the Archdiocese of Chicago for investigating and responding to reports of sexual abuse of minors. Pursuant to the Policies, a Review Board was established, consisting of nine Roman Catholic members, each appointed by the Archbishop. Six members of the Review Board are lay Catholics who are not employees of the Archdiocese, and three members are clerics. The Review Board serves as \\\"the principal advi-sor of the Archbishop in his assessment of allegations of sexual abuse of minors and in his determination of suitability for ministry.\\\"\\nThe Policies also provide that the Archbishop, with the advice of the Review Board, shall appoint a \\\"Professional Responsibility Administrator\\\" (Administrator). The Administrator's responsibilities include receiving information and allegations of sexual abuse by a cleric with a minor. The Administrator's investigation into such allegations is to include an interview with the person bringing an accusation and the preparation of a written report of the interview. The Administrator is also charged with reporting the allegations to the Archbishop and the cleric facing accusation. The Administrator shall then assess whether interim action should be taken, which can include temporary withdrawal from ministry, monitoring, or restrictions. The Policies also establish an \\\"Assistance Ministry,\\\" which is charged with the responsibility of ministering to the needs of victims of sexual abuse and their families.\\nThe Review Board process consists of two principal stages. First, after the Administrator has obtained the pertinent information from the accuser and given the accused a reasonable opportunity to respond, the Review Board shall meet to conduct an \\\"Initial Review.\\\" During the Initial Review, the Review Board considers the Administrator's report and other available information. The Review Board then makes a recommendation to the Archbishop regarding whether the cleric should be removed from ministry pending further investigation. Between 30 days and 180 days after completion of the Initial Review, the Review Board shall then schedule a \\\"Review for Cause.\\\" During the Review for Cause, the Review Board shall determine \\\"(1) whether there is reasonable cause to suspect that the accused engaged in sexual abuse of a minor; (2) whether prior determinations as to ministry by the cleric should be altered; and (3) what further action, if any, should be taken with respect to the allegation.\\\" The Review Board shall then make a recommendation to the Archbishop of Chicago for formal action, which could include removal from all ministry, restrictions, reinstatement in an unsubstantiated case, and either keeping the file open or closing the file at this stage.\\nThe Archdiocese of Chicago's Office for Child Abuse Investigations and Review (CAIR) is an entity created to assist the Review Board in the performance of its duties. CAIR collects information for the Review Board which may include testimony of witnesses, facilitates the Review Board's meetings and communicates the Review Board's findings to the Archbishop of Chicago. CAIR also reports allegations involving the abuse of a minor to the Department of Children and Family Services (DCFS) and the appropriate prosecuting authority.\\nBased on the Review Board's findings, the Archbishop then issues a decree. Where the Archbishop finds that there is sufficient evidence that sexual abuse of a minor has occurred, the Congregation for the Doctrine of Faith (CDF) shall be notified. The CDF is the ecclesiastical department having jurisdiction over the review of clergy sexual abuse cases. The CDF may approve the Archbishop's actions, require further investigation, or require a formal trial by a Church tribunal. A formal appellate process is also provided to a cleric, permitting review of both the Archbishop's actions and the verdict of the canonical tribunal.\\nPlaintiff is a Roman Catholic priest in the Archdiocese of Chicago. Plaintiff was ordained in 1981 and, from 1981 until 1983, plaintiff served as an associate pastor at St. Symphorosa Catholic Church in Chicago (St. Symphorosa). Plaintiff later became pastor at St. Albert the Great Catholic Church in Burbank, Illinois, until he was suspended in November 2006.\\nIn May 2006, the Does, who are brothers, accused plaintiff of sexually molesting them during the time plaintiff was an associate pastor at St. Symphorosa. During that time, the Does were minors and their family members were parishioners at St. Symphorosa.\\nIn his affidavit, Doe 2 stated that in May 2006, he told his friend, Reverend Matthew Foley, a Roman Catholic priest in the Archdiocese of Chicago, that plaintiff had engaged in sexual misconduct with him and his brother, Doe 1, when they were minors. Doe 2 stated that he requested that Reverend Foley not report this information to anyone. During the week of May 14, 2006, Reverend Foley informed Doe 2 that he had reported the allegations of sexual misconduct by plaintiff to the Archdiocese of Chicago, the Cook County State's Attorney, and DCFS. Doe 2 stated that he expressed his disappointment that Reverend Foley disregarded his request to keep the information confidential. Reverend Foley advised Doe 2 that because the abuse had occurred while the Does were minors, Reverend Foley was obligated to report it. Doe 2 stated that shortly thereafter he was contacted by the Archdiocese of Chicago and DCFS with requests for interviews.\\nOn June 29, 2006, Doe 2 met with the Office of Professional Responsibility of the Archdiocese of Chicago (OPR), now known as CAIR. The report from the meeting reflected that the Administrator and two persons from the Assistance Ministry were also present. At that meeting, Doe 2 was provided with a copy of the Policies and informed that he would have the opportunity to appear before the Review Board to provide any additional information regarding this matter. Doe 2 acknowledged his understanding that DCFS had been contacted. Doe 2 then provided a statement regarding his allegations of sexual abuse. Doe 2 stated that, during the time period between 1981 and 1983 when Doe 2 was approximately 16 years old, plaintiff would often have him sleep over and in the same bed at the rectory of St. Symphorosa. Doe 2 would accompany plaintiff on golf outings and other trips, where they stayed in the same room. Doe 2 stated that on one occasion he stayed at the plaintiff's parent's home, where he watched pornography with plaintiff then slept with plaintiff. Doe 2 also stated that he accompanied plaintiff to a health club, where plaintiff insisted that Doe 2 walk around the locker room naked.\\nOn July 6, 2006, Doe 1 was interviewed by OPR. Doe 1 stated that he was sexually molested by plaintiff. Specifically, Doe 1 stated that when he was in the third or fourth grade he spent the night at the rectory of St. Symphorosa, shared a bed at the rectory with plaintiff, and that on multiple occasions he awoke to plaintiffs hand inside his underwear and fondling him. In his affidavit, Doe 1 stated that he was provided with a brochure that explained the investigation process of the OPR and the Policies. Doe 1 stated that he agreed to the interview with the Archdiocese after the Administrator indicated that the interview would be strictly confidential and his identity would be kept confidential.\\nThe Does' statements to OPR, now CAIR, were presented to the Review Board as part of its evaluation of plaintiffs fitness for ministry. On October 25, 2006, the Review Board conducted a Review for Cause regarding the Does' allegations, in which the Review Board determined that there was reasonable cause to suspect that the alleged misconduct occurred. As a result, the Review Board recommended that plaintiff not engage in any form of ministry and that appropriate restrictions be imposed in accordance with Archdiocese policies and procedures. The Archbishop of Chicago, Cardinal Francis George, accepted the Review Board's recommendation, issued a decree removing plaintiff from all ministry, and referred the matter to the Congregation for the Doctrine of Faith for further proceedings as required by canon law.\\nOn November 3, 2006, letters were hand-delivered to plaintiff advising him of the Archbishop's decree. On November 28, 2006, plaintiff filed his complaint in this case. In his complaint, plaintiff stated that he has known the Does and their family since 1981. In 1987, Doe 2 was a student at a Chicago undergraduate seminary program and requested a letter of recommendation from plaintiff to further his studies at a graduate seminary program. Plaintiff alleged that after he declined to provide Doe 2 with a letter of recommendation, Doe 2 expressed anger and stated that he would retaliate against plaintiff. In his complaint, plaintiff also stated that in 2001, while he was pastor at St. Albert, he retained a corporation in which the Does were shareholders (the Doe Business) to install air conditioning and related machinery at St. Albert. Doe 1 assisted in the performance of the work on behalf of the Doe Business. In August 2005, following a dispute regarding additional payments requested by the Doe Business, a representative of the Doe Business expressed resentment toward plaintiff and threatened to retaliate against plaintiff.\\nPlaintiff also stated in his complaint that in the spring of 2006, plans were announced in various church bulletins that a celebration would be held at the end of May to commemorate plaintiffs twenty-fifth anniversary as a priest. Plaintiff alleged that the Does decided to retaliate against plaintiff by \\\"concocting a false and defamatory story\\\" that plaintiff had sexually abused the Does approximately 20 years earlier. Plaintiff alleged that, in June 2006, the Does provided statements to representatives of the Archdiocese of Chicago alleging that plaintiff had sexually abused them when they were minors. Plaintiff alleged that as a result of these false statements, he sustained injury to his reputation and sought compensatory damages in excess of $1 million and an undetermined amount of punitive damages.\\nOn December 31, 2007, Cardinal George issued two decrees, one initiating the ecclesiastical trial of plaintiff, and the second appointing the judges to conduct the trial. On February 14, 2008, a decree was issued by the Very Reverend Patrick R. Lagges, Judicial Vicar of the Archdiocese of Chicago, constituting the tribunal to hear plaintiff's case.\\nII. ANALYSIS\\nA. Statements Made During Ecclesiastical Proceedings\\nBoth defendants, the Catholic Bishop and Doe 2 , contend that the circuit court lacks subject matter jurisdiction in this case based on the doctrine of \\\"ecclesiastical abstention\\\" or \\\"church autonomy,\\\" protected under the free exercise clause of the first amendment. Defendants assert that the first amendment guarantees religious organizations, such as the Catholic Church, the right to govern its own clergy free from secular court interference. Defendants, therefore, maintain that because the statements underlying plaintiff's claims were made exclusively during clergy disciplinary proceedings, this court should find no subject matter jurisdiction and answer the certified question in the negative.\\nThe first amendment to the Constitution of the United States provides, in part, \\\"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.\\\" U.S. Const., amend. I. The first amendment applies to state governments by incorporation through the fourteenth amendment. U.S. Const., amend. XIV The United States Supreme Court has held that the basic freedom of religion is guaranteed not only to individuals but also to churches in their collective capacities, which must have \\\"power to decide for themselves, free from [Sjtate interference, matters of church government as well as those of faith and doctrine.\\\" Kedroff v. Saint Nicholas Cathedral of the Russian Orthodox Church, 344 U.S. 94, 116, 97 L. Ed. 120, 136, 73 S. Ct. 143, 154 (1952).\\nIn Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713, 49 L. Ed. 2d 151, 165, 96 S. Ct. 2372, 2382 (1976), the United States Supreme Court explained that \\\"civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.\\\" In Milivojevich, the United States Supreme Court determined that the Illinois Supreme Court improperly interfered with the decisions of a hierarchical church by reviewing the church's decisions concerning the divestiture of a bishop and the validity of the division of one diocese into three. Milivojevich, 426 U.S. at 708-09, 49 L. Ed. 2d at 162, 96 S. Ct. at 2380. The United States Supreme Court explained that the principles limiting the role of civil courts in the resolution of religious controversies that incidentally affect civil rights were initially fashioned in Watson v. Jones, 80 U.S. (Wall.) 679, 20 L. Ed. 666 (1872), a diversity case decided before the first amendment had been rendered applicable to the states through the fourteenth amendment. In Watson, the United States Supreme Court held:\\n\\\"[T]he rule of action which should govern the civil courts * is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.\\\" Watson, 80 U.S. (Wall.) at 727, 20 L. Ed. at 676.\\nAccordingly, Milivojevich held that \\\"[T]he First and Fourteenth Amendments permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them.\\\" Milivojevich, 426 U.S. at 725, 49 L. Ed. 2d at 171, 96 S. Ct. at 2387-88. The Court explained, \\\" 'To permit civil courts to probe deeply enough into the allocation of power within a [hierarchical] church as to decide... religious law [governing church polity] .would violate the First Amendment in much the same manner as civil determination of religious doctrine.' \\\" Milivojevich, 426 U.S. at 709, 49 L. Ed. 2d at 162, 96 S. Ct. at 2380, quoting Maryland & Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 369, 24 L. Ed. 2d 582,584, 90 S. Ct. 499, 500 (1970) (Brennan, J., concurring, joined by Douglas and Marshall, JJ.).\\nMore recently, in People v. Campobello, 348 Ill. App. 3d 619 (2004), this court determined that the doctrine of church autonomy did not preclude enforcement of the State's subpoena seeking documents from the Roman Catholic Church regarding the Church's internal investigation of accusations against a priest who was a criminal defendant being prosecuted by the State for sexual assault. Campobello, 348 Ill. App. 3d at 629-31. This court rejected the Church's argument that the State's subpoena was an intrusion into the Church's religious activity that ran afoul of the bar against government \\\"review [of] decisions that were reached upon ecclesiastical considerations\\\" and \\\"involve[ment] in the inner workings of churches.\\\" Campobello, 348 Ill. App. 3d at 629. In doing so, this court noted that the Church failed to cite an aspect of its administration that the State \\\"threatens to commandeer\\\" where the State sought records from the Church, defendant's employer, for the purpose of gathering evidence in a criminal prosecution against defendant under the laws of Illinois. Campobello, 348 Ill. App. 3d at 629. The State neither expressed nor implied an aim to determine for itself whether the defendant violated canon law, much less to override any determination of the Church on that point. Campobello, 348 Ill. App. 3d at 629. Accordingly, this court held that the State was allowed access to the Church's records relating to sexual assault allegations against the defendant. See also Society of Jesus of New England v. Commonwealth, 441 Mass. 662, 667-68, 808 N.E.2d 272, 278 (2004) (holding that the ecclesiastical abstention doctrine did not preclude enforcement of the Commonwealth's subpoena duces tecum, which sought documents from a religious order regarding the criminal defendant, a priest of that order, who was facing criminal prosecution for sexual assault where the matter did not involve resolving a dispute within the church itself).\\nIn Softcheck v. Imesch, 367 Ill. App. 3d 148, 157-58 (2006), this court examined the ecclesiastical abstention doctrine within the context of civil lawsuits alleging sexual assault against priests. In Soft-check, this court determined that the first amendment did not preclude the circuit court from exercising subject matter jurisdiction over the plaintiffs' tort claims alleging that priests had sexually abused them when they were minors. The complaint alleged that the defendant priests encouraged plaintiffs' faith, trust and reliance upon the priests by assuring plaintiffs that \\\" 'the teachings and instructions of the Church, as given through [defendant priests], were perfect and infallible and superior to imperfect human laws,' \\\" and that \\\" 'adherence to [defendant priests'] teachings and compliance with [their] directions and conduct were in all respects good and beneficial and could cause no harm.' \\\" Softcheck, 367 Ill. App. 3d at 151. Defendants argued that the first amendment's free exercise clause prohibited the circuit court from considering plaintiffs' claims where the court would be required to pass judgment on the beliefs and practices of the Catholic Church, specifically those requiring acceptance of hierarchical authority and adherence to church doctrines. Softcheck, 367 Ill. App. 3d at 157. In rejecting the defendants' first amendment argument, this court noted that \\\"[n]owhere in plaintiffs' complaints is the court asked to 'pass judgment' on church doctrine.\\\" Softcheck, 367 Ill. App. 3d at 158. This court therefore held that the circuit court did not err in exercising subject matter jurisdiction over the plaintiffs' claims against the priests. Softcheck, 367 Ill. App. 3d at 158.\\nIn Hiles v. Episcopal Diocese of Massachusetts, 437 Mass. 505, 773 N.E.2d 929 (2002), the Supreme Judicial Court of Massachusetts considered the ecclesiastical abstention doctrine in the context of a civil lawsuit brought by an Episcopal priest, Hiles, and his wife against the Episcopal Diocese of Massachusetts and the author of a letter ac cusing him of having an adulterous affair with her that led to a sexual misconduct investigation by the Diocese. Hiles' complaint alleged defamation, civil rights violations, negligence, intentional infliction of emotional distress and loss of consortium. Hiles, 437 Mass, at 506, 773 N.E.2d at 932. Hiles had served as vicar of the Church of Our Savior, an Episcopal mission (mission), which was part of the Episcopal Diocese of Massachusetts (Diocese). The mission had received a bequest of more than $2 million from one of its members and the Diocese demanded that the mission surrender this money, but the mission refused. On at least two occasions, the Bishop of the Diocese asked Hiles to use his influence to persuade the mission to give the bequest to the Diocese, but Hiles remained neutral in the dispute. Hiles, 437 Mass, at 508, 773 N.E.2d at 933. Hiles alleged in his complaint that the Bishop warned Hiles that he needed to be \\\"taught a lesson on authority and obedience\\\" and expressed his intention to remove Hiles as vicar of the mission. Hiles, 437 Mass, at 508, 773 N.E.2d at 933. Subsequently, a parishioner wrote a letter to the Bishop stating that she and Hiles had a sexual relationship while she was a member of the mission. The Bishop temporarily prohibited Hiles from functioning as a priest pending the outcome of the Diocese disciplinary proceedings. Hiles, 437 Mass, at 508-09, 773 N.E.2d at 933. Hiles' complaint alleged that the allegations of sexual misconduct were false, and that the parishioner conspired with the other defendants to destroy Hiles' reputation for the purpose of bringing pressure on the mission to relinquish its bequest to the Diocese. Hiles, 437 Mass, at 509-10, 773 N.E.2d at 933.\\nThe Supreme Judicial Court of Massachusetts held that Hiles' claims for defamation, conspiracy, and civil rights violations were barred by the first amendment. The Massachusetts court determined that Hiles' defamation claim arose from the parishioner's letter which was published solely in a canonical context. Hiles, 437 Mass, at 512, 773 N.E.2d at 936. The court explained that the letter supplied the basis to initiate the Episcopal Church's internal disciplinary proceedings and, thus, became inextricably part of those internal proceedings. As a result, the court stated \\\"[w]e are bound to step aside and permit the Church to consider the veracity of [the parishioner's] charge through that process.\\\" Hiles, 437 Mass, at 513, 773 N.E.2d at 936.\\nThe Hiles court also explained that both Hiles, as an ordained priest of the Episcopal Church, and the parishioner acceded to the canons of the Episcopal Church and were bound by them. Hiles, 437 Mass, at 513, 773 N.E.2d at 936, quoting Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94, 114, 97 L. Ed. 120, 136, 73 S. Ct. 143, 153 (1952) (\\\" '[t]he right to organize voluntary religious associations * for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it' \\\"). The Hiles court found that Hiles' defamation claim against the parishioner touched the core of the church-minister relationship where the Episcopal Church, like others, has a singular interest in protecting its faithful from clergy who will take advantage of them. Hiles, 437 Mass, at 513, 773 N.E.2d at 936. The court held:\\n\\\"For purposes of the First Amendment, a parishioner victim who invokes the Episcopal Church's internal disciplinary process may invoke as her own freedom of belief the church's right to be free from State court interference in that process. The First Amendment's protection of internal religious disciplinary proceedings would be meaningless if a parishioner's accusation that was used to initiate those proceedings could be tested in a civil court.\\\" Hiles, 437 Mass, at 513, 773 N.E.2d at 936-37.\\nThe Hiles court explained that its analysis was predicated on the fact that the only defamatory publication allegedly made by the parishioner was made to the church itself, within its internal disciplinary procedure. The court indicated that the absolute first amendment protection for statements made by a church member in an internal church disciplinary proceeding would not apply to statements made or repeated outside that context. Hiles, 437 Mass, at 513 n.12, 773 N.E.2d at 937 n.12. However, since Hiles' complaint made no allegations that the parishioner repeated her allegedly defamatory statements to any other persons or in any other forum, the absolute first amendment protection applied in that case. Hiles, 437 Mass, at 513 n.12, 773 N.E.2d at 937 n.12.\\nFollowing Hiles, the Supreme Judicial Court of Massachusetts again considered the first amendment protection for matters involving internal church proceedings in Callahan v. First Congregational Church of Haverhill, 441 Mass. 699, 808 N.E.2d 301 (2004). In Callahan, an interim pastor, Callahan, filed a lawsuit against his employer, the First Congregational Church of Haverhill, and its officers after Callahan's privilege to be a minister was suspended. Callahan, 441 Mass, at 700, 808 N.E.2d at 303. The Callahan court determined that the free exercise clause of the first amendment prohibited the trial court from exercising subject matter jurisdiction over Callahan's claims for discrimination, breach of contract, tortious interference, intentional infliction of emotional distress and violation of right to privacy where the court could not have inquired into the reasons for the church's decisions regarding Callahan's ministry without intrud ing into matters of internal management of the church. Callahan, 441 Mass, at 711-15, 808 N.E.2d at 310-13. The Callahan court also found that the free exercise clause prohibited the trial courts from exercising jurisdiction over Callahan's defamation claims against the church and its officers, to the extent that they arose from the ecclesiastical complaint, investigation, and church committee decision regarding Callahan. The court explained that because those defamation claims arose solely from actions that are \\\" 'inextricably part of the Church disciplinary process,' \\\" the claims lie outside the jurisdiction of the court. Callahan, 441 Mass, at 715-16, 808 N.E.2d at 313-14, quoting Hiles, 437 Mass, at 514, 773 N.E.2d at 937.\\nHowever, the Callahan court determined that the free exercise clause did not prohibit the trial court from exercising subject matter jurisdiction over Callahan's defamation claim against the church's \\\"forum leader,\\\" based on the leader's alleged statements that Callahan had an inappropriate relationship with a seminarian, engaged in \\\"bizarre behavior,\\\" and \\\"breached a confidence involving a moderator and a seminarian.\\\" Callahan, 441 Mass, at 716-17, 808 N.E.2d at 314. The court noted that the leader did not play any role in the church's disciplinary procedure against Callahan and that it was possible that some of the alleged statements fell outside the church disciplinary process. Callahan, 441 Mass, at 717, 808 N.E.2d at 314-15. The court explained that \\\" '[t]he absolute First Amendment protection for statements made by a church member in an internal church disciplinary proceeding would not apply to statements made or repeated outside that context.' \\\" Callahan, 441 Mass, at 716, 808 N.E.2d at 314, quoting Hiles, 437 Mass, at 513 n.12, 737 N.E.2d at 937 n.12. Therefore, the Callahan court concluded that because some of the alleged statements by the leader may have been outside of the church's internal proceedings, the trial court did not err in refusing to dismiss Callahan's defamation claim against the leader as to these statements. Callahan, 441 Mass, at 717, 808 N.E.2d at 314-15.\\nIn Cimijotti v. Paulsen, 230 F. Supp. 39, 41 (N.D. Iowa 1964), the district court similarly determined that the first amendment precluded a slander action based solely upon statements made to the Catholic Church before its recognized officials and under its disciplines and regulations. In Cimijotti, a husband filed an action against his former wife and two other women for conspiracy to damage his person, reputation and property based on statements made by the defendants to the Catholic Church so that one of the defendants could obtain sanctions from the Church for separate maintenance and divorce. Cimijotti, 230 F. Supp. at 41. The Cimijotti court explained, \\\"The freedom of speech does not protect one against slander, yet a person must be free to say anything and everything to his Church, at least so long as it is said in a recognized and required proceeding of the religion and to a recognized official of the religion.\\\" Cimijotti, 230 F. Supp. at 41. While the court noted that the communication \\\"might be actionable if made outside strictly religious activities,\\\" there was nothing to indicate that the defendants had made communications to third persons. Cimijotti, 230 F. Supp. at 41.\\nIn the present case, the basis of plaintiffs claims for defamation and intentional infliction of emotional distress were the Does' statements to OPR, now CAIR, which were presented to the Review Board as part of its evaluation of plaintiffs fitness for ministry. These statements were published solely in a canonical context and supplied the basis for the Doe defendants' initiation of disciplinary proceedings against plaintiff under the Policies of the Archdiocese of Chicago for investigating and responding to reports of sexual abuse of minors. Accordingly, the Doe defendants' statements were used to invoke the Catholic Church's internal disciplinary procedures and became part of the internal disciplinary proceeding. This court is obligated to refrain from interfering with the Church's ability to consider the veracity of the Doe defendants' charges through that process. See Milivojevich, 426 U.S. at 725, 49 L. Ed. 2d at 171, 96 S. Ct. at 2387-88 (where a religious organization established an ecclesiastical tribunal to decide disputes involving internal discipline and government, the Constitution requires that civil courts accept their decisions as binding upon them); see also Hiles, 437 Mass, at 513, 773 N.E.2d at 937 (civil courts are prohibited from interfering in a church's internal disciplinary process).\\nIn addition, plaintiff, as an ordained priest, and the Does, as parishioners, acceded to the Policies of the Archdiocese of Chicago and are bound by them. See Hiles, 437 Mass, at 513, 773 N.E.2d at 936. Plaintiffs defamation claim concerns the core of the church-minister relationship. While the Catholic Church's interest is not exclusive, the Church does have a strong interest in protecting minors from sexual abuse at the hands of clergy. For purposes of the first amendment, parishioner victims, such as the Does, who invoke the Catholic Church's internal disciplinary process may also invoke their belief in the Church's right to be free from State court interference in that process. As the Hiles court noted, \\\"The First Amendment's protection of internal religious disciplinary proceedings would be meaningless if a parishioner's accusation that was used to initiate those proceedings could be tested in civil court.\\\" Hiles, 436 Mass, at 513, 773 N.E.2d at 937. Indeed, \\\"a person must be free to say anything and everything to his Church, at least so long as it is said in a recognized and required proceeding of the religion and to a recognized official of the religion.\\\" Cimijotti, 230 F. Supp. at 41. Since the only defamatory publication allegedly made by the Does was made to the Church itself within internal disciplinary proceedings, the absolute first amendment protection for statements made by Church members in an internal church disciplinary proceeding precludes the circuit court from exercising jurisdiction in this matter. Callahan, 441 Mass, at 716, 808 N.E.2d at 314; Hiles, 436 Mass, at 513 n.12, 773 N.E.2d at 937 n.12; Cimijotti, 230 F. Supp. at 41.\\nPlaintiff relies on the decision by the Court of Appeal of Louisiana in Hayden v. Schulte, 701 So. 2d 1354 (1997), in support of his argument that the circuit court may exercise subject matter jurisdiction over a lawsuit alleging that false allegations of sexual abuse had been brought against church personnel. In Hayden, a priest sued his archbishop and archdiocese alleging damage to his reputation and loss of employment. The priest alleged that defamatory information about child molestation accusations against him was provided to the media by church officials. Hayden, 701 So. 2d at 1356. The Hayden court determined that the priest's allegations were sufficient to state a claim within the subject matter jurisdiction of state courts where the priest alleged that the defamation had been intentionally disseminated outside the church. Hayden, 701 So. 2d at 1356-57. The Hayden court explained:\\n\\\"It is one thing to say that churches must be free of governmental interference to conduct matters of internal discipline and organization, even when those matters touch upon the reputations of those affected. It is quite another to say that churches have the unfettered right to make unsubstantiated statements of an essentially secular nature to the media destructive of a priest's character as we read Father Hayden's petition alleges occurred in this case.\\\" Hayden, 701 So. 2d at 1357.\\nUnlike Hayden, where the alleged defamatory information was disseminated outside the church, plaintiff in this case does not allege that the Does' alleged defamatory statements were communicated to other third persons. Rather, plaintiff's defamation and intentional infliction of emotional distress claims were based on the Does' statements, which were published solely within the Catholic Church's internal disciplinary proceedings. We therefore find plaintiffs reliance on Hayden unavailing.\\nPlaintiff also cites this court's determination in Duncan v. Peterson, 359 Ill. App. 3d 1034 (2005), in support of his argument that the circuit court may exercise subject matter jurisdiction over his claims. In Duncan, a pastor, Duncan, filed a false light invasion of privacy and conspiracy action against his former church, The Moody Church, and the chairman of the church's board of elders, after the Moody Church revoked the pastor's ordination when he filed for divorce. Duncan, 359 Ill. App. 3d at 1037. The Moody Church sent Duncan a letter requesting that he respond to charges, including that: he had an improper relationship with a divorced single woman \\\" 'violating the Biblical teaching that an elder be \\\"above reproach\\\" ' his decision to file a divorce petition against his wife \\\" 'violated] the Biblical admonition that husbands are to love their wives \\\"as Christ loves the church\\\" ' he misused alcohol in violation of Biblical admonition; and he misused personal funds in violation of Biblical admonitions. Duncan, 359 Ill. App. 3d at 1037. Duncan informed The Moody Church that it no longer had authority over him because he had resigned his membership and his ministry with that church and had become senior pastor of a new church, Hope Church. Duncan, 359 Ill. App. 3d at 1037. The Moody Church subsequently issued a letter indicating that Duncan could no longer function in the role as minister. Duncan alleged that as a result of the letter, parishioners withdrew from membership in Hope Church and that he could not obtain employment elsewhere as a minister because the letters were disseminated and discussed widely in the evangelical protestant Christian community. Duncan, 359 Ill. App. 3d at 1038. This court held that the doctrine of ecclesiastical abstention did not preclude jurisdiction over Duncan's claims where the pastor's claims could be resolved without inquiring into religious principles and doctrine or intervening in a church's affairs. Duncan, 359 Ill. App. 3d at 1046.\\nWe find Duncan distinguishable from the present case. In Duncan, the pastor's claims were based on a letter that he alleged was disseminated and discussed widely in the evangelical protestant Christian community. Duncan, 359 Ill. App. 3d at 1038. Further, it was uncontested that the pastor had resigned from The Moody Church prior to the letter being sent. Therefore, the First Amendment protection for statements made by church members in an internal church disciplinary proceeding was not implicated in Duncan.\\nB. Neutral Principles of Law\\nPlaintiff contends that the circuit court is not precluded from exercising subject matter jurisdiction over his defamation claim where the issue does not involve an interpretation of church doctrine and may be resolved by applying a \\\"neutral principles of law\\\" approach.\\nIllinois courts have generally refused to decide cases that require a judicial interpretation of religious doctrine or church law. Hines v. Turley, 246 Ill. App. 3d 405, 417 (1993). However, where doctrinal controversy is not involved in a church dispute, mandatory deference to religious authority is not required by the first amendment and the court may choose from a variety of approaches to resolve the dispute. Hines, 246 Ill. App. 3d at 418. Thus, in disputes over church property, Illinois courts have applied a \\\"neutral principles of law\\\" approach, objectively examining pertinent church characteristics, constitutions and bylaws, deeds, state statutes, and other evidence to resolve the matter the same as it would a secular dispute. Hines, 246 Ill. App. 3d at 418.\\nWhile it is possible that resolution of plaintiffs claims would not require any interpretation of the Catholic Church's doctrine, resolving this dispute would involve the secular court interfering with the Church's internal disciplinary proceedings where plaintiffs claims are based on the Does' statements, which were provided solely within the Church's proceedings. Irrespective of the fact that a court or jury could apply \\\"neutral principles of law\\\" to the Does' alleged statements to determine whether they were defamatory, those statements were published exclusively within the context of the Church's disciplinary proceedings. Therefore, as previously discussed, this court is bound to step aside and permit the Church to consider the veracity of the Does' charges of sexual abuse through the Church's process.\\nPlaintiff, nonetheless, relies on this court's decision in Bivin v. Wright, 275 Ill. App. 3d 899 (1995), to support his argument that the circuit court may exercise subject matter jurisdiction in this case under the neutral principles of law approach. In Bivin, the plaintiffs, a married couple, alleged that in the course of marital counseling, their minister engaged in a sexual relationship with the wife. Bivin, 275 Ill. App. 3d at 900. The married couple filed a lawsuit that included a negligent supervision claim against the minister's church. The sole issue before this court was whether the negligent supervision claim was barred by the first amendment. Bivin, 275 Ill. App. 3d at 902. This court determined that the tort underlying the negligence claim, the alleged sexual misconduct of a clergy member, was \\\"not rooted in the church's religious beliefs and was outside the boundaries of the church's ecclesiastical beliefs and practices.\\\" Bivin, 275 Ill. App. 3d at 904. Thus, this court found that resolving the dispute \\\"may not require any interpretation of church doctrine or any regulation of ecclesiastical activity.\\\" (Emphasis added.) Bivin, 275 Ill. App. 3d at 904. This court therefore concluded that the circuit court abused its discretion in dismissing the plaintiffs' complaint for failure to state a cause of action based on the guarantees of the first amendment. Bivin, 275 Ill. App. 3d at 904.\\nUnlike the plaintiffs' claim in Bivin, resolving the dispute in the present case would require the secular court to involve itself in the \\\"regulation of ecclesiastical activity.\\\" Here, plaintiffs claims are based on statements made solely within the context of the Church's internal disciplinary proceeding. The circuit court is therefore precluded under the first amendment from exercising jurisdiction in this matter.\\nC. Illinois Religious Freedom Restoration Act\\nDefendant Catholic Bishop also contends that the circuit court's exercise of subject matter jurisdiction would violate the Illinois Religious Freedom Restoration Act (Act) (775 ILCS 35/1 et seq. (West 2006)), by interfering with the Catholic Church's clergy disciplinary proceedings. The Act provides that \\\"Government may not substantially burden a person's exercise of religion, * unless it demonstrates that application of the burden to the person (i) is in furtherance of a compelling governmental interest and (ii) is the least restrictive means of furthering that compelling governmental interest.\\\" 775 ILCS 35/15 (West 2006). We note that this issue was not well developed by the parties on appeal and do not reach it in deciding this matter.\\nFor the above reasons, we answer the certified question in the negative.\\nCertified question answered.\\nCOLEMAN, J., concurs.\\nDefendant Doe 1 did not file any briefs in this appeal.\"}"
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+"{\"id\": \"4727620\", \"name\": \"The City of Bushnell, Plaintiff in Error, vs. The Chicago, Burlington and Quincy Railroad Company, Defendant in Error\", \"name_abbreviation\": \"City of Bushnell v. Chicago, Burlington & Quincy Railroad\", \"decision_date\": \"1913-06-18\", \"docket_number\": \"\", \"first_page\": \"391\", \"last_page\": \"405\", \"citations\": \"259 Ill. 391\", \"volume\": \"259\", \"reporter\": \"Illinois Reports\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T22:09:35.495293+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The City of Bushnell, Plaintiff in Error, vs. The Chicago, Burlington and Quincy Railroad Company, Defendant in Error.\", \"head_matter\": \"The City of Bushnell, Plaintiff in Error, vs. The Chicago, Burlington and Quincy Railroad Company, Defendant in Error.\\nOpinion filed June 18, 1913\\nRehearing denied October 14, 1913.\\n1. Nuisances\\u2014city cannot declare that to be a nuisance which is not, in fact, a nuisance. The law authorizes a city to declare what shall be a nuisance; but this does not authorize it to act arbitrarily, and declare that to be a nuisance which is not, in fact, a nuisance.\\n2. Same\\u2014when city\\u2019s determination that a thing is a nuisance is conclusive. Where a thing is of such a character that in its nature it may be a nuisance but as to which honest differences of opinion may exist among men of impartial minds as to whether it is actually a nuisance or not, the determination of a city that it is a nuisance is conclusive.\\n3. Same\\u2014when city\\u2019s declaration that thing is a nuisance is not conclusive. Where a thing is not, in its nature, a nuisance but-may become so by reason of its locality, surroundings or the man ner in which it is conducted, the city can only declare it to be a nuisance if it is, in fact, a nuisance.\\n4. Same\\u2014railroad cannot be compelled to abandon the use of tracks on mere declaration of city that such use is a nuisance. A railroad company which has acquired the right to cross the streets of a city cannot be required to take up its tracks or abandon the use of the streets upon the mere declaration of the city that such use is a nuisance.\\n5. Same\\u2014how ordinance should be framed where thing is not, in its nature, a nuisance. Where a thing is not, in its nature, a nuisance but may become so under certain circumstances, an ordinance intending to declare the thing a nuisance under such circumstances should be directed against the circumstances which create the nuisance and not against the thing itself.\\n6. Same\\u2014what does not show that a thing is a nuisance. The fact that damages may be recovered by a property owner who is injured by a structure or business does not show that such structure or business is a public nuisance.\\n7. Same\\u2014question whether ordinance is valid cannot be left to the jury. An ordinance declaring a thing which is not a nuisance per se to be a nuisance, is, if valid, a law within the municipality, and the question of its validity cannot be left to the jury as a question of fact depending upon the evidence in a particular case, but the only question for the jury is whether the evidence establishes a violation of the terms of the ordinance,\\n8. Same\\u2014effect where preamble of ordinance recites manner in which use of switch tracks is offensive. A preamble which recites the manner in which the use of switch tracks is productive of public injury and annoyance amounts to no more than a statement of the reasons for enacting_ the ordinance, and is of no effect where the ordinance does not declare the use of the tracks in the manner specified in the preamble to be a nuisance, but dedares to be a nuisance any use of such tracks for switching, storing, loading or unloading cars within a- business district created by the ordinance.\\n9. Same\\u2014an ordinance declaring switch tracks in business district a nuisance is invalid. A city, under its police power, may declare under what circumstances and conditions the maintenance and operation of switch tracks shall be a nuisance, but an ordinance which merely 'established a \\u201cbusiness district,\\u201d within the limits of which the use of switch tracks or sidings for setting out, switching, storing, making up or passing freight cars, freight trains or engines, or for loading or unloading freight cars, is declared to be a nuisance, is invalid. ,\\nFarmer and Vickers, JJ., dissenting.\\nWrit of Error to the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding.\\nR. E. Lybarger, City Attorney, and Flack & Lawyer, for plaintiff in error.\\nJoseph A. Connell, and George D. TunnicliFF, (Chester M. Dawes, of counsel,) for defendant in error.\", \"word_count\": \"4978\", \"char_count\": \"28503\", \"text\": \"Mr. Justice Dunn\\ndelivered the opinion of the court:\\nThe Chicago, Burlington and Quincy Railroad Company was sued by the city of Bushnell for a violation of a city ordinance. On the trial the circuit court sustained an objection to the introduction of the ordinance in evidence and directed a verdict of not guilty. The validity of the ordinance being involved, a writ of error has been sued out of this court, the trial court having certified that the public interest so required.\\nThe ordinance was passed and duly published in May, 1912. It established within the city a business district, within whose limits the maintenance or- operation of any siding or switch track for setting out, switching, storing, making up or passing freight cars, freight trains or engines used therewith, or for loading or unloading freight cars or trains, was declared to be a nuisance, for the maintenance of which a penalty was imposed.\\nThe right of way of the railroad company, 250 feet wide, was acquired in 18-53 and 1854, before the city of Bushnell was laid out. It runs from north-east to southwest, and when the city was laid out a street was located adjoining the east side of the right of way and another adjoining the west side, called, respectively, East Main street and West Main street. Hail, Hurst and Barnes streets crossed East and West Main streets and the right of way at right angles, Hail being the farthest north and Barnes the farthest south. The right of way from Hail street to -Barnes street was within the business district. It was stipulated that the railroad company has used its right of way through said district for more than forty years, during which time it has maintained thereon one main track and three switch tracks, to which were added, in igio, another main track and another switch track; that for more than forty years it has maintained a freight depot on its right of way between Hurst and Barnes streets,' where it received, loaded and unloaded freight; that on the west side of its right of way there is a lumber yard just north of Hail street and another just south of Barnes street, and on the east side of the right of way a grain elevator just north of Hail street, the ground on which the lumber yards and elevator are situated being leased from the railroad company. It was also stipulated that the city of Bushnell is a prosperous, growing city, having a population of about 2700 persons and large and diverse business interests of great value; that the business houses face East and West Main streets in about equal numbers from Hail to- Barnes street, and consist, in part, of an opera house, a hotel, banking house, restaurants, stores for the sale of merchandise, barber shops, printing offices, and offices of lawyers, doctors, dentists, commission merchants and brokers; that Hail, Hurst and Barn\\u00e9s streets are the streets most generally used; that they connect the main business portions of the city, and are the most convenient and practicable means of passing back and forth in the business portion of the city. The city introduced evidence to prove that 2000 or 2500 people cross the railroad at Hurst street every day and as many more\\\" at the other two crossings; that from seven o'clock in the morning to nine o'clock at night the streets are obstructed by cars and engines on switch tracks from a fifth to a third of the time, and cars almost continually stand so near the street crossings as to obstruct the view of approaching trains; that all the coal unloaded is unloaded in the business district, and that the unloading of coal and the operation of cars and engines in switching make so much dust and smoke that business houses are at times obliged to close their doors, and so much noise that doors have to be closed to use the telephone; that offensive odors from poultry and stock cars standing on the tracks penetrate the houses, and that at times from ioo to 200 people are\\\" waiting to cross the tracks when they are obstructed.\\nThe only question involved is the validity of the ordinance. The law authorizes the city to declare what shall be a nuisance, but this does not authorize it to act arbitrarily and declare that to be a nuisance which is not, in fact, a nuisance. (Village of Desplaines v. Poyer, 123 Ill. 348.) Some things are in .their nature nuisances and are so recognized by the law. Other things are of such a character that in their nature they may be nuisances but as to which honest differences of opinion may exist among men of impartial minds as to whether they are actually nuisances or not. .The maintenance of slaughter-houses or livery stables, the depositing of offal and of the carcasses of dead animals within the city, or the obstruction of sidewalks for the display of merchandise, are of this class. In this class of cases the exercise by the city of the legislative authority to declare what shall be a nuisance is conclusive of the question. If it declares the thing a nuisance it is a nuisance. (North Chicago City Railway Co. v. Town of Lake View, 105 Ill. 207; Harmison v. City of Lewistown, 153 id. 313; Laugel v. City of Bushnell, 197 id. 20.) In another class are those things which in their nature are not-nuisances but which may become nuisances by reason of their locality, surroundings or the manner in which they are conducted. The city has no power to declare conclusively such things to be nuisances but can only declare such of them to be nuisances as are in fact so. (Village of Desplaines v. Poyer, supra; Laugel v. City of Bushnell, supra; Sings v. City of Joliet, 237 Ill. 300; Yates v. City of Milwaukee, 10 Wall. 497; City of Evansville v. Miller, 146 Ind. 613; City of St. Louis v. Heitzenberg Packing and Provision Co. 141 Mo. 375; City of Denver v. Mullen, 7 Colo. 345; Grossman v. City of Oakland, 30 Ore. 478; City of Helena v. Dwyer, 64 Ark. 424.) In Yates v. City of Milwaukee, supra, it is said: \\\"It is a doctrine not to be tolerated in this country that a municipal corporation, without any general laws, either of the city or the State, within which a given structure can be shown to be a nuisance, can, by its mere declaration that it is' one, subject it to removal by any person supposed to be aggrieved, or even by the city itself. This would place every house, every business and all the property of the city at the uncontrolled will of the temporary local authorities.\\\"\\nThe tracks of the railroad company are located upon its private right of way and lawfully cross the city's streets at their intersections with the right of way. It is not contended that such occupation of the street intersections is a nuisance or could be.declared to be such. A railroad, having acquired a right to the use of the streets of a city, can not be required to take up its tracks or abandon the use of the streets by the declaration of the city council that the operation of Its railroad is a nuisance. (Chicago, Rock Island and Pacific Railroad Co. v. City of Joliet, 79 Ill. 25; City of Chicago v. Chicago and Oak Park Elevated Railroad Co. 250 id. 486.) The operation of the railroad is a lawful business, and if it enters the city it must cross the streets not only with its main tracks but with its side-tracks. The switching of cars and the use of locomotive engines for that purpose are necessary for the transaction of its business, and neither the existence of the side-tracks, nor their use in switching, nor the use of locomotives for that purpose, can be prohibited. The city has the authority, in the exercise of the police power, to regulate the manner of using the switch tracks so that they shall not be operated in a manner dangerous to the lives or limbs of persons using the streets, so that public travel and the use of the streets shall not be unreasonably interfered with, so that the community in the vicinity of the railroad shall not be put to unreasonable inconvenience in the use and enjoyment of their property. It is the alleged use of the switch tracks in such a manner as to produce such public inconveniences which is the evil spught to be remedied. The remedy must be reached, not by the destruction and removal of the switch tracks, which are lawfully located, but by the regulation of their use. Under this ordinance it is unlawful for the railroad company to switch a car for loading or unloading to its freight house on its private right of way in the business district under any circumstances and without reference to the condition or manner in which it is done. Switching, alone, the ordinance makes the test and not the public inconvenience or danger.\\nCounsel for the plaintiff in error say that the matter complained of and penalized by the ordinance is a public nuisance. The matter penalized by the ordinance is the maintenance and operation of the switch tracks. The city, however, was not content to prove that the railroad company maintained switch tracks within the prohibited territory and operated them. It did not claim to be entitled to judgment on proof of the ordinance and' its violation, and manifestly it would not be entitled to such judgment, for it is conceded that the mere facts of the lawful existence of a side-track in a street, and its use, do' not constitute a nuisance. Then the city went on to prove, not that the thing denounced by the ordinance as a nuisance,\\u2014that is, the maintenance and use of the side-tracks,\\u2014was a nuisance, but that the manner of their use so as to cause an obstruction and congestion of street traffic for from one-fifth to one-third of the time, to obstruct the view of approaching trains, to increase the danger to the public at the crossings, and to inconveni\\u00e9nce and damage the public and the property in the neighborhood by the excessive noise, confusion, dust, smoke and dirt, created a nuisance. The concession that such proof was necessary is practically an admission of the invalidity of the ordinance, under the decision in Village of Desplaines v. Poyer, supra. In that case it is said of public picnics and dances, which were the subject matter of the ordinance there in question: \\\"When conducted with proper decorum and circumspection, and rem'ote from public thoroughfares, it is impossible to conceive how any public injury or annoyance can result. That the manner of conducting them may be productive of annoyance and injury to the public is not to be questioned, but since the nuisance must consist in this, and cannot consist in the mere fact that there is a picnic or dance, the ordinance should be directed only to it.\\\"\\nThe ordinance here in question also declares that to be a nuisance which is not a nuisance but which may become a nuisance under certain circumstances. The ordinance should be directed against the circumstances which are harmful, and not against the switch tracks, which are not. The ordinances which were considered in City of Evansville v. Miller, supra, and City of St. Louis v. Heitsenberg Packing and Provision Co. supra, were subject to the same objection. In City of Chicago v. Union Stock Yards and Transit Co. 164 Ill. 224, we said (p. 236) : \\\"We agree with counsel for appellee that a distinction must be talcen between the structure itself and the use to which it has been put. The unlawful use may be prevented without destroying the structure which has been lawfully erected. The power in the city to abate nuisances is not denied, but it does not follow that the city may, as the easiest way to abate the nuisance, destroy valuable private property susceptible of use for a lawful purpose.\\\"\\nThe ordinance contained a preamble which recited the manner in which the use made of the side-tracks was productive of public injury and annoyance, but this amounted .only to a statement of the reasons which induced the passage of the ordinance. The ordinance did not denounce the operation of side-tracks in the manner mentioned in the preamble as a nuisance but declared any use of sidetracks within the prohibited territory a nuisance. If valid, the ordinance became a law within the municipality, and it was not a question of fact whether the use made of the side-tracks in fact constituted a nuisance, but the mere maintenance or any use of a side-track within the prohibited territory became unlawful. The power of the city council did not go to this extent, but only to the extent of declaring under what conditions the maintenance or operation of side-tracks should be regarded as a nuisance. Whether such conditions were reasonable would be a question of law; whether the side-tracks were maintained or operated under such conditions a question of fact. An ordinance could not be valid which declared a certain thing to be a nuisance and yet left it to the jury to determine, from the evidence in each case, whether that thing was or was riot a nuisance.\\nCounsel for the plaintiff in error have cited numerous cases in which private suits have been maintained for damages occasioned by the carrying on of various kinds of business of a useful or even necessary character. They include slaughter-houses, soap factories, lime-kilns, the storing of gunpowder, petroleum or nitroglycerine, brick burning, a tannery, a livery stable, gas works, railroad stock yards, switch yards, a railroad round-house, and many other things which, under the circumstances of the respective cases, were offensive, dangerous or injurious to neighboring property. In other similar cases injunctions have been granted. In some of these cases, no doubt, the facts showed a public nuisance, in others a mere private nuisance; but in any event they have no bearing on the question here, which is the right of a city to declare what shall be a nuisance. The fact that damages may be recovered by a property owner who is injured by a structure or business does not show such structure or business to be a public nuisance. A rail road built and operated by authority of law cannot be held to be a nuisance although damages occasioned by it to adjoining property may be recovered. Chicago, Milwaukee and St. Paul Railway Co. v. Darke, 148 Ill. 226.\\nThe judgment is affirmed. J &\\nr , , , Judgment affirmed.\"}"
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+"{\"id\": \"478100\", \"name\": \"UNITED CITIES GAS COMPANY, Appellant, v. ILLINOIS COMMERCE COMMISSION, Appellee\", \"name_abbreviation\": \"United Cities Gas Co. v. Illinois Commerce Commission\", \"decision_date\": \"1994-09-22\", \"docket_number\": \"No. 74760\", \"first_page\": \"1\", \"last_page\": \"32\", \"citations\": \"163 Ill. 2d 1\", \"volume\": \"163\", \"reporter\": \"Illinois Reports, Second Series\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T21:20:51.272401+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"UNITED CITIES GAS COMPANY, Appellant, v. ILLINOIS COMMERCE COMMISSION, Appellee.\", \"head_matter\": \"(No. 74760.\\nUNITED CITIES GAS COMPANY, Appellant, v. ILLINOIS COMMERCE COMMISSION, Appellee.\\nOpinion filed September 22, 1994.\\nRehearing denied December 5, 1994.\\nDaniel J. Kucera and Christopher J. Townsend, of Chapman & Cutler, of Chicago, for appellant.\\nCarmen L. Fosco, Special Assistant Attorney General, of Chicago, for appellee.\", \"word_count\": \"8852\", \"char_count\": \"56038\", \"text\": \"JUSTICE McMORROW\\ndelivered the opinion of the court:\\nThis appeal arises from an order entered by the Illinois Commerce Commission (Commission) in a proceeding to reconcile the revenues collected by United Cities Gas Company (United Cities) in 1988 with the actual costs of gas purchased for that year. Following a hearing, the Commission ordered United Cities to refund with interest $260,553 of gas costs allocated to certain of its Illinois customers in 1988. The appellate court affirmed the order of the Commission, with one justice dissenting. 235 Ill. App. 3d 577.\\nBackground\\nThe Commission has authorized public gas utilities to recover the costs of gas purchases through the Commission's uniform purchased gas adjustment (PGA) clause, promulgated in 83 Ill. Adm. Code \\u00a7 525 (1982). The Commission's power to authorize such recovery is derived from section 9 \\u2014 220 of the Public Utilities Act (Ill. Rev. Stat. 1989, ch. 1112/3, par. 9 \\u2014 220). Section 9 \\u2014 220 provides in pertinent part:\\n\\\"Notwithstanding the provisions of Section 9 \\u2014 201 [regarding changes in rates], the Commission may authorize the increase or decrease of rates and charges based upon changes in the cost of * purchased gas through the application of * purchased gas adjustment clauses. * Cost shall be based upon uniformly applied accounting principles. Annually, the Commission shall initiate public hearings to determine whether the clauses reflect actual costs of * gas * purchased to determine whether such purchases were prudent, and to reconcile any amounts collected with the actual costs of * gas prudently purchased. In each such proceeding, the burden of proof shall be upon the utility to establish the prudency of its cost of * gas purchases and costs.\\\" (Ill. Rev. Stat. 1989, ch. 1112/3, par. 9 \\u2014 220.)\\nExpenses other than gas purchase costs are recovered in base rates, which are set in periodic rate hearings or cases. (See Ill. Rev. Stat. 1989, ch. 1112/3, pars. 9 \\u2014 101 through 9 \\u2014 212.) Under the PGA clause, a gas utility's gas costs are first estimated and then incorporated into a formula which results in a gas cost rate. This rate, together with the base rate, combine to determine a customer's monthly gas bill.\\nAs set forth in section 9 \\u2014 220 of the Act, gas utilities are required to reconcile the revenues they received in the previous year through the gas cost rate with the actual costs of gas prudently purchased for that year. Because the gas cost rate is based on estimates, and because actual gas prices can change during the year, either an undercollection or an overcollection of gas cost revenues may occur. After reconciling the revenues collected through the gas cost rate with the actual costs incurred, the utility collects any underrecovery from its customers or refunds any overrecovery to its customers. This is accomplished by adjustments to a factor (R4) in a mathematical refund adjustment formula of the PGA clause. Pursuant to section 9 \\u2014 220, the Commission conducts annual proceedings to determine the propriety of the utility's reconciliations of its gas cost rate revenues with actual costs incurred. This reconciliation procedure is also known as a \\\"true-up.\\\"\\nIn September 1989, the Commission initiated a reconciliation proceeding and directed United Cities to present evidence confirming its reconciliation of PGA revenues with the actual cost of gas prudently purchased for the calendar year 1988. Evidence adduced at the hearing included the following.\\nUnited Cities is an investor-owned retail gas distribution utility which provides natural gas service in five areas of Illinois and, as such, is regulated by the Commission. United Cities is also subject to the regulatory jurisdiction of seven other States in which it provides natural gas service. The service areas relevant to this appeal are Harrisburg, Illinois, and the cities of Franklin and Murfreesboro, Tennessee.\\nTexas Eastern Transmission Corporation (Texas Eastern) is United Cities' pipeline supplier for both the Harrisburg and Tennessee service areas. The rates charged by pipeline suppliers are subject to regulation by the Federal Energy Regulatory Commission (FERC) and all contracts between gas utilities and pipeline suppliers must be approved by FERC.\\nThe long-term contract between United Cities and Texas Eastern contains a demand / commodity rate schedule under which United Cities is required to pay both a commodity charge, based upon metered volume usage, and a demand charge. The demand charge, which is the charge at issue, consists of two different fees: a contract demand charge and a storage demand charge. In exchange for the contract demand charge, Texas Eastern guaranteed that it would have available gas and the pipeline capacity to deliver that gas up to the contracted maximum daily quantity. In exchange for the storage demand charge, Texas Eastern guaranteed that it would have field or tank storage capacity and actual gas up to the contracted daily maximum quantity. These charges assure that a specified amount of gas is available for use by United Cities' customers. Both charges are fixed amounts that United Cities is required to pay, irrespective of whether it uses the contracted maximum quantity of gas. For purposes of this appeal, we refer to both fees in the singular as the demand charge.\\nThe Texas Eastern demand charge was arrived at by projecting the anticipated maximum daily demand for gas in each of the service areas covered by the contract and then multiplying that figure by the demand rate. United Cities then made its own internal apportionment of the total amount of the demand charge to the customers in the areas served by the Texas Eastern contract proportionate to the estimated maximum peak day demand for gas in each service area. In 1988 United Cities allocated 42% of the total demand charge to the Harrisburg area and 58% to the Tennessee area. The origin of these percentages was a 1984 study of the projected peak day demand requirements for the Harrisburg and Tennessee service areas following United Cities' acquisition of the Franklin, Tennessee, service area. The study was performed for and submitted in a 1984 rate case before the Tennessee Public Service Commission (Tennessee Commission). These same allocation percentages were submitted in a rate filing before the Tennessee Commission in 1986, which was concluded in February 1987. United Cities continued to use these 1984 percentages to establish customer rates for Harrisburg from 1985 through almost all of 1989. In December 1989, in a hearing before the Tennessee Commission, United Cities revised its allocation percentages, lowering Harrisburg's percentage to approximately 28% of the total Texas Eastern demand charge.\\nBobby J. Cline, a rate analyst and the sole witness for United Cities, presented United Cities' reconciliation of the revenues billed under the PGA clause with the actual gas costs incurred in 1988. Those computations showed a total underrecovery in the five Illinois service areas of $171,170.88. The amount of the underrecovery attributed to Harrisburg for 1988 was $72,090.57. This amount was reflected in the R4 factor of the PGA clause filed in 1989 and was collected through the monthly billings of Harrisburg customers from April 1, 1989, to March 31, 1990.\\nJohn Link, an accountant for the Commission's public utilities division, testified on behalf of the Commission's staff (Staff). Link agreed with the reconciliations submitted by United Cities for each of the Illinois service areas except Harrisburg. Link testified that Harrisburg's actual percentage of peak day demand in 1988 was only 28.69% as compared to the 42% projected and billed by United Cities. Link maintained that an adjustment was necessary because the allocation percentages used by United Cities in its internal apportionment of demand costs between the Harrisburg and Tennessee service areas were outdated and inaccurate. The use of these allocation percentages would have the effect of charging Illinois customers a disproportion ate share of the Texas Eastern demand charge and would result in Harrisburg customers' subsidizing United Cities' Tennessee operation for a portion of the demand charge rightfully chargeable to Tennessee customers. Illinois has a fully-tracking, zero-based uniform PGA clause which allows a gas utility to recover its gas costs no more or less than dollar-for-dollar. Accordingly, Link recommended that United Cities be required to refund to its Harrisburg customers $260,553 plus interest through the R4 factor so as to reconcile the difference between the actual Harrisburg demand and the percentage of demand charges allocated to Harrisburg by United Cities.\\nLink presented data obtained from United Cities which showed a substantial increase in Tennessee and a corresponding decrease in Harrisburg of customers and sales from 1985 through 1989. Link opined that the increase in Tennessee sales would have yielded sufficient additional revenues to have resulted in United Cities already having recovered from its Tennessee customers the total amount of actual costs incurred for gas purchased in 1988. However, Link testified, irrespective of what amount was recovered from Tennessee, Illinois customers should pay no more or less than gas costs prudently purchased for and properly chargeable to them.\\nCline testified that unlike Illinois, Tennessee does not have a PGA cost recovery system whereby there is a reconciliation or \\\"true-up\\\" of gas costs and revenues. Rather, the majority of gas costs are included in the base rate. Thus, there can be no change in the Tennessee demand allocation except in a future general rate case before the Tennessee Commission. United Cities did not review the demand allocation percentages for 1988 because the company had just completed a 1986 rate case in Tennessee in 1987. Cline stated that \\\"to get a demand allocation factor for the coming calendar year, you have to go in and prepare that\\\" and \\\"someone\\\" at United Cities \\\"[ejvidently * did not see a need to revise the allocation factors.\\\" Moreover, United Cities did not file a 1987 or 1988 rate case in Tennessee. These were the reasons that the allocation set in the 1984 Tennessee rate case was not revised until the 1989 Tennessee rate filing.\\nCline took the position that Staff's proposal to adjust demand charges based on historical data for the year was objectionable because demand charges are \\\"forward-looking\\\" by reason of the long-term Texas Eastern contract, and because the actual peak day demand could not be determined until approximately mid-January of the following year. Cline also disputed Link's allegation that an increase in sales necessarily results in an increase in operating revenues, such that United Cities would fully recover or overrecover its total demand charges from Tennessee customers. He asserted that if United Cities had recovered all of its costs through increased revenues, it would not have had to go before the Tennessee Commission for rate increases in 1986 and 1989.\\nCline analogized the demand charge to an insurance premium from which the insured benefits by having the security of the insurance whether or not he collects it. Likewise, Cline opined, the Harrisburg customers benefitted from the security that a certain level (42%) of contract demand, i.e., capacity, was reserved for them. Thus, despite that the amount of the projected peak day demand may not have been consumed, Harrisburg customers received the full benefit of the 42% of the Texas Eastern demand charge. Cline acknowledged, however, that the allocation was an internal, company-generated figure, and that if one area needed more than its allocated amount of gas and another required less gas, the company could distribute the gas as it was needed at will, rather than as the allocation percentages designated.\\nThe Commission issued its order on October 4, 1991. An amendatory order merely correcting a term misusage was filed on October 17, 1991. The order contained the Commission's findings of fact and conclusions. The Commission determined that the evidence did not establish that there had been an overrecovery of the total demand charge as a result of increased sales in Tennessee. However, the Commission distinguished the lack of evidence of an overrecovery from Tennessee customers from what it determined was an overcollection by United Cities of the demand charge from its Harrisburg customers. The Commission noted that data presented showed a clear shift in sales and customers from Illinois to Tennessee, a steady increase in peak day demand in Tennessee, and a corresponding decrease in peak day demand in Harrisburg from 1985 to 1989. The Commission found that this evidence constituted a change in circumstances that justified rejection of United Cities' allocation of 42% of the total demand charges to the Harrisburg service area. The Commission also found that United Cities' failure to review the allocation percentages in the 1986 Tennessee rate case demonstrated an indifference toward its Harrisburg customers, and that this indifference coupled with the shift in actual sales and customers justified a departure from the Commission's past approval of United Cities' allocations. In conclusion, the Commission agreed with and adopted Staff's recommended adjustment in this case. The Commission's order stated, in part:\\n\\\"(4) the evidence indicates that Respondent [United Cities] acted reasonably and prudently in its purchases of natural gas during calendar year 1988;\\n(5) for calendar year 1988, Respondent's reconciliation evidence indicates that it experienced an undercollection of gas costs in the amount of $171,170.88; this amount was reflected in Respondent's R4 factor filed in 1989; Staff's proposed adjustment, which reflects a decrease in gas cost in the Harrisburg service area due to a revision in the Texas Eastern demand charge allocation factor, is reasonable and should be approved; Staff's proposed adjustment is necessary to prevent Respondent's customers in the Harrisburg service area from being billed for PGA revenues in excess of the cost of gas prudently purchased; Respondent should refund its overcollection of Texas Eastern demand charges in the amount of $260,553 plus interest to its customers in the Harrisburg service area through the R4 factor of the PGA in accordance with the provisions of 83 Ill. Adm. Code 525.60;\\n(6) Respondent should review the Texas Eastern demand charge allocation factors at the time of each Tennessee rate case; Respondent should submit its study of such allocation factors to the Accounting Department of the Commission's Public Utilities Division at the same time that it is submitted for review in Tennessee.\\\"\\nUnited Cities appeals from the order of the Commission and the decision of the appellate court affirming that order on eight general grounds. For the reasons that follow, we affirm the appellate court.\\nScope of Review\\nThe Commission is the administrative agency responsible for setting the rates utilities charge their customers. It is governed by the Public Utilities Act (Ill. Rev. Stat. 1989, ch. 1112/3, par. 1 \\u2014 101 et seq.), in which the legislature has enunciated the Commission's powers and duties. The Commission is the fact-finding body in the ratemaking process. On appeal from an order of the Commission, its findings of fact are to be considered prima facie true; its orders are considered prima facie reasonable; and the burden of proof on all issues raised in an appeal is on the appellant. Ill. Rev. Stat. 1989, ch. 1112/3, par. 10 \\u2014 201(d); People ex rel. Hartigan v. Illinois Commerce Comm'n (1989), 148 Ill. 2d 348, 366-67.\\nAn order of the Commission will be reversed only if it is outside the jurisdiction of the Commission or is not supported by substantial evidence, or if the proceedings or manner in which the order was arrived at violated the State or Federal Constitution or relevant laws, to the prejudice of the appellant. (Ill. Rev. Stat. 1989, ch. 1112/3, pars. 10 \\u2014 201(e)(IV)(A) through (e)(IV)(D); State Public Utilities Comm'n ex rel. City of Springfield v. Springfield Gas & Electric Co. (1919), 291 Ill. 209.) It is well settled that a decision of the Commission is entitled to great deference because it is the \\\"judgment of a tribunal appointed by law and informed by experience\\\" (Village of Apple River v. Illinois Commerce Comm'n (1960), 18 Ill. 2d 518, 523). Apart from examining whether the Commission acted outside the scope of its constitutional or statutory authority, a reviewing court is limited to determining whether the findings of the Commission are against the manifest weight of the evidence. (People ex rel. Hartigan v. Illinois Commerce Comm'n (1992), 148 Ill. 2d 348, 367; Business & Professional People for the Public Interest v. Illinois Commerce Comm'n (1989), 136 Ill. 2d 192, 204.) The Commission's interpretation of a question of law, of course, is not binding upon a reviewing court. Upon review of a Commission order, the court may, in whole or in part, reverse and set aside the order, affirm the order, or remand the cause to the Commission for further proceedings. People ex rel. Hartigan, 148 Ill. 2d at 367.\\nAnalysis\\nUnited Cities contends that the Commission's order violates the prohibition against retroactive ratemaking discussed in Citizens Utilities Co. v. Illinois Commerce Comm'n (1988), 124 Ill. 2d 195. United Cities argues that the order constitutes a new ratemaking rule which departs from the Commission's policy, upon which United Cities relied, of allowing demand charges to be based upon projections rather than actual demand.\\nCitizens Utilities Co. was a rate case for the year 1983, involving the treatment of expenses relating to a contract plant. A contract plant is a facility that was constructed by a real estate developer and later deeded to the utility. Generally, the utility pays the developer a regular fee based upon rates charged to the utility's customers. However, because the utility acquires the plant at no cost to itself, a contract plant is not included in the company's rate base for ratemaking purposes. In computing its Federal income taxes, Citizens had depreciated the contract plant, and thus reduced its income tax liability. Citizens did not, however, similarly depreciate the contract plant in computing its income tax expense for ratemaking purposes. Thus, it. showed a greater income tax expense for ratemaking purposes than it actually paid the Federal government. The higher figure had been used in establishing Citizens' rates for the years 1958 through 1982.\\nThe Commission concluded that Citizens had compiled approximately $4.6 million in tax benefits as of the end of 1983. The Commission ordered that $400,000 in tax depreciation expense for the test year 1983 be deducted from Citizens' taxable income, which reduced its income tax expense for ratemaking purposes. The Commission further ordered that the remaining $4.2 million be deducted from Citizens' rate base. On appeal, this court determined that the $4.2 million base rate reduction constituted retroactive ratemaking. The court stated:\\n\\\"We believe that the real effect, whether intended or not, of the $4.2 million reduction in Citizens' rate base is to deny retroactively the tax benefits the Commission permitted the company to enjoy during the period from 1958 to 1982. Such action clearly conflicts with fundamental principles of ratemaking in Illinois. The prohibition of retroactive ratemaking is derived from the overall scheme of the Act and the role of the Commission in the ratemak ing process. [Citation.] The Act authorizes reparations only for what are deemed 'excessive' charges. [Citation.] A rate is effective once it is established by the Commission, unless the rate order is stayed pending review. [Citation.] Moreover, a public utility is required to charge the rates determined by the Commission, in its legislative capacity [citation], and penalties may be imposed if the company fails to charge the established rates [citation]. The rule prohibiting retroactive ratemaking is consistent with the prospective nature of legislative activity, such as that performed by the Commission in setting rates. Moreover, because the rule prohibits refunds when rates are too high and surcharges when rates are too low, it serves to introduce stability into the ratemaking process. [Citation.]\\\" (Citizens Utilities Co., 124 Ill. 2d at 206-07.)\\nThe court held that the $4.2 million of tax benefits between 1958 and 1982 originated as expenses that the Commission allowed Citizens to recover, and that there could be no retroactive adjustment in the case simply because the Commission subsequently decided to treat the tax benefits differently. The court noted that the Commission was attempting to correct what it perceived to be errors in past rate orders, despite the absence of any suggestion that Citizens had obscured any information or otherwise misled the Commission in making those determinations.\\nAt the same time, however, the court upheld the Commission's reduction of the $400,000 tax depreciation expense for the test year 1983 for ratemaking purposes. The court reasoned that this tax expense was never included as part of Citizens' rate base and, therefore, the reduction did not remove an item that the Commission had at one time incorrectly installed as part of Citizens' rate base. (Citizens Utilities Co., 124 Ill. 2d at 204.) Citizens Utilities Co. does not support United Cities' argument in the case at bar.\\nForemost, unlike Citizens Utilities Co., the case at bar is not a traditional rate case in which the Commis sion establishes the base rates a utility may charge its customers. This case involves a reconciliation proceeding under section 9 \\u2014 220 of the Act. As quoted earlier, section 9 \\u2014 220 begins with the phrase \\\"Notwithstanding the provisions of [this Article],\\\" and continues, \\\"the Commission may authorize the increase or decrease of rates and charges based upon changes * in the cost of purchased gas through the application of * purchased gas adjustment clauses.\\\" (Ill. Rev. Stat. 1989, ch. 1112/s, par. 9 \\u2014 220.) Section 9 \\u2014 220 directs the Commission to annually initiate hearings to determine the actual costs of gas purchased and whether such purchases were prudent, and to then reconcile any amounts collected with the actual costs of gas prudently purchased. The burden of proving the prudency of its gas purchases is on the utility. (Ill. Rev. Stat. 1989, ch. 1112/3, par. 9 \\u2014 220.) It is clear from the language and substance of section 9 \\u2014 220 that it is an exception to the general prohibition against retroactive adjustments of rates. See Business & Professional People for the Public Interest v. Illinois Commerce Comm'n (1988), 171 Ill. App. 3d 948.\\nFurther, in this case the Commission did not disturb any of its prior orders or disallow charges or benefits it had previously approved, as did the Commission in Citizens Utilities when it ordered a deduction from the base rate of tax benefits it had allowed for 24 prior years. The Commission merely determined that United Cities had failed to sustain its burden of reconciling its revenues with the actual costs of gas prudently purchased for Harrisburg in the year for which the reconciliation was performed. The court therefore disallowed the claimed underrecovery and also ordered a refund of costs found to have been improperly charged to the Harrisburg service area for 1988. Notwithstanding that in previous years the Commission had approved United Cities' reconciliations of PGA costs and revenues based upon a 42% allocation to Harrisburg of demand charges, actual costs and revenues collected are to be reconciled annually. Indeed, United Cities' argument that the Commission had previously \\\"approved\\\" its demand allocation in previous years indicates an acknowledgment that a utility's reconciliation figures are subject to annual scrutiny and approval. Parenthetically, with regard to the 1986 and 1987 reconciliations, we note that Staff witness Link testified that he had not been aware in those prior proceedings that the allocation of demand charges was an estimated calculation; and that based upon data developed in the course of this proceeding, which showed a consistent decrease in sales, customers and peak day demand in Harrisburg since 1985, it was his hindsight opinion that those prior reconciliations should not have been approved. We reiterate, however, that the Commission's order in the present proceeding did not make adjustments to or rescind the orders entered in those proceedings so as to retroactively deny United Cities revenues or benefits which had been previously allowed.\\nIt should also be noted that section 9 \\u2014 220 may work to the benefit of a utility, since it authorizes the Commission to order an increase in rates due to an undercollection of prudent gas costs. Notably, in the reconciliation proceeding at issue, United Cities claimed a total underrecovery of $171,170.88 of costs in its five Illinois service areas, which amount was reflected in and collected through its R4 factor filed in 1989. Pursuant to its authority under section 9 \\u2014 220, the Commission did, in fact, approve United Cities' reconciliation figures for the four service areas of Illinois other than Harrisburg, thus allowing United Cities an increase in its charges for the year 1988 in those areas.\\nThe appellate court in Business & Professional People for the Public Interest v. Illinois Commerce Comm'n (1988), 171 Ill. App. 3d 948, considered matters similar to those before us. The court first held that the Commission was authorized to inquire into the production management of an nuclear power plant in determining whether fuel purchases were prudently made. The court affirmed the Commission's order of a $70 million refund of charges collected under the uniform fuel adjustment clause (UFAC), which is the equivalent of the PGA in the electricity industry, on the ground that the plant operated at only 17.7% capacity during the year at issue rather than at the 60% capacity projected by the utility. The court recognized that the amounts collected under the UFAC reflected the utility's actual costs. It observed, however, that $70 million of those costs were incurred because the plant did not operate at its forecasted capacity. The customers were paying greatly increased rates based upon the plant's being in full operation and, at the same time, paying for fuels to replace the power not being generated by the minimally operating plant. The court stated, \\\"[i]f, in a fuel reconciliation proceeding, the Commission could not examine the reasons that necessitated a fuel purchase, the prudence standard would have no effect on ensuring a just and reasonable rate\\\" as is required by the Act. Business & Professional People, 171 Ill. App. 3d at 958.\\nThe court in Business & Professional People held that the ordered refund did not violate the rule against retroactive ratemaking prohibiting an increase or decrease of a rate which had been determined to be just and reasonable and had been put into effect. The court noted that the reasonableness of a charge under the UFAC could not be determined until after it was collected, and that section 36, now section 9 \\u2014 220, was an express legislative exception to the prohibition against retroactive ratemaking. The court thus determined that the Commission acted within its statutory authorization when it applied the prudency standard not only to the actual purchase amounts but to the reasons for those purchases in determining that, based upon what the utility knew or should have known, it was unreasonable to have forecasted that the plant would have a 60% operating ability. We agree with the reasoning and holdings in Business & Professional People.\\nIn the instant case, as in Business & Professional People, Staff did not dispute that the Texas Eastern demand charge was a gas cost which United Cities had actually incurred. Neither did Staff dispute that United Cities acted reasonably and prudently in contracting with Texas Eastern to pay the demand charge. Rather, Staff argued, and the Commission agreed, that United Cities did not act reasonably in allocating 42% of the total demand charge to its Harrisburg customers on the basis of projections and data which it knew or should have known were outdated and inaccurate. Since data established that Harrisburg did not require 42% of the total volume of gas reserved under the Texas Eastern contract, United Cities' own \\\"reservation\\\" of 42% of that gas for Harrisburg was not prudent and, hence, the 42% allocation of the total demand charge to Harrisburg customers was not a cost of gas prudently purchased. Section 9 \\u2014 220 expressly authorizes the Commission to determine the prudency of purchases of gas before reconciling the revenues collected with the actual costs of gas prudently purchased. The disallowance of imprudent gas costs under section 9 \\u2014 220 does not constitute retroactive ratemaking.\\nUnited Cities also contends that the Commission violated the prohibition against retroactive ratemaking by abandoning what United Cities refers to as its \\\"multijurisdictional consistency rule.\\\" United Cities argues that an important feature of the instant cause is that it involves two different jurisdictions, each of which has a different rule for recovery of gas costs by a gas utility, and a common gas cost which must be allocated to the customers in each State. United Cities further argues that this court has repeatedly held that a utility is entitled to recover 100% of every cost of service, and that to assure that objective, the Commission has established a \\\"multi-jurisdictional consistency ratemaking rule\\\" which requires it to approve an allocation method that will ensure consistency among jurisdictions so as to avoid the overcollection or undercollection of total gas costs. United Cities cites Illinois Commerce Comm'n v. Iowa-Illinois Gas & Electric Co. (1989), 105 Pub. Util. Rep. 4th 353, the Commission's decision in what is referred to by the parties as the \\\"Barnsley Order\\\" (In re United Cities Gas Co. (November 19, 1990), _Ill. Commerce Comm'n Rep._(ICC Nos. 90\\u2014 0008, 90 \\u2014 0152 cons.)), and the Commission's prior PGA reconciliation approvals as recognition and application by the Commission of the \\\"multi-jurisdictional consistency rule.\\\"\\nInitially, we note that with regard to this issue and throughout its brief, United Cities asserts that \\\"[\\u00bf]t is undisputed that 42% of legitimate demand costs were incurred by United Cities in 1988 in reserving 42% of pipeline capacity for Illinois customers. It is also undisputed that this 42% reservation of capacity, which cost 42% of the total demand cost, was prudent and reasonable.\\\" (Emphasis in original.)\\nThese assertions are incorrect. It was highly disputed by Staff that 42% of the demand charge was incurred for the actual benefit of Harrisburg customers or that a 42% \\\"reservation of capacity\\\" by United Cities to Harrisburg was prudent and reasonable. And, as discussed, the Commission expressly found that, applying a prudency standard to United Cities' allocation of the total demand charge, the refund ordered was necessary to prevent the Harrisburg customers from being charged for an amount in excess of the cost of gas prudently purchased for them.\\nUnited Cities is incorrect in its argument. In the Iowa-Illinois case relied upon by United Cities, the Commission reviewed the collection and allocation of nuclear power plant decommissioning costs. These costs were recovered through base rates, not the PGA clause. The Commission accepted the Company's position to retain the existing allocation method rather than adopting a new method proposed by Staff, stating that \\\"[t]his treatment will ensure the consistency among jurisdictions.\\\" The Commission did not say, as United Cities argues, that it \\\"must accept a cost allocation which assures consistency among the states.\\\" In fact, the Commission noted the uniqueness of the situation before it. Moreover, the decommissioning allocation factor in that case was based on actual data, i.e., a three-year historical average of peak demand in the two States. Finally, the Commission expressly retained \\\"the authority to review the filed factors and supporting data each year and to suspend any increase or decrease in a decommissioning cost factor when an investigation is warranted.\\\" The Commission noted that \\\"[cjustomers as a whole should be benefitted by the Company's proposal because it will provide a reasonable assurance that current realistic estimates of decommissioning costs are being collected in Illinois.\\\" (Emphasis added.) (Iowa-Illinois, 105 Pub. Util. Rep. 4th at 362.) Iowa-Illinois does not present facts similar to the case at bar, nor did it establish a \\\"rule\\\" requiring multijurisdictional consistency.\\nThe \\\"Barnsley Order\\\" involved United Cities' acquisition of the Barnsley gas storage field in Kentucky in 1989. One of the many issues presented for resolution in that proceeding was the allocation of the costs of the Barnsley storage field between the Illinois and Tennessee areas which utilized it. A study conducted after United Cities' acquisition of Barnsley regarding projected peak day demands for the 1990-91 heating season indicated that Barnsley was utilized 75.94% for Tennessee operations and 24.06% for Illinois operations. United Cities therefore sought approval of the proposal that the Barnsley costs be allocated accordingly between the two States both in base rates and in PGA recovery. The Commission approved this proposal over the objections of Staff. The Commission also directed United Cities to review and evaluate the existing Illinois/Tennessee allocation at the time of its next Tennessee rate case and to submit any such study to Staff for its review at the same time the study would be submitted for review in Tennessee.\\nAlthough the result in Barnsley was consistency in the allocation figures used for Tennessee and Illinois, the Commission neither enunciated nor based its decision on a \\\"rule\\\" of multijurisdictional consistency. Significantly, the projections in Barnsley were based upon a current study conducted in preparation for the Barnsley proceeding. In the instant case, the allocation was based upon a 1984 study which United Cities failed to update despite, as the Commission found from data presented, a clear shift in actual sales and customers and peak day demand from Harrisburg to Tennessee between 1985 and 1989. Additionally, while the Commission accepted United Cities' projections in approving the Illinois allocation, it directed \\u2014 as it did in this case and in Iowa-Illinois \\u2014 that United Cities review and reevaluate its allocation at the time of the next Tennessee rate case and to concurrently submit that data to Staff for its review.\\nAs pointedly stated by the Commission in its order in the present case, its adoption of the allocation method in the Barnsley order was \\\"based upon the facts and circumstances in that docket. That allocation methodology is not binding on this Commission if a change in circumstances has arisen that warrants a different methodology.\\\" As support for its position, the Commission cited Mississippi River Fuel Corp. v. Illinois Commerce Comm'n (1953), 1 Ill. 2d 509, 513, wherein this court stated:\\n\\\"The concept of public regulation includes of necessity the philosophy that the commission shall have power to deal freely with each situation as it comes before it, regardless of how it may have dealt with a similar or even the same situation in a previous proceeding.\\\"\\nThus, it is clear that the Commission did not subscribe to the existence of a \\\"rule\\\" requiring multijurisdictional consistency or to a rule requiring it to adhere to the precedent of orders it entered in prior proceedings. Although multijurisdictional consistency may be a desirable goal, it is not a rule which obligates the Commission to approve charges which have been improperly attributed to Illinois customers merely to achieve consistency with another State which employs a different cost recovery system.\\nIn a closely related contention, United Cities argues that the Commission erred in disregarding its own precedent because it is bound by its prior orders under the doctrine of res judicata. The doctrine of res judicata has no application in this case.\\nThe essential elements of res judicata are a final judgment on the merits rendered by a court of competent jurisdiction, an identity of cause of action, and an identity of the parties or their privies. The presence of these three elements renders the judgment conclusive as to the rights of the parties and their privies. People ex rel. Burris v. Progressive Land Developers, Inc. (1992), 151 Ill. 2d 285, 294; see also People ex rel. Hartigan v. Illinois Commerce Comm'n (1993), 243 Ill. App. 3d 544, 549.\\nIn the present case, no prior order of the Commission has considered or resolved the issue of United Cities' 1988 reconciliation of PGA costs and revenues. The instant proceeding is distinguishable from Iowa-Illinois, Barnsley, or any other prior cases or reconciliation proceedings decided by the Commission. Moreover, in addition to the language quoted above, the court in Mississippi River Fuel Corp. expressly held that \\\"orders [of the Commission] are not res judicata in later proceedings before it.\\\" Mississippi River Fuel Corp., 1 Ill. 2d at 513.\\nUnited Cities next contends that the Commission violated the prohibition against confiscation by disallowing recovery of legitimate operating expenses, i.e., the demand charge, incurred for the benefit of its customers. United Cities cites numerous cases for the proposition that a rate of return which does not produce sufficient income to meet operating expenses is confiscatory. (E.g., Sprague v. Biggs (1945), 390 Ill. 537.) United Cities also argues that the Commission cannot \\\"ignore items charged by the utility as operating expenses unless there is an abuse of discretion in that regard by the corporate officers\\\" (State Public Utilities Comm'n ex rel. City of Springfield v. Springfield Gas & Electric Co. (1920), 291 Ill. 209, 234), and that the Commission is \\\"without authority to arbitrarily reduce an allowance shown to have been actually paid * unless there is a further showing that, for some reason, the amount was improperly increased over a legitimate cost.\\\" Peoples Gas Light & Coke Co. v. Slattery (1939), 373 Ill. 31, 61-62.\\nSection 9 \\u2014 101 of the Act (Ill. Rev. Stat. 1989, ch. 1112/3, par. 9 \\u2014 101) requires that rates and charges for services shall be just and reasonable. A public utility is entitled to just and reasonable compensation for the ser vice given to the public; but on the other hand, the public is entitled to demand that no more be exacted from it than the services rendered are reasonably worth. Springfield Gas, 291 Ill. at 217-18. See also Peoples Gas Light & Coke Co. v. Slattery (1939), 373 Ill. 31 (allowing costs of maintenance of mains where the evidence showed that they were related to an extremely cold winter; but disallowing certain costs of promoting the utility's sales of gas appliances as being unrelated to the utility's primary service, the provision of gas); Illinois Bell Telephone Co. v. Illinois Commerce Comm'n (1973), 55 Ill. 2d 461, 478 (utility's lobbying expenses, charitable contributions and club dues were not legitimately incurred operating expenses recoverable from customers); Du Page Utility Co. v. Illinois Commerce Comm'n (1971), 47 Ill. 2d 550, 560-61 (excluding contributions in aid of construction made by consumers from the fair value of a plant for rate-fixing purposes, and disallowing officers' salaries found to be excessive for rate purposes); Candlewick Lake Utilities Co. v. Illinois Commerce Comm'n (1983), 122 Ill. App. 3d 219, 227 (holding that the utility has the burden of proving that any operating expense for which it seeks reimbursement directly benefits the ratepayers or the services which the utility renders).\\nThe Commission's disallowance of 13.31% (42% minus the 28.69% found to be the proper percentage) of the Texas Eastern demand charge which United Cities allocated to the Harrisburg service area did not constitute confiscation. United Cities' Harrisburg customers should not be required to pay for more than the service provided is reasonably worth or for costs not legitimately incurred for their benefit.\\nContrary to United Cities' insistence that \\\"[n]o one has questioned that the capacity [of gas] reserved for [the Harrisburg service area] was not reasonably forecasted,\\\" the Commission expressly found that United Cities had demonstrated indifference toward its Harrisburg customers by failing to review its allocation percentages despite a clear shift in sales and customers from Harrisburg to Tennessee from 1985 to 1989. The Commission determined, and we agree, that such indifference by United Cities was a factor which rendered Staff's proposed adjustment and refund justifiable.\\nMoreover, we find no merit in United Cities' argument that the demand charge is like a premium for insurance and that the Harrisburg customers received the full benefit of what they were charged by virtue of having the security of 42% of total capacity reserved for them. As it has been noted, the allocation percentages were not only based on an outdated study but were unilaterally assigned by United Cities in its own internal bookkeeping methodology. The same argument United Cities makes could be made to support any percentage \\\"reserved\\\" by United Cities for the Harrisburg service area. The question is not whether United Cities \\\"reserved\\\" 42% for the Harrisburg customers, but whether that amount of reservation was reasonable and prudent and based upon on actual need. If, as the Commission found, such \\\"reservation\\\" was excessive and imprudent, then the 42% reservation did not constitute a benefit. The responsive analogy by the Commission is more fitting, i.e., that United Cities was in the position of an insurer which, despite knowing that its insured should be classified as a better risk deserving a resulting lower premium, continued to charge the higher premium.\\nUnited Cities also repeatedly notes that it cannot recover the amount disallowed by the Commission from its Tennessee customers because of the nature of Tennessee's ratemaking scheme. As Staff argued, however, it was United Cities' own failure to update its allocation figures that resulted in the overcollection from Illinois customers which effectively subsidized United Cities' Tennessee operations. The manner in which Tennessee governs its utilities is not controlling on the Commission or courts in the governance of utilities which operate in this State.\\nUnited Cities also contends that the Commission's order \\\"traps\\\" the demand costs in violation of the filed rate doctrine.\\\" As this court explained in General Motors Corp. v. Illinois Commerce Comm'n (1991), 143 Ill. 2d 407, 416: \\\"[I]n enacting the Natural Gas Act [15 U.S.C. \\u00a7 717 et seq. (1988)] Congress gave exclusive and plenary authority to FERC to regulate the transportation and sale for resale of natural gas moving in interstate commerce, including the power to regulate interstate natural gas purchases.\\\" The United States Supreme Court applied Congress' intent to occupy the field in regulating interstate sales of wholesale gas in pronouncing the \\\"filed rate doctrine,\\\" which is a rule of Federal preemption. In Nantahala Power & Light Co. v. Thornburg (1986), 476 U.S. 953, 90 L. Ed. 2d 943, 106 S. Ct. 2349, the Supreme Court held that in determining intrastate retail rates, a State regulatory commission must give binding effect to interstate rates filed with or fixed by FERC. The filed rate doctrine prohibits a State commission from \\\"trapping\\\" FERC-approved wholesale costs, which would occur if a State commission prevented a distributor from fully recovering those wholesale costs in retail rates. States may not bar regulated utilities from passing through to retail consumers FERCmandated wholesale rates. General Motors Corp., 143 Ill. 2d at 421.\\nAt issue in General Motors were unavoidable \\\"take or pay\\\" costs under which pipelines were required to purchase from gas producers a certain amount of gas each year or pay for any gas not taken. Because of a change in FERC policy which allowed distributors to purchase gas directly from the producer without using the pipeline as a wholesaler, the pipelines incurred huge contract liabilities under the take-or-pay provision for gas they could not sell. To rectify the situation, FERC established a framework for pipelines to recover a portion of the take-or-pay costs from distributors, who in turn passed the costs on to their customers. The court affirmed the Commission's ruling that the filed rate doctrine preempted it from not allowing distributors to recover the costs imposed on distributors as a result of the FERC order. The court noted, however, that States retain the authority to review the prudence of a distributor's actions in incurring FERC-approved supply charges when the distributor had a choice whether to incur the charge. General Motors Corp., 143 Ill. 2d at 421-22.\\nIn the present case, the Commission did not rule that the Texas Eastern demand rate, which was approved but not mandated by FERC, was excessive or unreasonable. Rather, it was the percentage of that rate which United Cities allocated to its Illinois customers that the Commission did not approve. The filed rate doctrine does not require the Commission to allow United Cities to charge Illinois customers for costs exceeding those which are properly and prudently allocable to them. Had United Cities properly tracked its customers and sales, and updated the allocation percentages assigned in 1984, it would not face the potential of recovering less than 100% of its total costs of providing gas to its Tennessee and Illinois customers.\\nUnited Cities makes the further contention that the Commission committed prejudicial error by retroactively changing its own policy as to United Cities' reconciliation allocation method, and that even assuming the Commission could depart from established policy, it failed to make sufficient findings of a change in circumstances to justify such a departure. We reject this contention. As noted by the appellate court below, the Commission is not prohibited from changing its policies provided that such change is not done in an arbitrary or capricious manner. See 225 Ill. App. 3d 771.\\nMoreover, notwithstanding references in the order to a change in allocation methodology from what was adopted in the Barnsley Order, the order does not in substance change the method used by United Cities in allocating its total demand charges. The order variously states, \\\"Staff is not proposing a change in the allocation methodology, but rather an update to the peak demand upon which the allocation factor has always been based\\\"; and that \\\"[Staff] indicated that the issue in this case is whether more current data should be used in the implementation of [United Cities'] allocation method.\\\" Further, the order directs United Cities to review its allocation factors at the time of each Tennessee rate case and submit the results of its study to the Commission for concurrent review in Illinois.\\nThus, the order did not retroactively change the underlying allocation methodology. It merely denied recovery of charges which, by reason of United Cities' failure to utilize current data in its allocation methodology, were improperly apportioned to the Harrisburg service area. United Cities may continue to use the same methodology it has used in the past in allocating its total demand charges. However, the demand charges recovered from Illinois customers, as a cost of gas purchased, are subject to reconciliation under section 9 \\u2014 220. As noted by John Link, minimal differences between projected and actual costs would likely not prompt Staff to propose an adjustment in a reconciliation proceeding, and that if it were determined that Illinois customers had paid less than their appropriate share of demand charges, an upward adjustment would be proposed which, if approved by the Commission, would allow United Cities to recover those costs through the PGA clause.\\nFinally, we disagree with United Cities' argument that the Commission failed to make sufficient findings to justify its decision, and with United Cities' contention that the decision was against the manifest weight of the evidence. The Commission's order summarized and reviewed the evidence and arguments presented by both sides and, in its conclusion, it responded to each of United Cities' reasons for opposing Staff's proposed adjustment. The Commission found that the Barnsley Order and the Iowa-Illinois case were factually distinguishable. The order observed that since the time of the study presented to the Tennessee Commission in 1985, which allocated 42% of demand charges to Harrisburg, various events occurred. Evidence submitted showed that there had been a steady increase in United Cities' Tennessee customers and in sales to them, and a corresponding decrease in customers and sales in Harrisburg between 1985 and 1989 when the allocation percentages were finally revised. A Staff exhibit, which included data provided by United Cities, showed that between 1985 and the reconciliation year of 1988, there had been a 12.4% increase and decrease in customers in Tennessee and Harrisburg respectively, and a 5.5% rise and decline in therm (units of gas) sales in Tennessee and Harrisburg respectively. The exhibit also showed that the peak day demand in Tennessee had risen from 58% to 71.3% of the total demand, and that it had dropped from 42% to 28.7% in the Harrisburg service area. The Commission found that such evidence, which was not present in the Barnsley case, constituted a change in circumstances which justified departure from the decision in that order. The Commission also found it significant that United Cities had failed to review the allocation between 1985 and 1988, notwithstanding that there had been another rate case in Tennessee during that period. The Commission characterized this inaction as a demonstration of \\\"indifference toward [United Cities'] Illinois customers,\\\" which, coupled with the actual shift in customers and sales from Illinois to Tennessee and the resulting impact of these factors upon Illinois customers, also justified a departure from past practices. The order also noted and rejected United Cities' contention that the proposed adjustment would violate the prohibition against retroactive ratemaking, reasoning that because this was a reconciliation proceeding, it was authorized under section 9 \\u2014 220 to order the adjustment. The Commission concluded that Staffs proposed adjustment was reasonable, and that it was necessary to prevent the Harrisburg customers from being billed in excess of the cost of gas prudently purchased for them.\\nThe Commission's findings must be taken as prima facie correct (Ill. Rev. Stat. 1989, ch. 1112/3, par. 10\\u2014 201(d)) and are entitled to significant weight and deference due to the Commission's expertise in the area of utility ratemaking (Cerro Copper Products v. Illinois Commerce Comm'n (1980), 83 Ill. 2d 364, 370-71; Village of Apple River v. Illinois Commerce Comm'n (1960), 18 Ill. 2d 518, 523). We cannot say, in the present case, that the Commission's findings were not supported by substantial evidence or that they were contrary to the manifest weight of the evidence.\\nUnited Cities also contends that the Commission's order improperly discriminates against it as an interstate utility which provides gas to service areas in both Illinois and Tennessee. United Cities argues that the Commission allows wholly intrastate utilities to recover all the demand costs which were projected at the time of the execution of the long-term contracts with pipeline suppliers, regardless of the amount of actual demand. In contrast, United Cities maintains, the Commission's order prevents it from recovering 100% of its total demand costs as between the two States it serves under a single pipeline contract.\\nWe perceive no improper discrimination against United Cities based upon its status as an interstate gas utility. As the Commission points out, intrastate gas utilities are also subject to prudence and reconciliation review under section 9 \\u2014 220. United Cities has produced no evidence supporting its claim that if an intrastate utility operated in two service areas under a single pipeline contract, the reconciliation requirements would not be the same as those required of United Cities, or that if it were determined that one service area was being overcharged its appropriate share of total demand charges an adjustment would not be ordered. We agree with the Commission that the ruling in this case does not disregard that United Cities operates in two jurisdictions. It directs United Cities to review its allocation data and, if necessary, to update its allocation percentages at the time of each rate case in Tennessee and to contemporaneously submit that data for review in Illinois. The voluntary undertaking by United Cities of that or a similar procedure would have avoided the situation which arose in this case. United Cities' alleged inability to recover 100% of the total demand charges results not from any arbitrary or discriminatory treatment by the Commission but because United Cities used outdated allocation data and percentages in projecting the Harrisburg area demand for 1988 and in its subsequent billing of Harrisburg customers for amounts which, according to the evidence, should have been charged to its Tennessee customers. That there are aspects of operating under the different regulatory schemes of both Illinois and Tennessee which intrastate utilities do not encounter does not excuse an interstate utility, such as United Cities, which chooses to do business in Illinois from conforming to Illinois regulations, or justify it in charging Illinois customers for PGA gas costs which cannot be reconciled with revenues received.\\nUnited Cities' final contention is that the Commission erred in imposing interest on the ordered refund of $260,553. United Cities relies upon Business & Professional People for the Public Interest v. Illinois Commerce Comm'n (1988), 171 Ill. App. 3d 948, in which the court observed that neither the predecessor of section 9 \\u2014 220 nor the rule included in the Commission's order adopting the UFAC provided for interest on fuel reconciliation refunds for overcollections or undercollections.\\nIn contrast to the UFAC at issue in Business & Professional People, the PGA clause, which was adopted by the Commission in 1982 in General Order 212 and codified as 83 Ill. Adm. Code \\u00a7 525.60 (1982), expressly provides in the R4 factor of the refund adjustment formula for interest of 62/s% to be applied to the total of other specified factors in the refund adjustment formula. This interest factor has been in effect since 1983. Thus, the ruling in Business & Professional People does not apply. Moreover, because section 36 of the prior Public Utilities Act was recodified as section 9 \\u2014 220 in 1985, more than two years after the Commission adopted the PGA clause, a legislative intent to permit interest on PGA refunds is presumed.\\nFor the reasons stated, the judgment of the appellate court affirming the Commission's order is affirmed.\"}"
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+"{\"id\": \"4785136\", \"name\": \"The People ex rel. C. L. Keller, Appellee, vs. The Village of Oak Park, Appellant\", \"name_abbreviation\": \"People ex rel. Keller v. Village of Oak Park\", \"decision_date\": \"1914-12-16\", \"docket_number\": \"\", \"first_page\": \"365\", \"last_page\": \"371\", \"citations\": \"266 Ill. 365\", \"volume\": \"266\", \"reporter\": \"Illinois Reports\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T23:53:24.942930+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The People ex rel. C. L. Keller, Appellee, vs. The Village of Oak Park, Appellant.\", \"head_matter\": \"The People ex rel. C. L. Keller, Appellee, vs. The Village of Oak Park, Appellant.\\nOpinion filed December 16, 1914\\n\\u2014Rehearing denied Feb. 4, 1915-\\n1. Ordinances\\u2014what are not to be counted as buildings not used for residence purposes. In determining the proportion of buildings used exclusively for residence purposes within a given radius of the site of a proposed public garage, barns and private garages used in connection with residences are not to be counted as buildings not used exclusively for residence purposes.\\n2. Municipal corporations\\u2014ordinance passed under express power is presumed to be valid. An ordinance passed in the exercise of an express grant of power by the legislature is presumed to be valid, and it is incumbent upon a party attacking the ordinance as unreasonable to show affirmatively a\\u00f1d clearly that it is so.\\n3. Same\\u2014when an ordinance regulating the location of public garages is not unreasonable. Under the Cities and Villages act, as amended in 1911, cities are granted express power to direct the location of public garages, and an ordinance which prohibits the construction or maintenance of a public garage on any site where two-thirds of the buildings within a radius of 500 feet thereof are used exclusively for residence purposes, without the written consent of a majority of the property owners, according to frontage, within such radius, is not void for unreasonableness.\\n4. Same\\u2014when public garage ordinance is not void as discriminatory. An ordinance which makes it unlawful to \\u201cbuild, construct or maintain\\u201d a public garage in a residence district without obtaining frontage consents applies to such garages as are already being maintained as well as to those proposed to be constructed in the future, and is therefore not void as discriminating between persons already engaged in the business and those intending to so engage. (Tugman v, City of Chicago, 78 Ill. 405, distinguished.)\\nAppeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.\\nFrederick W. Pringle, .(Pringle & Fearing, of counsel,) for appellant.\\nWalter S. Holden, and G. Fred Rush, for appellee.\", \"word_count\": \"2309\", \"char_count\": \"13744\", \"text\": \"Mr. Justice Farmer\\ndelivered the opinion of the court:\\nOn the relation of C. L. Keller a' petition for a writ of mandamus was filed against the village of Oak Park, praying that the writ issue against said village and its officers, commanding them to issue a permit to the relator to build a public automobile garage and salesroom upon the property described in the petition. The petition alleges the relator owned the property upon which he proposed to erect a public garage, and that he had applied to the authorities for a permit to erect a building in accordance with plans and specifications accompanying the application but that such permit was refused. The relator had not procured the consent of the- property owners, as required by an ordinance of the village of Oak Park; which is as follows:\\n\\\"Sec. i. It shall not be lawful for any person or corporation to locate, build, construct or maintain in the village of Oak Park, on any site where two-thirds of the buildings within a radius of 500 feet of the proposed site are used exclusively for residence purposes, a building for a public automobile garage without the written consent of a majority of the property owners, according to frontage, within a radius of 500 feet of the proposed site of said building.\\\"\\nThe petition alleged the ordinance was void because unreasonable, arbitrary, unnecessary, and, in effect, prohibitive. An answer was filed by the village of Oak Park. The cause was heard by the court without a jury and a judgment rendered awarding the writ as prayed. The court cer tified the validity of a municipal ordinance was involved, and the village has prosecuted an appeal to this court.\\nIt is first contended by relator (hereafter referred to as appellee) that he was not required to procure the consent of the property owners, because two-thirds of the buildings within a radius of 500 feet of the proposed site were not \\\"used exclusively for residence purposes.\\\" The proof showed there were thirty-eight buildings used for residence purposes within the territory, eight business buildings, one public garage, one church, three private barns and twelve private garages.' The barns and private garages were upon lots occupied as residences and used in connection with the residences. Appellee claims that only the buildings occupied as residences are entitled to be counted as property used for residence purposes, and that the private garages and barns used in connection with the residences are to be counted as buildings in determining the proportion of buildings used for residence purposes, and so counting them, less than two-thirds of the buildings within a radius of 500 feet are used for residence purposes. We do not think this a reasonable construction of the ordinance.\\nThe most important question is whether the ordinance passed by appellant was a reasonable and valid exercise of its power. Clause 82 of paragraph 62, chapter 24, as amended in 1911, (Hurd's Stat. 1913, p. 270,) conferred power upon cities and villages to direct the location and regulate the use and construction of garages within the limits of the city or village. Prior to that time municipalities had the same power with reference to breweries, distilleries, livery, boarding and sales stables and some other kinds of business. 'Under the power thus conferred appellant had the right to direct the location of garages, and in the exercise of that power it passed the ordinance attacked.\\nIn City of Chicago v. Stratton, 162 Ill. 494, the ordinance considered by the court made it unlawful for any person \\\"to locate, build, construct or keep in any block in which two-thirds of the buildings are devoted to exclusive residence purposes, a livery, boarding or sales stable unless the owners of a majority of the lots in such block, fronting or abutting on the street, consent, in writing, to the location.\\\" The ordinance required the consent of the property owners to be filed with the commissioner of buildings before a permit would be granted for the construction or keeping of such livery stable. A penalty was provided for the violation of the ordinance and a suit was brought to recover the penalty. The validity of the ordinance was attacked upon the ground-that the city council was given power, by act of the legislature, to direct the location and regulate the use and construction of livery stables, and that the council had by ordinance delegated that power to the owners of a majority of the lots in the blocks specified. The court held the ordinance was not invalid on that ground; that a statute empowering a city to direct the location of livery stables includes the power to prohibit or forbid their location within residence districts and to impose such conditions and restrictions in making such prohibition as the city council may see fit to impose. The ordinance was sustained as a valid exercise of' power by the city.\\nThe ordinance considered by the court in People v. Ericsson, 263 Ill. 368, made it unlawful for any person, firm or corporation \\\"to locate, build, construct or maintain\\\" any public garage \\\"in any block in which two-thirds of the buildings on both sides of the street are used exclusively for residence purposes, or within 100 feet of any such street in any such block, without securing the written consent of a majority of the property owners, according to frontage, on both sides of the street, as provided by the ordinances of the city of Chicago.\\\" The ordinance was attacked on two grounds: (1) That it deprived citizens of their constitutional rights, which the city council had no power to do; and (2) that if the city had power to legislate upon the subject the ordinance was void for unreasonableness. As to the first objection, the court held that while a garage is not a nuisance per se, it is of such character that it becomes a nuisance when conducted in particular localities and under certain conditions, and that it was lawful for the legislature to confer authority upon cities to direct its location. As to the second objection, the court held the statute conferred power upon the city, not to prohibit the location of a garage at any place within the corporate limits, but it did confer power, if the council saw fit to do so, to prohibit the location of a garage in a strictly residential district, and that the ordinance permitting the location and maintenance of a garage in a residential district under the conditions prescribed in the ordinance before the court could not be said to be unreasonable.\\nThe argument in support of the contention that the ordinance here involved is void for unreasonableness is, because, although the garage may be built upon a purely business street, the written consent of property owners is required; because it requires the written consent of an unreasonably large number of property owners; because, by reason of the size of the territory specified, the distinction between a residence street and a business street is wiped out; because property is included that cannot be affected, and because the requirements must be complied with on any site in the whole village except in the business district at Oak Park avenue and Lake street, which already has one public garage, and the business center at Lake and Marion streets, which has four public garages. The site of the proposed location of this garage is on lots on the north side of and facing Madison street. There are no residences or other buildings of any kind in that block facing Madison street on that side. Facing Madison street in the block immediately south of and opposite the block where it is desired to locate the garage are five business buildings and no residences. Just north of the proposed garage site, in the same block and within much less than 500 feet, are nine residences, and immediately south of the business buildings, facing north on Madison street and within the 500-feet limit, are nine residences. Other residences east -and west of the blocks- where the residences referred to are located are within the 500-feet limit. Within the radius of 500 feet from appellee's lots are eight business buildings, (excluding private barns and private garages belonging to private residences,) thirty-six residences and two flat-buildings. It will be seen the number of residences greatly predominates over business buildings. In City of Chicago v. Stratton, supra, it was held the council might properly, in determining the location of a livery stable, consult the wishes and ascertain the needs of the residents of the block where the stable is to be kept, and to that end make their written consent the basis for issuing a permit. The court said: \\\"In matters of purely local concern the parties immediately interested may fairly be supposed to be more competent to judge of their needs than any central authority.\\\"\\nIf the ordinance.before us is void for unreasonableness it is only because of the size of the area in which the property owner's consent is required to be obtained. Admitting that the territory is large, is it so unreasonably large as to render the ordinance void? In principle it is the same as the ordinances sustained in the cases above cited. In our opinion it does not appear, from an inspection of the ordinance itself nor from the testimony in the record, that the ordinance is such an unreasonable exercise of the power of the city council as to be invalid., Whether an ordinance is unreasonable and void is a question of law for the court. In Hawes v. City of Chicago 158 Ill. 653, the court, after reviewing the authorities, said: \\\"The rule is, that it requires a clear and strong case to justify a court in annulling the action of a municipal corporation acting within the apparent scope of its authority.\\\" Where an ordinance is passed in the exercise of a power conferred upon a municipality the presumption is in favor of its validity, and it is incumbent upon the party attacking it as an unreasonable or oppressive exercise of the power to show affirmatively and clearly its unreasonableness. (Harmon v. City of Chicago, 140 Ill. 374; Chicago and Alton Railroad Co. v. City of Carlinville, 200 id. 314.) We are unable to say these requirements have been met in this case.\\nNeither do we think the ordinance void because it discriminates in favor of those persons engaged in a like business at the time the ordinance became effective, December 19, 1912. The ordinance clearly states \\\"it shall not be lawful for any person or corporation to locate, build, construct or maintain.\\\" This, in our opinion, as clearly applies to public garages then in operation as to those to be subsequently opened. Any failure of the city authorities of Oak Park to enforce the terms of the ordinance does not render the ordinance void.\\nAppellee cites Tugman v. City of Chicago, 78 Ill. 405, as supporting his contention that the ordinance is discriminatory. In that case the ordinance prohibited any person from engaging in certain kinds of business mentioned, in a certain territory, after the passage of the ordinance, but did not apply to persons engaged in the prohibited lines of business at the time the ordinance was adopted\\\". Other cases cited- by appellee on this point we think have no application, for the ordinance, we have seen, was not discriminatory in any sense. In this respect it is precisely the same as the. ordinances in City of Chicago v. Stratton, supra, and People v. Ericsson, supra.\\nWe are of opinion the court erred in holding the ordinance void and in awarding the writ.\\nThe judgment is reversed.\\nJudgment reversed.\"}"
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+"{\"id\": \"4831877\", \"name\": \"John Hoffman et al. v. Charles E. Culver et al.\", \"name_abbreviation\": \"Hoffman v. Culver\", \"decision_date\": \"1880-11-08\", \"docket_number\": \"\", \"first_page\": \"450\", \"last_page\": \"459\", \"citations\": \"7 Ill. App. 450\", \"volume\": \"7\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T19:14:29.541793+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John Hoffman et al. v. Charles E. Culver et al.\", \"head_matter\": \"John Hoffman et al. v. Charles E. Culver et al.\\nSale \\u2014 Passing title. \\u2014 In a contract of sale of the contents of a car loaded with grain, the quantity of which is unknown, and the sale is for cash, to be paid as soon as the grain can be weighed, which weighing is necessary in order to ascertain the price to be paid by the buyer, and there is no provision as to delivery, the property in the grain does not pass to the buyer by the bargain, even thoug'h the weighing is to be done by him. The payment of the price is a condition preliminary to passing the title.\\nAppeal from the Superior Court of Cook county; the Hon. Joseph E. Gaby, Judge, presiding.\\nOpinion filed November 8, 1880.\\nThis was replevin in the cepit by Charles E. and George N. Culver, as vendors and plaintiffs, against August Martin, John Hoffman, sheriff, and Rnrasey and Walker, defendants, to replevy a quantity of wheat. The pleas were: 1. Non cepit. 2. Property in August Martin. 3. Justification under a writ of attachment from the Circuit Court of Cook county, at the suit of Rumsey and Walker against the estate of said August Martin, duly delivered to Hoffman, as sheriff, and levied upon the wheat in question, averring property in said Martin at the time. Issue was taken on the pleas, and by agreement of counsel, the case was submitted to the court to be tried without a jury on the following agreed state of facts:\\nOn the 11th day of August, 1879, plaintiffs, being the owners, sold for cash, to he paid as soon as the grain could be weighed out, by sample, to one August Martin, the contents of car 357, of Chicago, Burlington & Quincy Railroad Company, which car at the time of the sale was upon the track of said railroad company, in Chicago, Illinois; that at the time of the sale, Martin agreed to pay the plaintiffs ninety-two cents a bushel for the number of bushels found to be in the car, the number of bushels to be ascertained by weight by Martin; that thereupon plaintiffs gave Martin a delivery ticket or order on the railroad company, in whose custody said car 357 was, in these words:\\n\\u201c Please deliver car 357, to bearer, on track, and oblige yours respectfully,\\n\\u201c Culver & Co.\\u201d\\nWhich order was dated August 11, 1879, and which order Martin accepted on that day, and under which order Martin took possession of and commenced unloading the contents of said car 357; that two rvagon loads taken from said car 357, by Martin, and weighing 15,960 pounds net (266 bushels), were hauled to the Michigan Central track, in said city of Chicago, and on the same day placed by Martin in car 4358, of the Blue, Line, on said Michigan Central track, and there mixed with other wheat of the said Martin, of the same grade, by Martin, without plaintiff\\u2019s knowledge or consent; that the purchase price of the said wheat so removed by Martin has not been, nor any part thereof, paid plaintiffs by Martin; that on the evening of August 12, 1879, and before all of said wheat in car 357 was weighed out, defendants Bumsey and Walker attached by a good and sufficient levy, the contents of said car, 4358, being 424 bushels of wheat, as the property of Martin; that on August 15, 1879, defendant, John Hoffman, as sheriff of Cook county, Illinois, while holding said wheat by virtue of the attachment writ issued in behalf of Bumsey and Walker, defendants, in the suit then pending in the Circuit Court of Cook County against said August Martin, and by the consent of said Bumsey and Walker, and without the knowledge or consent of said plaintiffs, placed said wheat, the contents of car 4,358, in Central Elevator B, and received the usual warehouse receipt for the contents of said car, being 424 bushels, which receipt was made subject only to the order of said John Hoffman, sheriff\\\"; that on August 16, 1879, said sheriff\\\" surrendered said warehouse receipt for 424 bushels to said elevator company, and received in place thereof for the contents of said car 4358, one for 158 bushels, and one for 266 bushels (15,960 pounds), the amount claimed by plaintiff\\u2019s replevin writ; and that on August 16, 1879, the plaintiff, by the writ in this case, did \\u2022 replevy 15,960 pounds (266 bushels) of the contents of said car 4358, and that said plaintiffs, by said replevin writ, obtained possession of said warehouse receipt for 256 bushels of the contents of said car 4358; that defendants Rumsev and Walker were ignorant of the terms of sale by plaintiffs to said Martin of said wheat; that on the 17th day of September, 1879, said Rumsey and Walker, defendants, duly recovered judgment in their attachment suit against said Martin, by default, for $1,373.12 and costs, no part of which judgment has been paid.\\nThe court found the issues for plaintiffs, finding the property-in them, and overruling defendants\\u2019 motion for new trial, gave judgment on the finding; to which defendants excepted, and appealed to this court.\\nMessrs. Higgins, Fuebee & Cothran, for appellants;\\nthat there was a complete delivery so as to pass title, cited Webster v. Granger, 78 Ill. 230; Turley v. Bates, 2 Hurl. v. Colt. 200; Burrows v. Whitaker, 71 N. Y. 291; Graff v. Fitch, 58 Ill. 373; May v. Tallman, 20 Ill. 443.\\nThe sole object in weighing the grain was to ascertain the the total value, at a rate already agreed upon, and in no manner affects the question of delivery: Macomber v. Parker, 13 Pick. 175; Bradley v. Wheeler, 44 N. Y. 495; Crofoot v. Bennett, 2 N. Y. 258; Burrows v. Whitaker, 71 N. Y. 291; Tyler v. Strong, 21 Barb. 198.\\nIf the grain had been destroyed by any casualty, the loss would have fallen upon the vendee : Webster v. Granger, 78 Ill. 230; Wing v. Clark, 24 Me. 366; Burrows v. Whitaker, 71 N. Y. 291; Bloxam v. Sanders, 4 Barn. & Cres. 941; Benjamin on Sales, \\u00a7 678.\\nWhere delivery and payment are to be concurrent acts, the title does not pass until payment: Chapman v. Lathrop, 6 Cow. 110; Ballard v. Burgett, 40 N. Y. 314; Zuchtman v. Roberts, 109 Mass. 53; Lees v. Richardson, 2 Hilt. 164.\\n. But where there is delivery without requiring payment, and no evidence of an intention to retain title, the delivery com pletes the sale. Chapman v. Lathrop, 6 Cow. 110; Bell v. Pairar, 41 Ill. 400; Lees v. Richardson, 2 Hilt. 164; Lupin v. Marie, 6 Wend. 77.\\nWhere a vendor actually delivers the property, the title eo instanti vests in the vendee, and an innocent purchaser from him acquires a good title as against the vendor: McCormick v. Hadden, 37 Ill. 370; McNail v. Ziegler, 68 Ill. 224; Lucas v. Campbell, 88 Ill. 447; Hervey v. R. I. Locomotive Works, 93 U. S. 664.\\nA bona fide attaching creditor in such a case has the same rights as a bona fide purchaser from the vendee: Van Duzer v. Allen, 90 Ill. 499; Murcli v. Wright, 46 Ill. 487; Lucas v. Campbell, 88 Ill. 447; Hervey v. R. I. Locomotive Works, 93 U. S. 664; Olyphant v. Baker, 5 Denio, 379; Lupin v. Marie, 6 Wend. 77.\\nReplevin will not lie in this case: Hammond v. Anderson, 4 Bos. & Pull. 69; Slubey v. Heyward, 2 H. Black. 504.\\nMr. D. L. Siiobey and Mr. Paul Shobey,for appellees;\\nthat, the vendor retained a lien, and by replevin could enforce his right of stoppage in transitu, cited 16 Md. 422; 4 Dana, 7.\\nThere must be an intention to waive cash payment: Morgan v. Gregg, 46 Barb. 183; Haggerty v. Palmer, 6 Johns, ch. 437; Wait v. Green, 35 Barb. 585.\", \"word_count\": \"3774\", \"char_count\": \"20810\", \"text\": \"McAllister, P. J.\\nThis was an action of replevin, brought by the Culvers, appellees, against the appellants, Rumsey and Walker, Hoffman, sheriff, and August Martin, for a quantity of wheat which had been seized by the sheriff by an attachment in favor of Rumsey & Walker, and against said Martin. The case was submitted to the court, for trial without a jury, on an agreed statement of facts, from which, directly, or by clear inference, it appears that, August LI, 1879, the Culvers, being the owners of wheat, the quantity unknown, contained in a railroad car on the track of a railroad company, having the possession of it as bailee or agent of the Culvers, bargained with said Martin at Chicago, where the grain wTas, to sell by sample to him, said Martin, the contents of said car (designated as car 357), for cash, to be paid as soon as such contents could be weighed out, at the rate of 92 cents a bushel for the number of bushels which should be found to be in said car, such number to be ascertained by weighing by said Martin.\\n' Those being the circumstances and terms of the contract, the first question is, did the contract, ipso facto, pass the property in the commodity out of the sellers and vest it in the buyer?\\nIf it be said that the question whether the property passed to the buyer by the contract, is, in many cases, made to depend upon the intentions of the parties as was laid down in Seckel et al. v. Scott, 67 Ill. 106, and the cases there referred to, then it may be answered, that, by those authorities, such intention is always a question of fact to be found by the j ury, and the court in this ease, sitting in the place of a jury, has found there was no such intention.\\nWe take it to be clear law, that when in a contract of sale of the contents of a car or bin, it being grain, but the quantity of which is unknown, and the sale is for cash, to be paid as soon as the grain can be weighed, which weighing is necessary in order to ascertain the price to be paid by the buyer, and there is no provision as to delivery, the property in that case, the grain, does not pass to the buyer by the bargain, even though the weighing is to be done by him, and there was nothing to be done by the seller to ascertain the identity, or the quantity or quality of the commodity. The payment of the price is a condition preliminary to the property passing to the buyer; and that could not be done before the quantity w7as ascertained by weighing.\\nThe material features of this case are peculiar throughout, and must control in its decision. In Hanson v. Meyer, 6 East, 614; a quantity of starch was contracted to bo sold at a certain price per hundred; the vendor gave the vendees an order ad- , dressed to the keeper of the warehouse where the starch lay, directing him to weigh and deliver ail his starch to the vendees. The court held that the order itself did not amount to a delivery or authorize the vendees to take the starch by their own .act; and that the property did not pass before the weighing, which, by the terms of the contract was to precede the delivery and ascertain the price. Lord Ellenborough, Ch. J., in delivering the opinion of the court, said : \\\"By the terms of the bargain, two things in the nature of conditions or preliminary acts on their (the buyers) part, necessarily preceded the absolute vesting in them of the property contracted for; the first of them does so according to the generally received rule of law in contracts of sale, viz.: the payment of the agreed price or consideration for the sale; the second, which is the act of weighing, does so in consequence of the particular terms of this contract, by which the price is made to depend upon the weight. The weight, therefore, must be ascertained, in order that the price may be known and paid.\\\" He distinguished that case from Hammond v. Anderson, 1 Bos. &P. New. R. 69, by saying that in the latter case, the bacon was sold for a certain fixed price, and that the weighing mentioned in the case was merely for the buyer's own satisfaction, and formed no ingredient in the contract. In the case at bar the weighing is an actual ingredient of the contract, to be done by the buyer, it is true, but it was necessary to ascertain the price. The sale was for ready money; there being no provision as to delivery, the payment of the price and delivery were, therefore, to be concurrent acts.\\nSheply v. Davis, 5 Taunt. 617, was similar to Hanson v. Meyer, and the Common Pleas followed the same ruling. The court, Gibbs, Ch. J., speaking of the effect of a delivery order, said: \\\"If anything remained to be done as between vendor and vendee, the delivery could not be complete.\\\" So, in Swanwick v. Sothern, 9 Ad. & E. 895, Lord Denman stated the rule of the English law to be thus: \\\" If the whole of a commodity be sold, but weighing is necessary to ascertain the price, because the quantity is unknown, the weighing must precede the delivery; and the symbolical delivery without such weighing will not be sufficient. But where the identity of the goods and the quantity are known, the weighing can only be for the satisfaction of the buyer, as was held in Hammond v. Anderson, 1 New. R. 69; in such case symbolical delivery is sufficient.\\\" Many more English cases could be cited where the same distinction is recognized, between the case when the quantity of the commodity is unknown and the weighing is an ingredient of the contract itself' and that class where the quantity is known, and the act of weighing is only for the satisfaction of the buyer.\\nThe case of Ward v. Shaw, 7 Wend. E. 404, is one where the lines of that distinction are more marked, and the case more directly in point than any other we have been able to find. Ward brought trover against Shaw to recover the value of two fat oxen which had been taken by the latter, as sheriff, out of the possession of one Crawbuck by virtue of an execution against the latter, in favor of one Platt. The cattle came into the possession of Crawbuck, under these circumstances : He was a butcher and agreed to purchase them of Ward, at \\u00a77.50 for each cwt., which the quarters should weigh when slaughtered, he to take the cattle into his possession, prepare them for slaughtering, slaughter them in the week in which the contract was made, and when slaughtered take the quarters to market, weigh them, and pay for the cattle the amount the weight of the quarters would come to at \\u00a77.50 for each cwt., which sum was to be received by Ward in full, as well for all the other parts of the cattle as the quarters. Crawbuck took the cattle into his possession, and on the same day they were levied on and taken under Platt's execution, which was issued on a judgment obtained previous to said contract between Ward and Crawbuck.\\nOn the trial there was a verdict and judgment for the defendant, the presiding judge instructing the jury that the contract between Ward and Crawbuck, and the delivery of the cattle to Crawbuck, vested the title and ownership in him, and that they were subject to the execution. On error from the Supreme Court, a well-considered and instructive opinion was delivered by Savage, Ch. J., holding that the instruction to the jury, by the court below, was wrong, and after laying down the general rule applicable to contracts of sale of personal property, where no credit is given for the price, and no agreement for immediate delivery, the learned judge quoted the above observation of Lord Ellenborough, in Hansen v. Meyer, and then said: \\\" The sale being for cash, and by weight, the vendor is not bound to deliver until payment is made. Payment cannot be made until the price is ascertained by the act of weighing. Should, therefore, the vendee refuse to slaughter the oxen according to contract, and put them to work on a farm, the vendor may re-take them. Should he refuse to pay, after weighing the quarters, the owner may take possession of his slaughtered cattle, for the property has not passed under such a contract until payment is made or waived. The terms of the contract in this case forbid the idea of the waiver of payment when the cattle were delivered to be prepared for slaughter. The rule laid down in Hanson v. Meyer, is, that the property does not pass when anything remains to be done, by the vendor; when the thing to be done is necessary to ascertain theprice and the sale is for cash, it can make no difference whether that thing is to be done by the vendor or the vendee. The property is not to pass till payment, and until the price is ascertained, payment cannot be made or waived, unless'by express terms; the acts of the vendor cannot, before that time, be construed into a waiver.\\\" The court putting the decision of the case upon its own peculiar, circumstances, further said: \\\"In general the act of weighing or measuring is to be done by the seller, but parties have a right to stipulate that the purchaser shall do such act. It is sufficient that the vendor has an interest in the act to be done; and has a right to be present when the weight is ascertained, then, and not before, can the vendor demand payment. If payment is then made, or waived, the property \\u00a1lasses absolutely, otherwise not.\\\"\\nThat case was a much stronger one for the execution, than the one at bar is for the attachment creditor, because in the former, the seller made what was apparently an actual delivery of the cattle to the purchaser, while in the present case, there is no pretense that the sellers made any actual delivery, and what uras done on their part tended only to show a symbolical .delivery. The facts tending to show such symbolical delivery are simply that, after the terms of the sale were agreed on, the sellers gave to the buyer an order addressed to the railroad company in whose custody as bailee or agent of the sellers, the car was which contained the wheat, directing such company to deliver that car on the track to the buyer. The agreed statement of facts shows that Martin, the buyer, accepted this order and immediately, on the same day, without, so far as the case \\\"shows, presenting it at all to the bailee or agent, or in any manner obtaining any delivery of the car, or assent or recognition of the order by such bailee or agent, took possession of it, and without the knowledge or consent of the sellers weighed out two hundred and sixty-six bushels of the wheat, hauled it away, put it in a car of another 'party, mixing it with other grain, where it was immediately seized and taken away by virtue of the Rumsey & Walker attachment, Martin never having paid one cent of the purchase price.\\nIt is clear under the circumstances, that the vendors had never assented to that possession and those acts on the part of Martin, and that upon the law to be applied to them, the property and ownership in the wheat had not passed to and become vested in him, as whose property it was seized; because, although 266 bushels of the wheat had been weighed, yet none of the price of it had been paid, and the vendors had done no act which could operate as a waiver of such payment. This must be considered as having been so found, by the court below in finding the defendants guilty, and propertyin the plaintiffs.\\nIt is the settled law of England, and'it ought to he the law hero, that, where goods are in the possession of a third party as bailee or agent of the vendors, if the vendors make a contract of sale of them while so situated, for cash, and the vendee has not paid for them,1 the giving by the vendor to the vendee of a delivery order addressed to such bailee or agent, directing him to deliver the goods to the vendee, hut which is not presented to such bailee or agent and assented to by him, will have no effect in changing the propertyin such goods from the vendor to the vendee.\\nThe property and possession will he regarded as still remain, ing in the vendor, for the reason that until such bailee or agent attorn to the vendee to whom such order is given, he will be regarded as remaining the agent of the vendor, and his possession as that of the vendor: Ben tall v. Burn, 3 B. & C. 423; Farnia v. Home, 16 Mees. & W. 119; McEwen v. Smith, 2 House of Lords Cases, 309; Benj. on Sales, 2nd Ed. 132-3.\\nMartin not being entitled to a delivery by the terms of the contract, and the vendors giving to him merely the delivery order upon their bailee or agent, which was not, as we have seen, equivalent to actual delivery, it is preposterous to claim that the vendors made an absolute and unqualified delivery, under the circumstances stated, which amounted to a waiver of payment, and converted the cash sale into one on credit. These attaching creditors of Martin would have acquired just as much right to hold this grain if they had attached it as Martin's the moment the bargain of sale was closed, as when they did. The matter of weighing being an ingredient in the contract, the vendors were interested in that act, and had a right to be present.\\nIt was entirely consistent with what was done to assume that they intended to secure that right when the delivery of the car on the track to the buyer, by their agent, was made. But, by Martin taking possession of his own independent act, removing the wheat and mixing it with other grain, the vendors were deprived of that right. But it is enough that the vendors made no actual delivery, and that Martin's possession was not with their assent.\\nThe judgment of the court below will, therefore, be affirmed. Affirmed.\"}"
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+"{\"id\": \"4981214\", \"name\": \"Willis S. Hubbard, Administrator, v. Guy Stapp, Receiver, etc.\", \"name_abbreviation\": \"Hubbard v. Stapp\", \"decision_date\": \"1889-06-04\", \"docket_number\": \"\", \"first_page\": \"541\", \"last_page\": \"547\", \"citations\": \"32 Ill. App. 541\", \"volume\": \"32\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T19:48:50.966242+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Willis S. Hubbard, Administrator, v. Guy Stapp, Receiver, etc.\", \"head_matter\": \"Willis S. Hubbard, Administrator, v. Guy Stapp, Receiver, etc.\\nLife insurance\\u2014Assignment of Policy\\u2014Specific Performance\\u2014Vested Interest\\u2014Embezzled Funds\\u2014Lien.\\n1. A person named as the beneficiary in a life insurance policy obtains a vested interest therein, which can not be affected by any subsequent act of the assured.\\n2. A life insurance policy can not be assigned without the consent of the company.\\nS. Whore the assured has paid the premiums on a policy in favor of a third person with funds embezzled from another, such payments are a lien on the policy; and if the one from whom such funds have been embezzled pays subsequent premiums, the same, with interest, also constitute a lien on the policy.\\n4. The decree can not find more than is charged in the bill.\\n5. In the absence of a bill of exceptions and certificate of evidence, the only question is whether the findings of the court below are sufficient to sustain the decree.\\n[Opinion filed June 4, 1889.]\\nIn error to the Circuit Court of Warren County; the Hon. John J. Glenn, Judge, presiding.\\nWhat we presume may be regarded as the material allegations of the bill in this case are, that on the 9th day of April, 1884, B. T. O. Hubbard was the owner and in the possession of five several policies of insurance: three in a New England company, numbered 62,034, 65,584, 66,426, and dated respectively, July 21, 1879, July 30, 1881, and December 31, 1881; one in a New York and one in a New Jersey company. That number 65,584 was made payable to Hubbard at the end of fifteen years, or in the case of his death before that date, then to his executors and administrators for the use and benefit of his wife, Fannie P., and of his son, Willis S. Hubbard, if they should survive him; that number 66,426 was made payable to him at the end of twenty years, or in case of his death before that date, then to his executors or administrators for the benefit of his said wife and son, if they should survive him ;' that Hubbard was, on said 9th day of April, found to be largely indebted to the bank for money embezzled ; that to reimburse the bank in part for the money taken, he agreed to assign the several policies of insurance to the bank, and in pursuance of such agreement left the policies in possession of the bank ; that he afterward refused to assign according to his agreement, but made a pretended transfer of the same to defendants Fannie P. and Willis S. Hubbard; and charges that a large amount of the premiums paid by B. T. O. Hubbard on the policies were paid in the money and funds of the bank embezzled by him ; that none of the premiums were paid by Fannie P. or Willis S. Hubbard, but were paid by said B. T. O. Hubbard, either out of his own funds or out of the funds of the bank, and the bill prays the specific performance of the agreement.\\nThe bill was filed April 24,1885, and at the appearance term a demurrer by all the defendants was filed to the bill, which was afterwards overruled (see record, pages seven and eight); and defendants thereupon answered, thereby, as is claimed, waiving all technical objections to the bill and admitting its substantial equities.\\nThe answer of the defendants, Fannie P. and Willis S. Hubbard, was joint, and denies most of the material allegations of the bill. Admits that B. T. O. Hubbard was, at the time alleged, the owner of policy number 62,034 and of the New Jersey policy, but denies that he was the owner of policies number 65,584 and 66,426 and the New York policy, and avers that they were the owners of these policies, and, avers also, that B. T. O. Hubbard had no right or authority to sell, assign or transfer any of the last named policies \\u201c without the consent of these defendants.\\u201d\\nA replication was filed to the answer, upon which there was a hearing and decree in favor of the complainants below for the three first named policies, numbered 62,034, 65,584, and 66,426. The other two policies, as stated by counsel for plaintiffs in error, were delivered up and are not in dispute. Nor do we understand that any claim is made on account of the first named policy, numbered 62,034, the answer having conceded that that policy was the property of B. T. O. Hubbard when the contract of assignment was made, and the argument of plaintiffs making no claim thereto. The controversy, then, only relates to the remaining two policies numbered 65,584, dated July 30, 1881, and 66,426, dated December 31, 1881. The contention is that these policies having been made payable to the use and benefit of his wife and' son, if ho should die within the times limited in the policies and they should survive him, they had a vested interest in the policies such as would prevent their transfer without their consent.\\nThere is no bill of exceptions nor certificate of evidence.\\nThe only question, then, properly arising here is, are the findings of the court below, as stated in the decree, sufficient to sustain the decree ?\\nThe decree finds every material fact as stated in the bill. That Hubbard was, on the 9th day of April, 1884, indebted to the bank as set forth in the bill, and was at that time the owner and possessed of the insurance policies described; that in consideration of his indebtedness he agreed to assign them to the bank for its own use and benefit; that in pursuance of such agreement the policies were delivered to the bank, in whose possession and in that of its receiver they remained from that time; that none of the premiums were paid by plaintiffs in error, but were all paid by B. T. O. Hubbard out of the funds of the bank embezzled by B. T. O. Hubbard, and that the pretended assignment of the policies to plaintiffs in error was with notice of and in fraud of the rights of the bank, and that complainant below was duly appointed receiver of the bank.\\nUpon these findings the decree was based.\\nMessrs. Porter & Macdill, for plaintiffs in error.\\nMessrs. Kirkpatrick & Alexander and R. J. Grier, for defendant in error.\", \"word_count\": \"2387\", \"char_count\": \"13148\", \"text\": \"Lacey, P. J.\\nVarious questions are raised in this case by appellant, who cites, in support of his claim that the interest of the wife and son of B. T. O. Hubbard could not be transferred to the bank in the manner claimed, the following cases: The Central Bank of Washington City, etc., v. Hume, U. S. Supreme Court, by Chief Justice Fuller, filed November 1, 1888 (128 U. S.). Also, Glanz v. Gloeckler, 104 Ill. 573; S. C., 10 Ill. App. 484. Other cases may be found bearing on the same point, as Johnson v. Van Epps, 110 Ill. 551; S. C., 14 Ill. App. 201.\\nThe case above cited from the Hnited States Supreme Court, and also of Glanz v. Gloeckler, both hold that where an insurance policy is taken by the assured on his own life, payable at his death to a third party, such party attains a vested interest in the policy.\\nAnd in Gould v. Emmerson, 99 Mass. 154, it will be seen that it makes no difference whether the policy is made directly payable to the beneficiary or not.\\nIn Bliss on Life Ins., 2d Ed., p. 517, it is laid down as a rule as follows: \\\"We apprehend the general rule to be that a policy, and the money to become due under it, belongs, the moment it is issued, to the person or persons -named in it as the beneficiaries; and that there is no power in the person procuring the insurance, by any act of his, by deed or will, to transfer to any other person the interest of the person named. An irrevocable trust is created.\\\"\\nIt may be contended that the authority of the above was misleading in making such statement by the examination of cases from such States where the statutes regulated the matter, and that the rule is not applicable to States where there is no statute law on the subject. In view of the decisions in Otis v. Beckwith, 49 Ill. 121, and Glanz v. Gloeckler, 104 Ill. 573, we can not believe that such claim can be set up in this State, either where the policy is made payable directly to the beneficiary or to the assured's administrator for his use. We can see but little distinction, and believe the author has stated the law correctly. We will notice the question further on.\\nThe policies in question were made payable to himself at the end of fifteen years and twenty years, respectively; in case of his death before those dates, to his executors and administrators, for the use and benefit of his wife, Fannie P. Hubbard, and bis son, Willis S. Hubbard, if they should survive him.\\nThis was equivalent to a policy for the benefit of his wife and son, running fifteen and twenty years, respectively, in case of death within that time, and this limitation or contingency, as we conceive, can make no difference in the right to insure for the benefit of his wife and son. The policy was never changed by the insurance company to an absolute policy payable to Hubbard's administrators, but Hubbard agreed to transfer the policy absolutely for the benefit of the bank; and in that way the bank took it and got the agreement for the assignment. This could not be done except by the consent of the insurance company, if at all. The original contracts of insurance have never been changed. Johnson v. Van Epps, 14 Ill. App. 201. In Glanz v. Gloeckler, 104 Ill. 573, where the insurance in case of death was payable to the wife, it was held an interest vested in her that could not be changed exefept by her consent.\\nIn Otis v. Beckwith, 49 Ill. 121, where the insured never parted with the possession of the policy of insurance, but on a separate paper assigned it for the benefit of his three sons to a trustee, and the same was aecipted bv such trustee, it was held to be an irrevocable trust in favor of his sons. And it does not matter whether the cestui que trust occupies the position of volunteer or not. Badgley v. Votrain, 68 Ill. 25.\\nIt is insisted that the bill charges and decree finds that the insured, Hubbard, was the owner at the time of this assignment of the policies in question.. It is true he had an interest in the policies contingent on his living fifteen and twenty years, and this, taking all the allegations of the bill together, must be regarded as the real charge in the bill, i. e., a special ownership, and the decree can find no more than charged in the bill. Especially is this so when it is nowhere charged that the insurance policies, set out in full in the bill with all their conditions, were assigned to the bank by consent of the wife and son: Where there is any ambiguity, the allegations of the bill must be taken more strongly against the pleader. The appellee insists that the bill charges and the decree finds that the premiums were paid by Hubbard out of money he embezzled from the bank, and hence, in equity, the bank is entitled to the benefit of the policies. It will be observed, however, in answer to this suggestion, that the bill does not proceed on this theory, or claim that they are entitled to the assignment of the policies on that ground, but upon an express contract with Hubbard to assign the policies in consideration-of a large indebtedness due from Hubbard to the bank. Again, the bill does not charge that all the premiums were paid for out of moneys of the bank, but it says a la/rge portion was so paid, or that Hubbard paid them out of his own funds, and the decree can not be broader than the charge. It is evident that this point was not relied on in the couit below. And even if so, we can not concede that such fact, if a fact, would have the effect of giving appellee the right to the entire policies. The bank, however, if its money paid the premiums, would be entitled equitably to be reimbursed to such an amount and interest out of the proceeds of the policy. And if upon a retrial the evidence should show that such was the fact, it should be allowed such premiums and interest thereon out of the insurance money, together with the premiums, if any, since paid by it, with interest, as that would inure to appellee's benefit, since Hubbard has died within fifteen years.\\nWe are of the opinion that the decree is erroneous, in that it orders the entire interest of Mrs. Hubbard and her son to be transferred to the bank by the assignment. The decree should only have ordered the interest of Hubbard, according to the terms of the policies, to be so transferred, which was contingent on the duration of his life for fifteen and twenty years. Now that he died within a period of fifteen years, his interest expires. For this error in the decree the decree is reversed and the cause remanded, with leave to amend pleadings and to take new evidence, if thought advisable. If the evidence shows that the money of the bank paid the first premiums on said policies claimed by appellant, then the court should allow such amount, with interest, to the bank, with like amounts since paid for premiums, if any, with interest, and the balance of the insurance money, if paid in to appellant for the use specified in the policy.\\nIf the insurance money has not been paid, the decree should declare a lien on the policies for the amounts, if any, above indicated, and the assignment, or agreement to assign, to convey such interest only.\\nDecree reversed and cause remanded with directions.\"}"
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+"{\"id\": \"4986275\", \"name\": \"James L. Krause et al., Appellees, v. Arthur L. White, County Superintendent of Schools of Henry County, Defendant. Community Unit School District No. 229 of Henry County et al., Appellants\", \"name_abbreviation\": \"Krause v. White\", \"decision_date\": \"1950-07-13\", \"docket_number\": \"Gen. No. 10,420\", \"first_page\": \"322\", \"last_page\": \"332\", \"citations\": \"341 Ill. App. 322\", \"volume\": \"341\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T17:08:34.023481+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James L. Krause et al., Appellees, v. Arthur L. White, County Superintendent of Schools of Henry County, Defendant. Community Unit School District No. 229 of Henry County et al., Appellants.\", \"head_matter\": \"James L. Krause et al., Appellees, v. Arthur L. White, County Superintendent of Schools of Henry County, Defendant. Community Unit School District No. 229 of Henry County et al., Appellants.\\nGen. No. 10,420.\\nHeard in this court at the May term, 1950.\\nOpinion filed July 13, 1950.\\nReleased for publication August 1, 1950.\\nJames H. Andrews, Harper Andrews and Campbell Andrews, all of Kewanee, for appellants.\\nFred J. Brown, of Kewanee, for appellees.\", \"word_count\": \"3176\", \"char_count\": \"18293\", \"text\": \"Mr. Presiding Justice Wolpb\\ndelivered the opinion of the court.\\nOn November 21,1949, James L. Krause, Thomas F. Smith and Sam Clouston filed a petition in the circuit court of Henry county for a writ of mandamus to compel Arthur L. White as County Superintendent of Schools of Henry county, Illinois, to call an election for the purpose of taking a vote in a former Common School District No. 52 of Henry county, Illinois, to decide whether it should be detached from Community Unit School District No. 229 of Henry county, Illinois.\\nThe petition alleges that on June 6, 1949, a petition was filed with the County Superintendent of Schools of Henry county, signed by a majority of the voters of the former School District No. 52, requesting the superintendent to call an election for the purpose of voting on the question whether said property should be detached from said Community High School District. This petition was signed by fourteen persons and was sworn to by James L. Krause who stated that the petition was true, and contained a majority of the voters residing in said former school district.\\nA like petition was filed with Arthur White as County Superintendent of Schools-on July 1,1949, and was signed by thirty-one persons alleged to be voters in said former School District No. 52. The petition is sworn to by Sam Clouston and states that it contains a majority of the names of the voters residing in said former School District No. 52.\\nA like petition was filed with the County Superintendent of Schools of Henry county on August 1, 1949. This petition was signed by twenty-six persons whom it is alleged are a majority of the legal voters residing in said former School District No. 52 and is sworn to by Thomas F. Smith.\\nIt is alleged in the complaint that although requested to do so, the County Superintendent of Schools refused to call an election in accordance with the said petitions, and as required by the statute in such cases made and provided.\\nSummons against the county superintendent was issued and he, through the State's Attorney, made a motion to strike the petition and stated numerous reasons why the petition did not state a cause of action. On December 20, the Community Unit School District No. 229 of Henry county, Illinois, filed a petition in said court alleging that said district is a party in interest in the cause of action, alleged in the petition filed by the plaintiffs, and is a necessary party to this suit, and that it had not been made a party-defendant, or notified and objects to the issuance of the writ described in the prayer of the complaint. It asked to be made a party-defendant in the suit.\\nOn December 21, 1949, the court entered an order denying the Community Unit School District No. 229 the right to be made a party to the suit and on the same day denied the motion of the County Superintendent of Schools to dismiss the suit. On the same day the court without requiring the County Superintendent of Schools to either answer the petition, or stand by his motion to dismiss, entered an order finding that the plaintiffs were entitled to the writ Of mandamus as prayed for in the petition, and ordered the writ issued. The clerk of the circuit court of Henry county on December 30, 1949, issued the writ as ordered by the court.\\nOn January 6, 1950, the Community Unit School District No. 229 filed a notice of appeal to the Appellate Court of the Second District. A like notice of appeal was on the same day filed by Charles Draminski and Virginia Draminski, his wife, with the clerk of said court. On the same day notice of appeal was filed with the clerk of the court by Harlan R. Hamilton and Loris M. Hamilton, his wife. An appeal has been perfected to this court.\\nThe appellees have filed a motion to dismiss the appeal and claim that none of the appellants have an appealable interest in the case. The appellants have filed objections to this motion. The motion was taken with the case and after a full consideration of the same, the motion to dismiss is hereby denied for the reasons hereinafter stated in this opinion.\\nIn each and all of the notices of appeal there are reasons stated why the particular appellant has an interest in the result of this litigation. In the notice of appeal of the Community Unit School District, it is alleged that if this school district is detached from the community district, it will be deprived of substantial taxes thereby, and leave the territory of said community district in noncompact and noncontiguous shape, and will otherwise injure the school district and all its residents and landowners. The Draminskis in their notice of appeal allege that they are the owners of a farm that is located in said former School District No. 52; that they reside on the same and maintain their home thereon; that they are now benefited by being a part of the Community Unit School District, and will be benefited by the reversal of the order of the writ of mandamus; that if not reversed it will deprive them of their right to send their children to the Community High School District. The Hamiltons allege in their notice of appeal that they are the owners of a farm located in the former School District No. 52 and that they reside on the same; that their farm is located on the west side of the Community Unit School District; that if they are separated from the Community High School District, their land will be completely isolated from all contact and contiguity with the remaining territory and the Community Unit School District.\\nIn the case of the People v. Kennedy, 367 Ill. 236, certain voters in Kankakee county filed a petition in the circuit court of said county for the purpose of annexation of certain non-high school' territory to the Momence Community High School District No. 158. A writ of mandamus was awarded commanding the annexation of said territory. It will be observed that the appellants in this case were not made parties to the original suit, as in the present case we are now considering. Th\\u00e9 Supreme Court in passing upon the contention of the appellees that the appellants not being parties to the original suit could not maintain their appeal, use this language: \\\"Appellants were not parties to the mandamus proceeding. They appeal on the ground that they were owners of land within the territory ordered to be annexed and are injured by the order awarding the writ and will be benefited by its reversal. Appellee contends that neither the record nor the assignment of errors show that, at the time the notice of appeal was filed, appellants owned any land in the territory ordered to be annexed and that, therefore, they have no right to appeal.\\n\\\"Prior to the enactment of the Civil Practice act, one not a party to a suit had no right to appeal. (People v. Franklin County Building Ass'n, 329 Ill. 582.) The method for review in such a case was by prosecuting a writ of error. Section 81 of the Civil Practice act [Ill. Rev. Stat. 1949, ch. 110, par. 205; Jones Ill. Stats. Ann. 104.081] provides that the right theretofore possessed by any person not a party to the record to review a judgment or decree by writ of error shall be preserved by notice of appeal. To entitle such a person to review he must be injured by the judgment, order or decree, or be benefited by a reversal, or be competent to release errors. Before he can successfully prosecute an appeal his interest in the suit must appear in the transcript of the record or be alleged in the points relied upon for reversal. (People v. Estate of Harrigan, 294 Ill. 171.) A notice of appeal is a part of the record. The notice of appeal in this case alleges that appellants own land in the territory sought to be annexed; that they are injured by the order and that they will be benefited by a reversal. The assignment of errors alleges that they have been landowners for many years in such territory, with the same allegations of injury and benefit. Their right to appeal sufficiently appears.\\\" This case was cited with approval in Grennan v. Sheldon, 401 Ill. 351.\\nThe Community Unit District No. 229, as before stated, signed a petition for leave to intervene and be made a party-defendant to the suit. Regardless of the merits of the controversy when the court dismissed its petition and refused it permission to intervene, this was a final order and one from which an appeal could lie. In Bishop v. Hungate, 223 Ill. App. 351, the same question was presented and the court held this to be the law and cited numerous cases in support thereof. The motion to dismiss this appeal will be denied.\\nIt is true if these petitions, which are the basis of the order for the writ of mandamus are in the proper form and contain the. necessary signatures of the voters in the territory to be detached, and the superintendent of schools from an examination of the petitions themselves can ascertain these facts, then he has no discretion in the matter and should order th\\u00f3 election, and the high school district, or the landowners that are objecting to the detachment will have no right to intervene, but the community high school district and the interested landowners would have a right to contest whether the petition was legally sufficient on which the superintendent should act.\\nThe burden is on the petitioners to show that they have a clear and undoubted right to the writ of mandamus before it should be granted. It has long been a settled rule of law in this State that a relator in mandamus must show a clear and undoubted right to the relief prayed and a corresponding duty on the part of the respondent to do the act sought to be compelled. (People v. Whealan, 356 Ill. 328.) It is incumbent upon the person seeking the extraordinary aid of mandamus to set forth in his petition all the facts, especially those which if true, would be necessary to entitle him to the relief sought, and he must show a clear prima facie case to warrant the writ. This was stated by us to be the law in the case of Aiken v. Will County, 321 Ill. App. 171.\\nUnless the legal voters varied from the time the first, second and third petitions were filed they show on their face that the first did not contain the names of more than half of the legal voters residing in said district. The second petition which was filed shows thirty-one names, which is more than twice as many as the first petition. It is seriously insisted by the appellants that there is no showing that the petitions, or any of them are signed by the majority of the legal voters residing in said school district, and there is no way for the superintendent of schools from the petition itself, to decide whether or not it does contain the requisite number of voters. There is no allegation in the petitions of how many legal voters reside in said district.\\nIt is also claimed that the petition is fatally defective because it does not allege that the signers of the petition are legal voters residing in said district. In the case of Frye v. Hunt, 365 Ill. 32 our Supreme Court had before it the question of the sufficiency of the petition to organize the district, and was practically the only question involved in the suit. In passing upon this they use this language: \\\"Recourse to the petition filed with the defendant on April 18, 1936, discloses that it contains no statement, either express or implied, that fifty or more of the signers resided within the territory described. The defendant asserts that the return to the writ of certiorari sets forth his finding that the petition was duly signed by fifty-eight legal voters residing in the territory and that the territory described therein is contiguous and compact. This finding was necessarily his own conclusion, as it is not based upon or supported by any facts appearing in the record. The signatures themselves afford no information as to whether the signers actually resided or lived in the territory. The affidavits of Hawthorne and Page, who circulated the petition, merely recite that they signed the petition in their presence. Where the question is whether jurisdictional facts were established, mere conclusions of law are insufficient and the record must show the existence of the facts required to authorize the inferior tribunal or officer to act, and this evidence may properly be reviewed by the court. (Crocher v. Abel [348 Ill. 269], supra; Carroll v. Houston [341 Ill. 531], supra; Trustees of Schools v. Hoyt, 311 Ill. 532.) The jurisdictional finding of the defendant superintendent of schools is without any basis whatever in the petition, the signatures appended thereto, or in the affidavits of the persons who circulated the petition.\\n\\\"The defendant contends, however, that the affidavits were unnecessary and therefore immaterial. It is true that if the petition for an election to organize a community high school district itself meets the requirements of the statute no affidavit is required to verify the signatures to the petition, as they may be accepted as genuine in the absence of a contradictory showing. (Chesney v. Moews, 317 Ill. 111.) The petition here was defective and the rule invoked is inapplicabl\\u00e9.\\n\\\"To obtain a reversal the defendant argues further that the words 'legal voters,' in the petition, necessarily mean 'legal voters residing in' the territory described, as only a resident of the territory could be a legal voter therein. This argument ignores the plain meaning of the words employed in the statute and the well recognized distinction between actual residence and legal residence. Obviously, a person may be a legal resident of one place and an actual resident of another. Similarly, a 'legal voter' of a place may actually reside or live in some other place. It does not follow that because he is a legal resident, for voting purposes, of the place where he is entitled to vote he actually resides there. The statute accords recognition to the fact that persons actually residing or living in a particular territory are best qualified to determine the needs of its inhabitants in connection with schools and the educational facilities required. The natural construction of the language and the \\\"manifest legislative intent expressed in section 89a are, that a petition for the organization of a community high school district, designating the territory, should be signed not only by at least fifty legal voters thereof, but that such persons should actually reside or live in the territory sought to be organized.\\\"\\nIt is insisted by the appellees that it is not necessary to show the number of voters residing in the district, and cite the case of People v. Birdsong, 398 Ill. 455. A reading of that case discloses that it is an entirely different situation from the one here involved. The statute there provided that the petition should be signed by twenty per cent or more of the voters, or two hundred, whichever is the fewer of the voters. This petition was signed by two hundred and thirty-four, and the court there held that the superintendent of schools could very easily count the names of the signers and ascertain whether the petition had two hundred or more signatures.\\nAppellees also contend that subsection 4 of section 8-6 of the Illinois statute [Ill. Rev. Stat. 1949, ch. 122, par. 8-6; Jones Ill. Stats. Ann. 123.855] relative to the Community High School District that provide: \\\"If one-half of the voters of a former common school district file with the county superintendent of schools a petition asking that a vote be taken in such district on the question of detaching from a community consolidated school district, etc., that the superintendent shall order the election. .\\\" It is their contention that this section of the school law is controlling and need not be considered with the other sections of the school law. The appellants contend that you have to read this section in conjunction with the others and cite the case of Frye v. Hunt, 365 Ill. 32, supra, as authority for their position in this matter.\\nThe pleadings show that at the time the petition for mandamus was filed, there were three petitions filed with the superintendent of schools, each asking that property be detached from the high school district, and the record does not show what action was taken on any of these petitions. It is contended by the appellant, that the court was without authority to act upon these petitions, until the record shows, or proof of some kind was introduced to show what action, if any, was taken by the superintendent of schools on these various petitions. While the decree itself recites that evidence was heard in support of the petitioners' case for writ of mandamus, there is a stipulation filed by the at torneys to this litigation, that no evidence was offered or heard on the trial of the case in the circuit court of Henry county, Illinois, so there was no issue of fact presented and the record further shows that no rule was entered against the county superintendent of schools to answer the petition, and there is nothing before the court to pass upon except the petition itself.\\nIt is our conclusion that the court erred in not allowing the Community Unit School District to intervene, and be made a party-defendant to this litigation, as it had an interest in the suit, and had a right to be heard on all the points that are urged in this appeal. Charles and Virginia Draminsld and Harlan R. Hamilton and Loris M. Hamilton, his wife, did not ask to intervene in the suit in Henry county, but we think they had a right to appeal, as interested parties, from the decision of the trial court in ordering the writ of mandamus to issue.\\nThe judgment of the trial court will be reversed with directions to grant leave to the Community Unit School District to intervene as a party-defendant in the suit.\\nReversed and remanded with directions.\"}"
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+"{\"id\": \"5017601\", \"name\": \"Ethel S. Altemeier et al., Successor Trustees under the Last Will and Testament of Daniel C. Stover, Deceased, Appellants, v. Clare Winger Harris et al., Appellees\", \"name_abbreviation\": \"Altemeier v. Harris\", \"decision_date\": \"1948-06-04\", \"docket_number\": \"Gen. No. 10,185\", \"first_page\": \"130\", \"last_page\": \"158\", \"citations\": \"335 Ill. App. 130\", \"volume\": \"335\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T17:35:06.375943+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ethel S. Altemeier et al., Successor Trustees under the Last Will and Testament of Daniel C. Stover, Deceased, Appellants, v. Clare Winger Harris et al., Appellees.\", \"head_matter\": \"Ethel S. Altemeier et al., Successor Trustees under the Last Will and Testament of Daniel C. Stover, Deceased, Appellants, v. Clare Winger Harris et al., Appellees.\\nGen. No. 10,185.\\nOpinion filed June 4, 1948.\\nOpinion modified and rehearing denied August 25, 1948. Released for publication August 27, 1948.\\nFranklin J. Stransky, of Chicago, for appellants.\\nEverett E. Laughlin, of Freeport, trustee for the unborn.\\nEckert & Eckert, of Freeport, Chas. O. Rundall and Horace A. Young, both of Chicago, for adult appellees ; Robert P. Eckert, Jr., of Freeport, and Horace A. Young, of Chicago, of counsel.\\nRobert J. Schmelzle, of Freeport, for minor appellees.\", \"word_count\": \"9094\", \"char_count\": \"53314\", \"text\": \"Mr. Justice Dove\\ndelivered the opinion of the court.\\nOn May 7,1906, Daniel C. Stover of the city of Free-port executed his last will and testament. Following the death of his wife, he executed a codicil dated June 19, 1907. On January 17, 1908, Daniel C. Stover died leaving him surviving, May Stover Winger Thomas and Porter S. Stover, his children. The will and codicil were duly admitted to probate on February 17, 1908. In 1909, the children filed a bill in chancery to set aside the will and codicil upon the ground that their father was not of sound mind and memory at the time of the execution of the will and codicil and that the execution of these instruments was procured by fraud and undue influence. The cause was tried, resulting in a decree sustaining the will.\\nThe will nominated as executors and trustees John F. Smith, Henry H. Antrim and James H. Stearns and contained the following provisions:\\n\\\"4. All the rest, residue and remainder of my property and estate, real, personal and mixed, of every name, nature and description, I give, devise and bequeath- to my executors and trustees hereinafter named, and to their successors as hereinafter provided, in trust, to keep the same together and manage the same and to accumulate the income thereof as far as possible consistently with the provisions of this will, for and during the lives of my wife, Mary C. Stover, my daughter, May S. Winger, and my son, Porter S. Stover, and the life of the survivor or survivors of them, and for and during the term of twenty-one years after the death of the last survivor of them, and then to divide the same and the accumulations thereof, between the heirs of my daughter, May S. Winger, and the heirs of my son, Porter S. Stover, equally, except that in such division they shall equalize as between said heirs the sums which shall have been charged against said May S. Winger and said Porter S. Stover, under the terms of this will, so that the heirs of either shall receive the benefit of the economy of their parents. In such division, children shall represent their parents, per stirpes. .\\n.\\\"My said executors and trustees shall also pay over to my daughter, May S. Winger and my son, Porter S. Stover, for living expenses, the sum of twenty-five hundred dollars per annum,, each, payable quarterly, provided that my said executors and trustees may, in their discretion, in cases of emergencies, occasionally increase such amount to either or both of my said children to an amount not exceeding in any one year to either of them, one-third the net annual income from my personal estate, or after the death of their mother, Mary C. Stover, not exceeding one-half the net annual income from my personal estate. The sums so paid by my said executors and trustees to my said children shall be charged against the respective shares in the final distribution of my estate represented by my said children, so that the heirs of each of them shall reap the benefit of any economies practiced by their parents. In case of the death of either or both my said children, my said executors and trustees are authorized to pay not exceeding the sum of twelve hundred and fifty dollars to or for the support of the children of my said child, to be distributed as in the judgment of my said executors 'and trustees may be advisable, and a like sum of twelve hundred and fifty dollars to each surviving husband or wife of my said children so long as they may remain unmarried, but in case they or either of them shall marry again, then the payment of said sum of twelve hundred and fifty dollars to the one or ones so remarrying shall cease.\\n\\\"5. My said executors and truste\\u00e9s shall also pay to or for the use of each grandchild of mine between the ages of twelve and twenty-five years, a sum not exceeding one thousand dollars annually, to be applied exclusively to their education and to be charged against the shares in my estate r\\u00e9presented by their respective parents. And as to each such grandchild, should the full sum of one thousand dollars not be required for educational purposes in any one year or years, the surplus or any requisite part thereof may. be called for at a later year or years, without interest, if needed for educational purposes, or if not so needed shall remain a part of my estate to the credit of the respective shares thereof represented by their respective parents.\\n\\\"6. It is my will that no beneficiary hereunder be allowed to acquire any right or title to the whole or any part of Ms legacy or annuity hereunder except through the regular payment by my said executors and trustees, for which he or she or his or her guardian shall give a receipt, nor shall any beneficiary hereunder have any right or power to draw upon, assign or otherwise to anticipate or to mortgage or otherwise encumber in advance any installment or installments of income or principal; nor to give orders in advance upon the trustee or trustees for any installment or installments of income, nor shall the same in any way become liable at law for any of the indebtedness of any one of my said beneficiaries, nor shall said executors and trustees be liable as garnishees of such beneficiary or beneficiaries in any court of law, nor shall such beneficiaries nor either or any of them acquire any interest in my said estate or in any sum or sums of money coming from my said estate until the same shall be actually paid over by my said executors and trustees to such beneficiary or beneficiaries. . . .\\n\\\"8. . . . And I hereby give to my said executors and trustees and their successors in trust so appointed, full power to sell any and all my real and personal property, in their discretion, and to execute any and all necessary or convenient deed or deeds of conveyance or assignment of my said property or any part or parts thereof, which said deed or deeds of conveyance or assignment when so executed by my said executors and trustees or their said successors, shall be as good and effectual to pass the title to the property therein described and conveyed as if the same had been executed by me in my lifetime. . . .\\n\\\"11. It is my desire that my said executors and trustees, as they receive money from the sale of real estate or from other sources, which is not needed for the payment of legacies or the expenses of administration, shall invest the same and keep it invested in good, safe income producing securities, farm loans being pre ferred under present conditions but in this respect, as in others, my trustees are to use their best judgment, keeping in view that my desire is to create and preserve for my grandchildren and their heirs an estate having a steady permanent income.\\\"\\nAt the time the will was executed the daughter, Mrs. Thomas, had two children and the son, Porter S. Stover, had two children and on October 19, 1912, Porter adopted a son, Raymond, who was born on September 28, 1906. A disagreement having arisen with respect to the construction to be given certain provisions of the will, the trustees in 1923, filed their bill in the circuit court of Stephenson county, making, the children, grandchildren, great-grandchildren and the adopted son, Raymond Stover, defendants. It was the contention of the children of the testator that under the rule in Shelley's case they were the owners in fee of all the real estate of which the testator died seized. All of the defendants contended that under the act of 1907 limiting the period during which income is permitted to accumulate, that all income must be distributed after January 17, 1929. The defendant, Raymond Stover, contended that as the adopted child of Porter Stover he was entitled to participate in the distribution of the estate and income therefrom in the same manner as the other children of his father. The chancellor denied all these contentions and on January 4, 1924, entered a decree accordingly. Upon an appeal to the Supreme Court that decree was affirmed. (Smith v. Thomas, 317 Ill. 150.)\\nOn February 13, 1944, May Stover Winger Thomas, daughter of Daniel C. Stover died leaving no husband her surviving but leaving as her living lineal descendants, Clare Winger Harris, daughter, Clyde W. Harris, grandson, Donald Stover Harris, grandson, Stover Carl Winger, son, Donald Lynn Harris, great-grandson, Lynn Thackeray Harris, grandson, Lynn Harris, great-granddaughter, Margaret Rose Winger Connolly, granddaughter, Helen Louise Connolly, great-granddaughter and Daniel Christopher Connolly, great-grandson. Subsequently and on A]bril 17, 1944, the instant complaint was filed by the then acting trustees seeking the construction of a portion of the said fourth clause of the will of Daniel C. Stover. The present counsel for the trustees state that \\\"at the time of the commencement of this suit said trustees either overlooked or were unaware of a previous decree of the circuit court of Stephenson county construing the same portion of clause 4 of said will.\\\" During the pendency of this suit and on January 18, 1946, Porter S. Stover, only son of Daniel C. Stover, deceased, died leaving him surviving, Kathryn\\\" D. Stover, his widow, and Gladys Stover Lyon, his daughter, William Parker Lyon, III, a grandson, Barbara Stover Lyon Sharpe, his great granddaughter, Margaret Stover Foster Howard, his daughter, Murray Foster Jr., a grandson, and Joan Foster, a granddaughter. All the lineal descendants of Daniel C. Stover, deceased, were made parties defendant. During the pendency of this proceeding, Donna Harris and William Parker Lyon, IV, lineal descendants, were born. A guardian ad litem was appointed to appear for and represent all defendants under disability and a trustee for unborn lineal descendants of Daniel C. Stover was appointed. Answers and counterclaims were filed and after the issues had been made up a hearing was had resulting in a decree which was approved by the chancellor on June 28, 1946. This decree, by stipulation of all the parties, plaintiffs and defendants, was vacated and set aside on July 12,1946.\\nThereafter the adult defendants by leave of court, filed their joint petition in this cause alleging that petitioners, together with the guardian ad litem appointed by the court for the infant defendants and the trustee for the unborn lineal descendants of May Stover Winger Thomas and of Porter S. Stover have discussed and considered the issues in this suit and have agreed upon a comprehensive settlement of all matters in dispute subject to the approval of the court. A copy of the proposed Family Settlement Agreement is made a part of the petition and the petition con eluded by praying that all parties to the cause, other than petitioners, be directed to answer the petition, that a hearing then be had and a decree entered approving and confirming the Family Settlement Agreement and making it effective as to all parties to the cause. The trustee for the unborn lineal descendants of May. Stover Winger Thomas and Porter S. Stover answered as did the guardian ad litem and also the then acting trustees, being the plaintiffs in the instant cause. A hearing was had resulting in a final decree finding that at the time the instant complaint was filed and at the time the decree was entered which was January 28,1947, there existed a bona fide controversy as to the construction of the last will and testament of Daniel C. Stover, deceased, that the facts set forth in the Family Settlement Agreement have been fully proven, that the agreement is fair and in accordance with the law, that a number of disputes have arisen among the defendants as to their rights under the Stover will, that these disputes threaten to destroy the harmonious family relationships that have heretofore existed among the parties to .this proceeding, that some of the parties have threatened further and additional litigation and litigation attacking the validity of the trust established by the Stover will, that such further and additional litigation would be protracted and would result in delay as to the administration and distribution of the property of the estate, would involve large expenditures and expenses and would result in dissention among the various parties defendant to this suit.\\nThe decree then directed the guardian ad litem and the trustee for the unborn descendants to execute said Family Settlement Agreement which the decree finds was done in open court and the adult .parties having executed it, the decree approves said agreement as executed and orders that the rights of all the parties to this cause \\\"stand and shall prevail according to the terms of the last will and testament of Daniel C. Stover, deceased, as modified by the terms of said Family Settlement Agreement\\\" and provides that the decree and provisions of the Family Settlement Agreement shall be binding upon the trustees and their successors and shall be so carried out under the supervision and direction of the court. To reverse this decree the trustees, being the plaintiffs in the instant proceeding, appeal.\\nInasmuch as the decree appealed from provides that it is and shall be binding upon appellants and their successors in trust and that all persons, firms and corporations claiming by, through or under them shall be protected from all liability for all acts done pursuant to and in reliance upon the terms and provisions of said decree or of the Family Settlement Agreement, counsel for appellees urge that it is no concern of appellants, as successor Trustees, how the parties beneficially interested settled their differences and call our attention to the language used by the court in Wolf v. Uhlemann, 325 Ill. 165 at page 184 where it was said: \\\"Appellant, as trustee, did not have or claim to have any beneficial interest in the fund. The trustee's rights and interests were not affected by a decree which bound all the parties in interest and protected the trustee in the distribution of the fund. It was no concern of the trustee how the parties beneficially interested settled the threatened controversy if the trustee, was protected in making the distribution. That seems- to -be the only question the trustee had any interest in or should be concerned about.\\\" This language was used by the court in connection with the 'facts of that particular case and is not applicable to the facts disclosed by this record. The fact that family settlements are favorites of the law in nowise changes the rules of law applicable to trusts. In our opinion this is not a case for the application of any of the rules of law pertaining to family settlements. [Wood v. Gridley, 217 Ill. App. 579, 586.] Beneficiaries of a trust cannot revise the provisions of the instrument creating the trust to suit their own desires. [Scheuing v. May, 213 Ill. App. 143; Sauvage v. Gallaway, 335 Ill. App. 35, 41.] In the instant case the trustees were required to answer the petition which sought a confirmation of the Family Settlement Agreement. They did so and when, upon a hearing, a decree was rendered adversely to their contentions and which, in their. opinion, thwarted the will of the creator of the trust which they were required to administer, it was not only their right, but clearly their duty to appeal. In Geiger v. Bardwell, 255 Ill. 320 at page 331 it is said: \\\"The trust he (the testator) attempted to create was within his legal power, and the fact that all the beneficiaries for whose protection it was created wish it destroyed does not make it any the less the duty of the trustee and the court to see that the will of the testator is carried out if he was mentally competent. \\\" It is apparent that the object of the trust created by the will of Daniel G. Stover - has not been attained. In Smith v. Thomas, 317 Ill. 150 at page 155 the Supreme Court after stating that a reading of- this will indicates that the testator did not intend for his children to have any interest in the corpus of his estate, went on to say that it was also clear that the corpus of the estate and the accumulations are to go eventually to the children of May Winger Thomas and the children \\u00f3f Porter Stover or their descendants and on page 158 states: ' The testator makes provision' for the education of each 'grandchild of mine' and admonishes the trustees named by him to keep ' in view that my desire is to ere-' ate and preserve for my grandchildren and their heirs an estate having a steady permanent income.' \\\"\\nThe Family Settlement Agreement covers twenty pages of the printed abstract. It recites that the trust estate consisted of- real and personal property, the value thereof at the time of the death of Daniel C. Stover was approximately $600,000; that it has greatly increased in value and on December 31, 1945, the trust had a value in excess of $2,500,000, that from January 1, 1939, to December 31, 1945, the average annual net income before payment of Federal income taxes was approximately $32,000 and of this amount $24,000 approximately, was distributed per year to May Stover Thomas, up to the time of her death, and to Porter S. ' Stover, as emergency payments in addition to annuity payments. The agreement then sets forth the fourth clause of the Daniel C. Stover will, the heirship, the respective claims of the several parties interested, adults, minors and the unborn lineal descendants of May Stover Thomas and of Porter S. Stover and reference is then made to the case of Smith v. Thomas, 317 Ill. 150 and to the instant proceedings and the agreement then concludes:\\n\\\"1. All of the parties hereto hereby waive, release and forever discharge all rights, claims and claims of rights to receive from the Successor Trustees and their successors in trust any annuity payment or payments under the fourth clause of the last will and testament of Daniel C. Stover, deceased.\\n\\\"2. All of the parties hereto hereby waive, release and forever discharge all rights, claims and claims of rights to receive frdm the Successor Trustees and their successors in trust any payments 'in cases of emergencies,' as provided in the fourth clause of the last will and testament of Daniel C. Stover, deceased.\\n\\\"3. In lieu of the distribution of the net income of said trust estate by the Successor Trustees, as heretofore made by means of annuity payments and of emergency payments, distributions hereafter shall be made as follows:\\n\\\"(a) The Successor Trustees and their successors in trust shall distribute equally between Clare Winger Harris and Stover Carl Winger, eighteen and three-fourths per cent of the net income of said trust estate for the year 1946, before payment of Federal income taxes. In the event of the death of Clare Winger Harris or Stover Carl Winger, or both of them, the distribution of the deceased beneficiary's share, shall be made to the surviving lineal descendants of such decedent or decedents, per stirpes and not per capita.\\n\\\"(b) The successor Trustees and their successors in trust shall distribute equally among Gladys Stover Lyon, Margaret Stover Foster Howard, and Katherine D. Stover, eighteen and three-fourths per cent of the net income of said trust estate for the year 1946, before payment of Federal income taxes. Upon the death of Katherine D. Stover, the distribution of said eighteen and three-fourths per cent of the net income shall be made equally between Gladys Stover Lyon and Margaret Stover Foster Howard. In the event of the death of either Gladys Stover Lyon or Margaret Stover Foster Howard, or both of them, the distribution of the deceased beneficiary's share shall be made to the surviving lineal descendants of such decedent or decedents, per stirpes.and not per capita.\\n\\\"(c) After making the distribution provided for in paragraphs 3 (a) and 3 (b) above, the Successor Trustees and their successors in trust shall add the \\u2022 balance of the net income of said trust estate for the year 1946, after payment of Federal income taxes on said balance, to the corpus of the trust, except for such part of said balance as may be nsed for educational benefits as is hereafter provided.\\n\\\"(d) The Successor Trustees and their successors in trust shall distribute equally between Clare Winger Harris and Stover Carl Winger thirty-seven and one-half per cent of the net income, before payment of Federal income taxes, for the year 1947, and for each succeeding year, up to the termination of the trust estate on January 18, 1967. In the event of the death of either Clare Winger Harris or Stover Carl Winger, or both of them, prior to January 18,1967, the descendants of such decedent or decedents shall succeed to the respective rights of such decedent or decedents, per stirpes, in and to such distributable income, and in the event of the death thereafter of any of the aforesaid descendants, their descendants shall in turn succeed to the rights, per stirpes, of the persons so dying, and so on, to the end that for the balance of the trust period thirty-seven and one-half per cent of the annual income shall be distributed, per stirpes, to-the currently proximate descendants in the May Stover Winger Thomas branch of descent.\\n\\\"(e) The Successor Trustees and their successors in trust shall distribute equally among Gladys Stover Lyon, Margaret Stover Foster Howard and Katherine D. Stover, thirty-seven and one-half per cent of the net income, before payment of Federal income taxes, forihe year 1947, and for each succeeding year up to the termination of the trust estate on January 18, 1967. Upon the death of Katherine D. Stover at any time prior to January 18,1967, the Successor Trustees and their successors in trust shall distribute equally between Gladys Stover Lyon and Margaret Stover Foster Howard said thirty-seven and one-half per cent of the net income before payment of Federal income taxes, for the year 1947, and for each succeeding year up to the termination of the trust estate on January 18, 1967. In the event of the death of either Gladys Stover Lyon or Margaret Stover Foster Howard, or both of them prior to January 18, 1967, the descendants of such decedent or decedents shall succeed to the respective rights of such decedent or decedents, per stirpes, in and to such distributable income, and in the event of the death thereafter of any of the aforesaid descendants, their descendants shall in turn succeed to the rights, per stirpes, of the persons so dying, and so on, to the end that for the balance of the trust period thirty-seven and one-half per cent of the annual income shall be distributed, per stirpes, to the currently proximate descendants in the Porter S. Stover branch of descent, subject only to the rights of Katherine D. Stover during her lifetime, as hereinabove provided.\\n\\\"(f) After making the distributions provided for in paragraphs 3 (d) and 3 (e) above, the Successor Trustees and their successors in trust shall add the balance of the net income, after payment of Federal income taxes on said balance, to the corpus of the trust, except for such part of said balance as may be used for educational benefits as is hereafter provided.\\n\\\"(g) The distributions above provided for shall be made monthly to the persons named or described in sub-paragraphs (a) through (e) of this paragraph numbered 3, based upon the estimates of the Successor Trustees and their successors in trust as to the amount ' of the net income of the trust estate, before payment of Federal income taxes, for the then current year. Within sixty (60) days after the end of the calendar year, the Successor Trustees and their successors in trust, shall determine the exact net income, before payment of Federal income taxes, for the preceding year and shall make appropriate adjustments in the payments to distributees.\\n\\\"4. From July 1, 1946, until the termination of the trust, the Successor Trustees and their successors in trust, out of the twenty-five per cent balance of net income left after distribution of the seventy-five per cent of net income to the distributees as aforesaid, to the full extent thereof if necessary, and then out of the corpus of the trust if necessary, shall pay to or for the use of each lineal descendant of May Stover Winger Thomas and of Porter S. Stover who has completed twelve years of grade and preparatory education, pro- ' viding such descendant is not then entitled to benefits under paragraph 3 hereof, a sum not exceeding Seven Hundred and Fifty Dollars ($750.00) annually, to be applied exclusively to his or her education, and to be charged against the shares in said trust estate represented by his or her branch of the two branches of descent, but the total of such payments to any such lineal descendant shall not exceed Three Thousand Dollars ($3000.00). If such descendant is then entitled to benefits under paragraph 3 hereof, but such benefits are less than Seven Hundred and Fifty Dollars per year, then such descendant shall 1?e entitled to educational payments sufficient to bring his total receipts from the trust estate to Seven Hundred and Fifty Dollars. Should the full sum of Seven Hundred and Fifty Dollars not be required for educational purposes in any one year or years by any beneficiary, the surplus may be called for at a later year or years, without interest, if needed for educational purposes, until the descendant has reached the age of twenty-five years. No descendant shall be entitled to educational benefits after he shall have reached the age of twenty-five years, except that if any descendant has heretofore, or shall hereafter, serve in the armed forces of the United States prior to reaching the age of twenty-five years, this right to educational benefits shall extend beyond the age of twenty-five years for a period corresponding to the period of such service. The term 'education,' as herein used, shall apply only to study at a legally incorporated or licensed college, univer sity, institution, conservatory or training school, provided, however, that the payments may he used for tuition, books, equipment, board, room, pr other necessities of such educational program. The Trustees shall pay such portion of the educational benefits as is possible directly to the particular institution in which the beneficiary is enrolled, and shall take such steps as they may deem necessary to see that such portion of the benefits as is not paid directly to the institution is applied by the beneficiary to educational purposes as hereinbefore defined. If a beneficiary, after receiving any educational benefits hereunder, shall be expelled or dismissed from any such institution for scholastic incompetency or for disciplinary reasons, he shall thereafter forfeit all right to additional educational benefits.\\\"\\nIn order to sustain the order appealed from counsel for the adult appellees state that sufficient or substantial doubt exists as to the validity and meaning of the will of Daniel O. Stover\\\" to warrant the beneficiaries thereunder entering into a family settlement agreement and that neither the decree of the circuit court of Stephenson county of January 6, 1910, sustaining the will or the decree of that court entered on January 4, 1924, which was affirmed in Smith v. Thomas, 317 Ill. 150, estop these adult appellees in this proceeding. These proceedings, argue counsel, in fact form a basis for the approval by the court of this Family Settlement Agreement.\\nThe guardian ad litem, representing the minor appellees states that the mpst conservative estimate of the present value of the trust estate is $2,000,000 but that a realistic value would be close to $4,000,000, that there has been and will always continue to be a substantial accumulation of income throughout the balance of the trust administration and that the public policy of this State has greatly changed since the execution of this will and now such policy strongly favors the distribution of income rather than the accumulation thereof. The guardian ad litem states' that during this same period of time, that is from the time this will was executed to the present, the general economy of this country, including interest rates, investment practices, living costs, living standards and tax policies, have also greatly changed; that the fundamental purpose of the testator appears in paragraph eleven (11) of the will wherein the testator specifies his desire ' ' to create and preserve for my grandchildren and their heirs an estate having a steady permanent income\\\"; that the parents of some of the minor defendants might become distributees of income prior to the distribution of the corpus of the trust and in such event it would be for the best interests of such minor defendants that their parents have sizeable periodic distributions of income from the trust in keeping with, and proportionate to, the rapidly growing income from the trust. Such distributions to the parents, argue the guardian, \\\"would necessarily benefit, enrich, improve, better and refine the standard of living and environment of the child.\\\" The guardian further states that it is possible for some of those he represents to become members of the proximate class in the \\u25a1 line of descent prior to the distribution of the corpus' and thus distributees of income, and then depart this life, prior to the distribution of the corpus, thus giving way to descendants of a lower class who would be the distributees of the corpus and if substantial distributions of income were not made, such minors would receive no benefits whatsoever from the Stover trust. The guardian ad litem continues: \\\"Very small periodic distributions could greatly harm these minors and other descendants closer to the testator than the final distributees. It would certainly not be in keeping with the intention of the testator, or with the fundamental fitness of things, for these minors to be deprived of substanti\\u00e1l distributions through niggardly distributions to them or to their parents in whose homes they are being reared.\\\" The guardian argues that the united desires of all the beneficiaries, periodic and final, adult, minor and unborn should prevail and that it is regrettable that appellants, the trustees, whom the guardian characterizes as ' ' disinterested stakeholders\\\" should alone dissent. The guardian insists that the Family Settlement Agreement is fair and equitable to all and promotes, in a lawful manner, the fundamental, underlying, pervading purposes of the will of Daniel C. Stover and satisfies the purpose of the testator even better than the testator, himself, could have done in 1907.\\nCounsel for the trustee for the unborn descendants of Daniel C. Stover, in his brief states that the issue is whether or not the doctrine of family settlement as . embodied, and laid down in the leading case of Wolf v. Uhlemann, 325 Ill. 165, is applicable under the circumstances of this particular case. Counsel state that the Uhlemann case definitely establishes the fact that there is such a thing as a Family Settlement Agreement, and that under certain circumstances, such agreements are proper and desirable. ' Counsel concede that a widespread application of this principle would result in the destruction of the power of the testator to dispose of his estate and that only in rare cases should the heirs and legatees of a deceased per- - son be given the right to agree among themselves to distribute a testator's estate in contravention to the terms of his will.. Counsel then conclude that this Family' Settlement Agreement is eminently'fair to the persons he represents and that under the circumstances of this case the rather dangerous principle of family settlement might' well be applied in order to save future expensive litigation which might or might not be successful.\\nIn the proceeding brought by the children of the testator in 1909 to invalidate this will upon the ground of mental incapacity and fraud and undue influence all the grandchildren of the testator then living were defendants and were duly represented by their guardian ad litem. The circuit court of Stephenson county had jurisdiction of all the parties and of the subject matter of the litigation and after a trial of the issues a decree sustaining the will was entered on January 6, 1910. This decree provided: \\\"that all parties to this suit,' both adults and minors, and all persons claiming or to claim by, through or under them, or either of them, are hereby forever precluded from attacking the validity of said will and codicil or either of them.\\\" Some of the adult appellees in the instant proceeding were defendants in that cause and it is they, so the petition and order appealed from and the Family Settlement Agreement all recite, who' now threaten to again attack the validity of this -will.\\nIn the proceeding instituted by the trustees in 1923, seeking a construction of certain provisions of this will, the children and all the then living grandchildren of the testator were parties defendant and by their answer sought an order directing the trustees to pay them during their respective lives and to their heirs-at-law after their deaths the entire income from said estate. That court likewise had jurisdiction of the subject matter of the litigation and of all the parties then living who were interested therein and the decree then rendered by the circuit court, on January 4, 1924, provided: \\\"It is the duty of said trustees and their successors in trust to accumulate the income in the manner provided for in said will, for and during the lives of testator's two children and the life of the survivor of the same and for and during the term of twenty-one years after the death of the last survivor. ' ' That decree also construed the provisions of paragraph four (4) of said will with relation to annuities to the son and daughter of the testator and irpon ap peal the correctness of that portion of the decree was not challenged.\\nIn affirming that decree the Supreme Court said (Smith v. Thomas, 317 Ill. 150 at page 155): \\\"A reading of the will indicates clearly that the testator did not intend for his children to have any interest in the corpus of his estate and that the only interest they should ever have was the right to receive an annuity of $2500.00 per annum and in certain events an additional allowance, which under no circumstances was to exceed in the case of either of them one-half the net annual income from his personal estate. They do not receive under the will a life estate or any other freehold interest in the real estate of the testator. It is also clear that the corpus of the estate and the accumulations are to go eventually to the children of May Winger Thomas and the children of Porter Stover or their descendants. The word 'heirs,' as used in the fourth paragraph of the will, is not a word of limitation describing those who are to take from generation to generation, but is a word of purchase describing the persons who are to take the estate at the termination of the trust. Where, as in this case, it is clear that the testator did not use the word 'heirs' in its strict legal sense but did use it to describe children or grandchildren, it will be given the meaning necessary to carry out the testator's intention. (Winchell v. Winchell, 259 Ill. 471.) Where the estate in remainder is limited to the children or grandchildren of the ancestor the rule in Shelley's case does not apply. (Peacock v. McCluskey, 296 Ill. 87; Butler v. Huestis, 68 id. 594; 1 Tiffany Real Property, \\u2014 2nd ed. \\u2014 sec. 151.) There being neither a freehold in testator's children nor a remainder to their heirs generally, the claim of testator's children that they take a fee under the rule is without merit. (Kales Estates, \\u2014 2d ed. \\u2014 sec. 413.) \\\"\\nIn referring to the Act of 1907 limiting the period during which income is permitted to accumulate, the court said: \\\"The statute limiting accumulations did not go into effect until July 1, 1907, and since it applies only to wills ' executed after this act goes into effect' it does not apply to the will in question.\\\"\\nThere are no complicated or indefinite restrictions upon the disposition or distribution of the estate of Daniel C. Stover. As stated by the Supreme Court, it was clearly the intention of the testator that the only interest his son and daughter should have in his estate was the right to receive an annuity and under certain circumstances an additional allowance derived from a portion of the income from his personal property. The will directed the trustees \\\"to keep the same (his estate) together, and manage the same-and to accumulate the income thereof-=\\u2014 for and during the lives of my wife, Mary C. Stover, my daughter, May S. Winger (Thomas) and my son, Porter S. Stover, and the life of the survivor or survivors of them, and for and during the term of twenty-one years after the death of the last survivor of them, and then to divide the same and the accumulations thereof, between the heirs of my daughter, May S. Winger and the heirs of my son, Porter S. Stover, equally, except that in such division they shall equalize, as between said heirs, the sum which shall have been charged against said May S. Winger and said Porter S. Stover, under the terms of this will, so that the heirs of either shall receive the benefit of the economy of their parents.\\\" By this clear and unambiguous language the testator indicated that at the end of twenty-one years after the death of the survivor of his son and daughter his entire estate shall vest and be divided among the heirs of his said son and daughter. The succeeding portion of this clause of the will then provided that upon the death of both his children the trustees were authorized to pay not exceeding the sum of $1,250 to each surviving husband or wife of his children so long as such spouse may remain unmarried. Counsel for appellees seize upon this language and insist that there was a possibility that such surviving spouse of testator's children could be born after the death-of the testator and be alive and unmarried twenty-one years after the death of the survivor of his children and therefore payment under this provision could extend beyond the period of 21 years after the death of the survivor of his two children. There is absolutely no merit in this contention. The corpus of this trust vests at the end of 21 years after the death of the survivor of the two children of the testator. The will itself so states and the circuit court so held by its decree of January 4, 1924, and that holding has been affirmed by the Supreme Court.\\nMay S. Winger Thomas, testator's only daughter, died on February 13,1944 and on January 18,1946, Porter S. Stover, testator's only son, died. The provisions of the will of their father for their benefit have been carried out and a definite date established, namely, January 18, 1967 when the corpus of this estate vests. The latter part of paragraph four of the testator's will authorizes the trustees to pay not exceeding the sum of $1250.00 to or for the support of the children of said son and daughter and to be distributed as in the judgment of the trustees may be advisable and under paragraph five the trustees are directed to pay to or for the use of each grandchild of the testator, between the ages of twelve and twenty-five a sum not exceeding one thousand dollars annually to be applied exclusively to their education.\\nThe amount these heirs of the testator will henceforth receive each year under his will, until their death or until the termination of the trust, may be a comparatively small sum. The difference between the amounts so.paid as provided by the will and the total amount of income received by the trustees will be added to the corpus of the trust. This is what the testator directed and what he intended. The fact that these present heirs are dissatisfied and wish to receive a larger amount than the creator of the trust desired them to have and the further fact that the corpus of the trust will be substantially increased each year from the accumulation of income, affords no reason why the expressed wishes of the testator should not be respected. After all it was Daniel C. Stover's property that Daniel C. Stover disposed of by his will and he was the creator of this trust. There is no substantial disagreement among appellees. All the evidence leads to but one conclusion and that conclusion is that they all feel just as some of them felt in 1923 and just as the son and daughter of Daniel C. Stover felt during his and her lifetime and that is that the income from this trust should be distributed to them and that their ancestor's wishes should give way to their desires.\\nUnder the Family Settlement Agreement an arbitrary 75 per cent of the net income of this trust will be distributed each year and in addition the remaining 25 per cent of the net income is to be used for and is subject to, the payment of educational benefits to those who are eligible, not under the terms of the will, but under the terms of the Family Settlement Agreement. It is clearly apparent that the difference between whatever sum of money appellees would r\\u00e9ceive under the provision of the Family Settlement Agreement prior to January 18, 1967, and the maximum amount they would receive under the provisions of the will, is the amount the corpus of the estate would be diminished. Just how much this would be is not susceptible of definite computation. Counsel for appellants, basing his computation upon the record and what it discloses as to the amount of income received by the trustees from its inception states that the corpus would be diminished at least half a million dollars. The amount is not material. It would be a substantial sum and its depletion in any amount would be at the expense, and to the detriment, of those to whom distribution is to be made when the trust is terminated. The only conclusion that can be arrived at from a consideration of this record is that the carefully prepared plan of the testator to increase the corpus of the trust by accumulations derived from income would be practically destroyed and that the provisions of the Family Settlement Agreement substitutes the wishes, desires and plans of the present beneficiaries, adults and minors, for the clearly expressed intention and plan of the testator.\\nThe procedure and Family Settlement Agreement in the instant case follows the pattern used in Wolf v. Uhlemann, 325 Ill. 165. The factual and legal situation here, however, are entirely different. In the Wolf case the court found that the will was so involved and complicated and its provisions so uncertain in legal meaning that the parties beneficially interested in the estate might well doubt what their rights were under the will and its ambiguity would justify them in seeking to have the will construed and that the'proposed Family Settlement Agreement was fair to all parties having a pecuniary interest in the estate and that any unborn issue had not been and could not be injured or prejudiced by the agreement. In the instant case if the trustees or parties beneficially interested in the trust desire any further judicial determination of the meaning of the provisions of this will or if the trustees desire directions as to their duties, they may invoke the jurisdiction of the appropriate court. The language used by the court in connection with the will involved in the Wolf case to the effect that its provisions were so involved and complicated and so uncertain in legal meaning, cannot be appropriately applied to the provisions of the Stover will. Furthermore the heirs at law of the testator, many years ago, unsuccessfully contested its validity and after its validity had been established sought and obtained a construction of its meaning. It was said in the Wolf case that courts of equity favor the settlement of disputes among members of, a family by agreement rather than by resort to law and where there is a reasonable and substantial basis for the belief or assurance that prolonged and expensive litigation will result over the proceeds or distribution of an estate and that the estate will be materially depleted and the family relationship will be torn asunder, that then the parties interested are warranted in preventing such bona fide .family controversy by a settlement agreement. In the instant case there can be no reasonable and substantial basis for a belief in the minds of any of the appellees that prolonged and expensive litigation will result over the distribution of this estate or that the estate will be materially depleted thereby or that . the family relationship of appellees will be disturbed or rendered inharmonious. The court in the Wolf case recognized that members of a family are not privileged to alter the terms and provisions of a will merely for the convenience of the family or for the sole purpose of securing greater individual financial advantages than those specified in the will and intended by the testator. If the Family Settlement Agreement here is approved and validated, the effect would be that the members of the Stover family would be privileged to alter the terms and provisions of their ancestor's 'will merely for their own convenience and in order to secure greater individual financial advan- ' tages than those provided in ;the will and intended by the testator. The conclusion reached-in the Wolf case is not, in our opinion, authority to sustain the decree in the instant case. On the contrary, our conclusion is in perfect harmony with the holding in the Wolf case.\\nRogers v. English, 130 Conn. 332, 33 A. (2d) 540, 147 A. L. R. 812, was a proceeding to construe the will of Constand A. Moeller which contained provisions somewhat similar to those found in the Stover will. One of the questions there presented for determination was whether, on account of the change in circumstances after the execution of the will creating the trust, there could be a variation of the specific amount of money which the testator had directed the trustees to pay to named beneficiaries. In answering this question in the negative and in the course of its opinion the court said:\\n\\\"The claim most strenuously pressed upon us is that of certain of the annuitants, who contend that the trustees may, in view of existing circumstances, make larger annual payments to the beneficiaries than those specified in the will. They point to various changes which have taken place in the economic conditions since the death of the testator; the imposition of the federal income tax, the effect of which is to decrease the amounts of payment to the beneficiaries which they can use for their own purposes; the increase in the cost of living and the decrease in the purchasing power of the dollar. They claim that an increase in the annual payment is necessary to accomplish what they contend to have been the general intent of the testator, to provide comfortable support for his children or, as stated in one place in their brief, to provide a standard of living in keeping with that which he had taught them to expect; that the fixing of the amount of the annuities was a special intent, which, if in conflict with this general intent, must yield to it; and that the changes in circumstances to which we have referred have produced such a conflict. We are, of course, confined to the intent expressed in the will and may not go outside of it in the effort to give effect to what we conceive to have been the actual intent of the testator, much less his 'motive,' to quote ap expression from the brief of these parties, in making the provisions he did.\\\"\\nFollowing the report of this case in 147 A. L. R. 819 will be found an annotation upon this question. The case of Jennings v. Hills, 247 Ill. App. 98, where the court declined to increase the amount of the annuities over and above those named by the testator, is cited. Union Savings Bank & Trust Co. v. Alter, 103 Ohio St. 188, 132 N. E. 834, is also referred to. In the Alter case the court reversed a decree' of the lower court increasing an annual allowance made by the testator to his children and in the course of its opinion uses language which we think is particularly appropriate here. The court there said:\\n\\\"If the courts are to enter the field of distributing\\\" . estates in such manner as will in their judgment accomplish the most beneficial results to the legatees, and are to distribute the bounties of the testator according\\\" to the needs of the beneficiary and the sense of equity and justice of the court, rather than according to the intention of the testator, to what purpose is the right conferred by statute upon every person of full age, sound mind and memory, and not under restraint, to give and bequeath his property by last will and testament? A testator when he comes to distribute his bounty by last will and testament takes into consideration his affection for and obligation to the beneficiary, the beneficiary's needs, ability, capacity and many other things of which he has peculiar knowledge, and it is because of such consideration that he makes a last will and testament at all. Is a court, a stranger to the controlling motive of the testator, to assume to amend the will, because in its opinion some other disposition would have been more,beneficial to the legatee? Where no last will and testament is \\u00e9xecuted, the law casts the estate upon* the heir^ and distributees, without reference to their circumstances or needs, and without reference to the affection or obligation of the ancestor, and no court is permitted to divert the course of the estate's descent. The right to pass property by will having been conferred by statute, and the right to inherit intestate property having been conferred by statute, what argument can be advanced in favor of thwarting the will of the testator in favor of the needy legatee that cannot with equal force be urged with reference to the needy heir under the laws of.descent and distribution? In extreme cases, in England, as well as in certain jurisdictions in America, the courts, under the guise of doing what the court imagines the testator would have done had he foreseen the situation, have gone a long way toward the substitution of the will of the court for that of the testator; but no such invasion of the right of the testator has been made in Ohio, and, we are not convinced that the benefits to be derived from the assumption and exercise of such power by the courts would compensate for the evils which would necessarily flow in its wake. ' '\\nThe decree appealed from which approved the Family Settlement Agreement was entered on January 28, 1947. It contained this paragraph: \\\"It is agreed by and between all the. parties hereto that in the event either the circuit court of Stephenson county, Illinois, or a court of last resort on review, disapprove this contract, the rights of all parties hereto shall be the same as if this contract had never been entered into and thereupon, the decree entered in Cause No. 03233 on the 28th day of June A. D. 1946 and subsequently vacated, shall be re-entered with leave to appeal to the trustee for the unborn lineal descendants of May Stover Winger Thomas and Porter S. Stover granted.\\\" [4] Counsel for appellants insist that the correctness of the decree of January 28,1947, and the correct ness of the depree of June 28, 1946, are involved in this appeal. The notice of appeal is from the decree of January 28, 1947 and makes no reference to the decree of June 28, 1946. The decree of January 28, 1947, did not vacate the decree of June 28, 1946. That was done by an order entered on July 12, 1946. After that order was entered on July 12, 1946, the situation was the same as though the decree of June 28, 1946 had never been rendered. (Freeman on Judgments, Fifth Ed. Yol. 1, page 594.) In our opinion the provisions of the decree of June 28, 1946, are not before us for review upon this record. In fact there is no decree of June 28,1946. It was vacated. No one ever appealed from its provisions. The record shows that the trustee for the unborn heirs threatened to. appeal but the decree was vacated. According to the provisions of the decree which we are reviewing the parties stipulated that in the event a court of last resort on review, disapprove this contract that then the decree of June 28, 1946, shall be re-entered. Certainly we are not called upon, on this record to review the provisions of a vacated decree.\\nThe decree of January 28,1947, is reversed and this cause is remanded to the circuit court of Stephenson county with directions to proceed consistent with the views herein expressed.\\nReversed and remanded with directions.\"}"
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+"{\"id\": \"5107889\", \"name\": \"Frank Hart, Plaintiff-Appellee, v. John M. Goebelt and Leona Goebelt, Defendants-Appellants\", \"name_abbreviation\": \"Hart v. Goebelt\", \"decision_date\": \"1953-06-01\", \"docket_number\": \"Gen. No. 9,868\", \"first_page\": \"325\", \"last_page\": \"325\", \"citations\": \"350 Ill. App. 325\", \"volume\": \"350\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T01:15:38.698649+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Frank Hart, Plaintiff-Appellee, v. John M. Goebelt and Leona Goebelt, Defendants-Appellants.\", \"head_matter\": \"Frank Hart, Plaintiff-Appellee, v. John M. Goebelt and Leona Goebelt, Defendants-Appellants.\\nGen. No. 9,868.\\nHutchens & Alfeld, for appellants; Richard W. Husted for appellee; Tom Roady, Jr., of counsel.\\nOpinion filed June 1, 1953;\\nreleased for publication June 17, 1953.\", \"word_count\": \"49\", \"char_count\": \"329\", \"text\": \"Opinion by\\nJustice Carroll.\\nNot to be published in full.\"}"
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+"{\"id\": \"511314\", \"name\": \"THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SIDNEY PERRY, Defendant-Appellant\", \"name_abbreviation\": \"People v. Perry\", \"decision_date\": \"1998-12-31\", \"docket_number\": \"No. 1\\u201496\\u20140037\", \"first_page\": \"138\", \"last_page\": \"139\", \"citations\": \"303 Ill. App. 3d 138\", \"volume\": \"303\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T19:31:23.816106+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SIDNEY PERRY, Defendant-Appellant.\", \"head_matter\": \"THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SIDNEY PERRY, Defendant-Appellant.\\nFirst District (5th Division)\\nNo. 1\\u201496\\u20140037\\nOpinion filed December 31, 1998.\\nRehearing denied March 12, 1999.\\nRita A. Fry, Public Defender, of Chicago (Elyse Krug Miller, Assistant Public Defender, of counsel), for appellant.\\nRichard A. Devine, State\\u2019s Attorney, of Chicago (Renee Goldfarb, James Fitzgerald, and Jean T. McGuire, Assistant State\\u2019s Attorneys, of counsel), for the People.\", \"word_count\": \"422\", \"char_count\": \"2607\", \"text\": \"JUSTICE GREIMAN\\ndelivered the opinion of the court:\\nA jury found defendant Sidney Perry guilty of first degree murder for the shooting death of William Yousef, of armed robbery of William Yousef, and of armed robbery of Hani Hamad. The trial court imposed a sentence of natural life in prison without parole for the murder.\\nOn direct appeal, defendant raised several issues, including whether his convictions should be reversed because he used psychotropic medication during his trial and did not receive a fitness hearing at that time. We considered this issue under the amended version of section 104\\u201421(a) in effect December 31, 1996 (725 ILCS 5/104\\u201421(a) (West 1996)), and concluded that reversal was not required in People v. Perry, 292 Ill. App. 3d 705 (1997).\\nOn October 6, 1998, the Illinois Supreme Court entered a supervisory order directing this court to vacate its judgment and reconsider it in light of People v. Kinkead, 182 Ill. 2d 316 (1998).\\nPursuant to that mandate, we hereby vacate our judgment in case No. 1\\u201496\\u20140037. As held in Kinkead, we apply the prior version of the psychotropic medication statute (725 ILCS 5/104\\u201421(a) (West 1994)). Based on the prior statute, defendant was entitled to a hearing on the issue of his fitness because he was receiving psychotropic drugs at the time of trial in September 1995. Furthermore, we reverse defendant's convictions because more than three years have passed since the original proceedings and, therefore, a retrospective hearing would be inappropriate. See Kinkead, 182 Ill. 2d at 348 (five years had passed since the original proceedings), citing People v. Neal, 179 Ill. 2d 541, 554 (1997) (\\\"retrospective fitness determinations will normally be inadequate to protect a defendant's due process rights when more than a year has passed since the original trial and sentencing\\\"). We remand this cause to the circuit court for a new trial. The double jeopardy clause does not preclude a retrial because the reversal is not based on evidentiary insufficiency. E.g., People v. Mink, 141 Ill. 2d 163 (1991).\\nReversed and remanded.\\nTHEIS and ZWICK, JJ., concur.\"}"
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+"{\"id\": \"5163262\", \"name\": \"First National Bank of Pana v. Havens & Geddis Co.; Same v. Terre Haute Shoe Company\", \"name_abbreviation\": \"First National Bank of Pana v. Havens & Geddis Co.\", \"decision_date\": \"1895-11-15\", \"docket_number\": \"\", \"first_page\": \"213\", \"last_page\": \"227\", \"citations\": \"61 Ill. App. 213\", \"volume\": \"61\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T23:23:47.416843+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"First National Bank of Pana v. Havens & Geddis Co. Same v. Terre Haute Shoe Company.\", \"head_matter\": \"First National Bank of Pana v. Havens & Geddis Co. Same v. Terre Haute Shoe Company.\\n1. Judgment Creditor\\u2014May Attack a Prior Judgment.\\u2014A judgment creditor may, by motion in a court of law, attack a prior judgment against his debtor entered in vacation by confession, on the ground it is void for want of jurisdiction or authority to enter it, or is fraudulent or collusive as to him.\\n2. Jurisdiction\\u2014Of Courts of Law over Judgments by Confession Entered in Vacation.\\u2014Courts of law exercise equitable jurisdiction over judgments by confession in vacation. And if there is an absence of authority to confess, or the judgment is fraudulent, a subsequent judgment creditor injured thereby will not be forced into a court of chancery to obtain relief, but may move to set aside the judgment in a court of law. Such a motion is substituted for a proceeding in chancery and relief is granted under it upon equitable doctrines.\\n3. Judgments by Confession\\u2014Extent of Equitable Belief Against. \\u2014The general rule is that equitable relief will be granted against a judgment by confession to the extent only that it appears the judgment debtor has a legal or equitable defense to the debt upon which the judgment is founded.\\n4. Same\\u2014An Exception to the Buie.\\u2014To this general rule there is an exception in favor of a subsequent judgment creditor who. may have relief against a prior judgment, though rendered in part for a debt honestly due, if it includes also an amount not bona fide due, added for the purpose of fraudulently conveying the debtor\\u2019s property, or hindering and delaying or defrauding his creditors.\\n5. Same\\u2014When Fraudulent.-\\u2014The law deals with a fraudulent judgment as with any other fraudulent contrivance, and will postpone its payment until subsequent judgment creditors it was designed to defraud have been paid in full.\\n6. Same\\u2014Stipulation for Attorney Fees.\\u2014Where a warrant of attorney to confess judgment upon a promissory note provides for reasonable attorney fees, judgment therefor may be entered in open court upon proof of the reasonable value of such services; but where the amount of attorney\\u2019s fees is not fixed in the warrant, the clerk has no power to hear testimony and judicially determine what is a reasonable fee, and enter judgment therefor in vacation.\\n7. Same\\u2014Effect of Unlawfully Entering Attorney\\u2019s Fees upon Subsequent Judgment Creditor.\\u2014The fact that attorney fees have been unlawfully included in a judgment entered in vacation, will not warrant a court in holding the entire judgment inoperative as to subsequent creditors. Unless actual fraudulent intent upon the part of the judgment plaintiff appears, his judgment should be upheld to the extent of the debt bona fide due to him.\\n8. Same\\u2014When a Judgment May be Confessed.\\u2014Upon a judgment note, with a power to confess judgment thereon at any time thereafter, it is lawful to enter judgment at any time after the date of the note without regard to the expiration of the days of grace.\\n9. Attorney Fees\\u2014In Judgments by Confession.\\u2014A contract for attorney fees in a judgment is one by which the debtor, in part consideration of the credit given him, agrees to indemnify his creditor against the consequences of his neglect or refusal to pay.\\n10. Same\\u2014As Against Existing Creditors.\\u2014As against existing creditors, contracts for attorney fees in judgment notes, are, under certain circumstances, to be deemed in law as gifts of the debtors, and therefore not enforcible; but it does not follow in such cases that a judgment including such fees is to be deemed fraudulent in toto as to other creditors of the judgment debtor; such a result can follow only when the plaintiff in the judgment is guilty of actual fraudulent intent.\\n11. Preferences\\u2014Obtained by Judgment Notes.\\u2014A person has a right to obtain a preference by way of judgment by confession, for an amount justly due him, provided he is not moved by any other consideration than that of securing the debt actually due to him.\\n12. Fraud\\u2014Not to Be Imputed\\u2014Attorney Fees.\\u2014Fraud is not to be imputed to a creditor procuring a preference by means of a judgment by confession because he caused attorney fees to be included in the judgment.\\n13. Same\\u2014Must Be Practiced by Debtor.\\u2014It is no ground for the intervention of third persons that fraud was practiced upon the debtor. It must be practiced by him and the plaintiff in the judgment to the injury of the complaining creditor before it can be setup in avoidance of a confessed judgment.\\nJudgments by Confession.\\u2014Motion to vacate, etc. Appeal from the Circuit Court of Christian County; the Hon. Jacob Fouke, Judge, presiding.\\nHeard in this court at the May term, 1895.\\nReversed and remanded with directions.\\nOpinion filed November 15, 1895.\\nStatement of the Case.\\nOn the 14th day of November, 1894, judgments in favor of the appellant bank were entered in vacation by the clerk of the Circuit Court of Christian County upon promissory notes as follows:\\nThree against A. C. Seitz and A. M. Craddick as partners composing the firm of Seitz & Craddick, respectively, for \\u00a73,800, $3,800 and $1,126.06.\\nOne against A. 0. Seitz in the sum of \\u00a74,915.\\nThe warrant of attorney, by virtue whereof each of said judgments was rendered, authorized \\u201c any attorney of record to confess judgment for the amount due the holder of the note, together with costs and reasonable attorneys\\u2019 fees \\u201d\\u25a0 and an additional sum for such attorneys\\u2019 fees was included in the judgment in each instance.\\nOn the 15th day of November, 1894, executions issued on these judgments were levied upon a stock of general merchandise as being the property of said A. C. Seitz.\\nAfterward, on the 20th day of November, 1894, being one of the judicial days of the November term of said Christian Circuit Court, four judgments were rendered in open court against said A. C. Seitz by confession, one of them in favor of the Terre Haute Shoe Co. for \\u00a71,070.14, and the others in favor of The Haven & Geddis Co. for amounts, respectively as follows: $1,240.01, $2,715.07 and $455.61.\\nOn a later judicial day of the said court, the Havens & Geddis Oo. and The Terre Haute Shoe Co., respectively, filed a motion asking the judgments entered in vacation in favor of the bank be set aside and vacated, and the executions issued thereon and levies thereunder be quashed, and also that a rule be entered against the sheriff directing him to levy the executions issued upon the judgments rendered in term time in favor of the parties making the motion, upon the stock of merchandise owned by Seitz, and that said goods be sold under such levies, and that the proceeds be applied to the payments of their judgments.\\nThe grounds for asking such action of the court are set out in the motion as follows:\\nFirst. That said Seitz is insolvent and has no property except said stock of dry goods, etc. 5\\nSecond. That executions were issued upon each of the four judgments entered on the 14th of November, 1S94, in favor of the First National Bank of Pana, Illinois, and against A. C. Seitz and Seitz & Craddick on November 14, 1894, and delivered to said sheriff and by him levied upon, and possession taken of the whole of said stock of goods, fixtures, etc., as the property of said Seitz, and that said property is not sufficient to satisfy said four executions in favor of said bank and the execution in favor of plaintiff herein, and that said sheriff is proceeding to sell said stock of goods under and by virtue of said execution and levies in favor of the First National Bank of Pana, 111., and to apply the proceeds of such sale in payment and satisfaction thereof.\\nThird. That the several judgments and each of them so confessed in favor of said bank or a part thereof, was without consideration and a fraud upon the plaintiff, and the general creditors of said Seitz and Seitz & Craddick.\\nFourth. That the inclusion in each of said warrants of attorney and each of said several judgments of attorney fees render each of said judgments void.\\nFifth. That each of said judgments is for a larger sum than was due upon the note upon which it was confessed, and was unauthorized by the warrant of attorney in said note.\\nSixth. That said judgments and each of them are for a larger amount than was authorized by the warrant of attorney under which they were severally confessed.\\nSeventh. That said judgments and each of them are void for want of sufficient proof of the execution of the warrant of attorney upon which it was confessed.\\nEighth. That the execution of the said several promissory notes and warrants of attorney upon which said judgments were confessed, was procured by the false and fraudulent representations of said plaintiff by its cashier to the maker of said notes.\\nNinth. That said judgments and each of them were entered by the court, as appears by the record.\\nTenth. There is no sufficient record of either of said judgments appearing in this court, nor does authority appear of record for entering of said judgment, or either of them.\\nEleventh. That each' of said executions was issued before the judgment which purports to have been issued was written up.\\nTwelfth. That the two notes of $500 each, upon which judgment was confessed for $1,126, and signed in the firm name of Seitz & Craddick, were signed by A. C. Seitz without the knowledge or consent of Craddick, and void.\\nThirteenth. That the two. judgments for $3,800 each, confessed respectively, upon the two notes for $3,500 each, with warrant of attorney attached, authorizing the confession for the amount that may appear to be due, with reasonable attorney\\u2019s fees and costs, wrere signed in the firm name of Seitz & Craddick by A. C. Seitz, without the knowledge or consent of Craddick, and that each of said judgments are for a larger amount than due upon the notes, and void.\\nThe sheriff entered a cross-motion asking the court to strike the original motion from the files \\u201c for want of jurisdiction to consider it, and because the judgment can not be attacked in a collateral proceeding.\\u201d\\nThe appellant \\u25a0 bank appeared and by agreement the motions were consolidated and submitted together by the cross-motion of the sheriff to the court upon affidavits presented by the parties.\\nThe court ordered and adjudged that as between appellant bank and the judgment debtor, each of the. judgments entered in vacation \\u201c be set aside and modified to the extent of the attorneys\\u2019 fees \\u201d included in it, and be otherwise confirmed and stand, and be a lien from the date of its entry in vacation, subject, however, to the judgments subsequently entered in open court in favor of the Havens & Geddis Co. and Terre Haute Shoe Co., and specially found and ruled in the judgment that no change had been made in the affidavit of proof of notes or powers of attorney, etc., and that neither Seitz nor Craddick presented any equitable defense to either judgment, and further adjudged the liens of the judgments and execution in favor of the Havens & Geddis Co. and the Terre Haute Shoe Co. superior to the lien of appellant\\u2019s judgments, and entitled to be first paid and satisfied out of the property of the judgment debtors. This is an appeal prosecuted by the bank.\\nE. A. Humphreys and J. C. McBride, attorneys for appellant,\\ncontended that where judgment confessed in vacation includes a reasonable attorney\\u2019s fee, to that extent it should be modified. Campbell v. Goddard, 117 Ill. 252; Campbell v. Goddard, 17 Ill. App. 382; Boynton v. Rennick, 46 Ill. 282 and 284; Zuckerman v. Soloman, 73 Ill. 130; Frye v. Jones, 78 Ill. 631; Iglehart v. Morris, 34 Ill. 501.\\nThe power to confess judgment should not be so strictly construed as to defeat the evident intention of the parties. Holmes v. Parker, 125 Ill. 478.\\nThe law is so averse to permitting litigants to be defeated in their just dues that it will not allow slight discrepancies or irregularities to vitiate a judgment. Osgood v. Blackmore, 59 Ill. 266.\\nWhen a judgment is confessed before the clerk, in vacation, all of the papers filed, declaration, warrant of attor ney, proof of execution, judgment and plea of confession, constitute the record. Durham v. Brown, 24 Ill. 94; Waterman v. Caton, 55 Ill. 94.\\nPalmer, Shutt, Drennan & Lester, attorneys for appellees..\", \"word_count\": \"4981\", \"char_count\": \"28897\", \"text\": \"Mr. Justice Boggs\\ndelivered the opinion oe the Court.\\nThe cross-motion interposed by the sheriff to strike from the files appellees' motion to vacate the judgments was properly overruled.\\nA judgment creditor may, by motion in a court of law, attack a prior judgment against his debtor on the ground it is void for want of jurisdiction or authority to enter it, or is fraudulent or collusive as to him. Black on Judgments, Sec. 290-293; Freeman on Judgments, 4th Ed., Vol. 2, Dec. 557.\\nCourts of law exercise equitable jurisdiction over judgments by confession in vacation, and if there is an absence of authority to confess, or the judgment is fraudulent, a subsequent judgment creditor injured thereby will not be forced into a court of chancery to obtain relief, but may move to set aside the judgment in a court of law. Farwell v. Husted, 151 Ill. 246.\\nSuch a motion is substituted for a proceeding in chancery and relief is granted under it upon equitable doctrines.\\nThe general equitable principle is, relief against a judgment will be granted to the extent only it appears the judgment debtor has a defense, legal or equitable, to the debt upon which the judgment is founded. Farwell v. Husted et al., 151 Ill. 239; Coleton v. Leitch, 110 Ill. 504; Farwell v. Husted, supra; Atwater v. Exchange Nat. Bank, 152 Ill. 606; Martin v. Judd, 60 Ill. 83; Freeman on Judgments, 2d Ed., 516.\\nTo this general rule there is an exception in favor of a subsequent judgment creditor who may have relief against a prior judgment, though rendered in part for a debt honestly due, if it includes also an amount not bona fide due, added for the purposes of fraudulently conveying the debt- or's property, or hindering and delaying or defrauding his creditors. \\u2022\\nThe law will deal with such a judgment as with any other fraudulent contrivance and will postpone its payment until the subsequent judgment creditors it was designed to defraud have been paid in full. Atwater v. Amer. Nat. Ex. Bank, supra; Young v. Clapp, 147 Ill. 176.\\nWhere, however, the only purpose of the prior judgment creditor was to obtain security for himself, and he did not intend or endeavor to defeat, hinder, delay or defraud other creditors, the prior judgment will be sustained and enforced to the extent it is founded on a Iona fide indebtedness. Young v. Clapp, supra.\\nThe warrants conferring power to confess the judgments in the cases at bar authorized the confession of a sum \\\" for attorneys' fees\\\" in addition to the amount due upon the principal and interest of the notes.\\nSuch a.stipulation rests upon a good and valuable consideration, and is lawful unless entered into in fraud of the rights of other creditors.\\nJudgment thereon might have been entered in open court upon proof of the reasonable value of the services of counsel. Weighey v. Matson, 125 Ill. 64; Ball v. Miller, 38 Ill. 110.\\nHad the amount to be added for such services been fixed in the warrant, a lawful judgment could have been entered by the clerk of the court in vacation, unless the stipulation operated fraudulently as to other creditors; but as a clerk has not power to hear testimony and judicially determine what would be the reasonable value of services of an attorney, and as it would be manifestly unjust to permit the attorney to fix the amount of his fees, it was not lawful to include a sum for attorneys' fees, in the judgments rendered in vacation. Campbell v. Goddard, 117 Ill. 252.\\nFor this reason so much of the judgments as were for the fees of counsel are inoperative.\\nWhat further effect had the inclusion of such amounts ?\\nThe position of counsel for the appellee is, it rendered each judgment in its entirety, void as to subsequent creditors, upon the ground it tainted them all in fraud as a matter of law.\\nThis position, it is said, is supported by Hulse v. Mershon, 125 Ill. 52; Young v. Clapp et al., 147 Ill. 176; Atwater v. American Exchange Bank, 152 Ill. 606.\\nIn Hulse v. Mershon, the facts were that Hulse, who was insolvent, desired to prefer certain of his creditors. He informed them he was insolvent and it was arranged between them he should and he did execute to each creditor, a note for the amount due, and attached to each note a power of\\nattorney to confess judgment thereon for the amount of the debt, and a certain sum in addition for attorneys' fees. The notes were prepared by attorneys, who caused judgments to be confessed thereon for the amounts due and attorneys' fees as stipulated. The total amount included for attorneys' fees was $1,258. The judgments were collected.\\nMershon and others, non-preferred creditors of Hulse, filed a bill in chancery to recover the amount collected for attorneys' fees, making the attorneys to wfiom the fees had been paid also parties defendant. The only question presented was whether the amounts collected for attorneys' fees could be retained as against the other creditors.\\nThe court said: \\\" When the judgment notes were given, and also when the judgments were entered up and when the creditor's bill was filed, these attorneys knew Hulse was insolvent and that the judgment notes were given for the purpose of preferring creditors to the extent of their just claims, and that when such notes were paid in full, the assets of Hulse would be nearly or quite exhausted, and that the complainants and other creditors would be unable to collect their claims.\\\"\\nThe court held that under the circumstances the attorneys' fees were to be regarded as but gifts or voluntary donations made by Hulse to the attorneys, while he was insolvent and indebted to others; that he had no right to make such gifts to the injury of existing creditors; and ruled that the sub sequent creditors were entitled to recover the amount collected from the property of Hulse for such fees.\\nThe proceeding did not seek to otherwise interfere with the amount collected under the judgments and no question as to the right to do so was raised or decided.\\nThe right of a debtor in failing circumstances to prefer one creditor to the exclusion of others, if he does so in good faith, was re-announced, and the decision rested solely on the ground the attorney fees were but gifts and fraudulent, because Hulse's property, to the amount of the fees, was thereby put out of Hulse's hands without consideration, and to the injury of his creditors, and into the hands of others who had full knowledge of the wrong thus accomplished.\\nThe facts in Young v. Clapp et al., supra, were, the insolvent firm of Clapp & Davis preferred eight of its creditors by giving each a judgment note for the amount due him or them respectively, and included in each note an attorney's fee for taking judgment, amounting in the aggregate to $1,600.\\nIn the course of the opinion the court said: \\\"As the judgment debtors, Clapp & Davis, were insolvent when the notes, were given, the fees therein included were gifts to preferred creditors, and must be regarded as fraudulent and void as against other creditors.\\\"\\nBut the court did not hold the judgment rendered upon the notes were void except to the extent of the amount included for such fees. Upon the contrary it is said in the opinion:\\n\\\" But the money realized from sales and collections by the receiver was not applied to the payment of such fees and was only applied upon such portions of the judgments as remained after deducting the fees. As no part of the funds in the receiver's hands has been used to pay the fees, the facts they were included in the judgment would not of itself justify a reversal in this case. * \\\"x\\\" * The whole testimony, fairly considered, shows the object of the preferred creditors was to obtain security for themselves and not to assist the judgment debtors. We do not think the preferences given were fraudulent and void as being within the statute of frauds.\\\"\\nThe judgment under consideration in the Atwater case, supra, was confessed by an insolvent corporation in favor of one of its stockholders for a debt partly due to him, and partly to two of its directors, and it was held void upon the ground it was entered and had been used for the fraudulent purposes of hindering and delaying other existing creditors of the corporation.\\nThe legal principles controlling the case are thus stated in the opinion.\\n\\\" Where a judgment is confessed and execution levied for such an amount (in excess of the real debt) that subsequent creditors find nothing to levy on, a combination being proven, fraud will be established. A judgment may be founded upon an honest debt, yet it may be obtained under such circumstances, and used for such purpose as to make it a fraud.\\\"\\n\\\" Where such a judgment is entered up -as a fraudulent cover to protect defendant's property, or to put it in the hands of creditors who have no right to appropriate it to their own debts, courts will deal with it as with any other fraudulent contrivance.\\\"\\n\\\" If a creditor permits a judgment rendered in his name for a large amount due to parties who have no right to the entry of such judgment in their favor to be used for a fraudulent purpose as against subsequent creditors he will be postponed until they are paid, even though a portion of the debt embraced in the judgment is honestly due to him.\\\"\\nWe find nothing in either of the cases relied upon supporting the contention that a judgment confessed by a failing debtor for a debt Iona fide due, and also for a sum for attorneys' fees, is to be deemed fraudulent as matter of law and void in toto, simply because such attorneys' fees are included.\\nIn the Hulse case it was said (125 Ill. p. 56): \\\" It is undoubtedly true a debtor in failing circumstances, and who does not seek the benefit of the general assignment act, may prefer one creditor to the exclusion of others when he does so in good faith.\\\"\\nSuch preference, it is said in Clapp v. Young, supra, maybe given by the execution of a judgment note resulting in the entry of a judgment thereon.\\nOur conclusion is, such a judgment is good and valid if confessed for a debt bona fide due, and that the inclusion of an attorney's fee does not of itself warrant a court in holding the entire judgment inoperative as to subsequent creditors.\\nUnless actual fraudulent intent upon the part of the judgment plaintiff appears, his judgment should be upheld to the extent of the debt bona fide due to him, provided of course the statutory prerequisites for entering judgment by confession are complied with.\\nIt was abundantly proven in the case at bar, Seitz & Craddick, and Seitz, were actually indebted to the bank in the amount of the principal and interest of the notes upon which the judgments against them respectively were founded.\\nThe indebtedness of Seitz & Craddick was of long standing, and was evidenced by three notes with powers of attorney to confess judgment attached, executed June 8, 1893, falling due respectively December 8, 1893, January 8, 1894, and March 8, 1894. Judgments were confessed upon them November 14,1894, nearly a year and a half after the notes had been given and long after all of them were due.\\nThe individual indebtedness of Seitz to the bank was of more recent origin, but was confessedly bona fide. It consisted largely of overdrafts upon his bank account.\\nOn November 12, 1894, he gave a judgment note therefor, with power to confess judgment thereon at any time thereafter.\\nIt was lawful to enter judgment thereon at any time, without regard to whether the days of grace allowed by law had expired. Farwell v. Huston, 151 Ill. 239.\\nWe find nothing in the evidence to indicate, nor do we understand it is contended, anything appeared tending to show the appellant bank, in taking the judgment, was actu ated by any improper motive, as against other creditors, or was in any way acting in collusion with the debtors, to hinder, delay, or defraud other creditors, or was moved by any consideration other than that of securing the debt actually due to it, and we can not agree with the contention of the appellees, fraud is conclusively imputed to it, because it caused attorney's fees to be included in the judgment.\\nIt had lawful right to obtain a preference by way of a judgment, by confession, for the amount bona fide.\\nThe contract for attorney fees, to quote from Wrigly v. Matson, 125 Ill. 67, \\\" rests upon a good and valuable consideration. It is not in the nature of a guaranty, but a contract by which the debtor, in part consideration of the credit given him, agrees to indemnify his creditor against the consequences of his neglect or refusal to pay'\\\" etc.\\nAs against existing creditors, such contracts, under certain circumstances, may be deemed, in law, gifts of the debt- or's property, and therefore not enforceable; but it does not follow in such cases, that a judgment, including such fees, is to be deemed fraudulent m toto as to other creditors.\\nThat result only follows when the judgment plaintiff is guilty of actual fraudulent intent.\\nA declaration, warrant of attorney to confess the judgment, with proof of its execution by the debtors, a cognovit, and the notes of the debtor, were filed in each case, and judgment entered thereon by the clerk, in compliance with the rule announced in Gardner v. Bunn, supra.\\nThe allegation that the notes, with powers of attorney to confess judgment against the firm of Seitz & Craddick, were executed by Seitz, without the knowledge or consent of Craddick, was clearly/ disproved by the testimony.\\nThe charge that the execution of the powers of attorney was procured by means of false and fraudulent representation of the cashier of the appellant, made to the debtors, was not sustained by the proof.\\nHad it been established it could not have been urged by the appellees.\\nIt is no ground for the intervention of third parties that fraud was practiced upon the debtor. \\\" It must be fraud practiced by the debtor and the plaintiff, to the injury of the complaining creditor, that may be set up in avoidance of a confessed judgment.\\\" Black on Judgments, 294.\\nThe statement in certain of the judgments entered by the clerk, \\\"it is ordered and adjudged by the court, the plaintiff have judgment,\\\" and the other statement that the other judgment was rendered upon \\\" a note payable to the order of the plaintiff,\\\" when, in fact, the note was given payable to one Hunter, and by him assigned to the order of the plaintiff, are at most but irregularities, not affecting the jurisdiction or authority to enter the judgments, and having no bearing to render the judgment fraudulent as to the appellees.\\nHo evidence was produced tending to support the charge; the executions were issued before the judgments were entered of record by the clerk, and nothing on the face of the record or executions gave color to it.\\nThe only objections remaining to be noticed are, in substance, that judgments were confessed in each instance for an amount in excess of the sum actually due the plaintiff upon the principal and interest of the notes set out in the declaration.\\nIt appears from the' declarations, cognovits, and notes filed with the clerk, and judgments entered thereon, an amount in excess of the sum due plaintiff upon the notes was included in each case as being the value of the \\\" reasonable fees\\\" of counsel who prepared the papers and rendered legal services in and about procuring the rendition of the judgments.\\nWe have examined the contention of the appellee that an amount above such attorney's fees was included.\\nThe excess claimed in this respect is insignificant in amount, in no instance more than seventy cents being the difference in calculations of interest upon the indebtedness.\\nThe Circuit Court regarded the excess as being composed of amounts allowed for attorney's fees, and we accept its conclusion.\\nThe judgment and orders of the Circuit Court, that the judgments confessed in favor of the appellant bank be mod ified by striking therefrom the amount included for attorney's fees, is affirmed. But we do not agree payment of such judgments should be postponed to the judgments confessed in favor of the Havens & Geddis Co., and thp Terre Haute Shoe Co., but are of opinion appellant's judgments and the-executions thereon, after excluding the amount included for attorney's fees, should be deemed and held valid, and the executions thereon so reduced declared to be liens upon the debtor's property from the day they came into the hands of the sheriff.\\nThe judgments and orders of the Circuit Court as to appellant's judgments are, therefore,, affirmed in part, and in part reversed, with directions to enter orders in each case in compliance with the rules here announced.\\nAffirmed in part and reversed in part with directions.\"}"
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+"{\"id\": \"5166336\", \"name\": \"The Board of Education of the City of Chicago, Plaintiff in Error, vs. The Industrial Commission et al.- (Marie G. McDermott et al. Defendants in Error.)\", \"name_abbreviation\": \"Board of Education v. Industrial Commission\", \"decision_date\": \"1926-04-23\", \"docket_number\": \"No. 16187\", \"first_page\": \"23\", \"last_page\": \"27\", \"citations\": \"321 Ill. 23\", \"volume\": \"321\", \"reporter\": \"Illinois Reports\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T02:30:40.717713+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Board of Education of the City of Chicago, Plaintiff in Error, vs. The Industrial Commission et al.\\u2014 (Marie G. McDermott et al. Defendants in Error.)\", \"head_matter\": \"(No. 16187.\\nThe Board of Education of the City of Chicago, Plaintiff in Error, vs. The Industrial Commission et al.\\u2014 (Marie G. McDermott et al. Defendants in Error.)\\nOpinion filed April 23, 1926.\\nFrank S. Righeimer, (John A. Cooke, and Frank F. Trunk, of counsel,) for plaintiff in error.\\nAugustine J. Bowe, and William J. Bowe, for defendants in error.\", \"word_count\": \"1425\", \"char_count\": \"7932\", \"text\": \"Mr. Justice Duncan\\ndelivered the opinion of the court:\\nThe circuit court of Cook county confirmed an order of the Industrial Commission awarding compensation to Marie G. McDermott, widow, and Marie and Thomas McDermott, minor children of Thomas J. McDermott, deceased, for $16 per week for a period of 265 weeks and in addition thereto one week at $10, as provided for in paragraph (a) of section 7 of the Compensation act, and against the board of education of the city of Chicago, plaintiff in error. This court, on petition, allowed a writ of error for a review of the record.\\nThomas J. McDermott at and previous to his death was in the employ of plaintiff in error as engineer-custodian of the Bryant school, in the city of Chicago. His duties were to superintend the heating, ventilating, cleaning and janitor work in the building and general supervision of the school property. On Saturday, April 21, 1923, McDermott was accidentally injured by the falling of a scuttle-hole cover from the roof of the school building while engaged in repairing his automobile in a public alley at the rear of the school building where he was employed and died from the result of the injury on the same day, leaving him surviving Marie G. McDermott, widow, and Marie McDermott and Thomas McDermott, his children, aged fifteen and fourteen years, respectively.\\nThe following is the substance of the facts in the record concerning the accidental injury: About nine o'clock in the morning of said date the deceased left his home in his automobile, arriving at the Bryant school building shortly thereafter. The car used and driven by him to the school building was his private property and plaintiff in error had nothing to do with his transportation to and from his place of employment. Upon arriving at the school building the deceased parked his car in a public alley to the east and at the rear of the school building and south of the boiler room door near the alley. He went into the boiler room and instructed one Brunclik, a fireman under his supervision who was just leaving the school premises, to drain the alcohol from the radiator of his car. The deceased was required to be on duty at the school building on Saturdays from about eight o'clock in the morning until ten o'clock in the morning. On arrival on the morning that he was killed he did not change his street clothing for his work clothes, as was his custom. The deceased went into the alley with Brunclik and stood alongside of the hood of his car while Brunclik drained the alcohol from the radiator. He then raised the hood of the car and assisted by Brunclik \\\"tinkered\\\" with the engine. Brunclik left while the deceased was thus engaged. After Brunclik left, the deceased was seen by another employee who was going to the boiler room for a brush, standing by the automobile, with the hood raised and his hand under the hood. McDermott was in that position when last seen alive. The same employee, one Durand, had seen the deceased in that position upon his return from the boiler room to the place where he was at work. In a few minutes thereafter a boy came running to Durand and told him that a man was lying in the alley. Durand went to the automobile and found McDermott lying in the alley about three feet from his car and at right angles to it. The hood of the automobile was still raised. There was a gash in McDermott's head and' his head was in the center of a scuttle-hole covering which had formerly covered the scuttle-hole on the roof of the building. Just previous to the time Durand found the deceased lying in the alley there had been a strong wind, and it is unquestioned that the scuttle-hole covering had been blown from the roof of the school building and had fallen upon the deceased's head, and that he died from the injury about one o'clock on the same day.\\nIt was agreed by the parties on the hearing before the arbitrator that the deceased and the board of education were both working under and subject to the Workmen's Compensation act, and that the deceased had been in the employ of the plaintiff in error for more than one year previous to the date of his death and that his annual earnings were $3499.60. There is no dispute as to the dependency of the defendants in error upon the deceased and their right to compensation if such may be legally awarded to them on the facts. The only question presented for decision is whether or not the injury which resulted in the death of McDermott arose out of and in the course of his employment by the plaintiff in error.\\nIt was incumbent on the defendants in error to prove that the injury to their husband and father arose \\\"out of and in the course of\\\" his employment. These words have often been discussed and defined by this court, and it is now well established that the words \\\"out of\\\" point to the origin of the cause of the accident, and that the words \\\"in the course of\\\" point to the time, place and circumstances under which the accident occurred. These words are used conjunctively, and there can be no recovery in this case unless the injury occurred in the course of the employment and also arose out of the employment. The full meaning of this statement is, in substance, that the accident must result from a risk incidental to the employment and while the employee is doing that which he is reasonably required to do within the time of his employment and at the place where he may be reasonably expected to be while discharging the duties of his employment. Dietzen Co. v. Industrial Board, 279 Ill. 11; Morris & Co. v. Industrial Com. 295 id. 49.\\nThe facts in this case conclusively show that the deceased was at the time of the accident engaged in his own private business which was in no way incident to his employment. If it be conceded that he was at the place of his employment at the time of the accident, it cannot be legally said that he was performing any duty in his employment or connected with his employment when he was repairing his car. The place at which the accident occurred was not a place where his employment for the plaintiff in error had taken him. The law is settled that an employee is not in the course of his employment, even though he may be in the general area of it, if he is not engaged in the particular duties for which he was employed or in any work incidental to his employment. (West Side Coal Co. v. Industrial Com. 291 Ill. 301; Danville, Urbana and Champaign Railway Co. v. Industrial Com. 307 id. 142.) If the deceased had been at his home repairing his car at the time of the accident no one would certainly contend that he was engaged in his employment with the plaintiff in error. The fact that he was near or on the school property at the time of the accident while he was engaged in repairing his car did not bring him within the course of his employment. The evidence does not show that the deceased had begun his employment on the morning of his death. He had not changed his clothes, as was his custom to do before beginning his work. Even if he had already begun his work, it is clear that he had departed from his employment at the time of the accident and that the work that he was then performing was in no manner incident to or connected with his work. Therefore the award of compensation in this case was not warranted under the evidence in the record. It is simply an unfortunate accident for which his unfortunate dependents cannot be legally awarded compensation.\\nThe judgment of the circuit court is reversed and the award of the commission is set aside.\\nJudgment reversed.\"}"
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+"{\"id\": \"5182191\", \"name\": \"The Donk Bros. Coal and Coke Company, Plaintiff in Error, vs. The Industrial Commission et al.-(John Roach, Defendant in Error.)\", \"name_abbreviation\": \"Donk Bros. Coal & Coke Co. v. Industrial Commission\", \"decision_date\": \"1927-04-20\", \"docket_number\": \"No. 17944\", \"first_page\": \"193\", \"last_page\": \"199\", \"citations\": \"325 Ill. 193\", \"volume\": \"325\", \"reporter\": \"Illinois Reports\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T01:15:10.662056+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Donk Bros. Coal and Coke Company, Plaintiff in Error, vs. The Industrial Commission et al.\\u2014(John Roach, Defendant in Error.)\", \"head_matter\": \"(No. 17944.\\nThe Donk Bros. Coal and Coke Company, Plaintiff in Error, vs. The Industrial Commission et al.\\u2014(John Roach, Defendant in Error.)\\nOpinion filed April 20, 1927.\\nWheeler, Oehmke & McKnight, for plaintiff in error.\\nW. J. MacDonald, (A. W. Kerr, of counsel,) for defendant in error.\", \"word_count\": \"1906\", \"char_count\": \"10840\", \"text\": \"Mr. Chief Justice Stone\\ndelivered the opinion of the court:\\nDefendant in error, John Roach, was injured while in plaintiff in error's mine on the 6th day of February, 1919. He was driving a motor used for drawing coal cars when struck on the right side of the face by a dable. He was knocked off the motor and the back of his head struck violently against an empty car. He suffered at that time a general paralysis of the right side of the face, including the right eye. Plaintiff in error furnished medical treatment. Roach remained at his work and lost no time. He filed application for compensation on October 16, 1919, alleging that he had an accident arising out of and in the course of his employment which caused partial loss of'the sight of both eyes. He testified that he was thirty-nine years of age and had never had any trouble whatever with his eyes previous to this injury; that about two months after the accident the vision in his right eye began to fail and in four months after the injury the left eye began to fail. The hearing on the application was had in January, 1920, and on the twenty-second day of that month the arbitrator by his decision found that Roach had sustained accidental injuries on the 6th of February, 1919, arising out of and in the course of his employment, and further found that as a result of the injuries sustained the applicant did not suffer any loss of time for which compensation was payable nor any specific loss of use of his eye. The arbitrator also found that medical, surgical and hospital services had been furnished by plaintiff in error. Defendant in error filed a petition for review on the ground that the compensation awarded was inadequate, and on July 2, 1920, the commission found, upon consideration of the record made before the arbitrator and additional evidence offered on review, that the findings and. the award of the arbitrator were correct and it was accordingly made the decision of the commission. The only evidence offered before the commission other than the transcript of the evidence before the arbitrator was that of defendant in error, who testified that his sight was not as good as it was at the time of the hearing before the arbitrator; that before the injury he could recognize an acquaintance at a distance of about 400 feet but that at the time of the hearing before the commission he could distinguish an acquaintance at a distance of about 200 feet. His eyes had not improved but were getting worse. He did not wear and had not worn glasses. No review of the commission's findings was sought by either party.\\nOn April 8, 1921, defendant in error filed a petition under paragraph (h) of section 19 of the act for review of the award of the Industrial Commission, alleging that the injury had subsequently increased and recurred. The hearing on this petition was had on October 21, 1924. On this hearing defendant in error testified that he was treated by Dr. Keller, of St. Louis, after the hearings before the arbitrator and the commission, and was advised by him to submit to an operation; that this treatment continued until in 1923, when he had an operation for a cataract on the left eye; that he lost the sight of the right eye and nearly all of the sight of the left eye. He testified that in December, 1920, he received a second injury to the left eye. In October, 1923, an operation was performed to remove the cataract on the left eye, and a second operation took place on the same eye for the same purpose in February, 1924. Dr. Jennings testified that he first examined defendant in error in September, 1923; that he had a cataract on both eyes; that his examination showed no kidney disease and his opinion was that the cataracts were traumatic; that it was impossible for him to testify absolutely but that he was not basing his opinion on conjecture; that it was possible to cause a cataract by an indirect injury to the eyeball resulting from a blow on the back of the head; that he did not see defendant in error until September, 1923, and could not tell from the appearance of the cataracts whether they were senile or traumatic; that senile cataracts, in forming, radiate from the center toward the periphery ; that a traumatic cataract will appear within two or three months following an injury. Dr. Keller, also an eye specialist, testified that he first saw Roach on December 9, 1920. He then had a cataract in each eye. He pronounced them senile cataracts in their early stages, and stated that while senile cataracts occur in men at the age of forty, such is not often the case.\\nThe commission found that the disability of the applicant had increased subsequent to the award of the arbitrator; that he had suffered permanent and complete loss of \\\"the use of his right eye and permanent loss of seventy-five per cent of the use of the left eye, and that he had incurred medical and surgical expense amounting to $273.70. It accordingly awarded petitioner $12 per week for 100 weeks for loss of the right eye and $12 per week for 75 weeks for seventy-five per cent loss of the use of the left eye, with the sum of $273.70 for medical services. The award was affirmed by the circuit court of Madison county. Plaintiff in error brings the cause here by writ of error.\\nIt is first contended that the decision .of the commission' is against the manifest weight of the evidence. There was here originally a finding of an accidental injury, and while it was found that at the time of the hearing before the arbitrator and commission no loss of sight was shown, the applicant's evidence was that two months after this injury his eyesight began to fail and the cataracts began to appear. While the medical testimony is not in accord as to the cause of the cataracts, both doctors agree that senile cataracts are unusual in a man of Roach's age. Dr. Jennings, for defendant in error, testified that he could not tell positively whether the cataracts were traumatic or senile because he did not see them until three years after the ac cident. Dr. Keller, who testified that the cataracts were senile, did not see them until more than eight months after the injury. Both physicians agree that traumatic cataracts make their appearance from two to four months after an injury. Dr. Jennings based his opinion that the cataracts were traumatic, partially on the fact that an examination disclosed no symptoms of a senile cataract, such as kidney trouble. In this condition of the record we are unable to say that the finding of the commission was against the manifest weight of the evidence. It is the province and duty of the Industrial Commission in the first instance to consider all the testimony and give it such weight as under all the circumstances it is entitled to. This court is not warranted in reversing the finding of the commission unless the award is shown to be clearly contrary to the manifest weight of the evidence. (Inland Rubber Co. v. Industrial Com. 309 Ill. 43; Aladdin Coal Co. v. Industrial Com. 308 id. 35; Keller v. Industrial Com. 302 id. 610.) We are of the opinion, therefore, that plaintiff in error's first contention cannot be sustained.\\nIt is also urged that there is no right of review under paragraph (h) of section 19 for the reason that that section and paragraph provide only for review within eighteen months of an agreement or award \\\"providing for compensation in installments,\\\" and that there was no award providing for compensation in installments in this case. This raises two questions. The first is, whether to entitle a party to such review the award must have been one to be paid in installments. It was held in Peoria Railway Co. v. Industrial Com. 290 Ill. 177, that an award which had been commuted by the commission to a lump sum on the petition of the applicant without agreement was such an award as could be reviewed under paragraph (h) of section 19 of the act. To the same effect was the holding in Tribune Co. v. Industrial Com. 290 Ill. 402, and Ellsworth v. Industrial Com. 290 id. 514. The second question arises on the con tention that since the arbitrator and commission found that the applicant did not suffer any loss of time for which compensation was payable and did not suffer any \\\"specific loss of use of his eye/' there was therefore no award and nothing to review under paragraph (h) of section 19. The arbitrator and commission found that the applicant sustained accidental injuries as claimed, arising out of and in the course of his employment, and that first aid, medical, surgical and hospital services had been furnished by plaintiff in error. The furnishing of medical, surgical and hospital services must be. regarded as the payment of compensation under the Workmen's Compensation act. It has been so held in those cases where the issue to be determined was whether a demand for compensation was made within six months, as required by statute. (Yellow Cab Co. v. Industrial Com,. 315 Ill. 235; Field & Co. v. Industrial Com. 305 id. 134; Jackson v. Industrial Com. 302 id. 281; Central Car Works v. Industrial Com. 290 id. 436.) The reasoning in those cases applies here. The fact of payments for medical and surgical services, coupled with the finding of an accidental injury arising out of and in the course of employment of the applicant, affords ample basis for saying that an award was, in effect, entered; that had not such payments been voluntarily made an award would have been entered therefor.\\nWe are of the opinion that paragraph (h) of section 19 was intended to cover cases where an accidental injury arising out of and in the course of the employment has occurred though at the time of the hearing the injury had not resulted in loss of time of the employee or there was not then shown a loss of use of a member by reason of the accident. Where such loss of time or loss of use is shown to arise out of the accident, it is but within the purpose of the act to say that within eighteen months after the award an increase of the injuries resulting from the accident may be shown. The purpose of this review is met by this construction of that section. It was inserted by the legislature because of the recognized inability of the medical profession to forecast with certainty results arising from an injury or the exact extent of that injury. (Peoria Railway Co. v. Industrial Com. supra.) Plaintiff in error's second contention cannot, therefore, be sustained.\\nThere being no error in the judgment of the circuit court it will be affirmed.\\n,Judgment affirmed.\"}"
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diff --git a/ill/5199715.json b/ill/5199715.json
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+"{\"id\": \"5199715\", \"name\": \"Calumet El. St. Ry. Co. v. William C. lewis, Adm.\", \"name_abbreviation\": \"Calumet El. St. Ry. Co. v. Lewis\", \"decision_date\": \"1897-02-09\", \"docket_number\": \"\", \"first_page\": \"598\", \"last_page\": \"600\", \"citations\": \"68 Ill. App. 598\", \"volume\": \"68\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T18:00:17.973415+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Calumet El. St. Ry. Co. v. William C. lewis, Adm.\", \"head_matter\": \"Calumet El. St. Ry. Co. v. William C. lewis, Adm.\\n1, Practice\\u2014Waiver of Objections to the Declaration.\\u2014An objection to a declaration which may be removed by an amendment, and which is not alluded to in a motion for a new trial, is waived.\\n2. Electric Cabs,\\u2014Diligence Required of Motormeti.\\u2014In an action against a street car company for killing a child, a passenger testified that she saw the child start across the street before the car started, but the motorman did not see the child until it was too late to stop the car. The court below, in trying the case without a jury, was justified in finding that the motorman ought to have seen the child sooner.\\nTrespass on the Case.\\u2014Death from negligence. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding.\\nHeard in this court at the October term, 1896,\\nAffirmed.\\nOpinion filed February 9, 1897.\\nJudson F. Going and J. A. Burhans, attorneys for appellant.\\nWm. O. As ay and Egbert Bedfield, attorneys for appellee.\", \"word_count\": \"667\", \"char_count\": \"3604\", \"text\": \"Mr. Justice Gary\\ndelivered the opinion of the Court.\\nThe appellee, administrator of the estate of Edna H. Lewis, deceased, was, at the time of the death of the latter, a barber at 9262 South Chicago avenue, with his shop on the ground floor and housekeeping rooms above, where, with his wife and two children, he resided.\\nThe eldest child was Edna, and she was but two years and five months old\\u2014a mere baby. She was run over and killed by an electric car of the appellant when the car had gone less than its own length from the place of starting. She was running across the street to her father's house.\\nFive minutes before she had been in the house, and how she happened to be on the other side of the street is unexplained..\\nA passenger in the car testified that she saw the child start across the street before the car started. The motorman did not see the child until she was in front of\\u2014almost under\\u2014the car; too late to stop the car. From the time that he did see her, he was guilty of no negligence, but the court, trying the cause without a jury, was justified in finding that he ought to have seen her sooner. Chicago West Division Ry. v. Ryan, 31 Ill. App. 621; 131 Ill. 474.\\nWhat is said in that case in both reports is an answer to all that is urged here by the appellant as to the absence of negligence by the appellant, and of care by the parents of the child.\\nThe appellee finds it difficult to deal with the objection of the appellant, based upon Chicago and Alton R. R. v. Logue, 47 Ill. App. 292, 53 Ill. App. 142, and 158 Ill. 621, that the younger child was not mentioned in the declaration; and \\\"we therefore confidently submit this case to your honor's judgment,\\\" says his counsel. Whether the judgment of the Appellate Court of the Fourth District is consistent with what the Supreme Court held in Conant v. Griffin, 48 Ill. 410, we need not consider, as in this case the appellant filed \\\"points in writing\\\" upon a motion for a new trial, and neither among those points, nor at any stage of the suit, was the omission to mention that child in the declaration alluded to. The objection\\u2014whatever may be in .it\\u2014is waived. Brewer v. Nat. Un. Bldg. Ass'n, 64 Ill. App. 161; Grand Lodge v. Bagley, 60 Ill. App. 589; Hafner v. Herron, Ibid. 592.\\nIt could easily have been refnoved by amendment, even after verdict. Such amendment would not have been a statement of a new cause of action. Haynie v. Chicago & Alton R. R., 9 Ill. App. 105.\\nAnd it would not have been too late to make it whenever appellant made the point. Independent Order v. Paine, 122 Ill. 625. The judgment is affirmed.\"}"
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diff --git a/ill/5204596.json b/ill/5204596.json
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+"{\"id\": \"5204596\", \"name\": \"Friedman Electric Company, Plaintiff-Appellee, v. St. Clair County Housing Authority of the City of East St. Louis, Defendants-Appellants\", \"name_abbreviation\": \"Friedman Electric Co. v. St. Clair County Housing Authority\", \"decision_date\": \"1959-10-06\", \"docket_number\": \"Term No. 59-M-12\", \"first_page\": \"16\", \"last_page\": \"25\", \"citations\": \"23 Ill. App. 2d 16\", \"volume\": \"23\", \"reporter\": \"Illinois Appellate Court Reports, Second Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T00:30:32.071904+00:00\", \"provenance\": \"CAP\", \"judges\": \"SCHEINEMAN, P. J. and CULBERTSON, J., concur.\", \"parties\": \"Friedman Electric Company, Plaintiff-Appellee, v. St. Clair County Housing Authority of the City of East St. Louis, Defendants-Appellants.\", \"head_matter\": \"Friedman Electric Company, Plaintiff-Appellee, v. St. Clair County Housing Authority of the City of East St. Louis, Defendants-Appellants.\\nTerm No. 59-M-12.\\nFourth District.\\nOctober 6, 1959.\\nRehearing denied October 26, 1959.\\nReleased for publication October 27, 1959.\\nCharles M. Whealon, of East St. Louis, for defendants-appellants.\\nKramer, Campbell, Costello and Wiechert, of East St. Louis, and Lindauer, Lindauer, Pessin and Nieman, of Belleville, for plaintiff-appellee.\", \"word_count\": \"2431\", \"char_count\": \"14993\", \"text\": \"JUSTICE HOFFMAN\\ndelivered the opinion of the court.\\nThis action was brought by the plaintiff for damages for breach of two contracts for the furnishing of electrical materials and labor by the plaintiff on three low-rent housing projects constructed for the defendant. The defendant counterclaimed for breach of the same contracts. The two contracts have the same terms and conditions and, by agreement of the parties, are considered as one contract for purposes of evidence and law. The action was tried by the court without a jury. After many months of intermittent hearings and the' introduction of volumes of evidence, the court found for the plaintiff on its complaint and against the defendant on \\u2022 its counterclaim. The defendant's main point upon appeal is that the judgment is against the manifest weight of the evidence. '\\nOn November 26, 1951 defendant entered into a contract with plaintiff to furnish labor and materials for electrical work on a project known as Project Ill. 1-3, which involved 38 buildings with 300 dwelling units. On January 21, 1952 the same parties entered into a similar contract on projects known as Projects Ill. 1-4 and Ill. 1-5, which involved 46 buildings with 300 dwelling units and 13 buildings with 100 dwelling units respectively. Orders by the defendant to plaintiff to proceed with the work were issued on December 18, 1951 and January 23, 1952. Plaintiff submitted progress schedules on each project on February 2, 1952. These project schedules were formulated by plaintiff, correlated to the progress schedules of the general contractor, and approved by defendant. They indicated when certain phases of the work were to be done.\\nEarly in 1952 work was commenced' at the aforesaid projects by the general contractor. However, by August of that year the defendant had become dissatisfied with the progress and work of the plaintiff, and on August 19,1952 gave plaintiff a five day notice of. contract termination. The contract between the plaintiff and defendant provided in part as follows:\\n\\\"If the Contractor . . . should persistently or repeatedly refuse or fail to supply enough properly skilled workmen or proper materials . or persistently disregard instructions of the Local Authority or Architect . . . then the Local Authority may, by at least five days prior written notice to the Contractor . . . terminate the Contractor's right to proceed with the work. In such event, the Local Authority may take over and prosecute the work to completion . . . and the Contractor and his sureties shall be liable to the Local Authority for any excess cost occasioned. ?\\nThe contract further provided that:\\n\\\"If the Contractor refuses or fails to prosecute the work, or any separable part thereof, with such diligence as will insure its completion within the time specified in the Special Conditions, or any extension thereof, or fails to complete said work within such time, the Local Authority, may, by written notice to the Contractor, terminate his right to proceed with the work or such part of the work as to which there has been delay. In such event the Local Authority may take over the work and prosecute the same to completion, by contract or otherwise and the Contractor and his sureties shall be liable to the Local Authority for any excess cost occasioned the Local Authority thereby.\\\"\\nPlaintiff's contention is that defendant wrongfully terminated the contract and thereby became liable to plaintiff for its loss of prospective profits. Defendant contends that the termination was proper, and that it is entitled to recover the excess costs occasioned.\\nWe are mindful of the oft-stated rule which requires that we must affirm a trial court's finding if it is not contrary to the manifest weight of the evidence. But, we also recognize it to be our clear duty to carefully examine the record here, voluminous as it may be, to determine whether the evidence justifies the judgment. If, from a consideration of the whole record, it appears to us that the evidence does not justify the judgment, it is our plain duty to reverse. Sharkey v. Sisson, 310 Ill. 98, 114, 115; Daven v. Downey, 378 Ill. 543, 552, 39 N.E.2d 45, 49; Stephenson v. Kulichek, 410 Ill. 139, 147, 101 N.E.2d 542, 546. This obligation rests upon us irrespective of whether the ease is one at law or chancery. Chicago Title & Trust Co. v. Guild, 329 Ill. App. 374, 382, 68 N.E.2d 615, 618.\\nThe burden was upon the plaintiff to prove, by a preponderance of the evidence, that the defendant, under the terms of the contract, improperly terminated plaintiff's right to proceed with the work. Plaintiff called two witnesses in this regard, its president, Victor Friedman, and a superintendent, William Rogers, who was hired by plaintiff 11 days prior to the contract's termination.\\nFriedman testified that his company had been in the electrical contracting business in the locality for many years, and had a vast experience in electrical contracting for the Federal Government, State of Illinois, and various schools and municipalities. He admitted that the electrical work on the projects in question did not begin on time but blamed this upon the late spring, heavy rains and slowness of the general contractor. He testified that there was no question of plaintiff's ability to complete its contract, for it had the finances, labor, materials and equipment necessary to do the job. He stated that on August 18, 1952, the day before the notice of termination, the work was moving along nicely on schedule and that he had plenty of men on hand.\\nRogers, the superintendent, testified that he checked the progress of the jobs in early August; that he found the electrical employees and foreman qualified; that the work was in accordance with the specifications; and that nowhere was plaintiff holding up the progress of other crafts.\\nNo other evidence was produced by plaintiff. Its case must rest, therefore, upon the testimony of its president and its superintendent of 11 days.\\nBy contrast, the defendant produced numerous witnesses, the principal one being Charles A. Reid of Colorado Springs, Colorado, who was the project' engineer for the Public Housing Administration. Mr. Reid had been in the construction business since 1910, had owned his own company at one time, and had worked for the Public Housing Administration for ten years at the time he testified. He stated that he had been a manager of an engineering and contracting firm, had worked on numerous public buildings in Chicago, and had had numerous experiences with various public housing projects. At the time involved, he was project engineer for four or five other public housing projects and served in an advisory capacity to the defendant. As project engineer, his duties involved making construction reports every two weeks which reflected the progress on the job, the percentage of physical completion, and the percentage of completion according to the progress schedules which the contractors submitted prior to commencement of the work. These reports were governmental reports, submitted to the government only, not to plaintiff or defendant, and made by the witness personally through personal inspections and investigations.\\nReid's testimony, based upon his aforesaid reports, may be summarized as follows: On May 10,1952 plaintiff's progress schedule called for 17% completion on Project 1-3, but he had actually completed only 1%; on May 24th, the schedule called for completion of 19%, but plaintiff had only completed 1%; on June 7th, the schedule called for 22% completion, but plaintiff had still only completed 1%; on June 21st, the schedule called for a completion of 25%, but plaintiff had only actually completed 2%; on July 5th, the schedule called for 26%, but plaintiff only had 3% finished; on July 19th, the schedule called for 29% completion, but plaintiff had only done 5%; on August 2nd, the schedule stated 32%, plaintiff had finished 8%; on August 16th the schedule called for 35% com pletion and plaintiff had finished, actually, only 10%; and on August 29th, after the plaintiff had been taken off the job, the schedule called for 38%, but only 14% was completed. The witness testified to figures which showed that the percentages were almost identical for Projects 1-4 and 1-5. For instance, the schedule called for a completion of 23% on both of these projects on July 5th, but the plaintiff had only actually completed 2% and 3%, respectively on that date, and on August 29th, the schedule called for completion of 35% on both projects, but the plaintiff had only completed 12% and 10% respectively.\\nReid further testified that his reports showed that the general contractor was on schedule, except where he was hampered by plaintiff's failure to provide sufficient electricians. The witness concluded his testimony by stating that plaintiff, from start to finish, did not maintain a sufficient number of electricians to keep the progress he had scheduled.\\nJoseph Musterman, the superintendent of the general contractor on the projects involved, testified that electrical conduit had to be laid in the concrete slab which rested on the foundation of the buildings, and that once the foundation was ready, the general superintendent could proceed no further until the conduit had been laid. Then, after the framing to support the second floor had been completed, the electrician had to install conduit in the framing before it could be covered. The superintendent stated that on the very first slab plaintiff was late in putting conduit in; that plaintiff never had enough men on the job; that this slowed the general contractor to the point where, at times, there were 8 or 10 buildings being held up by plaintiff. Musterman's testimony was corroborated both by the project engineer, Mr. Reid, and the plaintiff's president, Mr. Friedman. Mr. Reid tes tified that on March 15th, 10% of the foundations of Project 1-3 were ready. However, Friedman admitted plaintiff didn't start any work on this project until April 24th. On April 26th, it is interesting to note, the general contractor had 35% of his foundations in. With regard to Project 1-4, Reid testified that on April 26th, the general contractor had 24% of the foundations in, but Friedman admitted the plaintiff didn't get started on this project until the week ending May 1st. On Project 1-5, the general contractor had some foundations in as early as April 12th, but the plaintiff didn't get started there until May 27th, when at least 60% of the foundations were ready. This witness further testified on cross examination that after plaintiff was replaced by another electrical contractor, the work got- done and there were no more delays.\\nClarence Worthen, the architect's supervisor, testified that he visited the job daily and plaintiff never had the job properly manned to maintain the schedule necessary to keep the work going in accordance with the progress schedule and that from the time plaintiff started to work he was never up to schedule. He testified further that at one time the general contractor was faced with, cutting his labor crew until the electrical work was brought up to schedule.\\nThomas Blazier, the plastering contractor, testified that his work was held up by the plaintiff and on occasions they had to byrpass certain work. This was corroborated by a lather, who stated that at numerous times the lathing had to -be held up because the electrical conduits were not in. An electrician for plaintiff testified that all the time they were working on the project the electrical- crew was not up to schedule. One of plaintiff's foremen testified that he couldn't keep up to schedule because he did not have sufficient workmen. .\\nMany other witnesses called by the defendant testified to specific delays caused by plaintiff and to the fact that the electrical work on the projects was behind schedule. Letters written by defendant's director, by the architect, the project engineer and the general contractor were introduced. These letters, some written as early as May, pointed out to plaintiff that he was falling behind schedule and requested him to hire more men so that the general contractor and others would not be delayed any further.\\nFinally, defendant introduced a letter written by plaintiff's president to the local union on July 9, 1952. This letter said, in part, as follows: \\\"As you know our most critical shortage of electricians exists on the Federal Housing Projects, E. St. Louis, Illinois, and on these jobs we are Very Very far behind; in some instances the General Contractor has covered us up because we did not have the man power available to keep up with the rapid pace of the other crafts. We are seriously retarding the progress of the job.\\\" (Capitalization not ours).\\nTo detail all the evidence heard by the trial judge in this case would lengthen this opinion immeasurably and would serve no useful purpose. It was plaintiff's burden to establish its compliance with the contract. Plaintiff's evidence of compliance with that part of the contract above quoted settles down to several bland statements by plaintiff's president that he had plenty of men and was never behind schedule, and the statement of plaintiff's superintendent of 11 days that plaintiff was not holding up the progress of other crafts. We do not treat so cavalierly the clear directive of the contract between these parties. Overwhelmingly set against plaintiff's evidence is the testimony of the defendant's witnesses, none of whom were shown by the record to have any partiality, and the very significant categoric admission contained in plaintiff's president's letter of July 9th. Plaintiff never satisfactorily explained this letter nor its plain implications.\\nWe have spent long hours studying the record here, and we cannot arrive at any other conclusion than that the plaintiff, on this whole record, clearly has not established by a preponderance of the evidence that the defendant wrongfully terminated the contract. We find, based upon our consideration of this whole record, that the trial court's finding in favor of plaintiff, and his judgment order based thereon, both on the complaint and counterclaim, are clearly against the manifest weight of the evidence and are not justified by the evidence. It is, therefore, our plain duty to reverse the entire judgment order and remand the cause for a new trial.\\nJudgment reversed and cause remanded.\\nSCHEINEMAN, P. J. and CULBERTSON, J., concur.\"}"
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+"{\"id\": \"5258885\", \"name\": \"The People ex rel. The Illinois State Bar Association et al. Relators, vs. The Peoples Stock Yards State Bank, Respondent\", \"name_abbreviation\": \"People ex rel. Illinois State Bar Ass'n v. Peoples Stock Yards State Bank\", \"decision_date\": \"1931-06-18\", \"docket_number\": \"No. 18801\", \"first_page\": \"462\", \"last_page\": \"480\", \"citations\": \"344 Ill. 462\", \"volume\": \"344\", \"reporter\": \"Illinois Reports\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T19:13:49.200792+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The People ex rel. The Illinois State Bar Association et al. Relators, vs. The Peoples Stock Yards State Bank, Respondent.\", \"head_matter\": \"(No. 18801.\\nThe People ex rel. The Illinois State Bar Association et al. Relators, vs. The Peoples Stock Yards State Bank, Respondent.\\nOpinion filed June 18,1931.\\nJohn L. Fogle, (Rush C. Butler, Carl R. Latham, R. Allan Stephens, Herbert M. Lautmann, John F. Voight, Alonzo Hoff, Charles O. Loucks, Franklin L. Velde, and Sidney S. Gorham, of counsel,) for relators.\\nMitchell D. Follansbee, and Robert W. Schupp, (Paul D. Miller, of counsel,) for respondent.\\nHorace Kent Tenney, and Percy B. Eckhart, amici curies.\", \"word_count\": \"5855\", \"char_count\": \"34416\", \"text\": \"Mr. Justice Orr\\ndelivered the opinion of the court:\\nThis is an original proceeding instituted in this court by information in the name of the People, on the relation of the Illinois State Bar Association and the Chicago Bar Association, against the Peoples Stock Yards State Bank, a banking corporation of Illinois, as respondent, seeking to have respondent punished for contempt of this court for engaging in the practice of law and also to enjoin it from continuing such practice. Leave to file the information having been granted, a rule was entered requiring the respondent to answer. It filed its answer, and the cause was then referred to Thomas J. Holmes, a master in chancery of the superior court of Cook county, as commissioner of this court, to take the evidence and report his conclusions of fact and law. The commissioner heard the evidence and submitted his report, recommending that relief be granted as prayed in the information. Objections of respondent to the report were overruled and by stipulation of the parties it was agreed that those objections should stand as exceptions in this court. After the filing of the report briefs were filed on behalf of both parties. On motion of the Corporate Fiduciaries Association of Chicago and the Illinois Bankers Association leave was granted to Horace Kent Tenney to file a brief as amicus curia, and subsequently leave was also granted to Percy B. Eckhart to file a brief as amicus curia.\\nIn his report the commissioner finds the facts substantially as follows: Respondent is a duly organized bank under Illinois laws and has complied with the laws of this State with respect to trust companies. Its place of business is at South Ashland avenue and West Forty-seventh street, in the city of Chicago. That location is a community center, mostly of citizens of foreign birth employed as industrial workers. The bank has about 2500 checking accounts and 40,000 depositors in the savings department. About seventy-five per cent of the customers of the bank are of foreign birth and some do not speak the English language fluently. The banking institution has not only the usual commercial departments of a modern bank but also a trust department, a real estate department in which through duly licensed lawyers it transacted for its customers and others almost every form of legal business except the handling of divorce cases. The officers of the bank at various times conducted what they called \\\"drives\\\" in order to secure new customers for the bank. The drives were conducted through personal solicitation, by telephone and circular letters or other forms of advertising. It was largely employees of the bank who engaged in this work of securing new business. Prizes of different values were awarded to those securing new business. Prizes were given to those securing new deposit accounts. Other prizes were given for procuring persons who by wills or other legal documents would name the bank as executor or trustee or who would employ the services of the bank in other ways. The bank performed the legal services necessary in the administration of estates in the probate court of Cook county. It acted as executor or administrator in various estates, as conservator for distracted persons and as guardian for minors, and through its legal department performed legal services with reference to such estates, charging the usual fees for such services. In addition thereto, by the use of the name of either Edward J. Warren or Emanuel Nylin, or other attorneys in its employ, it collected and appropriated to its own use the fees which were allowed by the probate court of Cook county for such legal services. From 1924 to April, 1927, respondent had on its books, and handled, an average of about 200 estates in the probate court each year. There is no evidence relating to these matters prior to 1924, nor was the commissioner able to determine or approximate the actual amount of attorneys' fees which the bank received and appropriated for legal services from 1924 to 1927. The books of the bank would undoubtedly disclose these amounts. Although a demand was served on counsel for respondent to produce such books and records, it failed to comply with the demand except as to a single account carried under the name of Edward J. Warren, an attorney in its employ, covering a period of slightly more than the year 1925. Respondent also during the same period and through its legal department conducted a number of foreclosure proceedings in the circuit and superior courts of Cook county. In most of such proceedings it was the owner of the loans secured by the trust deeds being foreclosed, but in a number its customers or clients were the owners of the loans. In case's where the bank was the owner of the loans and the complainant in such foreclosure proceedings, through its legal department it proved up and was allowed the usual and customary solicitor's fees by the circuit and superior courts and appropriated to its own use all such solicitor's fees allowed. Such proceedings were conducted in the name of Edward J. Warren or Emanuel Nylin as the attorney for the complainant therein, but these attorneys did not receive directly any part of the fees allowed to them as such solicitors. It does not appear that the respective courts and masters in chancery thereof before whom the proofs were taken, and the parties to the litigation, were at any time informed of the foregoing facts. In cases where such foreclosure proceedings were conducted by the bank on behalf of its customers and clients the fees allowed by the circuit and superior courts to the solicitor appearing of record on behalf of the complainant were collected and appropriated by the bank. The same conditions existed in this class of proceedings as existed with reference to such proceedings where the bank, as trustee or otherwise, was a party. Its books and records, if produced, would probably show the amounts actually allowed as solicitor's fees in such cases and received and appropriated by it to its own use, but it has failed to produce such books or information notwithstanding demand therefor was made upon it. For this reason the commissioner was unable to ascertain exactly the amounts of money so received and appropriated by respondent.\\nJoseph Wojnowski, an attorney employed in the bank from October i, 1922, to December 31, 1925, was called as a witness by relators. The commissioner found him to be responsible, reliable and trustworthy, and on the basis of his testimony found that the number of foreclosure proceedings in which the bank participated during the years 1923 to 1925 was from eight to ten each month, but the witness was unable to state the total amount of attorney's fees received by respondent for such services during those years. During the same period of time respondent followed the practice, through its legal department, of drafting and attending to the execution of wills for its clients and customers. Charges were made for such services ranging from $5 to $25 or more. The number of wills so drawn amounted to 150 or 200 each year during the three-year period of Wojnowski's employment as an attorney by the bank. He testified that in performing such services he was instructed by the officers of the bank to endeavor to have the bank named as executor, and that in the event it was so named he was instructed to make no charge for his services in drafting and attending to the execution of the wills but that otherwise an appropriate charge was to be, and was, made. The bank failed to produce its books and records, and the commissioner was therefore unable to determine from the evidence the total number of wills drawn by the bank or the amount received by it as attorney's fees for such services.\\nRespondent also during the same period of time, through its legal department, handled and conducted for its customers and clients all the details of various real estate transactions where real estate was bought, sold, exchanged or otherwise dealt in, including not only those set out in detail in the information herein but a large number of other deals of similar character. In these real estate transactions the bank, through its legal department, would interview the parties, ascertain the figures and conclusions at which they had arrived and draft and attend to the execution of the contracts for the sale or exchange of the real estate. It would attend to the bringing down of abstracts and guaranty policies, examine such abstracts and policies and render opinions of title thereon, using the name, usually, of Edward J. Warren on such opinions. It would attend to all the details of clearing the title to the real estate involved, either in exchange or sale, including the preparation and execution of affidavits when necessary to clear up defects, and would draft and attend to the execution and recording of all necessary deeds, mortgages, trust deeds and other documents between the parties interested. It would conduct the negotiations between the parties at the closing of the deals in which it is customarily necessary. It would also adjust all differences between the parties with reference to taxes, insurance, rents and other charges and allowances, and during these transactions it gave to the parties such legal advice as was sought, frequently representing both sides of a transaction. For these services for many years it made and collected a charge of approximately from $5 to $10 for the drafting of a contract of sale or exchange, $20 to $25 for the rendition of an opinion of title and $10 to $20 for the other services, including the drafting, execution and delivery of deeds, mortgages, trust deeds and other title papers. The proof shows that between the years 1921 and 1926, inclusive, such transactions numbered approximately 200 per year. The fees collected by the bank for these services rendered by its officers and employees were appropriated by the bank to its own use. Respondent also during the same period of time drafted or caused to be drafted in its legal department, for its customers, many other legal papers, consisting of deeds containing covenants to stand seized to the use of the grantor, contracts and agreements with regard to various kinds of easements, building contracts and contracts for the erection of houses, garages and other buildings, chattel mortgages of any kind, house and apartment leases, and many other legal documents. The bank charged and collected fees for such services, the amount of which the commissioner was unable to estimate or approximate. In the conduct of all of the business above referred to, the bank collected large amounts from year to year. One witness testified that the bank's income from this source for 1924 was about $14,000. Respondent produced the account of Edward J. Warren, one of the attorneys in its employ. This account was introduced in evidence by relators and showed the receipts of the bank from this business were $20,239.97 from January 1, 1925, to March 6, 1926. Such an account undoubtedly was kept by the bank for other years but was not produced. The commissioner, on the basis of the evidence, found that the receipts of the bank in conducting its legal department during the years 1924 to 1926, inclusive, were in excess of $14,000 per year.\\nAbout November 1, 1926, the attention of the officials of respondent was directed to the question of the unauthorized practice of law by corporations, including banks and trust companies, in this State, by a letter from a committee of the Illinois State Bar Association. Respondent claimed that since that time it has entirely ceased the practices above referred to. Upon this subject the commissioner found that the bank did not cease such practices but organized a purported law firm, using the names of three young lawyers in its employ and paying them fixed salaries, and that from the middle of November, 1926, to April, 1927, during the existence of this law firm, the bank continued the practices above referred to. It claimed that after April 1, 1927, it entirely ceased all such practices, so far' as they might be held to constitute practicing law; but in this regard the commissioner found that it continues to handle for its customers and clients all the legal details of real estate sales and exchanges and charges and collects fees therefor as previously. He also found it has ceased to render or charge for opinions of title, but that it still continues to prepare deeds, mortgages, trust deeds, contracts of sale and other contracts with respect to real estate, chattel mortgages, building contracts, leases of real estate and documents of that nature and charges and collects fees therefor, but that it has ceased to draft wills or act as attorney in the probating of estates or to collect attorney's fees allowed in foreclosure cases.\\nIt is contended by respondent that this court has no jurisdiction to entertain an original proceeding of this na ture; that respondent's participation in the proceedings in the trial courts did not constitute a contempt of this court; that the legal services which respondent performed outside of court did not constitute a contempt of any court, whether such services amounted to practicing law or not, and that prior to the filing of the information it had ceased to perform services as might constitute practicing law, and therefore should not be punished for its prior conduct. The amici curice also question the jurisdiction of this court to entertain this proceeding or to grant the relief prayed in the information.\\nUnder the constitution of this State the judicial power is vested solely in the courts. (Const, art. 6, sec. i, and art. 3; Missouri River Telegraph Co. v. First Nat. Bank, 74 Ill. 217; In re Day, 181 id. 73.) Included in this grant are all powers necessary for complete performance of the judicial functions. (State of Illinois v. Illinois Central Railroad Co. 246 Ill. 188.) Although the constitution does not expressly confer upon this court power and jurisdiction with respect to the admission of attorneys to practice law, such power and jurisdiction are necessarily implied and are inherent in this court. (In re Day, supra.) As a part of such inherent power this court may not only determine the educational and moral qualifications of applicants for admission to the bar but may also discipline or disbar attorneys for misconduct. (People v. Chamberlain, 242 Ill. 260; People v. Csarnecki, 268 id. 278.) Attorneys are officers of this court and their conduct as such is subject to supervision by it. They are, in effect, a part of the judicial system of the State. (In re Day, supra; People v. Csarnecki, supra; Ex parte Secombe, 19 How. 9; Ex parte Wall, 107 U. S. 265.) The power to prescribe the qualifications which will entitle an applicant to be admitted to the bar is judicial, as is also the power to discipline or disbar attorneys for professional misconduct either in court proceedings or their relations with clients outside of court. (People v. Macauley, 230 Ill. 208; People v. Meyerovits, 278 id. 356.) The respective functions and powers of the courts and the legislature in this State as to who shall be permitted to practice law and in fixing the qualifications for admission to the bar were considered at great length in In re Day, supra, and need not be again announced.\\nThe challenge of the jurisdiction of this court to entertain this original proceeding is based upon section 2 of article 6 of the constitution of this State, which provides that this court \\\"shall have original jurisdiction in cases relating to the revenue, in mandamus and habeas corpus, and appellate jurisdiction in all other cases.\\\" It is said that this court cannot exercise original jurisdiction in any case other than the three thus mentioned in the constitution. With this contention we cannot agree. Since its inception this court has exercised original jurisdiction of proceedings relating to the admission and disbarment of attorneys, and although the constitutional provision above referred to does not mention these subjects, the original jurisdiction of this court over such matters has never been questioned. This court has exercised original jurisdiction of applications for admission to the bar of this State (In re Day, supra,) and in numerous cases has entertained original proceedings for disbarment. It is argued that this proceeding is not of that character; that the exercise by this court of original jurisdiction to disbar an attorney is based upon the fact that the attorney is an officer of the court, and so this court obtains jurisdiction over him by virtue of having licensed him to practice as such, whereas the court acquires no such jurisdiction with respect to persons who are not so licensed. We believe such a contention is entirely untenable. Having inherent and plenary power and original jurisdiction to decide who shall be admitted to practice as attorneys in this State, this court also has all the power and jurisdiction necessary to protect and enforce its rules and decisions in that respect. Having power to determine who shall and who shall not practice law in this State, and to license those who may act as attorneys and forbid others who do not measure up to the standards or come within the provisions of its rules, it necessarily follows that this court has the power to enforce its rules and decisions against offenders, even though they have never been licensed by this court. Of what avail is the power to license in the absence of power to prevent one not licensed from practicing as an attorney ? In the absence of power to control or punish unauthorized persons who. presume to practice as attorneys and officers of this court the power to control admissions to the bar would be nugatory. And so it has been held that the court, which alone has authority to license attorneys, has as a necessary corollary ample implied power to protect this function by punishing unauthorized persons for usurping the privilege of acting as attorneys. (In re Morse, 98 Vt. 85, 126 Atl. 550.) In People v. Czarnecki, (No. 8901, April term 1913, no opinion,) this court in effect recognized the principle that a person not having a license from this court to practice as an attorney is guilty of contempt of this court in practicing as an attorney in a trial court. In that case an attorney, after he had been disbarred by this court, (268 Ill. 278,) appeared and acted as an attorney in the circuit court of Cook county, and a rule was entered by this court requiring him to show cause why he should not be attached for contempt of this court for presuming to act as attorney at law in defiance of the order of this court disbarring him from practice. The fact that the rule in that case thus referred to the previous order of disbarment does not necessarily affect its application here.\\nRespondent also asserts that while this court has jurisdiction to entertain a proceeding to punish an unlicensed individual for appearing and practicing in this court it has no such jurisdiction or power over one who has been guilty of unauthorized practice of law by appearing in the trial courts of this State. No doubt each trial court in this State has ample authority to punish as for contempt of that court any person who presumes to appear and. act as' an attorney in that court without having been licensed by this court. But it does not follow that the jurisdiction of the trial court is exclusive in that respect. While the wrongful act constitutes a contempt of the trial court because of the imposition and fraud upon that court, yet it is also a contempt of this court, and punishable as such, because the wrongdoer has affronted this court by usurping a privilege solely within the power of this court to grant. (People v. Czarnecki, No. 8901, supra.) In a recent case (In re Morse, supra,) the Supreme Court of Vermont held that since it had exclusive power with respect to the admission and licensing of attorneys to practice in that State it necessarily had the power in an original proceeding to punish an unlicensed person who had acted as an attorney in the justice of the peace courts of that State.\\nIt is also argued that for acts outside of court which amount to unauthorized practice of law the offender cannot be punished for contempt of this or any other court. What we have said above should be sufficient to dispose of this contention. To deny the power of the court to deal with such offenders would be tantamount to a destruction of the power itself. Perhaps the major portion of the actual practice of law under modern conditions consists of the work of attorneys outside of any court and has nothing to do with court proceedings. (People v. Alfani, 227 N. Y. 334, 125 N. E. 671.) It is just as essential to the administration of justice and the proper protection of society that unlicensed individuals should not be permitted to prey upon the public in that sphere of the practice of law as it is with respect to proceedings in the courts. It is no less a usurpation of the function and privilege of an attorney and an affront to the court having sole power to license attorneys, for one not licensed as such to perform the services of an attorney outside of court proceedings.\\nAs stated above, this court has inherent power and control over the general subject of the practice of law, and this includes the power to punish unauthorized persons for presuming to practice law without being licensed so to do by this court. Respondent is a corporation. It has not been and cannot be licensed or permitted by this court to practice law. (In re Co-operative Law Co. 198 N. Y. 479, 92 N. E. 15.) A corporation can neither practice law nor hire lawyers to carry on the business of practicing law foi it. (People v. California Protective Corp. 76 Cal. App. 354, 244 Pac. 1089.) The right to practice law attaches to the individual and dies with him. It cannot be made the subject of business to be sheltered under the cloak of a corporation having marketable shares descendible under the laws of inheritance. (State v. Merchants' Protective Corp. 105 Wash. 12, 177 Pac. 694; People v. Merchants' Protective Corp. 189 Cal. 531, 209 Pac. 363.) In the case of In re Otterness, (recently decided,) the Supreme Court of Minnesota held that a corporation cannot itself practice law, nor can it lawfully do so by hiring an attorney to conduct a general law practice for others for pay, where the fees earned are to be, and are, received as income and profit by the corporation. (232 N. W. 318.) Likewise the Court of Appeals in Ohio has lately decided that, although not prohibited by criminal statute, it is unlawful for a corporation to practice law or maintain a legal department or hire attorneys and advertise their services for the use of others. Dworken v. Apartment House Owners Ass'n, 38 Ohio App. 265.\\nRespondent, being a corporation, is also prohibited by statute from practicing law in Illinois. (Smith's Stat. 1929, chap. 32, pars. 411-415, pp. 787-788.) It was within the power of the legislature to make such a prohibition (In re Day, supra,) and also to provide a penalty for violations of it. But the statute referred to does not have the effect of excluding the power of this court to fix such punishment as it may see fit for the contempt of this court involved in the usurpation by a corporation of the office of an attorney. The legislature has not attempted to tie the hands of the courts in dealing with contempts of this kind, and any attempt to do so would be an infringement upon the inherent exclusive jurisdiction of the courts. We are not required to pass upon the question whether an offender could be subjected not only to the penalties provided by the statute but also to such other punishment as this court might choose to impose in a given case, for no prosecution against respondent under the statute has been undertaken. Suffice it to say, that for any contempt of this court ample power here exists to inflict an appropriate punishment. So far, therefore, as the information seeks punitive relief it invokes a jurisdiction which is inherent in this court in cases of this kind.\\nThe question remaining for consideration is whether the conduct of respondent has amounted to practicing law. As above indicated, the practice of law involves not only appearance in court in connection with litigation but also services rendered out of court. In litigated matters it involves not only the actual representation of the client in court but also services rendered in advising a client as to his cause of action or defense. The practice of law also includes the giving of advice or rendering services requiring the use of legal skill or knowledge. The commissioner in his report has submitted a definition for \\\"practicing law,\\\" as follows: \\\"Practicing as an attorney or counselor at law, according to the laws and customs of our courts, is the giving of advice or rendition of any sort of service by any person, firm or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill.\\\" In our opinion this definition is substantially correct. It is in substantial accord with the definition employed by a special committee of the American Bar Association in drafting supple ments to the canons of professional ethics. (52 Am. Bar Ass'n Rep. 1927, p. 382.) In Matter of Duncan, 83 S. C. 186, 65 S. E. 210, 24 L. R. A. (n. s.) 750, it is said: \\\"It is too obvious for discussion that the practice of law is not limited to the conduct of cases in courts. According to the generally understood definition of the practice of law in this country, it embraces the preparation of pleadings and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, and, in addition, conveyancing, the preparation of legal instruments of all kinds, and, in general, all advice to clients and all action taken for them in matters connected with the law. An attorney at law is one who engages in any of these branches of the practice of law. The following is the concise definition given by the Supreme Court of the United States: 'Persons acting professionally in legal formalities, negotiations or proceedings by the warrant or authority of their clients may be regarded as attorneys at law within the meaning of that designation as employed in this country.' (Savings Bank v. Ward, 100 U. S. 195, 25 L. ed. 621.) Thornton on Attorneys at Law (sec. 69) defines the practice of law in the same terms, and the substance of this definition has been approved in a number of other jurisdictions. \\u2014 People v. Alfani, supra, and authorities there cited.\\\" While we do not adopt finally the definition suggested by the commissioner, we think it will serve in general as a basis in a given case for determining whether one charged with unauthorized practice of law has been guilty of contempt of. this court and whether and to what extent he should be punished.\\nRespondent in the present case has, beyond question, deliberately engaged in unauthorized practice of the law. The findings of fact in the report of the commissioner leave no room for doubt concerning the matter. That it used for that purpose the services of licensed attorneys in its employ does not alter the fact that it was thus practicing law. Some of the findings of the commissioner are challenged, and we have given due weight to the exceptions of respondent. It is unnecessary to discuss those exceptions in detail. The findings of fact of the commissioner are, in the main, fully supported by the evidence. In a few instances the commissioner has drawn inferences from the facts which are challenged, but they do not materially affect his ultimate conclusions of fact, which we approve. The record shows, beyond doubt, that respondent has for several years conducted proceedings in the circuit, superior and probate courts of Cook county under cover of the names of licensed attorneys who were its salaried employees and appropriated to its own use the fees allowed to or charged by these attorneys. For several years it also examined abstracts of title and rendered legal opinions thereon, prepared and attended to the execution of wills for its customers and others and furnished the legal advice necessary to the performance of these services, all by the use of the names of the attorneys employed by it, and has appropriated to its own use the attorneys' fees charged and collected for all such services and advice. The foregoing is sufficient to show the nature and extent of respondent's offenses for which it is punishable.\\nIt appears that respondent in 1927 ceased performing services of the kind above mentioned. Since 1927 it has performed other acts and rendered other services, as summarized in the commissioner's report, some of which do and some of which do not constitute the practice of law. Many of the documents prepared by the respondent and other services rendered by it involved the use of legal knowledge and skill. Where the rendering of such services involves the use of legal knowledge or skill, or where legal advice is required and is availed of or rendered in connection with such transactions, this is sufficient to characterize the services as practicing law. People v. Schreiber, 250 Ill. 345; People v. Alfani, supra; People v. Title Guarantee and Trust Co. 227 N. Y. 366, 125 N. E. 666; In re Eastern Loan and Trust Co. 288 Pac. (Ida.) 157.\\nWhere a will, contract or other instrument is to be shaped from facts and conditions, the legal effect of which must be carefully determined by a mind trained in the existing laws in order to insure a specific result and guard against others, more than the knowledge of the layman is required, and a charge for such service brings it definitely within the term \\\"practice of the law.\\\" In re Eastern Loan and Trust Co. supra.\\nWe come, now, to the question of the punishment to be inflicted upon respondent. It appears from the record that respondent ceased certain wrongful practices in 1927. We are unable to agree with the respondent's contention that it should not be punished for its misconduct. A more aggravated case of deliberate, unauthorized practice of law by a corporation could rarely be found. Until November, 1926, it was engaged, through \\u00bfhe attorneys in its employ, in performing nearly every kind of legal services that an attorney in general practice might be called upon to perform, and charged, collected and appropriated to its own use the attorneys' fees for these services. When in November, 1926, its misconduct was called to the attention of its officers, instead of discontinuing its wrongful practices it caused to be organized a purported law firm of young attorneys employed by it to conduct its law practice. It was not until April, 1927, that this subterfuge was abandoned. Upon the trial of this case before the commissioner it showed an utter lack of that candor which is to be expected of one who seeks to avoid punishment for its offenses. In several instances, by objections of various kinds, to the introduction of evidence and the competency of the witnesses, it sought to prevent a full disclosure of the facts which were especially within its control. While vigorously insisting that the showing made by relators was inadequate in some particulars, with all the facts undoubtedly in its possession it failed to produce them. Although production of its books and records relating to its conduct and the amount of its attorneys' fees was demanded, only a portion of one account was produced. It is true that it offered to permit relators to enter its offices and search for information. Perhaps, if the showing made by relators had not been sufficient to establish the misconduct of respondent it would have been necessary for relators to have compelled the production of the books and records. But we are dealing now with a case where, after the misconduct has been established, the offender seeks to avoid punishment, and in such a case its candor or lack of candor in proceedings instituted in this court may properly be considered.\\nIt is impossible to determine from this record the aggregate amount of respondent's income derived from its practice of law. This difficulty is caused principally by its failure to produce its books and records, over which it had exclusive control. On the basis of the evidence a conservative estimate of the fees so received would be not less than $50,000. It is likewise impossible to ascertain from the record the amount of its net income from this source. The commissioner finds that the respondent, through its attorneys, \\\"admitted\\\" that the profits of such business, after deducting the salaries of all employees engaged therein, overhead and other expenses, would be not less than $1000 per year. We are thus left to conjecture as to whether the net income was more than $1000 per year, and if so, by how much. The amount of the fees received by respondent does not furnish the only basis for determining the punishment which this court may see fit to impose in this or any other case. Even in a case where no money consideration is derived from such services, the court may fix a punishment suitable to the circumstances of the offense. In view of the fact that this is the first time this court has been called upon to decide the questions involved here in, we have determined that a fine of $1000 shall be imposed. We accordingly enter judgment herein requiring respondent to pay to the clerk of this court a fine in the sum of $1000 and costs for contempt of this court, as evidenced by the acts of the respondent.\\nRespondent found guilty of contempt.\"}"
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+"{\"id\": \"5260265\", \"name\": \"Illinois Central Railroad Co. v. The People, use of, etc.\", \"name_abbreviation\": \"Illinois Central Railroad v. People\", \"decision_date\": \"1899-09-05\", \"docket_number\": \"\", \"first_page\": \"260\", \"last_page\": \"262\", \"citations\": \"84 Ill. App. 260\", \"volume\": \"84\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T19:00:29.676336+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Illinois Central Railroad Co. v. The People, use of, etc.\", \"head_matter\": \"Illinois Central Railroad Co. v. The People, use of, etc.\\n1. Bemedies\\u2014\\u201cPerson Aggrieved\\u201d\\u2014One Satisfaction.\\u2014 A party-aggrieved should have but one satisfaction for his grievance.\\n2. Former Becovery\\u2014May be Pleaded in Bar.\\u2014Where a controverted matter has been adjudicated in a former suit between the parties, its adjudication is conclusive of the same question in a subsequent suit.\\n3. Statutes\\u2014Construction of Sec. 36, Act of 1874, Fencing and Operating Railroads.\\u2014Under section 36, of the act of 1874, entitled \\u201c An act in relation to fencing and operating railroads,\\u201d and providing that if any railroad corporation, or any of its agents, servants or employes, violate the provisions of the act, they shall be liable to a fine of not less tha n $10 nor more than $300, to be recovered in an action of debt in the name of the people of the State of Illinois, for the use of any person aggrieved, before any court of competent jurisdiction. The person aggrieved, having once recovered compensation for the injury, can not thereafter recover the statutory penalty.\\nDebt, for a statutory penalty. Trial in the Circuit Court of St. Clair County; the Hon. William Hartzell, Judge, presiding. Verdict of guilty and judgment; appeal by defendant. Heard in this court at the February term, 1899.\\nBeversed and remanded.\\nOpinion filed September 5, 1899.\\nG. A. & V. K. Koerner, attorneys for appellant.\\nW. Winkleman, attorney for appellee.\", \"word_count\": \"903\", \"char_count\": \"5265\", \"text\": \"Opinion per Curiam.\\nThis was an action of debt, brought in the name of the . people of the State of Illinois, for the use of George Biehl, against the Illinois Central Railroad Company, to recover the penalty provided by statute for the failure of said company to ring a bell or sound a whistle at a certain highway crossing in St. Clair county, by reason of which violation Biehl claims he was injured in his person and property.\\nTrial was by jury. Verdict finding appellant guilty and fixing the fine at $50. Judgment on the verdict.\\nThe defense sought to be made by appellant in the Circuit Court was that, prior to the commencement of this suit, Biehl had brought an action of trespass on the case against appellant to the April term, 1897, of the St. Clair County Circuit Court, and recovered therein a judgment for $100 and costs, for the injury sustained by him on account of the failure of appellant to ring the bell or sound the whistle on the occasion complained of, which is the same grievance set up in this suit; that said judgment and costs were fully paid and said grievance thereby satisfied.\\nAppellant properly set up this defense by special pleas, to which the court sustained demurrers, and appellant duly excepted. The statute upon which this suit is based is as follows:\\n\\\" Every railroad corporation shall cause a bell of at least thirty pounds weight, and a steam whistle, placed and kept on each locomotive, and shall cause the same to be rung or whistled by the engineer or fireman at the distance of at least eighty rods from the place where the railroad crosses or intersects any public highway, and shall be kept ringing or whistling until such highway is reached.\\\"\\n\\\" If any railroad corporation, or any of its agents, servants or employes, shall violate any of the provisions of this act, such corporation, agent, servant or employe, severally, unless otherwise provided herein, shall be liable to a fine of not less than $10 nor more than $200, to be recovered in an action of debt, in the name of the people of the State of Illinois, for the use of any person aggrieved, before any court of competent jurisdiction.\\\"\\nThe Appellate Court of the Third District has lately had this statute before it for construction. In Wabash Railroad Company v. The People of the State of Illinois, for the use of Mary L. Elliott, 78 Ill. App. 268, it is said:\\n\\\" As one of the grounds for reversal, it is urged that the usee, having recovered a judgment for the injuries sustained by her, and the judgment having been paid, she can not recover, in the name of the people, for her use, the statutory penalty.\\n\\\" It is an old and familiar rule of law that a party aggrieved should have but one satisfaction for his grievance. It is equally familiar that where a controverted matter has been adjudicated in a former suit between the parties, its adjudication is conclusive of the same question in a subsequent suit. The substance of the contention of counsel for the usee is that a party aggrieved by the failure of a rail road company to observe an ordinance limiting the speed of trains, has two remedies, and may have two satisfactions for the injury done him. Certainly, before a court ivould be warranted in placing such a construction upon a statute, that an aggrieved party could have two satisfactions for the same injury, the language of the statute should clearly and unequivocally manifest such intent.\\\"\\nThe conclusion reached in the cited case is that the \\\" person aggrieved,\\\" having once recovered compensation for the injury, can not thereafter recover the statutory penalty.\\nAccepting this construction of the statute as correct, it follows that appellants' pleas set up a good defense, and the court erred in sustaining the demurrers to them.\\nThe judgment of the Circuit Court is reversed and the cause remanded.\"}"
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+"{\"id\": \"5282155\", \"name\": \"Thomas Speer, Appellant, v. Silas B. Cobb, Appellee\", \"name_abbreviation\": \"Speer v. Cobb\", \"decision_date\": \"1859-04\", \"docket_number\": \"\", \"first_page\": \"528\", \"last_page\": \"530\", \"citations\": \"22 Ill. 528\", \"volume\": \"22\", \"reporter\": \"Illinois Reports\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T00:09:38.365216+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Thomas Speer, Appellant, v. Silas B. Cobb, Appellee.\", \"head_matter\": \"Thomas Speer, Appellant, v. Silas B. Cobb, Appellee.\\nAPPEAL FROM COOK COUNTY COURT OF COMMON PLEAS.\\nThe payment of a part of a sum of money which is due, does not create an equity in favor of the payor, to entitle him to an indefinite delay, for the payment of the balance.\\nOn October 9th, 1855, Harrison P. Heacox mortgaged a lot of ground in Chicago, to Silas B. Cobb, for $13,380, payable in installments: One for $3,880, payable in one year; another for $2,640, payable in two years ; another for $2,480, payable in three years; another for $2,320, payable in four years ; and the last for $2,160, payable in five years from the date of said mortgage respectively. The first note was paid. After the second note became due, Isaac Speer paid $1,500 to the said mortgagee, upon said second installment. After the execution of said mortgage, Isaac Speer became the owner of the property in question, and afterwards assigned the property in question, for the benefit of his creditors, to Thomas Speer, the complainant below and plaintiff in error here. The bill was filed to enjoin the sale of the property in question, for residue \\u00f3f the second installment. An injunction was granted, but upon the hearing the bill was dismissed. '\\nThomas Speer appealed.\\nThe question presented by this record is, whether or not the payment of $1,500 upon the second installment, is a waiver of the forfeiture and power of sale, vested by the terms of the conditions aforesaid in the appellee.\\nR. S. Blackwell, for Appellant.\\nS. B. Perry, for Appellee.\", \"word_count\": \"954\", \"char_count\": \"5299\", \"text\": \"Caton, C. J.\\nThe second note, for $2,640, fell due in October, 1857. A few days after its maturity, the complainant paid the defendant $1,500 on that note, and as he avers, Oobb agreed to postpone the balance of that note indefinitely. In the succeeding April, after six months delay on the balance of the note, Cobb published a notice that he would sell the premises in pursuance of a power of sale contained in the mortgage, to satisfy the balance due on that note, and also the amount due on the three other notes secured by the mortgage, which by its terms, were to mature upon the failure to pay any of the notes or the interest thereon, at the respective times when they should mature. And this bill was filed to enjoin this sale, on the pretence of equity, arising on the fact of the payment of $1,500 on the second note, and the indefinite promise of forbearance of the balance due on that note. We confess ourselves unable to see any particular equity arising from either of these causes. There was nothing so extraordinarily meritorious in paying $1,500 on the 13th of October, when it was his duty to have paid $2,640 on the 9th of October. In ordinary dealings among ordinary men, the general conclusion would be that he had come far short of his moral, as well as legal duty, instead of having gone so far beyond his duty as to entitle him to particular consideration in a court of equity. Nay more, at the time he paid the $1,500, it was his duty to have paid not only the whole of the second, but also the three subsequent notes, which, by the terms of the contract, became due and payable on the failure to pay the second note when it matured. Thus far we cannot discover the extraordinary merit on which this equity is supposed to arise. Then is there anything in the promise alleged to have been made by Oobb, at the time he received the $1,500, that he would postpone the balance ? This is the language of the bill. It alleges that the complainant \\\" paid to the said Silas B. Oobb, upon said second note above recited, the sum of one thousand five hundred dollars, which said sum of money was then and there accepted and received by said Silas B. Oobb, in part satisfaction of the said last mentioned promissory note, and the said Silas B. Oobb, then and there, in consideration of said payment, and of the promises of the said Thomas Speer, to pay the residue of the said last mentioned note, the said Silas B. Cobb extended indefinitely the time of payment of said residue of said principal and interest.\\\" What then was the purport of this promise, waiving the question of consideration, and admitting it to be binding ? He promised to extend it without defining the period to which he would extend it. It was equivalent to saying that he would extend it some time, but would reserve the right to himself to determine how long he would extend it. While he agreed to give some indul gence, he bound himself to no particular time. He certainly did not mean to say that he would extend the time forever. And if the time of extension was ever to terminate, he reserved the right to fix that time. It is like the case of Doyle v. Teas, 4 Scam. R. 202, where we held that a promise to pay \\\" a certain sum \\\" was fulfilled by paying a nominal amount. It was equivalent to some money. So here. The most that can be made of this promise, was that he promised to give some time on the balance. He did so. He waited six months, and then having received no further payments, he commenced proceedings to foreclose his mortgage, and the delinquent debtor now insists that he has a right to have the proceedings stayed by a court of equity. The court below dissolved the injunction, and we think very properly.\\nThe decree must be affirmed.\\nDecree affirmed.\"}"
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+"{\"id\": \"5314606\", \"name\": \"Charles Cox v. The People of the State of Illinois\", \"name_abbreviation\": \"Cox v. People\", \"decision_date\": \"1876-06\", \"docket_number\": \"\", \"first_page\": \"191\", \"last_page\": \"193\", \"citations\": \"82 Ill. 191\", \"volume\": \"82\", \"reporter\": \"Illinois Reports\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T22:21:23.469899+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Charles Cox v. The People of the State of Illinois\", \"head_matter\": \"Charles Cox v. The People of the State of Illinois\\n1. Criminal law\\u2014solicitation to commit wime\\u2014when indictable. Solicitations to commit crime are indictable, where their object is to provoke a breach of the public peace, or to interfere with public justice, or where perjury is advised, or the escape of a prisoner is encouraged, or the corruption of a public officer is sought. But if the offense be not consummated, and if it be not of such a character that its solicitation lends to a breach of the peace, or the corruption of the body politic, the mere solicitation is not, of itself, indictable.\\n2. Same\\u2014attempt to commit incest. A mere effort, by persuasion, to produce a condition of mind essential to the commission of the crime of incest, without any step taken towards the commission of the offense, is not an attempt to commit the crime, within the meaning of the section of the Criminal Code providing for the punishment of whomsoever att\\u00e9mpts to commit an offense prohibited by law, and does any act towards it, but fails or is intercepted or prevented in its execution.\\nWrit of Error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.\\nMr. Marshall W. Weir, for the plaintiff in error.\\nMr. Charles P. Knispel, afid Mr. E. A. Halbert, for the People.\", \"word_count\": \"853\", \"char_count\": \"4918\", \"text\": \"Per Curiam:\\nThe indictment contains two counts. In the first, the defendant is charged with incest; and, in the second, he is charged with an assault with intent to commit incest.\\nThe verdict of the jury is:' \\\"We, the jury, find the defendant guilty of an attempt to commit incest with Caroline Eider, under the first count of the indictment, and assess his punishment at imprisonment in the penitentiary for the term of two years.\\\"\\nThe crime of incest is punishable, if it be by a father cohabiting with his daughter, by confinement in the penitentiary, for any term not exceeding twenty years; and if it be by cohabiting between other persons, within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, by confinement in the penitentiary for a term not exceeding ten years. E. L. 1874, p. 376, \\u00a7 156, 157.\\nAnd, by another section of the Criminal Code, \\\" whoever attempts to commit any offense prohibited by law, and does any act towards it, but fails, or is intercepted or prevented in its execution, where no express provision is made by law for the punishment of such attempt, shall be punished, where the offense thus attempted is a felony, by imprisonment in the penitentiary not less than one nor more than five years; in all other eases, by fine not exceeding $300, or by confinement in the county jail not exceeding six months.\\\" E. L. 1874, p. 393, \\u00a7 273.\\nIt is not claimed, nor is there any express provision made by the Criminal Code for the punishment of an attempt to commit incest, so that the defendant's case is brought within this section, if he is liable at all. The evidence shows, simply, an unsuccessful solicitation to commit the offense, and the question, therefore, is, does a bare solicitation constitute an attempt, within the meaning of the section?\\nWharton, in discussing whether solicitations to commit crimes are independently indictable, in the 2d volume of his work on Criminal Law (7th Ed.), in \\u00a7 2691, says: \\\" They certainly are, where their object is to provoke a breach of the public peace, as is the case with challenges to fight and seditious addresses. They are also indictable when their object is interference with public justice, as,\\\"where resistance to the execution of a judicial writ is counselled, or perjury is advised, or the escape of a prisoner is encouraged, or the corruption of a public officer is sought. But if the offense be not consummated, and if it be not of such a character that its solicitation tends to a breach of the peace, or the corruption of the body politic, the question whether the solicitation is by itself the subject of penal prosecution, must be answered in the negative.\\\" See, also, Smith v. Com. 54 Penn. St. 209; Com. v. Willard, 22 Pickering, 476.\\n\\\"We are of opinion that this is the better view of the law, although there are respectable authorities holding a different rule; and, reading the section quoted in the light of it, the words \\\"whoever attempts to commit any offense prohibited by law, and does any act towards it,\\\" must be construed, in cases like the present, to mean a physical act, as contradistinguished from a verbal declaration; that is, it must be a step taken towards the actual commission of the offense, and not a mere effort, by persuasion, to produce the condition of mind essential to the commission of the offense.\\nWe are, therefore, of opinion there was error, both in giving instructions at the instance of the People, and in refusing those asked by the defendant, for which the judgment should be reversed and the cause remanded.\\nJudgment reversed.\"}"
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+"{\"id\": \"5314762\", \"name\": \"James W. Hughes et al. v. The People, for use, etc.\", \"name_abbreviation\": \"Hughes v. People\", \"decision_date\": \"1876-06\", \"docket_number\": \"\", \"first_page\": \"78\", \"last_page\": \"81\", \"citations\": \"82 Ill. 78\", \"volume\": \"82\", \"reporter\": \"Illinois Reports\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T22:21:23.469899+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James W. Hughes et al. v. The People, for use, etc.\", \"head_matter\": \"James W. Hughes et al. v. The People, for use, etc.\\n1. Constitution\\u2014construed as to meaning of county hoard. The words \\u201c county board,\\u201d as used in the State constitution, and required to fix the compensation of county officers, mean the body of persons to whom is entrusted the transaction of county business, and the term embraces as well county courts, as boards of supervisors and courts of county commissioners.\\n2. Officer\\u2014sheriff and collector hut one officer. The office of sheriff and collector, in counties not under township organization, are not separate and distinct offices, and, therefore, when the county court fixes the compensation of the sheriff, he can not receive more than such sum by virtue of his also being collector.\\n3. Same\\u2014:perquisite above commission. If a sheriff receives money as commissions on tax money deposited by him in a bank, it is a perquisite derived from his office, and he can not retain the same in addition to the compensation allowed him by the county board.\\n4. Official bonds\\u2014as sheriff and collector\\u2014upon which liable. Where a sheriff, in a county not under township organization, becomes liable for money received by him from a bank as compensation for deposits he made therein of moneys which came to his hands as sheriff, it is proper to sue upon his bond given as sheriff\\u2014not upon the additional bond the sheriff is required to give as collector of taxes.\\n5. Judgment\\u2014date, when of no importance. Where a writ of inquiry on a judgment nil dicit is, by consent, executed by the judge, in vacation, without a jury, it is of no importance that the finding and judgment bear no date, where there are no intervening liens claimed.\\nWrit of Error to the Circuit Court of St. Clair county; the Hon. William H. Snyder, Judge, presiding.\\nMessrs. Wilderman & Hamill, for the plaintiffs in error.\\nMessrs. C. W. & E. L. Thomas, for the defendants in error.\", \"word_count\": \"986\", \"char_count\": \"5712\", \"text\": \"Mr. Justice Breese\\ndelivered the opinion of the Court:\\nThis was debt, in the St. Clair circuit court, on a sheriff's bond, against the principal and his sureties.\\nThe penalty of the bond was ten thousand dollars, and various breaches of the condition thereof assigned in the declaration, to which, and to each of them, there was a demurrer.\\nOn overruling the demurrer, the court rendered judgment for the penalty, and awarded a writ of inquiry to assess the damages in vacation.\\nAfter notice to defendants, the judge, in vacation, a jury being waived, assessed the damages at ten thousand dollars, and rendered judgment for ten thousand dollars, the debt in the declaration mentioned, to be discharged on the payment of ten thousand dollars, the damages assessed, and costs of suit.\\nThe most important questions raised by the demurrer have been settled by this court, in Broadwell et al. v. The County of Morgan, 76 Ill. 554, and in Kilgore v. The People, ib. 548.\\nIn the first cited case, it was held, in construing the term \\\" county board,\\\" as used in section 10 of article 10 of the constitution of 1870, that it was not to be confined to any one particular body of persons. The power given to the county board to fix the compensation of county officers, belongs to the body to which is entrusted the transaction of the county business, and embraces as well county courts as boards of supervisors and courts of county commissioners.\\nIn the other case, Kilgore v. The People, the point was settled that in counties under township organization, the offices of treasurer and collector are not distinct and separate offices, by analogy to the case of Wood et al. v. Cook, 31 Ill. 271, which holds that the office of sheriff and collector, in counties not under township organization, are not separate and distinct offices.\\nIt follows, therefore, when the county court of St. Clair county fixed the compensation of appellant at three thousand dollars per annum, and two thousand five hundred dollars additional for clerk hire, to the total of these amounts was appellant entitled. He could claim nothing beyond them, and all sums beyond that total were payable into the treasury of the county.\\nIt appears, appellant received from a banking institution the sum of twenty-five hundred dollars, as compensation for the deposits he made therein of moneys which came to his hands as sheriff, and it is claimed by him he is not accountable for this sum to the county.\\nThe money was received by him as a perquisite or emolument of his office as sheriff\\u2014this is not questioned. The statute on this subject leaves the point free from doubt. Section 52 of the act of 1872, title \\\"Fees and Salaries,\\\" provides as follows: \\\"All fees, perquisites and emoluments received by said county officers, above the amount of compensation fixed by the county board, and clerk hire and other necessary expenses, shall be paid into the county treasury.\\\" R. S. 1874, p. 522, chap. 53.\\nThis being a perquisite or emolument acquired by official position, should be accounted for to the county.\\nA point is made by appellant, that the action is not brought on the proper bond\\u2014that it should have been brought on the additional bond the sheriff is required to give as collector of the taxes. Did it appear in this record that these moneys charged against appellants were moneys derived from taxes, the point might be deemed well taken. But there is nothing showing this, non constat there were fees for serving process and the performance of other duties, strictly belonging to the office of sheriff.\\nAs to the point that the judgment is wrong, it failing to show on what day it was rendered, it is of no importance, as no question of intervening liens is involved.\\nPerceiving no error in the record, the judgment must be affirmed.\\nJudgment affirmed.\"}"
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+"{\"id\": \"5315538\", \"name\": \"People of the State of Illinois, Defendant in Error, v. Al Beecher, Plaintiff in Error\", \"name_abbreviation\": \"People v. Beecher\", \"decision_date\": \"1910-03-11\", \"docket_number\": \"Gen. No. 5240\", \"first_page\": \"229\", \"last_page\": \"233\", \"citations\": \"154 Ill. App. 229\", \"volume\": \"154\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T18:40:55.681522+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"People of the State of Illinois, Defendant in Error, v. Al Beecher, Plaintiff in Error.\", \"head_matter\": \"People of the State of Illinois, Defendant in Error, v. Al Beecher, Plaintiff in Error.\\nGen. No. 5240.\\n1. Appeals and errors\\u2014when admission of evidence not subject to review. If it is urged that a paper received in evidence was incompetent and that instructions predicated thereon were improper, a review of such questions cannot he had in the absence of the bill of exceptions setting forth such paper.\\n2. Verdicts\\u2014when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.\\n3. Dram-shops\\u2014what instruction proper in prosecution for selling intoxicating liquor in anti-saloon territory. In such a prosecution an instruction is proper which is in the language of the statute.\\n4. Instructions\\u2014approved form as to duty of jurors to follow the law. In an action for unlawfully selling intoxicating liquor in anti-saloon territory an instruction is proper which tells the jury that it should not permit sympathy or its ideas of what the law should be, or whether the laws are good or desirable laws, to interfere with or bias it in any degree, that the personal ideas of the jurors have no place in arriving at a verdict and that they should try the case solely upon the laws as they existed and upon the evidence produced in court.\\nProsecution for unlawful sale of intoxicating liquor. Error to the County Court of Boone county; the Hon. Anthony Clarity, Judge, presiding. Heard in this court at the October term, 1909.\\nAffirmed.\\nOpinion filed March 11, 1910.\\nWilliam L. Pierce, for plaintiff in error.\\nPatrick H. O\\u2019Donnell and Charles W. Ferguson, for defendant in error.\", \"word_count\": \"1359\", \"char_count\": \"7725\", \"text\": \"Mr. Justice Thompson\\ndelivered the opinion of the court.\\nThe grand jury of Boone county at the April term, 1909, returned an indictment consisting of four counts against A1 Beecher, charging that the defendant had unlawfully sold intoxicating liquor in the town of Belvidere, in Boone county, while the same was anti-saloon territory. The indictment was certified to the County Court for trial. The defendant upon being arraigned pleaded not guilty. Upon a trial there was a verdict of guilty upon the first, second and third counts and judgment rendered upon the verdict assessing fines against the defendant amounting to $200 and the defendant was also sentenced to jail on the first count for thirty days and ten days on each of the other two counts. The defendant prosecutes this writ of error to review this judgment.\\nIt was stipulated by the plaintiff in error that the township of Belvidere, in Boone county, Illinois, now is, and since the 7th of May, 1908, has continuously been anti-saloon territory.\\nIt is assigned for error that the court erred in the admission in evidence of a copy of the record of the internal revenue collector. The record shows that: \\\"It is stipulated by the people and the defendant and his attorney that the paper offered in evidence is a true and correct copy of page 17 of the record of' the Special Tax Stamps or Receipts to retail liquor dealers issued by the collector of the United States Internal Revenue for the First District of Illinois of which Boone county in the State of Illinois, is a part.\\\" This was objected to as not being the proper way to prove the record of the internal revenue stamp and because it was improper, irrelevant and immaterial. The objection was overruled. The bill of exceptions states in relation to said document: \\\"paper is admitted in evidence and is marked 'people's ex-' Mbit A'.\\\" The instrument, exMbit A, although ad mitted in evidence, is not in the bill of exceptions, and we cannot know how the record was proved nor what it contained, bnt the admission is that it was a record of special tax stamps to retail liquor dealers issued by the United States. One of the reasons urged by defendant in error in arrest of judgment is because the court admitted upon the trial of said cause against the objection of the defendant the United States revenue tax stamp or receipt in said cause. The paper not being in the .record, it is not necessary for this court to indulge in any presumptions in favor of plaintiff in error concerning it. The bill of exceptions is the pleading of plaintiff in error and any presumption would be against him. Rogers v. Hall, 3 Scam. 6; Garrity v. Hamburger Co., 136 Ill. 499. In the absence of the' instrument from the record, and with the admission of plaintiff in error, we cannot say there was any error in its introduction in evidence or in any instruction based thereon.\\nIt is also urged that the evidence does not support the verdict. The verdict was returned upon the testimony of Milo Murphy, a farmer living a short distance from Belvidere, who testified that in April, 1909, he was in Beecher's place of business on Logan avenue, in the town of Belvidere, and that he bought whiskey there by the glass at three different times and paid ten cents for it each time; that on one of the occasions he called for ginger ale and got whiskey; that on one of those occasions he drank in company with Thomas Bracken and others, and that on April 17, he went into Beecher's place of business with a man named Barker' and that Barker bought two bottles of beer and that he gave Murphy one of them. Murphy testified that the bottle contained lager beer. Bracken testified that he met Murphy on the street with others, and that they went into Beecher's place on Logan avenue and got a drink or a cigar or something. An attempt was made to impeach the veracity of Murphy by a number of character witnesses. The state also introduced a number of witnesses who testified that Murphy's reputation for truth and veracity was good. Beecher testified denying that he sold any liquor to Murphy, but said he conducted a business in the place named and sold cigars, pop and soft drinks. The credibility of the witnesses was a question for the jury and we would not be justified in reversing its finding when all the evidence is considered together.\\nIt is contended there was error in the giving of the sixth instruction on behalf of the people which told the jury that it was not incumbent upon the prosecution to prove that liquor had been sold which actually intoxicated a person or that any person has become intoxicated on. All that is required is proof of a sale by the defendant of any distilled, spirituous, vinous or fermented or malt liquor, whether strong or weak, by evidence sufficient to prove the guilt of the. defendant as charged in the indictment. This instruction is in the language of the statute in so far as it tells the jury what liquors it is unlawful to sell in anti-saloon territory, and an instruction in the language of the statute is not erroneous. The seventh instruction is also claimed to be erroneous. This instruction told the jury that it should not permit sympathy or its ideas of what the law should be, or whether the laws are good or desirable laws, to interfere with or bias the jury in any degree; that the personal ideas of the jurors have no place in arriving at a verdict and that they should try the case solely upon the law as it exists and upon the evidence produced in court. The plaintiff in error was being tried for an infraction of the law, and jurors are not justified in disregarding the law of the state, even if it is not in accordance with their ideas of what the law should be.\\nPlaintiff in error complains of the second refused instruction. The instruction was properly refused because it attempted to tell the jurors that they may exercise their judgment on, and find not to be intoxi eating, liquors defined by the statute to be intoxicating and the sale of which is prohibited by the statute. The judgment is affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"5315820\", \"name\": \"The People of the State of Illinois, Plaintiff-Appellee, v. Charles H. Malone, et al., Defendants-Appellants\", \"name_abbreviation\": \"People v. Malone\", \"decision_date\": \"1971-10-26\", \"docket_number\": \"Nos. 71-17, 71 \\u2014 22 cons.\", \"first_page\": \"860\", \"last_page\": \"864\", \"citations\": \"1 Ill. App. 3d 860\", \"volume\": \"1\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T17:59:50.509130+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The People of the State of Illinois, Plaintiff-Appellee, v. Charles H. Malone, et al., Defendants-Appellants.\", \"head_matter\": \"The People of the State of Illinois, Plaintiff-Appellee, v. Charles H. Malone, et al., Defendants-Appellants.\\n(Nos. 71-17, 71 \\u2014 22 cons.;\\nFifth District\\nOctober 26, 1971.\\nRobert H. Rath, and Ralph W. Choisser, of Harrisburg, for appellants.\\nJohn Holland, State\\u2019s Attorney, of Albion, for the People.\", \"word_count\": \"1467\", \"char_count\": \"8467\", \"text\": \"Mr. JUSTICE CREBS\\ndelivered the opinion of the court:\\nDefendants, Charles H. Malone and Edward Harry Abbott, were jointly tried before a jury in the Circuit Court of Edwards County on separate informations charging each defendant with theft in violation of section 16 \\u2014 1(a) of the Criminal Code, and possessing stolen property knowing it to have been stolen by another in violation of section 16 \\u2014 1(d)(1) of the Criminal Code. At the close of the State's evidence the trial court granted motions for directed verdicts as to both defendants on the theft charges. Neither defendant offered any evidence and the cases were submitted to the jury on possessing stolen property only. Verdicts of guilty were returned against both defendants and each was sentenced to the penitentiary for not less than three nor more than five years.\\nIn separate appeals consolidated here both defendants contend that they were not proven guilty beyond a reasonable doubt, that neither the value nor ownership of the property was proven; and as to defendant Abbott, it is contended that he was a mere passenger in the truck in which the alleged stolen property was found and that possession was not proved nor can it be inferred in him.\\nThe evidence was confusing but for the purposes of this opinion it may be summarized as follows. Sometime prior to August 14, 1970, approximately 35,000 lbs. of copper wire were stolen from the lines of the Illinois Central Railroad strung on poles running parallel to its tracks in Edwards County. The wire was snipped off between poles and consisted of 70 spans, each span weighing about 5% lbs. and approximately 170 to 175 feet in length. It was estimated that the value of the wire was 80-85 cents per pound. In addition there was evidence that some 26 spans of the same type of wire were stolen from the lines of the railroad in Williamson County. This theft was not discovered until August 28, 1970, and the actual dates of the thefts in both counties were not known. It was assumed it had been stolen on numerous occasions over a period of a year.\\nBoth defendants were arrested on August 27, 1970, by an Edwards County deputy sheriff who recognized the truck of defendant Malone as similar to one reported by a farmer as having been seen near the site of the theft in Edwards County about three weeks previously. The truck was a camper type driven by Malone with defendant Abbott in the front seat as a passenger. The camper was locked and on obtaining the key from Malone a number of items were discovered including 15 rolls of copper wire, a push cart with flange wheels fitting the gauge of the railroad track, an axe, tree trimmers and a tool box. Nine samples of wire were snipped from different rolls in the truck and were submitted to the Illinois Crime Laboratory for comparison with wire ends from the poles in both Edwards and Williamson Counties. It was determined that one of the tree trimmers found in the truck had been used to cut two of the wire samples from Williamson County and one of the sample wires from the rolls in Malone's truck. No determination could be made as to any of the other wire samples. It was undisputed that the wire itself was a common wire used throughout the country for telephone and telegraph lines and was not distinctive in any way.\\nIt is well to note first that the issue of whether the defendants actually stole the wire is not before us since the trial court directed a verdict for defendants on that count. The sole issue is whether defendants were proven guilty beyond a reasonable doubt of violating section 16 \\u2014 1(d) (1) of the Criminal Code which makes it a crime \\\" to obtain control over stolen property knowing the property to have been stolen by another\\nThe State bases its entire case on the principle cited in People v. Reynolds, 27 Ill.2d 523, that evidence of recent, exclusive and unexplained possession of stolen property by an accused, either singly or jointly with others, may, of itself, raise an inference of guilt, absent other facts and circumstances which leave in the mind of the jury a reasonable doubt as to guilt. We find this principle is not applicable in this case to either defendant. First as to the defendant Abbott, who was merely shown to be a passenger in the truck, Reynolds itself recognizes that joint possession does not necessarily follow from the fact that one is riding in a vehicle in which stolen property is found. It calls attention to the particular facts before it, i.e., that the stolen property there filled the whole interior of the car and the defendant passenger was actually sitting on the stolen batteries, and therefore possession could be presumed in him as well as the driver. However, it specifically distinguishes such facts from those in People v. Evans, 24 Ill.2d 11, and in so doing approves the principle therein stated that where one is a mere passenger in a car driven and owned by another and stolen property is found in the locked trunk of the car, the passenger cannot be said to be in possession of such stolen property, and such fact constitutes no evidence of the defendant passenger's guilt. In the case now before us the vehicle was a truck owned by the driver who supplied the key to the locked camper in which the alleged stolen property was found. Under such circumstances, and without any further evidence involving Abbott, we find that no guilt can be presumed against him merely because of his status as a passenger.\\nAs to defendant Malone we likewise find that the principle set forth in Reynolds is not applicable. There the charge was theft and we agree that recent, exclusive and unexplained possession of stolen property is evidence that the possessor is guilty of the wrongful taking, but it does not follow that he is guilty of the wholly distinct crime of possessing stolen property knowing it to have been stolen by another. (See People v. DeFilippis, 34 Ill.2d 129.) Several Illinois cases support this proposition. In People v. Ensor, 310 Ill. 483, it is stated that before there can be a conviction for receiving stolen property it must be shown (1) that the property has, in fact, been stolen by a person other than the one charged with receiving it; (2) that the one charged with receiving it has actually received the property stolen or aided in concealing it; (3) that the receiver knew that the property was stolen at the time he received it; and (4) that he received the property for his own gain or to prevent the owner from again possessing it. It further states that possession of recently stolen property raises the presumption that the possessor stole it himself, that he cannot be both the thief and the receiver of stolen property, that he cannot receive stolen property from himself, and it concluded that since the record was barren of any proof that he received the stolen property from another person he cannot be guilty of the crime for which he was convicted. In People v. Dalke, 336 Ill. 446, it was held that under the facts in evidence the assumption would be that the accused stole the property himself and that he was guilty of larceny or burglary, but under the evidence he could not be found guilty of receiving stolen property. In People v. Grizzle, 381 Ill. 278, it is stated that unexplained possession of stolen property soon after a theft is evidence that the possessor is guilty of the wrongful taking but not guilty of knowledge that the property had been stolen when the possessor received it. In People v. Harris, 394 Ill. 325, the evidence showed only that defendant possessed and operated a stolen car which was consistent with his theft of the car but not of receiving stolen property knowing it to have been stolen.\\nThe record before us parallels the facts of the above cited cases, pointing only to the guilt of defendants as thieves and not to the guilt of possession of stolen property, the crime for which they are convicted. We therefore conclude that defendants were not proved guilty.\\nThe judgments of the Circuit Court of Edwards County as to both defendants are reversed without remandment.\\nJudgments reversed.\\nEBERSPACHER and JONES, JJ., concur.\"}"
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--- /dev/null
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+"{\"id\": \"5317569\", \"name\": \"In re Application of Jane Krill\", \"name_abbreviation\": \"In re Krill\", \"decision_date\": \"1982-02-08\", \"docket_number\": \"No. 81-CV-0984\", \"first_page\": \"552\", \"last_page\": \"553\", \"citations\": \"35 Ill. Ct. Cl. 552\", \"volume\": \"35\", \"reporter\": \"Illinois Court of Claims Reports\", \"court\": \"Illinois Court of Claims\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T21:52:35.048750+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re Application of Jane Krill.\", \"head_matter\": \"(No. 81-CV-0984\\nIn re Application of Jane Krill.\\nOrder filed February 8, 1982.\\nJane Krill, pro se, for Claimant.\\nTyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.\", \"word_count\": \"322\", \"char_count\": \"1917\", \"text\": \"Poch, J.\\nThis claim arises out of an incident that occurred on April 18, 1981. Jane Krill seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.\\nThis Court has carefully considered the application for benefits submitted on May 22, 1981, on the form prescribed by the Court, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:\\n1. That on April 18, 1981, the victim was found lying unconscious in his bed at 111 1/2 North 6th Street, Springfield, Illinois. Mr. Pauley was taken to St: Joseph's Hospital where he remained in a comatose state until his death on April 23, 1981. The Sangamon County coroner's office determined that the victim's death was due to a cerebral hemorrhage causing brain damage combined with severe bronchopneumonia. A coroner's inquest was held regard ing the victim's death. Testimony at the inquest indicated that the victim's death was not due to violence; however, the jury ruled the exact nature of his death as undetermined.\\n2. That in order for a Claimant to be eligible for compensation under the Act, there must be evidence of one of the violent crimes specifically set forth under section 2(c) of the Act.\\n3. That the victim's death was not attributable to one of the violent crimes specifically set forth under section 2(c) of the Act.\\n4. That the Claimant has not met a required condition precedent for compensation under the Act.\\nIt is hereby ordered, that this claim be, and is hereby denied.\"}"
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diff --git a/ill/5317915.json b/ill/5317915.json
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+"{\"id\": \"5317915\", \"name\": \"Richard Edwards v. James Irons\", \"name_abbreviation\": \"Edwards v. Irons\", \"decision_date\": \"1874-09\", \"docket_number\": \"\", \"first_page\": \"583\", \"last_page\": \"586\", \"citations\": \"73 Ill. 583\", \"volume\": \"73\", \"reporter\": \"Illinois Reports\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T21:59:33.030763+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Richard Edwards v. James Irons.\", \"head_matter\": \"Richard Edwards v. James Irons.\\n1. Verdict\\u2014presumption in favor of where evidence is not preserved, in MU of exceptions. Where a bill of particulars is filed with a declaration in assumpsit, and upon trial a verdict is found and judgment rendered in favor of plaintiff for a larger sum than the bill of particulars amount to, and the evidence is not preserved \\\"in the bill of exceptions, it will be presumed in the appellate court that there was evidence before the jury to authorize their allowing interest on the plaintiff\\u2019s account, and if the excess can be accounted for in that way, the judgment will not be disturbed.\\n2. Practice\\u2014record under control of court until adjournment. The record of a judgment is under the control of the court during the term at which it is rendered. The judge may set it aside and award anew trial, or allow amendments, so as to make the record conform to the facts, and to correct mistakes.\\n3. Same\\u2014setting aside judgment does not set aside the verdict. Setting aside and vacating a judgment does not set aside the verdict upon which the judgment is based.\\n4. It is proper for the court rendering a judgment upon the verdict of a jury, to set aside the judgment, receive a remittitur, and correct the amount found by the jury, accordingly, and render a new judgment for the proper amount, at any time during the same term of court.\\nAppeal from the Superior Court of Cook county; the Hon. Tiiomas F. Tipton, Judge, presiding.\\nMr. Francis A. Fiddle, for the appellant.\\nMessrs. Forrester, Beem & Gibbs, for the appellee.\", \"word_count\": \"1074\", \"char_count\": \"6014\", \"text\": \"Mr. Chief Justice Walker\\ndelivered the opinion of the Court:\\nAppellee filed his declaration with a bill of particulars attached, and defendant filed a plea of the general issue with an affidavit of merits. Subsequently the case was called for trial, but, defendant failing to appear, a jury was impaneled, and after hearing the evidence, they returned a verdict for \\u00a7245.03 in favor of plaintiff, upon which judgment was rendered. At a subsequent day of the term defendant moved the court to set aside the judgment, and to have a trial of the case. The motion was allowed; whereupon plaintiff remitted $13.74, and thereupon the court rendered a judgment on the balance of the verdict which remained after the entry of the remittitv/r, amounting to $231.79, in favor of the plaintiff. Defendant excepted, and appeals to this court.\\nIt is urged that appellee could not be allowed to recover more than the amount of the account filed with his declaration; that the judgment was therefore. too large by the sum of twenty dollars. This result must have been reached by the allowance of interest on the account; and there seems, from the dates of the various items, that if interest was allowed it would amount to enough to make the amount of the judgment rendered.\\nThe act of January, 1857, by the first section, provides that the rate of interest upon all contracts and agreements, written or verbal, express or implied, for the payment of money, shall be six per cent per annum on the one hundred dollars, unless otherwise expressly stipulated by the parties.\\nUnder this section it was held in the case of Turner v. Dawson, 50 Ill. 85, that a contract to pay six per cent on an account might be implied, but ten per cent could not be recovered except by force of an express agreement of the parties. And in the case of Davis v. Kenaga, 51 Ill. 170, it was held that 'The only ground upon which interest is recoverable in this case would be, that there was an unreasonable and vexatious delay of payment within the meaning of the second section of the statute, but whether there had been such unreasonable and vexatious delay, was a question of fact to be submitted to the jury, as held by this court\\\" in previous cases, to which reference is there made. It was also said that something more than mere delay of payment was necessary to bring the case within the statute.\\nFrom these cases it appears that the question of vexatious delay is for the jury, and when it is shown to exist, they are authorized to allow six per cent interest. And as the evidence in this case does not appear in the record, we must presume that there was evidence before the jury to prove the fact. If there had not been, the judge trying the case would have required appellee to remit all of the interest, or set aside the verdict, and awarded a new trial.\\nThere is no rule of practice better settled or more uniformly recognized than that the record of a judgment is under the control of the court during the term at which it is rendered. The judge may set it aside and award a new trial, or may allow amendments, so as to make the record conform to the facts, and to correct mistakes. Uor did the setting aside and vacating of the judgment, as seems to be supposed, also vacate the verdict. If, as urged, the verdict was merged in the judgment, when the judgment was set aside and vacated the merger was at an end, and matters then stood precisely as they did before the judgment was entered. It might, with the same propriety, be said that the declaration, plea and antecedent orders were all merged in the judgment, and when the judgment was vacated, that they were all canceled, and wiped out of the record, and that new pleadings were then required.\\nThe court had the undoubted right, during the term, to set the judgment aside, and, after receiving a remittitur, thus correcting the verdict of the jury, to enter a new judgment for the proper amount.\\n'Appellant fails to give any reason or excuse for failing to appear and make the defense he claims to have. For aught that appears, he may have wilfully and perversely refused to attend and interpose any defense he may have had. When a person acts with such indifference to his rights, he can not expect that courts will be overanxious to set aside a judgment and give him a trial for the mere asking.\\nWe perceive no abuse of discretion in refusing to give him a new trial, and the judgment must be affirmed.\\nJudgment affirmed.\"}"
\ No newline at end of file
diff --git a/ill/5328038.json b/ill/5328038.json
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index 0000000000000000000000000000000000000000..c2eccd9749d5cce0f3270255f11721ec4ac2fbac
--- /dev/null
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+"{\"id\": \"5328038\", \"name\": \"Perez Funches, Claimant, v. State of Illinois, Respondent\", \"name_abbreviation\": \"Funches v. State\", \"decision_date\": \"1979-02-18\", \"docket_number\": \"No. 77-CC-1164\", \"first_page\": \"668\", \"last_page\": \"669\", \"citations\": \"32 Ill. Ct. Cl. 668\", \"volume\": \"32\", \"reporter\": \"Illinois Court of Claims Reports\", \"court\": \"Illinois Court of Claims\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T00:41:04.436517+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Perez Funches, Claimant, v. State of Illinois, Respondent.\", \"head_matter\": \"(No. 77-CC-1164\\nPerez Funches, Claimant, v. State of Illinois, Respondent.\\nOpinion filed February 18, 1979.\", \"word_count\": \"247\", \"char_count\": \"1496\", \"text\": \"Polos, C.J.\\nClaimant, an inmate of an Illinois correctional institution, has brought this action to recover for the alleged loss of a gold wedding band, a pair of glasses, a three piece suit and some photographs. Claimant alleges that these items were lost during the course of his transfer from the Vienna Correctional Center to the Pontiac State Penitentiary.\\nIt appears that at the time of his transfer his personal property was inventoried and packed, and shipped to his mother at an address furnished by Claimant. Claimant signed the inventory as presented to him, and alleges that the items issued were either not on the inventory, or they were on the inventory and not received by his mother.\\nClaimant acknowledged that his mother received some of his personal property, which was shipped via Greyhound bus. His property therefore could have disappeared anywhere in transit. Further, Claimant's testimony was ambigous and inconsistent with respect to how he came into possession of certain of the property at issue, and the cost of that property.\\nFor the foregoing reasons, the Court finds that Claimant has failed to establish by a preponderance of the evidence that the State came into actual possession of the items of property at issue, or that the property was lost due to negligence on the part of the State.\\nIt is therefore ordered that this claim be, and hereby is denied.\"}"
\ No newline at end of file
diff --git a/ill/5373052.json b/ill/5373052.json
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index 0000000000000000000000000000000000000000..76f74a43f34c2dc79f326a9e3231c760c1127964
--- /dev/null
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+"{\"id\": \"5373052\", \"name\": \"M. H. Fitzsimmons, Appellee, v. William Cowan et al. Fred Siebel, Appellant\", \"name_abbreviation\": \"Fitzsimmons v. Cowan\", \"decision_date\": \"1914-04-15\", \"docket_number\": \"Gen No. 5,878\", \"first_page\": \"358\", \"last_page\": \"359\", \"citations\": \"186 Ill. App. 358\", \"volume\": \"186\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T19:56:37.855537+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"M. H. Fitzsimmons, Appellee, v. William Cowan et al. Fred Siebel, Appellant.\", \"head_matter\": \"M. H. Fitzsimmons, Appellee, v. William Cowan et al. Fred Siebel, Appellant.\\nGen No. 5,878.\\n(Not to be reported in full.)\\nAppeal from the Circuit Court of McHenry county; the Hon. Chables H. Donnelly, Judge, presiding.\\nHeard in this court at the October term, 1913.\\nReversed and remanded.\\nOpinion filed April 15, 1914.\\nStatement of the Case.\\nBill by M. H. Fitzsimmons against William Cowan and Maggie Cowan, his wife, the McHenry Comity State Bank and Fred Siebel to forclose a trust deed securing a promissory note for $2,500. The note and mortgage were executed by the Cowans to J. D. Donovan upon a lot in the city of Woodstock, and the note became the property of the complainant. Subsequent to the execution of the trust deed, William Cowan executed two promissory notes for $1,000 each to the Bank and gave the Bank a second trust deed on the same real estate to secure the same. This trust deed was not executed by Cowan\\u2019s wife. After the second trust deed was recorded, Fred Siebel obtained a judgment against the Cowans and had an execution within one year. The Bank was not served and Donovan was not made a party to the bill. A decree was entered finding the amount due to complainant and directed a sale of the premises and the payment of said sum to complainant from the proceeds of the sale. The decree further directed that the master, out of the interest of William Cowan in the remainder of said proceeds, pay the Bank the sum found due it \\u201cif he can determine his interest\\u201d and bring the balance into court. The master made his report of sale and of payment to complainant in full and that he had in his hands $1,107.96, the balance of the proceeds of said sale, awaiting further order for distribution, as he was unable to ascertain William Cowan\\u2019s interest in the real estate. Thereafter the court entered an order that the balance of the proceeds be paid by the master to the Bank \\u201cand that it be accepted by the Bank subject to the inchoate right of dower which the defendant Maggie Cowan, may or might have in and to said sum.\\u201d From the last order, Fred Siebel appeals.\\nM. A. Carmack and A. F. W. Siebel, for appellant Fred Siebel.\\nV. S. Lumley, Charles T. Allen and R. D. Donovan, for appellee.\\nAbstract of the Decision.\\n1. Mortgages, \\u00a7 654 \\u2014When validity of original decree cannot be questioned on appeal from, subsequent order. On appeal from a decree disposing of the proceeds of a foreclosure sale, the original decree cannot be attacked as erroneous because the trustee who held title to the land was not made a party.\\n2. Mortgages, \\u00a7 647 \\u2014when mortgagor\\u2019s interest in the land should be determined before order for distribution of surplus. In a foreclosure proceeding where there was a residue of the proceeds of the sale after payment of sum decreed to the complainant and there were other parties to the suit who claimed such residue, held that the residue could not be ordered paid to anyone of such claimants without first determining by a supplemental decree the interest the mortgagors had in the land, where such determination was necessary to make proper distribution and there was no averment or proof of their interest in the foreclosure proceedings.\\nSee Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.\", \"word_count\": \"588\", \"char_count\": \"3345\", \"text\": \"Mr. Justice Dibell\\ndelivered the opinion of the court.\"}"
\ No newline at end of file
diff --git a/ill/5374157.json b/ill/5374157.json
new file mode 100644
index 0000000000000000000000000000000000000000..c0ccea09dac46012fad58a7d2e243be41c4eee51
--- /dev/null
+++ b/ill/5374157.json
@@ -0,0 +1 @@
+"{\"id\": \"5374157\", \"name\": \"THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES W. DUNCAN, a/k/a James Austin, a/k/a James Week, Defendant-Appellant\", \"name_abbreviation\": \"People v. Duncan\", \"decision_date\": \"1994-05-04\", \"docket_number\": \"No. 3\\u201492\\u20140883\", \"first_page\": \"957\", \"last_page\": \"963\", \"citations\": \"261 Ill. App. 3d 957\", \"volume\": \"261\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T17:05:46.548498+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES W. DUNCAN, a/k/a James Austin, a/k/a James Week, Defendant-Appellant.\", \"head_matter\": \"THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES W. DUNCAN, a/k/a James Austin, a/k/a James Week, Defendant-Appellant.\\nThird District\\nNo. 3\\u201492\\u20140883\\nOpinion filed May 4, 1994.\\nMcCUSKEY, J., concurring in part and dissenting in part.\\nVerlin R. Heinz, of State Appellate Defender\\u2019s Office, of Ottawa, for appellant.\\nNorman K. Raffety, State\\u2019s Attorney, of Hennepin (John X. Breslin and Terry A. Hertel, both of State\\u2019s Attorneys Appellate Prosecutor\\u2019s Office, of counsel), for the People.\", \"word_count\": \"2377\", \"char_count\": \"14023\", \"text\": \"PRESIDING JUSTICE SLATER\\ndelivered the opinion of the court:\\nFollowing a jury trial, the defendant, James W. Duncan, was convicted of arson (Ill. Rev. Stat. 1991, ch. 38, par. 20\\u20141(a)) and two counts of burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19\\u20141(a)). He was subsequently sentenced to a term of seven years' imprisonment. The defendant appeals. We vacate one of the two burglary convictions.\\nThe defendant was charged by information with one count of arson and two counts of burglary. One burglary count alleged the defendant had unlawfully entered the Four Corners Tap with the intent to commit a theft and the second alleged he had entered the Four Corners Tap with the intent to commit arson.\\nThe trial record reveals that when the Four Corners Tap, a restaurant and bar located at Magnolia, closed for the night on March 25, 1992, it was left in good condition. However, early the next morning, delivery men arriving at the establishment found the natural gas in the ovens turned on with the pilot lights off. Also, a juke box and poker machines had been pried open and rifled through. An empty money box and bottles of liquor were found lying on the floor. Liquor from the bottles had been splashed over the floor and walls. A milk jug which smelled of gasoline was also on the restaurant floor, and two burned areas were found inside the building. The window in front of the dining room had been broken, and there was a scorched area under and around it.\\nRobert McLean, Jr., testified that he was with the defendant on the evening of March 25, 1992, and the next morning. McLean stated that he and the defendant had driven by the Four Corners Tap the night of March 25, 1992, and discussed burglarizing the building and burning it down.\\nAfter collecting tools, a milk jug full of gasoline, and dark clothes, McLean and the defendant walked to the Four Corners Tap and pried open one of the doors. They went inside, pried open the poker machines and juke box, and took the money from them. McLean stated that he and the defendant then dumped liquor and gasoline on the floor and the walls before lighting a slow starting matchbook fuse. The two men left, returning to McLean's home. However, they went back to the restaurant later because no fire had started in the building. The defendant said they had to go back to \\\"finish in case we left any evidence to incriminate us.\\\"\\nDefendant prepared a Molotov cocktail from a tomato juice bottle filled with gasoline. He told McLean to bring a rock to break the window. They drove to the Four Corners Tap. After McLean threw the rock through a window, the defendant hurled the Molotov cocktail toward the broken window. The device did not detonate inside the building; instead, it detonated on the window frame.\\nThe men again returned to McLean's house and waited to hear the fire alarm. When they heard no alarm, they again returned to the Four Corners Tap. This time, the defendant tossed chameleon flower fireworks into the building through the broken window. The fireworks caused only momentary sparking. The defendant and McLean then went back to McLean's house and did not return to the Four Corners Tap again.\\nThe jury found the defendant guilty of arson and both counts of burglary. On appeal, the defendant contends that one of his burglary convictions should be vacated because both convictions were based upon a single entry into the Four Corners. We agree.\\nThe defendant is correct when he argues that multiple convictions based on the same physical act or acts cannot stand. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) A person commits burglary when \\\"without authority he knowingly enters * a building * with intent to commit therein a felony or theft.\\\" (Ill. Rev. Stat. 1991, ch. 38, par. 19\\u20141(a).) The essence of the crime is unlawful entry, and whether an entry is made depends upon the facts of an individual case. (People v. Davis (1972), 3 Ill. App. 3d 738, 739, 279 N.E.2d 179.) Here, one of the alleged entries was physically made by the defendant when he entered the premises. The later entry arguably occurred when the defendant threw \\\"sparkler type\\\" fireworks through a broken window. The question before us is whether throwing the fireworks inside the building with the intent of starting a fire in the building was a second \\\"entry\\\" and, therefore, a second burglary. The court in Davis stated:\\n\\\"One could hardly argue that it would not be burglary for a person to break a very small hole in a jeweler's window through which he inserted his hand, or his fingers or a small hook or other instrument and thereby removed or attempted to remove a piece of jewelry. It is not the size of the hole that is determinative but rather, in our opinion, it is whether a hand or instrument was actually inserted into the hole for the purpose of committing the felony.\\\" (Davis, 3 Ill. App. 3d at 739, 279 N.E.2d at 179.)\\nThe court went on to find that the defendant's actions of drilling a hole through the wall constituted an aborted attempt to commit burglary and that, under the facts presented, there was insufficient evidence to prove him guilty beyond a reasonable doubt of burglary.\\nHere, the evidence clearly showed that the defendant and McLean initially entered the Four Corners Tap without legal authority with the intent to commit theft and arson. Following their entry, they ransacked the premises and collected money from various machines which they pried open. To carry out their plan to burn down the building, they dumped gasoline over the floor of the building. They also dumped the contents of liquor bottles on the floor and walls and lit a slow burning matchbook fuse. Then they left, and because the contemplated fire did not start inside the building, they returned twice to the Four Corners Tap that evening. During the two later visits to the Four Corners Tap, they did not physically enter the building. On the second return, the defendant threw some \\\"sparkler type\\\" fireworks through the broken window so that sparks from the fireworks would ignite the gasoline and liquor.\\nWe conclude that when the defendant returned to the Four Corners Tap and threw the chameleon flower fireworks through the broken window, it was not a separate entry. It was a continuation of the original plan to burglarize and burn the building, albeit distinct in time and manner from the initial entry. Accordingly, we determine the defendant was improperly convicted of the burglary count which alleged he had entered the building with the intent to commit arson and we vacate that conviction.\\nWe do not deem it necessary to remand this case for resentencing. At sentencing, the trial judge indicated that the defendant's convictions were part of an ongoing transaction. We find that the trial judge was not influenced by the improper conviction in his imposition of the seven-year term of imprisonment. (People v. Hope (1986), 142 Ill. App. 3d 171, 491 N.E.2d 785.) Thus, we affirm the sentence.\\nFor the reasons set forth, the conviction for the offense of burglary with the intent to commit arson is vacated. Defendant's convictions for the offenses of burglary with the intent to commit a theft and arson are affirmed as is the sentence of seven years' imprisonment.\\nAffirmed in part; reversed in part and vacated in part.\\nSTOUDER, J., concurs.\"}"
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+"{\"id\": \"5391206\", \"name\": \"Oscar Dixon, Plaintiff-Appellant, v. William E. Cahill et al., Defendants-Appellees\", \"name_abbreviation\": \"Dixon v. Cahill\", \"decision_date\": \"1973-03-16\", \"docket_number\": \"No. 56499\", \"first_page\": \"779\", \"last_page\": \"786\", \"citations\": \"10 Ill. App. 3d 779\", \"volume\": \"10\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T23:22:55.875961+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Oscar Dixon, Plaintiff-Appellant, v. William E. Cahill et al., Defendants-Appellees.\", \"head_matter\": \"Oscar Dixon, Plaintiff-Appellant, v. William E. Cahill et al., Defendants-Appellees.\\n(No. 56499;\\nFirst District (5th Division)\\nMarch 16, 1973.\\nElmer Gertz, of Chicago, (Wayne B. Giampietro, of counsel,) for appellant.\\nRichard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Edmund Hatfield, Assistant Corporation Counsel, of counsel,) for appellees.\", \"word_count\": \"2445\", \"char_count\": \"14324\", \"text\": \"Mr. PRESIDING JUSTICE DRUCKER\\ndelivered the opinion of the court:\\nPlaintiff appeals from the dismissal of his complaint for mandamus and an accounting asking that he be given a copy of the seniority list for truck drivers by the Chicago Civil Service Commission, that a suspension be deleted from his employment record and that he be awarded back pay for a two and one-half month layoff and for periods of time when he was allegedly denied the opportunity to work overtime. The defendants filed a motion to \\\"Strike and Dismiss\\\" the complaint. After a hearing on the motion at which arguments of counsel were heard, the court concluded that plaintiff had shown no clear legal right to the production of the seniority list and that the other relief sought was barred by the doctrine of laches.\\nOn appeal plaintiff contends that the complaint did show a clear legal right to the relief sought. He has failed to address the issue of laches in his brief filed in this court. The defendants did brief the issue hut plaintiff filed no reply brief. During oral argument counsel for plaintiff contended that the doctrine of laches was improperly invoked because it was a factual issue and therefore should not have been decided on a motion to dismiss.\\nPlaintiff's complaint, filed on May 3, 1971, alleged that after passing civil service examination No. 6965 for truck drivers on October 13, 1965, plaintiff was assigned to the Central Office of the Bureau of Sanitation of the City of Chicago as a street sweeper; that on November 24, 1969, he was transferred over protest to the Bureau of Equipment in violation of the Rules of the Civil Service Commission since there were other employees in the Bureau of Sanitation with less seniority than the plaintiff; that as a result of the transfer he lost the opportunity to work overtime in the Bureau of Sanitation at the Central Office; that on December 21, 1969, and again on January 11, 1970, plaintiff requested a copy of the \\\"revised\\\" list of the results of examination No. 6965 from the Commission but was refused such on both occasions; that on February 2, 1970, he was laid off from the Bureau of Equipment in violation of Rule IX of the Commission and was given a suspension for 29 days without a hearing although he requested one; that he was reassigned to work on April 15, 1970, in the Bureau of Sanitation at the Central Office; that on November 17 he was again transferred from the Central Office to an office at 103rd Street and Doty as a garbage truck driver; that this was in violation of his seniority rights and once again deprived him of the opportunity to work overtime at the Central Office; that on March 29, 1971, he was transferred back to the Central Office of the Bureau of Sanitation where he is still employed. A further claim was made that on several occasions he was denied a copy of the Civil Service Commission Rules upon request; it is not mentioned when the alleged requests were made. (At the hearing plaintiff acknowledged that he had a copy of the Rules; Ms counsel was unaware of this fact.)\\nThe defendants filed a motion for a Bill of Particulars to which plaintiff responded that on December 21, 1969, he sent a letter to the Civil Service Commission requesting a copy of the \\\"revised\\\" list of persons who took examination No. 6965 for truck drivers in October 1965 (the letter stated that plaintiff had a copy of the \\\"original\\\" list); in response he received a letter from the Secretary of the Commission stating that the Commission did not have a copy of the \\\"revised\\\" list. The Bill of Particulars further stated that when plaintiff was laid off on February 2, 1970, he asked Ms employer to lay off someone with less seniority; he was informed that he had no semority rights.\\nThe defendants' motion to \\\"Strike and Dismiss\\\" the complaint stated that plamtiff had shown no clear right to the relief sought; that plaintiff's intra-departmental transfers were in compliance with the Rules of the Civil Service Commission; that his claim as to the layoff and suspension was barred by laches; and that the complaint was fatally defective for failing to join the head of the Department of the Bureau of Streets and Sanitation as a party to the action. As noted earlier, the motion was granted on the grounds that plaintiff had shown no clear legal right to the production of the seniority list and that the other relief sought was barred by laches.\\nOpinion\\nPlaintiff complains of three financial injuries, a suspension and the related \\\"refusal\\\" of the Commission to supply him with the seniority list for truck drivers. The financial injuries are first, the loss of overtime work due to the alleged illegal transfer from the Bureau of Sanitation to the Bureau of Eqmpment on November 24, 1969; second, the loss of pay due to the layoff from the Bureau of Eqmpment from February 2, 1970, to April 15, 1970 (when he was reassigned to the Bureau of Samtation, Central Office); and third, the loss of overtime work due to the alleged illegal transfer from the Central Office of the Bureau of Sanitation to its office at 103rd and Doty on November 17, 1970.\\nWe believe that plaintiff is barred from any remedy as to the first two alleged financial injuries by the doctrine of laches. Laches is the neglect to assert a right or claim which, taken together with the lapse of time and circumstances causing prejudice to the opposite party, will bar a complaint in equity. Schoenbrod v. Rosenthal, 36 Ill.App.2d 112, 183 N.E.2d 188.\\nDelay in prosecuting a cause of action is one of the elements of laches and its importance is relative to the action involved. As stated in Kadon v. Board of Fire and Police Commrs., 45 Ill.App.2d 425, 430, 195 N.E.2d 751:\\n\\\"[I]n civil service cases, where prolonged delay may easily prejudice governmental bodies, impair orderly procedures and work to the disadvantage of third parties, time is an essential factor.\\\"\\nKadon went on to note that in civil service discharge cases the general rule is that an action must be brought within six months of the allegedly illegal discharge unless there is a reasonable explanation for the delay. See People ex rel. Cifaldi v. Wilson, 38 Ill.App.2d 302, 187 N.E.2d 353; People ex rel. Ballinger v. O'Connor, 13 Ill.App.2d 317, 142 N.E.2d 144.\\nIn the instant case, from the face of the complaint, it appears that the first transfer complained of occurred more than 17 months prior to the filing of the complaint. The layoff and suspension complained of occurred about 15 months prior to the filing, and, with respect to the layoff, 14 months after plaintiff had a statutory right to a hearing regarding its propriety since it then exceeded 30 days. No reasonable explanation is given for the delay.\\nContrary to plaintiff's assertion during oral argument, the defense of laches may be considered on a motion to dismiss a complaint if its applicability appears from the face of the complaint or by affidavits submitted with the motion. Holland v. Richards, 4 Ill.2d 570, 574, 123 N.E.2d 731; Schoenbrod at 122; Ill. Rev. Stat. 1969, ch. 110, par. 48(1) (i).\\nIn reaching our aforementioned conclusion we are mindful that the six month rule does not apply as strictly in cases such as this one where there was no lengthy layoff or permanent discharge, (see Kadon at 430, 431; People ex rel. Heavy v. Fitzgerald, 10 Ill.App.3d 24.) since the city would not be required to pay twice for the same work done over a substantial period of time. (See People ex rel. Sullivan v. Smith, 133 Ill.App.2d 218, 272 N.E.2d 755.) But the prejudice to the governmental body by extensive delays in the filing of legal actions, in its ability to function in an orderly manner, including its duty to comply with the established law, may be seen from a review of the facts here. Plaintiffs first alleged illegal transfer occurred more than 17 months before the complaint for mandamus was filed; the second transfer occurred about one year later. If plaintiff had sought a reasonably prompt review of the Commissions actions as to the first transfer, and it was found to have been illegal, the Commission would have been in a position to avoid liability for the subsequent transfer since the claim as to both transfers was based on the same theory, i.e., they violated plaintiff's seniority rights.\\nWe further note that in cases where the six month rule has been held inapplicable (Kadon and Heavy) the delay in filing was caused by actions of the defendants. In Kadon a police officer was denied the right to a promotion when the Village Board used an improper promotional list as a basis for mating its promotions. The plaintiff did not file the action for several years after the initial illegal act but he was led to believe by the Board members that the proper promotional list would be used when a promotional opportunity arose. When the improper list was used as a basis for the promotion, plaintiff promptly filed his action. In Heavy plaintiff was suspended on May 8, 1970, because criminal charges were pending against him. He was told by his employers that he would be rehired once the criminal charge was cleared up. On May 6, 1971, plaintiff was cleared of the charge and sought reinstatement. The defendants sought to bar his action by the doctrine of laches since plaintiff could have brought suit 30 days after his initial suspension under Ill. Rev. Stat. 1969, ch. 24, par. 10 \\u2014 1\\u201418, supra, note 2. The court held that plaintiff justifiably relied on his employer's representations as to reinstatement and that the delay in bringing the action was therefore reasonable and not barred by laches.\\nIn the instant case plaintiff's delay in filing suit was not prompted by acts or statements of the defendants. The record shows that plaintiff felt he was being mistreated at the time of his first transfer and when he was laid off. He requested a \\\"revised\\\" list for those who had taken examination No. 6965 and was advised that the Commission had no copy of the \\\"revised\\\" list. Thereafter he took no action and alleged no facts justifying this delay. We believe that the trial court properly ruled that plaintiff was barred from recovering back pay due to the first two injuries alleged \\u2014 loss of overtime due to the first transfer and loss of pay during the layoff. The request for deletion of the suspension in February 1970 would similarly be barred by laches. See People ex rel. Cronin v. Cahill, 118 Ill.App.2d 18, 254 N.E.2d 161.\\nAs to the aHeged illegal transfer of November 17, 1970, (five and one-half months prior to filing) any injury incurred thereby would not be barred by laches and thus we address the merits of plaintiffs claim that he was illegally deprived of overtime work by this transfer. Rule VIII of the Chicago Civil Service Commission Rules governs and provides in relevant part:\\n\\\"Section 1. Transfers allowed. Transfers of officers or employees may be made from one position to another position in the same class within a department by the head of such department. Notice of such transfers shall be given to the Commission .\\nSection 2. Transfers not Allowed. No transfer shall be made to avoid a layoff, and employing officers shall so certify to the Commission.\\\"\\nPlaintiffs claim as to illegality is that there were other men at the Bureau of Sanitation's Central Office with less seniority than himself at the time of transfer; that they should have been transferred rather than himself.\\nWe find nothing in the above rule nor in any other Commission Rule which relates transfers from one position in a department to another position of like classification within the same Department to one's seniority. The only prohibition as to transfers is that they not be made to avoid layoffs. Plaintiff does not allege that his transfer was a \\\"layoff\\\" since he was still employed in the Bureau of Sanitation after the transfer but at another office. Furthermore, even if a transfer which had the effect of depriving one of working overtime could be labeled a \\\"layoff,\\\" Rule VIII, Section 2, obviously prohibits only those transfers made for the purpose (i.e., with the intent) of avoiding a layoff. There is no alle gation in the complaint that the transfer of November 17, 1970, was made for the purpose of depriving plaintiff of overtime work nor any factual statements supporting such an allegation. Therefore we believe that plaintiff has shown no clear legal right to the relief sought.\\nIn view of our determination, we find no reason to consider plaintiff's request for the seniority list.\\nThe judgment is affirmed.\\nAffirmed.\\nENGLISH and LORENZ, JJ., concur.\\nBoth Bureaus are divisions within the Department of Streets and Sanitation.\\nIll. Rev. Stat. 1969, ch. 24, par. 10 \\u2014 1\\u201418, provides in relevant part:\\n\\\"Except as hereinafter provided in this section, no officer or employee in the classified civil service of any municipality , may be removed or discharged, or suspended for a period of more than 30 days, except for cause upon written charges and after an opportunity to be heard in his own defense. 6 *\\nIn fact, Rule I, Section 2(e), which defines the word \\\"Class\\\" as it is used in the Rules, provides:\\n\\\"[A class is] a group of positions with duties and responsibilities sufficiently alike to require of new employees the same experience, abilities, \\u00b0; to justify common treatment in selection; and to permit interchange of employees 'without material loss of efficiency after a brief training period; * # (Emphasis supplied.)\\nThe definition indicates that the facilitation of interchange of similarly classified personnel is one of the objects of the Rules.\\nThe type of layoff to which Section 2 of the Rule apparently applies is one where an employee is transferred from job A to job B within a department because of an impending layoff as to job A. Plaintiff's claim is based on a transfer from A to B causing lost overtime wages due to the greater amount of work available at A.\"}"
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+"{\"id\": \"5460050\", \"name\": \"National Plumbing & Heating Supply Company, Appellant, v. B. Stevenson, Appellee\", \"name_abbreviation\": \"National Plumbing & Heating Supply Co. v. Stevenson\", \"decision_date\": \"1918-12-31\", \"docket_number\": \"Gen. No. 24,089\", \"first_page\": \"49\", \"last_page\": \"55\", \"citations\": \"213 Ill. App. 49\", \"volume\": \"213\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T00:12:50.819934+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"National Plumbing & Heating Supply Company, Appellant, v. B. Stevenson, Appellee.\", \"head_matter\": \"National Plumbing & Heating Supply Company, Appellant, v. B. Stevenson, Appellee.\\nGen. No. 24,089.\\n1. Bills and notes, \\u00a7 279 \\u2014when cheek should be presented for payment. Where the bank on which a check Is drawn and all of the parties interested reside in the same city, it is the holder\\u2019s duty to present it for payment on the day it is received, or, at the furthest, on the next day.\\n2: Bills and notes, \\u00a7 279 \\u2014when cheek not presented for payment in reasonable time. The holder of a note does not present it for payment in a reasonable time, where, 2 days after it comes into his possession, he deposits it by mail in a bank in a distant part of the city and not in a bank in the same general neighborhood as the drawee, in both of which he regularly keeps accounts.\\n3. Bills and notes, \\u00a7 283 \\u2014when drawer not discharged for want of due presentment. The want of due presentment of a check does not discharge the drawer unless he suffered some loss or injury thereby, and then only pro tanto.\\n4. Bills and notes, \\u00a7 406 \\u2014who has burden to show no injury from delay in presentment of cheek. The burden is on the holder of a check who has not duly presented it to show that his delay did not result in loss or injury to the drawer.\\nTaylor, X, dissenting.\\nAppeal from the Municipal Court of Chicago; the Hon. Samuel H. Trtjde, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.\\nAffirmed.\\nOpinion filed December 31, 1918.\\nRehearing denied January 15, 1919.\\nMorris Frisch, for appellant.\\nNo appearance for appellee.\\nSee Illinois Notes Digest, Vols. XI to XY, an4 Cumulative Quarterly, same topic and section number.\", \"word_count\": \"2190\", \"char_count\": \"11964\", \"text\": \"Mr. Justice Thomson\\ndelivered the opinion of the court.\\nThis was an action brought by the appellant, hereinafter referred to as the plaintiff, against appellee, hereinafter referred to as the defendant, to recover the amount of an unpaid check which it had received from the defendant in part payment of an account. There was a hearing before the court without a jury, resulting in a finding of the issues for the defendant. Judgment was entered against the plaintiff for costs, from which it has appealed. The check in question was for the sum of $761.57.\\nThe defendant's place of business is at 79th and Morgan streets, in the City of Chicago, while that of the plaintiff is at 61st and State streets. A. collector or salesman, employed by the plaintiff, called on the defendant at his place of business between the hours of 8 and 9 o'clock in the morning on May 21, 1917, and received the check in question. He then went on about his business, apparently visiting other places throughout the day and on the following morning, May 22nd, he delivered the check to the plaintiff's cashier. The plaintiff maintained accounts in two banks, one being the Citizens' Trust & Savings Bank, located at 55th and State streets, a few blocks away from the plaintiff's place of business, and the other the Lake View State Bank, located on the opposite side of the city, 10 or 15 miles away from the plaintiff's place of business. It was the habit of the plaintiff to make deposits in one or the other of these banks depending upon their anticipated needs. On the evening of May 22nd, the plaintiff's cashier made up a deposit of a number of checks, including the one in question, and sent it by mail to the Lake View State Bank. The latter bank upon receipt of this check (the record does not show just when) sent it to the First National Bank of Englewood, through which it cleared. However, the check was never put through the clearing house, but the First National Bank of Englewood sent the check by its messenger to the bank on which it was drawn, the Auburn State Bank. The check was not paid, as the Auburn State Bank had closed its doors and ceased doing business before the check was presented. The check was returned to the plaintiff on May 25th. The Auburn State Bank was located at 79th and Halsted streets.\\nIt is further shown by the evidence and by the agreed statement of facts, submitted to the trial court, that on May 21st and 22nd the defendant had more than $1,200 on deposit in the Auburn State Bank, and further that this bank honored all checks presented to it on May 21st and also on May 22nd up to 5 o'clock on the afternoon of that day, when its doors were closed and its business ceased.\\nThe trial court ruled that under the evidence the plaintiff was shown to have failed to present the check within a reasonable time and that had it done so the check would have been paid and that therefore the loss was the plaintiff's and it could not recover.\\nIn contending that the court was in error and that the judgment should be reversed, the plaintiff urges that, upon receipt of the check, it proceeded to collect it in the customary manner by depositing it in its bank, and second, that even if its presentment of the check be held insufficient under the law, the defendant should not be relieved of liability as the drawer of the check, unless he is shown to have suffered some loss or injury thereby, and that no such loss or injury is shown by the evidence. The defendant has not filed an appearance nor presented a brief in this court.\\nThe Negotiable Instruments Act (Rev. St. Ill. ch. 98, sec. 185, J. & A. \\u00b6 7825) provides that: \\\"A check must be presented for payment within a reasonable time after its issue, and notice of dishonor given to the drawer as provided for in the case of bills of exchange, or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay.\\\" As to what is a reasonable time for the presentment of a check, it has been held that where the bank on which the check is drawn, and all the parties interested reside in the same city, it is the duty of the holder of the check to present it to the bank for payment on the day the check is received or, at furthest, the next day. Brown v. Schintz, 202 Ill. 509-514.\\nThe plaintiff urges that this rule should not be held to apply in the case of a large city like Chicago, which is composed of widely separated portions which were separate towns before they came to be part of the City of Chicago by annexation. This argument, applied to the facts here involved, works against the plaintiff rather than in its favor. All parties in interest, including one of plaintiff's banks of deposit and the bank on which the check was drawn, were located in the same general part of or \\\"town\\\" in the City of Chicago, but instead of depositing this check in its bank located there, plaintiff sees fit to deposit it by mail in a bank located 10 or 15 miles away in a distant part of or \\\"town\\\" in the City of Chicago. We do not wish to be understood as saying that one engaged in business in a large city like Chicago is obliged, in complying with the requirements of the statute as to the presentment of a cheek for payment, to note the locality of the drawer of the check or the drawee bank and be governed by that fact in selecting Ms bank of deposit, but we do hold that the requirements of the statute have not been complied1 with under all the facts presented in.tMs case. The holder of a check cannot be considered to have presented it for payment to the drawee witMn a reasonable time, where, 2 days after coming into Ms possession, he deposits it by mail in a bank in a distant part of the city and not in a bank in the same general neighborhood as the drawee, in both of which he regularly keeps accounts.\\nOur Negotiable Instruments Statute also provides (Rev. St. Ill. ch. 98, sec. 192, J. & A. \\u00b6 7832) that \\\"in determining what is a 'reasonable time' or an 'unreasonable time,' regard is to be had to the nature of the instrument, the usage of trade or business (if any) with respect to such instruments, and the facts of the particular case.\\\" If the plaintiff had deposited the check in question in a local or central bank, in time for it to have passed through the clearing house on the 22nd, or been presented at the drawee bank for payment at any time within banking hours on that day, it might be considered that the requirements of the statute had been complied with. Northwestern Iron & Metal Co. v. National Bank of Illinois, 70 Ill. App. 245, 248. But in holding the check as long as it did and then putting it in course of presentment, in the circuitous route it did, notwithstanding it had an account in the same general part of the city as that in which the drawee bank was located, the plaintiff cannot be said to have presented the check for payment \\\"within a reasonable time after its issue,\\\" as required by section 185 as further defined by section 192 of our Negotiable Instruments Statute. First Nat. Bank of Chadwick v. Mackey, 157 Ill. App. 408.\\nThe rule laid down in Brown v. Schintz, supra, has been applied where the drawer or holder of the check resided in the country, some 2 miles from the town where the bank was located. McDonald v. Mosher, 23 Ill. App. 206.\\nPlaintiff has called our attention to the case of Sublette Exchange Bank v. Fitzgerald, 168 Ill. App. 240, where the court interpreted the requirement, that a check be forwarded directly to the bank upon which it is drawn, as not meaning that \\\"a check shall be sent in a direct line as a bird may fly, but by the usual commercial route.\\\" Under the facts in that case the check there in controversy was held to have been presented to the bank on which it was drawn, by the bank which cashed it, properly, and through the usual commercial channels. The bank which cashed the check was located in Lee county, Hlinois, nearly due west of Chicago, and the day the bank cashed the check it was forwarded to its correspondent, the Corn Exchange Bank of Chicago, and that bank immediately forwarded it to the Fort Worth National Bank of Fort Worth, Texas, and the latter immediately sent it to the First National Bank of Plainview, Texas, the bank on which it was drawn, where it was protested.\\nAs to the other point urged by the plaintiff, it may be said that the want of due presentment of a check does not discharge the drawer unless he has suffered some loss or injury thereby, and then only pro tanto. Heartt v. Rhodes, 66 Ill. 351; Industrial Bank of Chicago v. Bowes, 165 Ill. 70, 76. In contending that the defendant in the case at bar suffered no loss as a result of the delay in presenting the check in question, the plaintiff argues that the Auburn State Bank could not operate unless it had a capital stock of $200,000, and that the stockholders were liable in a further sum of $200,000 over and above the capital stock, and that the State auditor called for a report of the bank's resources and liabilities every 3 months, citing the statutory provisions on those matters, and it was further urged that with a strict supervision of the State auditor it could be safely assumed that at the very lowest the bank's creditors would get 25 per cent of their claims. All these matters are presumptions in which the court cannot indulge. There is no evidence whatever in the record concerning them. While it is true that in case of an unwarranted delay in the presentment of a check, resulting in its nonpayment, the drawer of the check will not be relieved unless he has suffered some loss or injury by reason of the delay in the presentment of the check, and then only to the extent of such loss or injury, it is also true that the holder of the check has the burden of proving that his delay in presenting it has not resulted in loss or injury on the part of the drawer. 2 Greenleaf on Evidence, sec. 195a; Story on Promissory Notes (7th Ed.), sec. 498; Stevens v. Park, 73 Ill. 387; Arnold v. Mangan, 89 Ill. App. 327; Little v. Phenix Bank, 2 Hill (N. Y.) 425, 428; Daniels v. Kyle, 1 Ga. 304, 306.\\nIn the case at bar the plaintiff, holder of the cheek, presented no evidence whatever on this subject.\\nFor the reasons stated, the judgment of the Municipal Court is affirmed.\\nAffirmed.\\nMr. Justice Taylor dissents.\"}"
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+"{\"id\": \"5482360\", \"name\": \"LEONARD W. GUZELL, Indiv. and d/b/a L. V. Travel Service et al., Plaintiff-Appellant, v. EDMUND OKONEK et al., Defendants-Appellees\", \"name_abbreviation\": \"Guzell v. Okonek\", \"decision_date\": \"1981-12-17\", \"docket_number\": \"No. 80-2527\", \"first_page\": \"965\", \"last_page\": \"967\", \"citations\": \"103 Ill. App. 3d 965\", \"volume\": \"103\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T17:43:56.743348+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LEONARD W. GUZELL, Indiv. and d/b/a L. V. Travel Service et al., Plaintiff-Appellant, v. EDMUND OKONEK et al., Defendants-Appellees.\", \"head_matter\": \"LEONARD W. GUZELL, Indiv. and d/b/a L. V. Travel Service et al., Plaintiff-Appellant, v. EDMUND OKONEK et al., Defendants-Appellees.\\nFirst District (4th Division)\\nNo. 80-2527\\nOpinion filed December 17, 1981.\\nModified on denial of rehearing February 11, 1982.\\nLeonard W. Guzell, of Chicago, for appellant, pro se.\\nPaul H. Strecker, of Hanson & Shire, of Chicago, for appellees.\", \"word_count\": \"698\", \"char_count\": \"4249\", \"text\": \"JUSTICE JOHNSON\\ndelivered the opinion of the court:\\nPlaintiff, Leonard Guzell, appeals the dismissal of his amended complaint against defendants, Edmund and Jeanine Okonek. The sole issue presented for review is whether the trial court erred when it granted defendants' motion to dismiss plaintiff's complaint for specific performance and refused to allow plaintiff to proceed on alternative counts seeking damages.\\nWe reverse.\\nOn November 1, 1979, Leonard Guzell and Edmund Okonek signed a real estate sales contract in which Guzell agreed to purchase and Okonek agreed to sell property located at 3063-69 North Milwaukee Avenue in Chicago. The property was held as a land trust by Beverly Bank. Guzell paid $5000 as earnest money. On November 9,1979, Okonek refused to perform the agreement. Guzell filed a complaint alleging breach of contract and praying for specific performance and damages. Okonek responded with a motion to dismiss, stating that the power to direct the trustee to convey title was vested in Edmund and Jeanine Okonek jointly, and that neither the trustee nor Jeanine had accepted plaintiff's offer to purchase and neither had signed the sales contract. Guzell amended the complaint to include Jeanine as a defendant. In counts I and II, Guzell prayed for specific performance of the contract, and in count III plaintiff asked for damages. Defendants moved to dismiss the amended complaint because Jeanine Okonek had not signed the contract. According to defendants, the Statute of Frauds precluded not only specific performance but damages as well. The trial court granted the motion to dismiss with'prejudice, and plaintiff appealed.\\nPlaintiff's only contention is that while the trial court properly dismissed his complaint for specific performance, it erred in not allowing him to proceed on the alternative count seeking damages.\\nPlaintiff's contention is correct. This is not a Statute of Frauds case as defendants allege. That act requires that a contract for the sale of real estate be in writing and signed by the party to be charged (Ill. Rev. Stat. 1979, ch. 59, par. 2). The writing must contain on its face or by reference to other writings the names of the buyer and seller, a description of the land, the price, terms and conditions of sale, and the signature of the party against whom the contract is to be enforced. (Crum v. Krol (1981), 99 Ill. App. 3d 651, 654, 425 N.E.2d 1081, 1084.) We hold that in the present case a valid contract existed which satisfied all these requirements as evidenced by the real estate sales contract. Okonek, the party to be charged, signed that contract. Therefore, the Statute of Frauds cannot be a defense. The only issue remaining is the amount of plaintiff's damages.\\nA case in point is Crum. In Crum, defendant seller argued that the contract for the sale of realty was unenforceable under the Statute of Frauds because it was not signed by his brothers, co-owners of the property. This court found that since the defendant was the party to be charged \\\"he cannot use his brothers' failure to approve and sign the documents as the basis for his Statute of Frauds defense.\\\" (99 Ill. App. 3d 651, 655.) This court noted that defendant could have made approval and signature of other title holders an express condition of the contract. It refused to read in an implied condition of the contract. (99 Ill. App. 3d 651, 656.) The real issue in Crum was whether the parties intended to create a binding contract. The court held that there was a binding contract and plaintiff was entitled to damages for defendant's breach. 99 Ill. App. 3d 651, 656.\\nFor the foregoing reasons, we reverse the decision of the circuit court of Cook County and remand the case to the trial court for further proceedings not inconsistent with the modified opinion.\\nReversed and remanded.\\nROMITI, and JIGANTI, JJ., concur.\"}"
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diff --git a/ill/5531774.json b/ill/5531774.json
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+"{\"id\": \"5531774\", \"name\": \"Anna Maria McElligott, appellee, v. William P. Begley and Sarah Begley, alias Sadie Begley, appellants\", \"name_abbreviation\": \"McElligott v. Begley\", \"decision_date\": \"1926-06-14\", \"docket_number\": \"Gen. No. 30,425\", \"first_page\": \"624\", \"last_page\": \"624\", \"citations\": \"242 Ill. App. 624\", \"volume\": \"242\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T22:53:30.600640+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Anna Maria McElligott, appellee, v. William P. Begley and Sarah Begley, alias Sadie Begley, appellants.\", \"head_matter\": \"Anna Maria McElligott, appellee, v. William P. Begley and Sarah Begley, alias Sadie Begley, appellants.\\nGen. No. 30,425.\\nOpinion filed June 14, 1926.\\nCharles N. Goodnow, for appellants; Goodnow, Barasa & Liss, of counsel; Leesman & Roemer, for appellee.\", \"word_count\": \"46\", \"char_count\": \"311\", \"text\": \"Mr. Justice Johnston\\ndelivered the opinion of the court.\"}"
\ No newline at end of file
diff --git a/ill/5549662.json b/ill/5549662.json
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--- /dev/null
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+"{\"id\": \"5549662\", \"name\": \"William M. Gunton v. Thomas Hughes et al.\", \"name_abbreviation\": \"Gunton v. Hughes\", \"decision_date\": \"1899-10-13\", \"docket_number\": \"\", \"first_page\": \"132\", \"last_page\": \"135\", \"citations\": \"181 Ill. 132\", \"volume\": \"181\", \"reporter\": \"Illinois Reports\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T18:52:39.736999+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William M. Gunton v. Thomas Hughes et al.\", \"head_matter\": \"William M. Gunton v. Thomas Hughes et al.\\nOpinion filed October 13, 1899.\\nPleading\\u2014in suits at law matters specially pleaded cannot be avoickd by amending the declaration. Matters in confession and avoidance of a special defense set up by plea should, in actions at law, be made by replication, and not by amendment to the declaration.\\nGunton v. Hughes, 79 Ill. App. 661, affirmed.\\nAppeal from the Branch Appellate Court for the First District;\\u2014heard in that court on appeal from the Circuit Court of Cook county; the Hon. Elbribge Hanecy, Judge, presiding.\\nC. Van Alen Smith, (James A. Fullenwiber, of counsel,) for appellant.\\nLevi Sprague, for appellees.\", \"word_count\": \"1284\", \"char_count\": \"7561\", \"text\": \"Mr. Justice Carter\\ndelivered the opinion of the court:\\nTo a secondly amended declaration in an action on the case for libel, filed by appellant, a general and special demurrer were sustained, and on appeal the Appellate Court affirmed the judgment rendered in bar of the plaintiff's action. Upon this his further appeal the appellant, who stood by his declaration below, insists that his pleading set forth a good cause of action, which was not barred, and that it was error to sustain the demurrer.\\nTo the original declaration the defendants had, in addition to other pleas, pleaded the Statute of Limitations, and the plaintiff then filed the amended declaration now under consideration, in which he, in alleging the libel complained of, set out two certain letters of the defendants, dated, respectively, February 27 and March 3,1894, written to certain lumber merchants in answer to their inquiries as to the financial standing and responsibility of the plaintiff and as to the probable correctness of any financial statement he should make, the first of which letters contained the following: \\\"On account of our former connections with the party named we are sorry you asked us such a leading question concerning him. But if a statement he has made is a sample of what he is making to you, then there is no reliance to be placed in them. In fact, that is his greatest trouble. Trust this is confidential.\\\" And the second contained the following: \\\"We will say we consider the statement radically wrong, as we do not consider him worth any such amount, yet we do not care to go into details.\\\" The plaintiff then alleged further that the defendants fraudulently concealed from the plaintiff the fact that they had written and sent said letters, (setting up the facts, and alleging- further injury to his business, trade and reputation on account of such concealment,) and alleged that because of such fraudulent concealment he did not discover that he had such cause of action until, to-wit, fifteen months after said letters were sent. The purpose of this allegation was to avoid the statute and to bring the parties within the twenty-second section of the \\\"Act in regard to limitations,\\\" which is as follows: \\\"If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not afterwards.\\\"\\nWe shall not in this case consider the two questions to which counsel have chiefly addressed themselves in argument, \\u2014that is, first, whether or not the writing complained of was libelous; and second, whether or not said section 22 applies to such actions. We are satisfied the demurrer was properly sustained to the declaration for another reason which should not be ignored, as it involves well defined distinctions between common law and equity pleading:\\nIn order to avoid the effect of the defendants' plea of the Statute of Limitations, which had been filed to the declaration before it was amended, the plaintiff, pursuing the rules governing equity pleading, amended his declaration and undertook to confess and avoid that branch of the defense. It has become the settled rule in equity in this State, that where it appears on the face of the bill that the cause of action is barred by laches or the Statute of Limitations, the defect may be reached by demurrer to the bill. (Board of Supervisors of Henry County v. Winnebago Swamp Drainage Co. 52 Ill. 454; Same v. Same, id. 299; Kerfoot v. Billings, 160 id. 563; Coryell v. Klehm, 157 id. 462.) Special replications are not now permissible in equity pleadings, and matters which might be specially pleaded in reply to the answer must be availed of by amendments to the bill. (Tarleton v. Vietes, 1 Gilm. 470; Rev. Stat. chap. 22, sec. 28.) When, therefore, the bill sets up the facts in avoidance of the statute or in excuse for the delay in filing the bill, it follows, as a reasonable rule, that their sufficiency may be tested by demurrer. But no such rule obtains in common law pleadings, where special replications are not only allowable but are necessary. No authority at the common law has been cited, and we know of none, which would sustain the method of pleading resorted to in this case. Such a rule prevails in several States under codes, but the practice in this State has always been as at common law, to reply specially -matters in confession and avoidance of special matters of defense set up by plea, and section 32 of the Practice act recognizes the propriety of such replications. In Chitty's PI. 496, it is said: \\\"It was always necessary to plead the Statute of Limitations specially.\\\" In 13 Ency. of PI. & Pr. 200, the author says: \\\"In actions at law, as contradistinguished from actions under the code, it has always been the established rule that if the defendant desires to avail himself of the Statute of Limitations as a bar to the demand in suit he must plead the defense. He cannot demur to the declaration, even where it appears on its face that the limitation prescribed by the statute has expired, for the principal reason that thereby the plaintiff would be deprived of the opportunity of replying that the case was within some of the exceptions to the statute, or any other matter which would prevent the bar from attaching.\\\"\\nSuch, of course, is the rule, and as the defendant can not, at law, raise the question by demurrer whether the action is barred or not, but must plead the statute if he wishes to avail himself of it, it follows, as a logical sequence, that the plaintiff cannot avail himself of matter in avoidance of the statute by pleading such matter in his declaration before the statute has been set up as a bar by plea. The declaration tendered a double issue, and also was framed in plain violation of established precedents and rules of common law pleading. The demurrer was both g'eneral and special, and was properly sustained. To overrule it here would unsettle rules of pleading long established, and introduce confusion and uncertainty where none now exist. The distinctions between common law and equity pleadings are well defined and well understood by the legal profession, and cannot be ignored. The equity cases cited by counsel show only the rule in equity\\u2014not the rule at law. As said in Wisconsin Central Railroad Co. v. Wieczorek, 151 Ill. 579: \\\"Deviations from well settled rules of proceeding are always of questionable expediency, and where indulged, because of some inconvenience or supposed hardship, have generally introduced confusion, and by becoming precedents have led to the perversion of an orderly and just administration of the law.\\\" The plaintiff elected to stand by his declaration rather than to amend.\\nThe judgment will be affirmed.\\nJudgment affirmed.\"}"
\ No newline at end of file
diff --git a/ill/5595259.json b/ill/5595259.json
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--- /dev/null
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+"{\"id\": \"5595259\", \"name\": \"In re ESTATE OF MARIE AHERN, a Disabled Person (Janna Dutton, Judgment Creditor-Appellant, v. The Marie Ahern Trust, Robert Ahern, Trustee, Judgment Debtor-Appellee)\", \"name_abbreviation\": \"Dutton v. Marie Ahern Trust\", \"decision_date\": \"2005-08-04\", \"docket_number\": \"No. 1\\u201404\\u20143325\", \"first_page\": \"805\", \"last_page\": \"813\", \"citations\": \"359 Ill. App. 3d 805\", \"volume\": \"359\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T21:27:01.261922+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re ESTATE OF MARIE AHERN, a Disabled Person (Janna Dutton, Judgment Creditor-Appellant, v. The Marie Ahern Trust, Robert Ahern, Trustee, Judgment Debtor-Appellee).\", \"head_matter\": \"In re ESTATE OF MARIE AHERN, a Disabled Person (Janna Dutton, Judgment Creditor-Appellant, v. The Marie Ahern Trust, Robert Ahern, Trustee, Judgment Debtor-Appellee).\\nFirst District (4th Division)\\nNo. 1\\u201404\\u20143325\\nOpinion filed August 4, 2005.\\nRehearing denied September 16, 2005.\\nModified opinion filed September 22, 2005.\\nGeorge J. Tagler, of Chicago, for appellant.\\nGino L. DiVito and Mark R. Bagley, both of Tabet, DiVito & Rothstein, L.L.C., of Chicago, for appellee.\", \"word_count\": \"3154\", \"char_count\": \"19327\", \"text\": \"JUSTICE GREIMAN\\ndelivered the opinion of the court:\\nAppellant Janna Dutton, counsel for the North Shore Senior Center, which has filed a guardianship petition on behalf of Marie Ahern (deceased), was awarded attorney fees payable by the Marie Ahern Trust (Trust) and sought enforcement of the judgment against the Trust and decedent's son, appellee Robert Ahern, Jr. (Robert), as trustee. During enforcement proceedings, the circuit court struck Robert's emergency motion for change of judge, finding that the court lacked subject matter jurisdiction on the grounds that the estate had already closed. The court denied Dutton's subsequent motion to reconsider, and she now appeals, contending that the circuit court erred and in fact retains subject matter jurisdiction for purposes of enforcing the judgment. For the reasons that follow, we reverse and remand for further proceedings.\\nIn April 2000, the North Shore Senior Center, in its capacity as an Elder Abuse Provider Agency and with Dutton as counsel, petitioned the circuit court to appoint a guardian ad litem for her. The Senior Center alleged that decedent suffered from advanced dementia and was therefore incapable of managing her affairs and making or communicating decisions regarding her care. The Senior Center also alleged that Robert was financially exploiting decedent and filed a petition to freeze her assets, so as to prohibit Robert from \\\"selling, gifting, transferring, or wasting\\\" decedent's assets without court approval.\\nRobert objected to the petition for guardianship, arguing that decedent's assets were \\\"being handled adequately\\\" and that decedent was \\\"excellently provided for and taken care of,\\\" with Robert assisting in the management of \\\"all of her personal and financial matters.\\\" He further argued that appointing a guardian other than himself or one of his associates would harm decedent's financial well-being and her physical and mental health. Robert also filed a motion to protect, contesting the Senior Center's allegations of abuse and seeking to stop the Senior Center from having an armed officer accompany the process server. He alleged that the motivation behind the officer's presence stemmed from the Senior Center's \\\"extreme hostility\\\" toward the Ahern family and the \\\"successor trustee of the Marie Ahern Trust.\\\" The circuit court denied the motion.\\nOn May 1, 2000, the circuit court appointed the Public Guardian as temporary guardian for the decedent's person and estate. The court granted the Public Guardian the authority to investigate any assets in which the decedent individually or jointly had an interest, including all assets held in trust. On June 21, 2000, the court appointed the Public Guardian plenary guardian of decedent's estate. Robert moved to vacate the appointment, arguing that improper service of process had been made and that the appointment adversely affected decedent's physical, mental, and emotional health. He also alleged that the Senior Center's petition to freeze decedent's assets had been the catalyst for a decline in her physical, mental, and emotional health. The circuit court denied the motion.\\nIn his motion to reconsider the appointment, Robert again argued that service of process had been improper and that he as decedent's son could make all medical decisions on her behalf. Regarding decedent's finances, Robert argued that \\\"since all of Marie Ahern's assets which have any substantial value were transferred to a trust\\\" prior to the commencement of guardianship proceedings, decedent had no need for a guardian to oversee her assets. He further alleged that the statement of income and expenses from the Trust would show that he had used the Trust, including its capital, to pay for decedent's care. Robert additionally asserted that \\\"with [decedent's] trust, Robert Ahern has the full legal authority to make any decisions which [decedent] cannot make for herself in every major area of her life.\\\" The court denied Robert's motion to reconsider the appointment.\\nOn September 11, 2000, the circuit court awarded $1,350 in attorney fees to counsel for Marie's guardian ad litem, Susan Kennedy. The fees were assessed against the \\\"ward's trust\\\" and the \\\"trustee\\\" was ordered to pay the specified amount. On October 19, 2000, the court awarded $8,029.55 in fees and costs to Dutton and against \\\"the active Trustee of the Marie Ahern Trust, currently Robert Ahern, Trustee.\\\" Robert filed a motion to reconsider the orders awarding fees, arguing that the Trust, and he as trustee, were never parties to the proceedings. He noted that he had used the designation \\\"Robert Ahern\\\" for all court filings and had never explicitly appeared in any capacity as trustee. The court denied the motion and entered a reduced award of $7,934.55 against the Trust in January 2001.\\nDecedent died on November 25, 2000.\\nEnforcement proceedings against Robert as trustee commenced in August 2001, when Dutton and Kennedy filed a petition for a rule to show cause for failure to pay the fees awarded against the Trust. The circuit court entered a rule to show cause against Robert and ordered him to appear on September 21, 2001. Robert objected and filed a motion to dismiss for lack of jurisdiction, but the circuit court struck the motion. Robert failed to appear and the court entered a body attachment for contempt. Robert again moved to dismiss for lack of jurisdiction, filed a response to Dutton and Kennedy's petition for rule to show cause, and moved to vacate the attachment order. The court denied the motions and Robert was taken into custody. He was later released on bond when his attorneys appeared on his behalf.\\nThe guardianship estate closed on October 21, 2001. Ten days later, Dutton and Kennedy filed another petition for a rule to show cause for Robert's failure to comply with the court's orders awarding fees. The same day, Robert appealed the orders awarding Dutton and Kennedy fees against the Trust. The appeal was dismissed without comment. The circuit court granted Dutton and Kennedy's petition and ordered Robert to appear on December 10, 2001, to show cause. He again failed to appear, and the circuit court entered a body attachment for failure to pay the awarded fees.\\nIn June 2002, Robert again appealed the orders awarding fees to Kennedy and Dutton. This court dismissed the appeal for lack of timeliness, as it was filed more than 30 days after the orders were entered, pursuant to Supreme Court Rule 303(a). 155 Ill. 2d R. 303(a).\\nIn September 2004, Dutton and Kennedy directed citations to discover the Trust's assets to Wendy's of New York, Suburban Bank and Trust Company, and Central Federal Savings & Loan, and ordered each entity to respond by October 4, 2004. On October 1, 2004, Robert filed an emergency motion for change of judge, alleging \\\"harming and harassing\\\" motives, \\\"hatred,\\\" and \\\"personal animus\\\" on the part of the judge presiding over the enforcement proceedings. The judge assigned to hear Robert's motion struck it, finding that, pursuant to the Illinois Supreme Court's holding in In re Estate of Gebis, 186 Ill. 2d 188 (1999), the circuit court had lost subject matter jurisdiction over the proceedings after decedent's estate closed in October 2001, and dismissed the matter. Dutton filed a motion to reconsider, which the judge denied.\\nDutton now appeals, contending that the circuit court retains jurisdiction to enforce its own judgment of attorney fees regardless of the closing of decedent's estate and the attendant guardianship proceedings. Robert counters that the circuit court's finding of lack of subject matter jurisdiction was not in error and in addition argues that the court's award of fees was void ab initio, as the circuit court never obtained personal jurisdiction over the Trust or Robert as trustee.\\nWe deal first with the issue of the trial court's finding that it had lost subject matter jurisdiction over the enforcement proceedings when the estate closed. We review the issue of a circuit court's subject matter jurisdiction over a given set of proceedings de novo. In re Marriage of Chrobak, 349 Ill. App. 3d 894, 897 (2004).\\nSubject matter jurisdiction permits a court to hear issues being litigated and to provide requested relief. Gebis, 186 Ill. 2d at 192. If a court attempts to hear issues or to provide relief beyond its jurisdiction, its orders are void and subject to attack at any time. Gebis, 186 Ill. 2d at 193; In re Estate of Steinfeld, 158 Ill. 2d 1, 12 (1994). However, once a court has jurisdiction over both the parties and the subject matter, a court has \\\"inherent power to enforce its orders by way of contempt\\\" so long as the underlying orders are not void. Steinfeld, 158 Ill. 2d at 19. This fundamental premise of procedural law applies to probate proceedings to the same extent that it does to nonprobate proceedings. In re Estate of Hall, 234 Ill. App. 3d 780, 786 (1992); In re Estate of Stith, 105 Ill. App. 2d 429, 435-36 (1969).\\nIn guardianship proceedings, generally, both the guardianship and the trial court's jurisdiction to supervise the ward's estate necessarily terminate upon the death of the ward. 755 ILCS 5/24 \\u2014 12 (West 2002); Gebis, 186 Ill. 2d at 193. However, the Illinois Supreme Court has upheld orders awarding attorney fees entered prior to and even after an estate has closed, at least with regard to fees owed to a guardian ad litem. In re Estate of Wellman, 174 Ill. 2d 335, 352 (1996).\\nIn Gebis, the Illinois Supreme Court held that claims against a guardianship estate with a deceased ward are impermissible, as there can be no guardianship estate without a living ward. Gebis, 186 Ill. 2d at 193-94. In that case, the son of the decedent filed a claim against the guardianship estate, seeking compensation for years of personal care provided to the decedent. While the case had been appealed on other grounds, the supreme court sua sponte raised the issue of whether the circuit court possessed subject matter jurisdiction over the son's claim. Gebis, 186 Ill. 2d at 192. The court vacated the trial court's dismissal of the son's claim, holding that the trial court lacked subject matter jurisdiction to adjudicate it. The court reasoned that, pursuant to the rule that the guardianship estate and the trial court's jurisdiction over it terminate upon the death of the ward, a decedent's estate does not have a living ward who would require a guardian, and any subsequent claims against the guardianship estate would therefore be improper. Gebis, 186 Ill. 2d at 195. The supreme court concluded that a representative of the deceased ward's guardianship estate is confined to preserving the estate \\\"until an executor or administrator is appointed,\\\" thus barring the guardian from paying claims against the deceased ward's estate. Gebis, 186 Ill. 2d at 193-94.\\nWe find that the circumstances of the present case are distinguishable from those presented in Gebis. Gebis dealt with a compensatory claim against a deceased ward's guardianship estate, while the case at bar involves attorney fees awarded prior to the ward's death, against a party other than the ward's estate. Specifically, the fees awarded to Dutton were assessed against a separate legal entity \\u2014 the Trust, with Robert as trustee. Because the Trust did not terminate upon decedent's death or the closing of her guardianship estate, the reasoning applied in Gebis does not apply in this instance. Furthermore, the circuit court entered the first order awarding fees to Dutton prior to decedent's death and entered an amended award afterward. While the trial court's jurisdiction over decedent's guardianship estate indeed terminated upon her death, the present matter involves the enforce ment and modification of a valid order issued prior to her death and binding on a party other than the estate. Accordingly, we find the holding of Gebis inapplicable.\\nThe supreme court's holding in Wellman is more relevant here. In that case, the trial court granted the guardian ad litem's petition for fees to be paid from the funds of the decedent, who had been a ward of a guardianship estate, was later restored to competency, and died months before the guardian filed her petition. Wellman, 174 Ill. 2d at 343. On appeal, the supreme court ruled that a guardianship estate terminates upon the ward's death, but upheld the award of fees, finding that the guardian ad litem had been \\\"properly awarded fees from the assets that she was appointed to protect,\\\" and that the trial court had acted within its discretion in accordance with the Probate Act. Wellman, 174 Ill. 2d at 352-53; 755 ILCS 5/27 \\u2014 4 (West 2002). The court concluded that the validity of an order awarding fees for services rendered to an estate is not affected by the ward's death. Wellman, 174 Ill. 2d at 353-54.\\nIn this case, the ward was still alive and the guardianship estate was still open at the time the trial court initially awarded fees to Dutton. At the time the circuit court struck Robert's motion and dismissed for lack of subject matter jurisdiction, Dutton had commenced enforcement proceedings against the Trust with Robert as trustee. Moreover, under Wellman, decedent's death and the closing of her estate do not bar Dutton from collecting a portion of the assets she helped to protect. Therefore, the trial court had subject matter jurisdiction over the enforcement proceedings, as the order Dutton sought to enforce had been entered prior to decedent's death and the closing of her estate, and was valid regardless of the time it was issued, pursuant to Wellman.\\nAccordingly, we find that the circuit court's order striking Robert's motion and dismissing for lack of subject matter jurisdiction was in error, and we therefore vacate that order and reverse.\\nIn addition to his argument that the circuit court was correct in finding that it lacked subject matter jurisdiction over the enforcement proceedings, Robert contends in his appellate brief that the court's order awarding fees to Dutton was void in that the court lacked personal jurisdiction over the Trust and over Robert as trustee.\\nIn addition to subject matter jurisdiction, a court must also have jurisdiction over the parties. \\\"Personal jurisdiction is acquired either by service of summons or by general appearance, and it is derived from actions of the person sought to be bound.\\\" In re Marriage of Gorman, 284 Ill. App. 3d 171, 178 (1996). Here, both parties concede that no service of process was ever made on the Trust or on Robert in his capacity as trustee prior to the order awarding fees, and therefore we only need analyze whether the Trust, with Robert as trustee, entered a general appearance. A general appearance waives the service of process requirement, as the purpose of service of process is to notify the party sought to he bound of the case, and a general appearance is recognition of the case's existence by that party. Gorman, 284 Ill. App. 3d at 178-79. Under the Code of Civil Procedure, any motion or pleading by a party that contains either allegations, defenses, or both serves as a waiver to any objection to personal jurisdiction, thereby submitting that party to the jurisdiction of the court. 735 ILCS 5/2 \\u2014 301(a) (West 2002).\\nA fundamental rule regarding personal jurisdiction and general appearance is that, unless a party makes a special appearance to object to a court's jurisdiction prior to filing any pleading or motion, any objection to personal jurisdiction is considered waived. 735 ILCS 5/2\\u2014 301(a) (West 2002). A party may enter a special appearance in order to challenge the court's jurisdiction over his or her person. In re Marriage of Stafeil, 169 Ill. App. 3d 630, 633 (1988). However, even where a party enters a special appearance, any subsequent general appearance waives any objection to jurisdiction. In re Marriage of Snider, 305 Ill. App. 3d 697, 699 (1999). A party cannot \\\"invite the court to exercise its jurisdiction over him while he simultaneously denies that the court has such jurisdiction.\\\" Poplar Grove State Bank v. Powers, 218 Ill. App. 3d 509, 515 (1991). Even where a court errs in ruling against a party in this matter, the party's participation in the case waives any objection to personal jurisdiction. Goldberg v. Goldberg, 27 Ill. App. 3d 94, 96 (1975).\\nIn his various objections and motions prior to the order awarding fees to Dutton, Robert was rarely, if ever, specific in stating the capacities in which he intended to appear and make the aforementioned filings. He mainly referred to himself only as \\\"respondent\\\" in court papers and never explicitly stated whether he was appearing on behalf of the Trust, as trustee, or in his own individual capacity. However, we find that some of the arguments Robert made in objecting to the petition for guardianship and in contesting the award of fees to Dutton indicate that he did in fact appear on behalf of the Trust and thus subjected it to the trial court's personal jurisdiction.\\nIn contesting the appointment of a guardian, Robert alleged that he had been assisting decedent in managing her finances and later that all of decedent's assets had been transferred to the Trust. He also argued that the Trust could not be challenged over its administration of decedent's assets, that he \\\"had full legal authority to make any decisions\\\" on behalf of decedent, and that he could use the Trust and its capital to pay for decedent's care. Moreover, he alleged that the Senior Center's motivation in filing its petition and serving process with the assistance of an armed officer was its extreme hostility toward the \\\"successor trustee\\\" of the Trust. Such allegations of control over the Trust and the presentation of arguments on its behalf strongly indicate that Robert did indeed appear and plead on behalf of the Trust, with himself as trustee. Robert also filed several motions during the enforcement proceedings contesting the propriety of the trial court's orders rather than its authority to issue them.\\nWe note that Robert did indeed file several objections to the trial court's personal jurisdiction, but only after his initial appearance, and he did so while simultaneously contesting the merits of the petition for guardianship and the award of fees to Dutton. Accordingly, we conclude that, by entering pleadings on behalf of the Trust and otherwise participating in the proceedings below in a capacity that indicated at least some control over it, Robert waived any objection and submitted the Trust, with himself as trustee, to the circuit court's personal jurisdiction.\\nFor the foregoing reasons, we vacate the circuit court's order striking Robert's motion for change of judge and dismissing for lack of subject matter jurisdiction, and remand for further enforcement proceedings.\\nReversed and remanded.\\nQUINN, EJ., and THEIS, J., concur.\"}"
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+"{\"id\": \"5632773\", \"name\": \"Pennsylvania Tank Line, Appellee, v. Larkin F. Jordan et al., Defendants. Joseph H. McCabe, Appellant\", \"name_abbreviation\": \"Pennsylvania Tank Line v. Jordan\", \"decision_date\": \"1931-03-02\", \"docket_number\": \"Gen. No. 34,850\", \"first_page\": \"397\", \"last_page\": \"404\", \"citations\": \"260 Ill. App. 397\", \"volume\": \"260\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T21:29:41.476337+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Pennsylvania Tank Line, Appellee, v. Larkin F. Jordan et al., Defendants. Joseph H. McCabe, Appellant.\", \"head_matter\": \"Pennsylvania Tank Line, Appellee, v. Larkin F. Jordan et al., Defendants. Joseph H. McCabe, Appellant.\\nGen. No. 34,850.\\nHeard in the first division of tMs court for the first district at the June term, 1929.\\nOpinion filed March 2, 1931.\\nRehearing denied March 16, 1931.\\nFrank H. Repetto, for appellant.\\nMiller, Gorham & Wales, for appellee.,\", \"word_count\": \"1966\", \"char_count\": \"11456\", \"text\": \"Mr. Presiding Justice Matchett\\ndelivered the opinion of the court.\\nThis cause is one of five which were transferred to this court by the Supreme Court. In each case the defendant was adjudged guilty of contempt by the trial court and several appeals were taken to the Supreme Court and there consolidated for hearing. These appeals were prayed and allowed to the Supreme Court upon the theory that constitutional questions were involved. That court held to the contrary. Pennsylvania Tank Line v. Jordan, 341 Ill. 94. The same briefs are presented to this court that were filed in the Supreme Court, and the opinion of that court seems to dispose of practically every alleged error assigned and argued. The facts are fully stated in that opinion, and it will be unnecessary to repeat them here further than to say that on July 25, 1928, complainant filed its bill in chancery against defendants, asserting that it was engaged in the business of leasing tank cars owned by it and that complainant was a subsidiary of the American Republics Corporation; that for a period of time subsequent to June 4, 1918, defendant Jordan had exclusive direction and control of the operations of complainant's tank line, especially of its leases of tank cars; that about June 26, 1919, Jordan and certain other defendants entered into a conspiracy to obtain the profits of complainant by means of renting its cars to a fictitious lessee, and that to that end defendants organized the Woodlawn Company and used it as a dummy, thereby appropriating profits of complainant to the amount of $256,450. The bill prayed an accounting and that defendants might be decreed to hold this property obtained by them in trust.\\nOn the same day the bill was filed a subpoena was issued by a master in chancery notifying defendants to appear before him and give their testimony in the case. They declined to appear except to assert that the master was without power or right to take their testimony. The master reported the facts to the court, and on petition of complainant defendants were ordered to appear before the master and give their testimony. Again they refused, denying the power or authority of the master under the order, whereupon on further report of the facts by the master and on petition of complainant, a rule was entered upon defendants to show cause why they should not be attached and punished for contempt of court. Defendants filed their joint and several answer to the rule. The answer was adjudged insufficient. Thereupon each and all of the defendants were found guilty, and it was adjudged that each of them stand committed to jail until such time as he should appear and testify as directed or until he should be otherwise discharged from imprisonment by due process of law.\\n. The Supreme Court.having disposed of all constitutional questions, it remains for this court only to consider other errors assigned and argued. The contention of defendant McCabe seems to be that since defendants filed their several sworn answer in response to the rule to show cause, such answer must be taken as true, and that.it is sufficient to purge the defendants of contempt. He cites in support of this contention People v. McLaughlin, 334 Ill. 354, which' was a case for criminal contempt, and that is undoubtedly the rule to be applied in such cases. It is not applicable here, as will appear from an examination of a case relied on by defendant on another point. Lester v. People, 150 Ill. 408. This is a civil contempt.\\nIt is contended in the next place that the bill of complaint stated a case at. law rather than in equity., and that the statute under which the proceeding to compel defendants to testify was brought was not applicable and the court was therefore without jurisdiction. Defendants did not demur to the bill on that ground but answered, saving the point in their answer. Further, defendant McCabe filed a cross-bill stating a cause in equity and praying for affirmative relief. Again, it is not argued that the relief prayed for by complainant in its bill could be given as fully and completely at law as in equity. Courts of chancery and law sometimes have concurrent jurisdiction, and in such case complainant may elect in which court he will proceed. Yet again, the bill alleges a fiduciary relationship on the part of some of the defendants, charges a general conspiracy by all of them to defraud and prays that defendants may be decreed to be trustees and that an account may be taken and general relief may be had. The suit was prima facie in chancery, and under the facts stated that court had jurisdiction. Ohlendorf v. Bennett, 241 Ill. App. 537; Billboard Pub. Co. v. McCarahan, 151 Ill. App. 227; Crown Coal & Tow Co. v. Thomas, 177 Ill. 534.\\nIt is next urged that the subpoena of the master was issued before the bill was filed and that it was void for that reason. The bill was filed July 25, 1928, at 2:18 p. m., and the subpoena was placed in the sheriff's hands ten minutes later. These facts are hardly sufficient to establish that defense, but however that may be, defendants appeared before the master and stated their reasons in writing for refusing to testify. They did not state any objection upon the ground that the subpoena was prematurely issued, and that point must therefore be regarded as waived. Miles v. Goodwin, 35 Ill. 53; Beecher v. James, 2 Scammon, 462.\\nAgain, it is urged that whereas the certificate of the master was made August 10,1928, it was not filed until September 27 thereafter, and that the master did not appear in person to request that the rule to show cause might be entered. There was no reason for the personal appearance by the master in that regard. Such action on his part would have been unusual and perhaps subject to criticism. Moreover, the delay of which defendant complains was not in our opinion unreasonable in view of the fact that it occurred during the summer vacation, at which time only emergency matters might be properly presented to the court. Defendant cites no authority on this point. We think none could be found.\\nBut again assuming that the suit was pending in chancery, defendant contends that there was no necessity shown for taking defendant's depositions, and it is urged that this is required by section 24 of the Evidence Act, Cahill's St. eh. 51, ft 24. It is said that no necessity was averred in the bill; that the bill propounded no interrogatories and prayed no discovery; that neither in the bill nor in any affidavit attached thereto was there any attempt to show that which defendant contends was a prerequisite essential, namely, a necessity. It is further urged that the recitation in subsequent petitions of such alleged necessity could not cure that defect, and on this point defendant relies on People v. Miller, 245 Ill. App. 524. In that case it appeared that on June 22, 1926, Paul Miller and other defendants were found guilty of contempt for refusing to appear and testify before a master, and defendants were ordered committed to jail until such time as they might comply. The order directing them to testify was entered May 26, 1926, and the cause in which they were ordered to testify was begun January 12, 1921. In February thereafter the cause was referred to a master to take proofs and report his conclusions. These defendants had appeared before that master and testified at length. A second amended supplemental bill was filed March 23, 1926, and on April 6, 1926, Miller and others filed a joint and several answer. It was while the cause was thus pending that complainants caused subpoenas to be served requiring defendants to appear before a different master to give their depositions, but defendants did not appear. On May 26, an order was entered that they appear before this second master on June 3,1926. Again they did not appear, and on June 5th a rule was entered to show cause.\\nOn June 10, they answered alleging that they had testified fully before the other master; that an examination in that case had not been completed, but that 65 separate hearings had been held; that they all resided in Chicago, and that none of them intended to depart from the jurisdiction, but that they were ready and willing to testify before the master to whom the cause was referred; that the further taking of evidence in that cause had been set for June 18,1926. Miller having appealed to this court, the appeal was considered by the Second division upon an ex parte hearing, as complainants did not appear or file any briefs. The court said in substance that under section 24 only such testimony should be taken by deposition as was \\\"necessary\\\"; that nowhere in the petitions of complainants nor by any facts stated or disclosed did it appear that it was necessary to take the testimony of defendants before the second master, or that the testimony sought was pertinent to the issues; that it clearly appeared that any proper testimony sought to be procured by complainants in the proceeding to take depositions could have been readily procured by the master to whom the cause was originally referred. The court further stated that it did not think that the decision in Hill v. Thomas B. Jeffery Co., 292 Ill. 490, was contrary to these holdings.\\nThe facts which we have already recited disclose ,/ that that case is easily distinguishable from the instant one. Moreover, complainants in that case did not appear in the Appellate Court or file any briefs. The case was therefore heard ex parte. The briefs did not point out nor the opinion consider a point which would appear to be controlling, namely, that there is a clear distinction between an order which is absolutely void and one that is merely voidable or erroneous. The essential difference is that an order which is merely voidable or erroneous is not subject to collateral attack, while an order absolutely void for' want of jurisdiction in a court which enters it is subject to attack at any place or time thereafter. Here, the orders of the court may or may not have been erroneous. Assuming that they were erroneous, nevertheless the court was not wholly without jurisdiction either of the subject matter or of defendants. Defendant thereafter could not successfully raise the question that the original order was erroneous in response to the rule to show cause. It has been so held in numerous decisions of this and the Supreme Court. Butter v. Champlin, 124 Ill. App. 29; People v. Weigley, 155 Ill. 491; Leopold v. People, 140 Ill. 552; Swedish-American Tel. Co. v. Fidelity & Casualty Co., 208 Ill. 562. The distinction between void and voidable orders is thoroughly discussed in Miller v. Rowan, 251 Ill. 344.\\nIt is well settled, contrary to the contention of defendant, that a defendant may be compelled to give his deposition before trial. Doyle v. Wiley, 15 Ill. 576; Harding v. American Glucose Co., 182 Ill. 551; Schmidt v. Cooper, 195 Ill. App. 531, affirmed in 274 Ill. 243.\\nThere is no reversible error in this record and the judgment of the trial court will therefore be affirmed.\\nAffirmed.\\nO'Connor and McSurely, JJ., concur.\"}"
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+"{\"id\": \"5705941\", \"name\": \"LINDA CASE et al., Appellants, v. GALESBURG COTTAGE HOSPITAL, an Illinois Not-For-Profit Corporation, et al., Appellees\", \"name_abbreviation\": \"Case v. Galesburg Cottage Hospital\", \"decision_date\": \"2007-12-13\", \"docket_number\": \"No. 103879\", \"first_page\": \"207\", \"last_page\": \"222\", \"citations\": \"227 Ill. 2d 207\", \"volume\": \"227\", \"reporter\": \"Illinois Reports, Second Series\", \"court\": \"Illinois Supreme Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-11T00:32:23.013484+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"LINDA CASE et al., Appellants, v. GALESBURG COTTAGE HOSPITAL, an Illinois Not-For-Profit Corporation, et al., Appellees.\", \"head_matter\": \"(No. 103879.\\nLINDA CASE et al., Appellants, v. GALESBURG COTTAGE HOSPITAL, an Illinois Not-For-Profit Corporation, et al., Appellees.\\nOpinion filed December 13, 2007.\\nBryan A. Drew and John D. Drew, of Benton, for appellants.\\nKaren L. Kendall and Roger R. Clayton, of Heyl, Royster, Voelker & Allen, of Peoria, for appellees Gales-burg Cottage Hospital et al.\\nHinshaw & Culbertson LLL of Chicago (Stephen R. Swofford, Paul C. Estes and James P. LeFante, of counsel), for appellees Galesburg Orthopedic Services, Ltd., et al.\", \"word_count\": \"4829\", \"char_count\": \"28672\", \"text\": \"JUSTICE BURKE\\ndelivered the judgment of the court, with opinion.\\nChief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride, Garman, and Karmeier concurred in the judgment and opinion.\\nOPINION\\nAt issue in this case is whether a circuit court should include the time that elapses between a voluntary dismissal of a complaint pursuant to section 2 \\u2014 1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \\u2014 1009 (West 2006)) and its refiling under section 13 \\u2014 217 of the Code (735 ILCS 5/13 \\u2014 217 (West 1994)) when ruling on a motion to dismiss a case for violating Supreme Court Rule 103(b) (177 Ill. 2d R. 103(b)).\\nIn the instant case, plaintiffs filed their complaint, then voluntarily dismissed it 25 days later, before any defendant was served. Approximately 11 months later, plaintiffs refiled their complaint and served defendants with process within 14 days of refiling. The circuit court of Knox County dismissed plaintiffs' complaint pursuant to Rule 103(b), finding that the passage of over 12 months between the date of the original filing and the ultimate date of service, as well as additional factors, established a lack of diligence on the part of plaintiffs. The appellate court affirmed. No. 3 \\u2014 05\\u20140474 (unpublished order under Supreme Court Rule 23). For the reasons that follow, we reverse the judgments of the circuit court and the appellate court, and remand the cause to the circuit court.\\nBACKGROUND\\nOn April 25, 2003, Linda and her husband, Art, filed a complaint against defendants Dr. Myron Stachniw, Galesburg Cottage Hospital (Galesburg), Cottage Health Care Systems (Cottage Health), Galesburg Orthopedic Services, Ltd. (Orthopedic), Cottage Home Options L.L.C. (Cottage Home) and In-Home Medical Supplies and Service, Inc. (In-Home). The complaint alleged that defendants were negligent on May 1, 2001, May 6, 2001, and May 14, 2001. The complaint did not have an attached medical report, as required by section 2 \\u2014 622(a) of the Code (735 ILCS 5/2 \\u2014 622(a) (West 2006)). Instead, plaintiffs' counsel attached an attorney's affidavit requesting 90 days to file a report, as is allowed by section 2 \\u2014 622(a)(2) of the Code (735 ILCS 5/2 \\u2014 622(a)(2) (West 2006)). Upon filing their complaint, plaintiffs instructed the clerk not to issue a summons. No summons was issued on any defendant.\\nOn May 20, 2003, plaintiffs voluntarily dismissed their suit pursuant to section 2 \\u2014 1009 of the Code (735 ILCS 5/2 \\u2014 1009 (West 2006)). Section 2 \\u2014 1009(a) provides: \\\"The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party's attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause.\\\" 735 ILCS 5/2 \\u2014 1009(a) (West 2006).\\nOn April 12, 2004, plaintiffs refiled their complaint under section 13 \\u2014 217 of the Code, which provides:\\n\\\"In * any * act or contract where the time for commencing an action is limited, if * the action is voluntarily dismissed by the plaintiff, * then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff, his or her heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, * after the action is voluntarily dismissed by the plaintiff *.\\\" 735 ILCS 5/13 \\u2014 217 (West 1994).\\nPlaintiffs' refiled complaint alleged the same dates of negligence by the same defendants as set forth in the first complaint, with the addition of a charge of negligence against Cottage Health on June 13, 2001. The required medical report was attached to the complaint. Process was served on Orthopedic on April 20, 2004, and on all other defendants on April 26, 2004.\\nOn May 21, 2004, after receiving the refiled complaint, defendants filed motions to dismiss, arguing that the two years allowed by section 13 \\u2014 212 of the Code (735 ILCS 5/13 \\u2014 212 (West 2004)) for filing claims of medical malpractice had passed since the last alleged date of negligence in the complaint they received. Defendants then filed an answer to the complaint.\\nOn August 2, 2004, plaintiffs responded to defen dants' motion to dismiss by stating that they did not violate the statute of limitations because their original complaint was filed on April 25, 2003, which was less than two years after the alleged dates of negligence in May 2001. Plaintiffs further alleged in their response to defendants' motion to dismiss that they filed their new complaint on April 12, 2004, within one year of the voluntary dismissal.\\nWhen defendants learned that plaintiffs had previously filed and voluntarily dismissed the case, and purposely withheld issuing a summons, they filed a motion to withdraw their answer to the complaint. Defendants then filed a motion to dismiss the complaint for lack of reasonable diligence in serving process in violation of Illinois Supreme Court Rule 103(b), which provides:\\n\\\"If the plaintiff fails to exercise reasonable diligence to obtain service on a defendant, the action as to that defendant may be dismissed without prejudice, with the right to refile if the statute of limitation has not run. The dismissal may be made on the application of any defendant or on the court's own motion.\\\" 177 Ill. 2d R. 103(b).\\nAfter a hearing on February 22, 2005, the circuit court held that plaintiffs had violated Rule 103(b) and dismissed the case with prejudice. The circuit court explained its decision in a letter opinion, in which it held that all of the factors it had to consider weighed in favor of defendants. The court held,\\n\\\"The length of time used in serving the defendants was a few days short of one year after filing. The plaintiffs voluntarily dismissed the case within a month of filing it, and requested that the clerk hold summons. The defendants are all health care providers in Galesburg, and their locations are readily ascertainable. The defendants had no actual knowledge of the complaint as evidenced by the fact that they filed a Motion to Withdraw their answers after learning of the previous complaint. The plaintiffs did not advance any special circumstances affecting their actions. Finally, the defendants were all served within a few days of the complaint's being filed.\\\"\\nThe court also held,\\n\\\"[I]n Lewis v. Dillon, 352 Ill. App. 3d 512 (1st Dist. 2004), the First District, in dicta, warned against the exact circumstances of this case when it said, '...under plaintiff's reasoning, a party would be permitted to file a lawsuit naming a defendant, not issue summons to that defendant advising him or her of the claim, and then, at some later date, dismiss the defendant due to the inability to obtain a section 2 \\u2014 622 report. To follow this reasoning of \\\"what they don't know won't hurt them\\\" would deny defendants the right to know that they have been named in a lawsuit, not to mention denying them the protections of Rule 103(b).' This is precisely what happened in the case sub judice.\\\"\\nThe appellate court affirmed the circuit court, with one justice dissenting. In his dissent, Justice Lytton stated that the decisions of the circuit court and the majority ignored plaintiffs statutory right to refile their suit under section 13 \\u2014 217 of the Code of Civil Procedure. The dissent stated, \\\"In order to accomplish the purpose of both Supreme Court Rule 103(b) and section 13 \\u2014 217 of the Code, courts must consider a plaintiffs diligence prior to dismissal and after refiling but not the period in between when no complaint exists.\\\" Counting only the days that passed while the complaints were \\\"on file,\\\" the dissent found that defendant went unserved for only 39 days. The dissent found that \\\"such a short period of time does not demonstrate a lack of diligence.\\\" We granted plaintiffs petition for leave to appeal. 210 Ill. 2d R. 315.\\nANALYSIS\\nThe issue before us is whether the circuit court erred when it granted defendants' motion to dismiss plaintiffs' complaint based on violation of Supreme Court Rule 103(b). A court may consider many factors when determining whether to allow or deny a Rule 103(b) motion, including, but not limited to: (1) the length of time used to obtain service of process; (2) the activities of plaintiff; (3) plaintiffs knowledge of defendant's location; (4) the ease with which defendant's whereabouts could have been ascertained; (5) actual knowledge on the part of the defendant of pendency of the action as a result of ineffective service; (6) special circumstances that would affect plaintiffs efforts; and (7) actual service on defendant. Segal v. Sacco, 136 Ill. 2d 282, 286 (1990). There is no specific time limitation provided by Rule 103(b). Rather, a court must consider the passage of time in relation to all the other facts and circumstances of each case individually. Segal, 136 Ill. 2d at 285-86. A ruling on a motion to dismiss pursuant to Rule 103(b) will not be disturbed absent an abuse of discretion. Womick v. Jackson County Nursing Home, 137 Ill. 2d 371, 376 (1990).\\nIn order to determine if the circuit court abused its discretion by granting defendants' motion to dismiss, we must resolve the threshold issue of whether it was proper for the circuit court to have counted the approximately 11 months that passed between the voluntary dismissal of plaintiffs' complaint on May 20, 2003, and its refiling on April 12, 2004, in its determination of whether plaintiffs obtained service of process on defendants with reasonable diligence. Such a determination requires us to interpret Rule 103(b) and section 13 \\u2014 217 of the Code and is subject to de novo review. See Kankakee County Board of Review v. Property Tax Appeal Board, 226 Ill. 2d 36, 51 (2007) (questions of statutory interpretation are reviewed de novo).\\nBefore this court, plaintiffs argue that the circuit court should have considered their diligence in serving defendants prior to dismissal and after refiling, but not the period in between when no complaint existed. Plaintiffs cite Aranda v. Hobart Manufacturing Corp., 66 Ill. 2d 616 (1977), in support of their argument.\\nIn Aranda, the plaintiff's complaint was dismissed for want of prosecution approximately 17 months after it was filed. Aranda, 66 Ill. 2d at 617-18. The defendant was never served with process during this time period. Six months later, and three months after the running of the relevant statute of limitations, the plaintiff filed an identical action pursuant to section 24 of the Limitations Act (Ill. Rev. Stat. 1973, ch. 83, par. 24a (the predecessor to section 13 \\u2014 217)) and promptly served the defendant with process. Aranda, 66 Ill. 2d at 618. The defendant moved for dismissal pursuant to Rule 103(b). Aranda, 66 Ill. 2d at 618. The circuit court then dismissed the case with prejudice, finding that the length of time between the filing of the first suit and the service of summons upon refiling showed a lack of diligence by the plaintiff. Aranda, 66 Ill. 2d at 617.\\nOn appeal, we reversed the circuit court, holding that section 24 gave plaintiff an absolute right to refile since his complaint was dismissed for want of prosecution, and his complaint was refiled within the time specified by the statute. Aranda, 66 Ill. 2d at 620, citing Franzese v. Trinko, 66 Ill. 2d 136 (1977). Specifically, we held:\\n\\\"Defendant's motion to dismiss plaintiffs second suit was bottomed on plaintiff's overall lack of diligence in obtaining service of summons from September 13, 1972, the date of the filing of the complaint in the first case, until July 24, 1974, the date of service of summons in the second case. Service was obtained within 12 days after the filing of the complaint in the second case, which is certainly not a flagrant display of lack of diligence. If the extended period of time of section 24 is to serve any useful purpose, plaintiff must be accorded a reasonable time after refiling his complaint within which to obtain service. We do not say that the court when passing on a motion such as the defendant has filed in this case may not consider an overall span of time between the filing of the first complaint and the ultimate service of summons in the second case in assessing plaintiffs diligence. In doing so, however, the period of time within which plaintiff must obtain service following the refiling of his suit under section 24 cannot be so abbreviated as to make the right granted by that section meaningless.\\\" Aranda, 66 Ill. 2d at 620.\\nPlaintiffs argue that, by including the time between dismissal and refiling in its consideration of reasonable diligence, the appellate court has limited plaintiffs' use of section 13 \\u2014 217 to the extent that the right to refile granted by that statute is essentially meaningless. We agree.\\nSection 13 \\u2014 217 operates as a savings statute, with the purpose of facilitating the disposition of litigation on the merits and avoiding its frustration upon grounds unrelated to the merits. S.C. Vaughan Oil Co. v. Caldwell, Troutt & Alexander, 181 Ill. 2d 489, 497 (1998). Section 13 \\u2014 217 grants a plaintiff who voluntarily dismisses his complaint the right to refile within \\\"one year or within the remaining period of limitation, whichever is greater.\\\" 735 ILCS 5/13 \\u2014 217 (West 2006). If we were to hold that the Rule 103(b) clock may continue running after a complaint is dismissed, we would essentially be reducing the time to refile granted by section 13 \\u2014 217 from \\\"one year or within the remaining period of limitation, whichever is greater,\\\" to a period subject to the discretion of the circuit court. As we held in Aranda, section 13 \\u2014 217 grants a plaintiff the absolute right to refile a dismissed complaint. We may not infringe upon this statutory right to refile.\\nDefendants do not argue that plaintiffs do not have a statutory right to refile, but contend that such a right is still subject to the expectations of reasonable diligence that Rule 103(b) was created to enforce. In support of their argument, defendants cite several passages from O'Connell v. St. Francis Hospital, 112 Ill. 2d 273 (1986), that emphasize how Rule 103(b) effectuates our historical and constitutional mandate to render justice fairly and without delay. Defendants quote passages such as \\\"[njothing is more critical to the judicial function than the administration of justice without delay\\\" and \\\"[d]ue diligence in serving process is essential to this purpose, for it is the sole legally sufficient means of alerting defendants to the pendency of a civil suit.\\\" O'Connell, 112 Ill. 2d at 282. As applied to this case, however, O'Connell does not support defendants' argument, as the decision relates only to pending actions.\\nIn O'Connell, the plaintiff filed his complaint on the last day possible under the statute of limitations, then served the defendants some eight months later. O'Connell, 112 Ill. 2d at 277. When the defendants filed a Rule 103(b) motion to dismiss, the plaintiff filed a motion to voluntarily dismiss his complaint under section 2 \\u2014 1009, which the court granted. O'Connell, 112 Ill. 2d at 277-78. Less than a month later, plaintiff refiled his complaint pursuant to section 13 \\u2014 217 and served defendants with process. O'Connell, 112 Ill. 2d at 278. The defendants then filed another Rule 103(b) motion to dismiss. O'Connell, 112 Ill. 2d at 278. Apparently believing that the plaintiff had an absolute right to refile under section 13 \\u2014 217 even when a Rule 103(b) motion was pending, the circuit court denied the defendants' Rule 103(b) motion without holding a hearing on the merits. O'Connell, 112 Ill. 2d at 278.\\nWe reversed the circuit court and remanded the case to the circuit court, holding:\\n\\\"[W]here a plaintiff relies on sections 2 \\u2014 1009 and 13\\u2014 217 in response to a pending Rule 103(b) motion, the Rule 103(b) motion must be heard on its merits prior to a ruling on plaintiffs motion to dismiss under section 2 \\u2014 1009. We further hold that, in ruling on the pending Rule 103(b) motions, the trial court may consider the circumstances surrounding plaintiffs service of process on his original as well as his refiled complaint.\\\" O'Connell, 112 Ill. 2d at 283. In the instant case, there was no delay of a pending\\naction such as there was in O'Connell. This is an important difference between the cases because the pendency of an action that a defendant argues is delayed is central to any determination of whether a passage of time should be considered for purposes of Rule 103(b). See O'Connell, 112 Ill. 2d at 282 (due diligence is \\\"the sole legally sufficient means of alerting defendants to the pendency of a civil suit\\\" (emphasis added)). The requirement of a pending action against which to measure diligence is rooted in simple logic. If an action is dismissed, and not pending, there is no reason to serve a defendant with process. As such, there is nothing to delay, and nothing to be diligent about. See also Segal, 136 Ill. 2d at 287 (the fifth factor a circuit court is instructed to consider when determining due diligence is \\\"actual knowledge * of pendency of the action as a result of ineffective service\\\" (emphasis added)); Womick, 137 Ill. 2d at 377 (actual notice of the pendency of a suit is significant in that it may affect a court's determination of whether a plaintiff was diligent); Lafin v. Allstate Insurance Co., 168 Ill. App. 3d 1075, 1078 (1988) (\\\"the specific purpose of Rule 103(b) is to alert defendants to the pendency of a civil suit\\\" (emphasis added)).\\nDefendants also rely on Muskat v. Sternberg, 122 Ill. 2d 41 (1988), in support of their argument. In Muskat, the plaintiff filed her complaint one day before the expiration of the relevant statute of limitations. Muskat, 122 Ill. 2d at 43. During the next two years, the plaintiff did not obtain service of process on any of the defendants. Muskat, 122 Ill. 2d at 43. The action was then dismissed for want of prosecution. Muskat, 122 Ill. 2d at 43. The plaintiff refiled her complaint a year later pursuant to section 13 \\u2014 217. Muskat, 122 Ill. 2d at 43. Defendants were served with process three months after the refiling and responded by filing a Rule 103(b) motion to dismiss. Muskat, 122 Ill. 2d at 43. The circuit court denied defendants' motion, holding that only the time between the refiling and the service on defendants was to be counted, and that three months did not constitute lack of diligence. Muskat, 122 Ill. 2d at 43. The appellate court reversed and remanded the case, holding that the plaintiffs lack of reasonable diligence in obtaining service in the original lawsuit may be considered in ruling on a Rule 103(b) motion. Muskat, 122 Ill. 2d at 44.\\nWe affirmed the appellate court and remanded the case to the circuit court. In our analysis, we revisited our ruling in Aranda, stating,\\n\\\"After noting the diligence displayed by the plaintiff in Aranda, this court stated that a court, in passing on a motion challenging the plaintiff's diligence in obtaining service, may consider the overall lapse of time between the filing of the first complaint and the ultimate service of summons in the second case.\\\" Muskat, 122 Ill. 2d at 45.\\nWe further noted that \\\"[t]he wording of Rule 103(b) requires that the exercise of diligence in obtaining service of process after the expiration of the statute of limitations be considered whether that lack of diligence occured in the first suit or after it had been dismissed and refiled.\\\" Muskat, 122 Ill. 2d at 48-49.\\nDefendants now attempt to use the \\\"overall lapse of time\\\" language in Muskat as support for their argument that the circuit court properly included the time that elapsed between the voluntary dismissal and refiling of plaintiffs' claim. We find defendants' reliance on that phrase to be misguided.\\nThe phrase \\\"overall lapse of time\\\" comes from our decision in Aranda, where we stated, \\\"We do not say that the court * may not consider an overall span of time *.\\\" Aranda, 66 Ill. 2d at 620. That sentence, in turn, directly follows a section in which we held that a plaintiff has an absolute right under section 24. to refile a dismissed complaint, and that a court must accord him \\\"a reasonable time after refiling * within which to obtain service.\\\" Aranda, 66 Ill. 2d at 620. The \\\"overall span of time\\\" sentence was meant to alert the circuit court that it must not focus solely on the time after refiling when making its determination (which is what the Muskat plaintiff argued it should do) but should also include the time prior to dismissal. Muskat reaffirms Aranda's conclusion in its holding that a \\\"voluntary dismissal under section 2 \\u2014 1009 and * refiling under section 13 \\u2014 217 does not insulate the plaintiff from the lack of diligence displayed prior to the dismissal.\\\" Muskat, 122 Ill. 2d at 49. In other words, the \\\"overall span of time\\\" refers to the sum total of days before a dismissal and after a refiling, but not the time that passes in between, when no action is pending.\\nWe have consistently considered the periods before a dismissal and after a refiling as separate entities that are to be added together in determining diligence. See Martinez v. Erickson, 127 Ill. 2d 112, 119 (1989) (\\\"A ruling on a Rule 103(b) dismissal motion, made following service of process of a refiled action, therefore requires an examination of the plaintiffs diligence in the original action as well as in the refiled action even if service was never effected in the original action\\\"); Catlett v. Novak, 116 Ill. 2d 63, 71 (1987) (\\\" 'his original as well as his refiled complaints' \\\"), quoting O'Connell, 112 Ill. 2d at 283; Womick v. Jackson County Nursing Home, 137 Ill. 2d 371, 374-75 (1990) (time periods before a dismissal and a refiling of a complaint treated as separate entities, with no inclusion of the interim period).\\nDefendants lastly contend that Lewis v. Dillon, 352 Ill. App. 3d 512 (2004), which the circuit court relied on, addresses a set of facts almost identical to those present here and supports their argument. We disagree.\\nIn Lewis, the plaintiff filed a complaint for medical malpractice shortly before the relevant statute of limitations had run. Lewis, 352 Ill. App. 3d at 513-14. The plaintiff did not attach a medical report to his complaint, but did file a section 2 \\u2014 622(a)(2) affidavit declaring that he was unable to file the report before the expiration of the statute of limitations. Lewis, 352 Ill. App. 3d at 514. The plaintiff then filed the required medical report a few days before the additional 90-day period granted by section 2 \\u2014 622(a)(2) expired. Lewis, 352 Ill. App. 3d at 514. Two more months elapsed before the plaintiff finally obtained service of process on the defendants. Lewis, 352 Ill. App. 3d at 514. In all, a total of five months elapsed between the filing of the complaint and service on the defendants. Lewis, 352 Ill. App. 3d at 514. Upon being served, the defendants filed Rule 103(b) motions to dismiss. Lewis, 352 Ill. App. 3d at 515. In response, the plaintiff argued that he had an objectively reasonable basis for the delay in service, namely, that he intentionally withheld service until he was able to obtain the necessary section 2 \\u2014 622 medical report. Lewis, 352 Ill. App. 3d at 515. The circuit court granted defendant's Rule 103(b) motion, holding that \\\" 'there is no authority to support plaintiff's argument that the malpractice complaint was not \\\"viable\\\" until a [section] 2 \\u2014 622 affidavit is obtained.' \\\" Lewis, 352 Ill. App. 3d at 519.\\nOn appeal, the plaintiff admitted that his delay in obtaining service was intentional, but excusable because he did not want to serve the defendants until he had a medical report that made his complaint \\\"viable.\\\" Lewis, 352 Ill. App. 3d at 519. Before the appellate court, the plaintiff attempted to justify his intentional delay by stating that even if he served the defendants before they received the section 2 \\u2014 622 report, \\\" 'nothing was going to transpire' \\\" in the case until the report was filed, and that, if the court found that he did not have a viable claim against the defendants, he would have filed a motion seeking dismissal of his complaint \\u2014 at some point. Lewis, 352 Ill. App. 3d at 519.\\nThe Lewis court rejected the plaintiffs explanations and affirmed the circuit court, holding that a plaintiff cannot choose to delay serving defendants for an indefinite period while he ascertains whether he has a meritorious claim and then contend that there was no unreasonable delay because nothing was going to happen until he filed the medical report. Lewis, 352 Ill. App. 3d at 519. The Lewis court continued:\\n\\\"Plaintiffs proposed practice would allow an entire case to be filed and dismissed without the defendant even knowing he or she was named. Specifically, under plaintiffs reasoning, a party would be permitted to file a lawsuit naming a defendant, not issue summons to that defendant advising him or her of the claim, and then, at some later date, dismiss the defendant due to the inability to obtain a section 2 \\u2014 622 report. To follow this reasoning of 'what they don't know won't hurt them' would deny defendants the right to know that they have been named in a lawsuit, not to mention denying them the protections of Rule 103(b).\\\" Lewis, 352 Ill. App. 3d at 520.\\nWe find nothing in Lewis that directs a circuit court to include the time between dismissal and refiling when determining diligence in service and find it inapplicable to the instant case for several reasons. First, the ruling in Lewis focuses on the diligence of a plaintiff who had a complaint pending for over five months, and whether such a delay in service could be excused by the fact that the report necessary for a medical malpractice claim was not ready. Further, the \\\"warning\\\" set forth in Lewis was merely dicta, and applies only to a circuit court's exercise of discretion when considering the lapse of time between the filing of a complaint and its service. Finally, Lewis does not mention or discuss the interplay between dismissals, section 13 \\u2014 217 refilings, and Rule 103(b) that is the crux of the instant case.\\nWe note that our holding today comports with the stated purpose of Rule 103(b). We have held that \\\" '[prevention of intentional delay in the service of summons which would postpone service for an indefinite time after a statutory period of limitations has run, was a primaiy reason for the passage of Supreme Court Rule 103(b) and its predecessors.' \\\" Segal, 136 Ill. 2d at 286-87, quoting Karpiel v. LaSalle National Bank of Chicago, 119 Ill. App. 2d 157, 160 (1970). Plaintiffs actions in the instant case did not \\\"postpone service for an indefinite time.\\\" Instead, by voluntarily dismissing, plaintiff created a strict deadline for the refiling of his complaint, namely, one year from the date of dismissal.\\nFor the forgoing reasons, we hold that the time that elapses between the dismissal of a plaintiffs complaint and its refiling pursuant to section 13 \\u2014 217 is not to be considered by a court when ruling on a motion to dismiss for violation of Rule 103(b). In this case, the circuit court improperly included this passage of time in reaching its conclusion that plaintiffs did not serve defendants with reasonable diligence.\\nWe note that the length of time used to obtain service of process is not the only factor a court must consider when ruling on a motion to dismiss based on violations of Rule 103(b). Rather, a court must consider the passage of time in relation to all the other facts and circumstances of each case individually. Segal, 136 Ill. 2d at 285-86. For this reason, we remand the cause to the circuit court with instructions to reconsider defendants' motion to dismiss plaintiffs' complaint without including the period of time between its dismissal and its refiling.\\nCONCLUSION\\nFor the foregoing reasons, we reverse the judgments of the circuit and appellate courts and remand the cause to the circuit court for further proceedings consistent with this opinion.\\nAppellate court judgment reversed; circuit court judgment reversed; cause remanded.\"}"
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+"{\"id\": \"5780059\", \"name\": \"Philip Lichtenstadt v. Benjamin W. Fleisher et al.\", \"name_abbreviation\": \"Lichtenstadt v. Fleisher\", \"decision_date\": \"1887-11-23\", \"docket_number\": \"\", \"first_page\": \"92\", \"last_page\": \"94\", \"citations\": \"24 Ill. App. 92\", \"volume\": \"24\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T23:38:02.281905+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Philip Lichtenstadt v.Benjamin W. Fleisher et al.\", \"head_matter\": \"Philip Lichtenstadt v.Benjamin W. Fleisher et al.\\nInjunctions\\u2014Dissolution\\u2014Damages\\u2014Suggestion of\\u2014Measure of\\u2014Solicitor's Fees\\u2014Discretion of Court.\\n1. Where an injunction has been dissolved, the damages to be allowed in the assessment upon a suggestion of damages, are only such as have resulted from the improper suing out of the injunction. Solicitor\\u2019s fees must be confined to the proper allowance for services rendered on the motion to dissolve.\\n2. The allowance of solicitor\\u2019s fees in such cases rests somewhat in the discretion of the chancellor before whom the litigation has proceeded, and unless he has very clearly gone wrong, his discretion will not be interfered with by this court.\\n3. In such a case this court will not reverse merely for the reason that the finding of the court below was for a less sum than the lowest amount fixed by the witnesses.\\n[Opinion filed November 23, 1887.]\\nAppeal from the Superior Court of Cook County; the Hon. Gwyhh Garrett, Judge, presiding.\\nMr. Allan C. Story, for appellant.\\nIn November, 1884, a bill in chancery was filed in the Superior Court against appellant and others, to enjoin them from preparing for trial or trying a certain replevin suit which had been brought, for a quantity of woolen yarn, sworn by plaintiffs to be worth $5,000, and which they had obtained from Lichtenstadt on the writ, and shipped to Philadelphia before filing the bill. They also claimed in the bill for an injunction a quantity of other yarn, claimed to be worth in all from $8,000 to $9,000.\\nThe writ was served just as the replevin case was to be called for trial, and of course the attorney\\u2019s fees for this and other expenses of preparation for trial m the case, was an element of damage to appellant by reason of the injunction.\\nSeveral attempts were made to dissolve the injunction, and complainants were twice allowed to amend their bill. Finally, after answer, a new injunction bond was ordered, and finally on the third motion the injunction was modified, so as to allow all steps to be taken in replevin suit except to try the same.\\nThe chancery cause was tried upon bill, answer, replication and proofs, consuming five days in the trial. The court, Judge Garnett, dismissed the bill for want of equity at cost of complainant, and suggestions having been filed, assessed damages upon dissolution of injunction at $150 in favor of appellant.\\nUnder the previous decisions of the Supreme Court and this court there should have been allowed a sum at least twice as large as the judgment appealed from. Joslyn v. Dickerson, 71 Ill. 25; Mason v. City of Shawneetown, 77 Ill. 538; Hartwell v. Black, 48 Ill. 301; School Directors v. Trustees, 66 Ill. 247.\\nMr. Julius Stern, for appellees.\", \"word_count\": \"809\", \"char_count\": \"4656\", \"text\": \"Per Curiam.\\nThis is an appeal from the finding and judgment rendered by the chancellor upon a suggestion of damages on the dissolution of an injunction. The injunction was dissolved on final hearing, and much of the work done by counsel for which recompense was sought, was upon the merits and was necessary, and presumably would be valuable to appellant in the suit at law, to enjoin the prosecution of which the bill in chancery was filed. The only darnages claimed was for attorney's fees.\\nWhile the testimony introduced would warrant the court in allowing a large amount, we are unable to say that the court so far erred in fixing the amount for which judgment was rendered as to require us to reverse the judgment.\\nThe damages to.be allowed in such assessments are only such as result from an improper suing out of the injunction, and the solicitor's fees must be confined to the proper allowance, for services rendered in the motion to dissolve. The allowance of such fees rests somewhat in the discretion of the chancellor before whom the litigation has proceeded, and the discrimination made by him between the services to be charged to the motion to dissolve and those to be referred to the trial of the entire case presents a difficult question for a reviewing court, and unless, therefore, he has very clearly gone wrong, his discretion will not be interfered with.\\nWe find no case in which the judgment of the chancellor has in such case been set aside on the ground that the allowance of attorney's fe.es was, under the evidence, too small, and in view of the opinions of the value of the services which are usually given by lawyers who are called as witnesses to prove the value of such services, we are loth to set a precedent. We can not reverse in such a case for the reason that the finding of the court is for a less sum than the lowest amount fixed by witnesses.\\nThe judgment must be affirmed.\\nJudgment affirmed.\"}"
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diff --git a/ill/5816726.json b/ill/5816726.json
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index 0000000000000000000000000000000000000000..fa6e453805489501a9c3a7a3b3654c0bcb2d27fa
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+"{\"id\": \"5816726\", \"name\": \"W. H. Collins Ice Cream Company and Isidore Wineberg, Appellants, v. Morris Talmage et al., Appellees\", \"name_abbreviation\": \"W. H. Collins Ice Cream Co. v. Talmage\", \"decision_date\": \"1918-04-29\", \"docket_number\": \"Gen. No. 23,608\", \"first_page\": \"374\", \"last_page\": \"375\", \"citations\": \"210 Ill. App. 374\", \"volume\": \"210\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T21:18:08.375538+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"W. H. Collins Ice Cream Company and Isidore Wineberg, Appellants, v. Morris Talmage et al., Appellees.\", \"head_matter\": \"W. H. Collins Ice Cream Company and Isidore Wineberg, Appellants, v. Morris Talmage et al., Appellees.\\nGen. No. 23,608.\\n(Not to be reported in full.)\\nAppeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.\\nHeard in this court at the October term, 1917.\\nReversed and remanded with directions.\\nOpinion filed April 29, 1918.\\nRehearing denied May 13, 1918.\\nStatement of the Case.\\nCreditors\\u2019 bill by W. H. Collins Ice Cream Company, a corporation, and Isidore Wineberg, complainants, against Morris Talmage, Joseph A. Hottinger and Mary E. O\\u2019Connell, defendants, to enforce judgments against defendants. From a judgment dismissing the bill for want of equity, complainants appeal.\\nGeorge W. Brown, for appellants.\\nRichard I. Gavin, for appellees.\\nSee Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.\", \"word_count\": \"318\", \"char_count\": \"1975\", \"text\": \"Mr. Justice Me Surely\\ndelivered the opinion of the court.\\nAbstract of the Decision.\\n1. Chattel mortgages, \\u00a7 128 \\u2014when after-acquired goods not covered. A chattel mortgage on a stock of goods and store fixtures which contains no words providing that the mortgagee shall have any lien on after-acquired goods and fixtures does not cover goods and fixtures thereafter purchased.\\n2. Chattel mortgages, \\u00a7 265*\\u2014what is insufficient posting of notices of sale. The statutory provision (J. & A. If 7603) requiring the posting of notices of a sale under a chattel mortgage is' not complied with by the posting on the building of notices which, by agreement between the mortgagor and mortgagee, are immediately torn down by the former.\\n3. Fraudulent conveyances\\u2014when sale under chattel mortgage fraudulent as to creditors. Where property worth more than $3,000 is sold at a chattel mortgage sale, statutory notice of which had not been given, for $950 to a dummy acting for the mortgagee, such sale is fraudulent and invalid as to creditors and the mortgagee holds the property in trust for their benefit.\"}"
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diff --git a/ill/8500880.json b/ill/8500880.json
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+"{\"id\": \"8500880\", \"name\": \"Anshel Shamberg et al., Appellees, v. Willard P. Stearns, Appellant\", \"name_abbreviation\": \"Shamberg v. Stearns\", \"decision_date\": \"1913-04-09\", \"docket_number\": \"Gen. No. 17,312\", \"first_page\": \"587\", \"last_page\": \"593\", \"citations\": \"178 Ill. App. 587\", \"volume\": \"178\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T23:27:16.534941+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Anshel Shamberg et al., Appellees, v. Willard P. Stearns, Appellant.\", \"head_matter\": \"Anshel Shamberg et al., Appellees, v. Willard P. Stearns, Appellant.\\nGen. No. 17,312.\\n1. Fraud \\u2014 when representations not relied on. A lease will not be canceled on the ground that complainant was induced to lease premises to be used as a tannery by false representations of the lessor that the necessary permit from the department of health had been secured, where it appears that at complainant\\u2019s request the parties interviewed an official of the department of health to ascertain whether the business might be conducted and that the lease was not executed until complainant was assured by such official that the work might safely he done there.\\n2. Landlord and tenant \\u2014 presumption that lease contains terms of contract. A lease in writing entered into after certain oral and written agreements were made relating to the subject-matter thereof is presumed to embody all the terms of the contract between the parties.\\n3. Fraud \\u2014 effect of promise to do something in future. Where cancellation of a lease is sought on the ground that defendant falsely represented that a permit to operate a tannery was obtained, even if evidence that defendant orally agreed to cancel the lease if permission was later denied is competent, it cannot aid complainant, since fraud cannot be predicated on a promise to do something in the future.\\nAppeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.\\nReversed and remanded with directions.\\nOpinion filed April 9, 1913.\\nJohN Schwender, for appellant.\\nNicolas J. Peitzkek, for appellees.\", \"word_count\": \"1968\", \"char_count\": \"11670\", \"text\": \"Me.. Justice Baume\\ndelivered the opinion of the court.\\nAppellees, Anshel Shamberg and H. Alswang, filed their hill in equity in the Circuit Court against the appellant, Willard D. Stearns, wherein they alleged that on or about February 10, 1909, appellant offered to rent certain premises in the City of Chicago to appellees for the purpose of tanning leather for razor strops; that appellant was informed and knew that the manufacture of leather usually emitted a disagreeable odor and was only permitted in certain parts of the city, and also was informed and knew that in order to occupy the premises for that purpose it would be necessary to obtain a permit from the department of health; that appellant then informed appellees that he had consulted with the authorities and had been given a permit to rent the premises for the desired purpose and stated to appellees that in the event that such permit was canceled or withheld, he would release appellees from any lease which they might enter into; that relying upon said statements and representations made by appellant, appellees, on February 18, 1908, entered into a lease of said premises, and went into possession of the same and commenced the business of manufacturing leather therein; that shortly thereafter the city authorities directed appellees to discontinue said business and appellees then learned for the first time that the representations made, by appellant as to obtaining the necessary permit from the health department were not true; that said representations were made solely for the purpose of inducing appellees to execute said lease, and that appellees executed the same relying wholly upon the said representations of appellant, and immediately informed bim that they had been directed to discontinue their busi ness in said premises and demanded of Mm the cancellation of said lease, hut that he refused to cancel the same; that in compliance with the said direction of the health department appellees vacated the premises on or about June 30,1909, and paid the rent therefor up to that time and have not since occupied the same; that on October 6, 1909, appellant caused a judgment by confession to be entered against appel-lees in the Municipal Court for $220, being for four months' rent and for attorney's fees, and that appellant threatens and will, unless enjoined, confess judgment on said lease each and every month up to the end of the term, to-wit, April 30, 1910; that on November 24, 1909, an execution was issued upon said judgment, and levied upon certain property belonging to appellees, and unless the bailiff of said Municipal Court be restrained he will proceed to sell said property to satisfy said judgment. The bill prays that the said judgment be set aside and vacated; that the said lease be canceled; that appellant be restrained from further confessing any judgment on said lease, and that a sale of the property under said execution be enjoined. Appellant answered the bill denying its material allegations, and upon a hearing before the chancellor, a decree was entered in accordance with the prayer of the bill.\\nThe decree is attacked upon the ground that the charges of fraud and misrepresentation alleged in the bill are not supported by the evidence.\\nAppellee, Alswang, testified that when the proposal to rent appellant's premises was under consideration, he expressed Ms doubts as to whether the building was a proper place for tanning; that appellant said he thought it was, and would take care of it right from the start; that appellant visited the place where witness was then conducting a tannery for the purpose of determining whether or not it would be advisable to move the business to his premises; that he showed the condition of the place to appellant and told Mm that the conditions were worse than they wonld be in his premises where there was a cement floor; that a conple of days later appellant told him he wonld go to the health department and investigate thoroughly; that npon the day the lease was executed appellant told him that he had been to the health department and investigated, and that witness should not worry about it, but sign the lease, move in and conduct his business; that he told appellant that the latter must realize that if witness should have any trouble after he moved in he would be almost a ruined man, and that he had not investigated, but relied on appellant; that appellant replied, \\\"I am the power behind the throne, go ahead and work, don't be foolish.\\\"\\nAppellee Shamberg, testified that he told appellant that they wanted and could use his place if the city would allow them to start a tannery, but that they were afraid the city might stop them; that appellant then went out and looked at the place that Al-swang was conducting; that the next time he saw appellant the latter said he was satisfied, but witness was not satisfied and wanted appellant to go with him to the City Hall; that he accompanied appellant to the City Hall, where they met a man to whom appellant spoke, and the man said he didn't think the business would be stopped; that at the end of the conversation with the man appellant said it would be all right, he was going to take care of it, and in case they were stopped they would not be required to pay any money or to use the place; that he took appellant's word more than anything else.\\nAppellant testified that after having visited the place occupied by Alswang he told Shamberg, who desired to rent his premises, that, as far as he was concerned, the business would not be objectionable to him; that the question then came up as to whether or not the business would be objectionable to the city, and he accompanied Shamberg to the health department, where they saw a party supposed to he the officer in charge, to whom Shamberg stated what they wanted and what the business was; that the health officer made inquiries of Shamberg as to how the work was done and after considering the matter said he thought it would be safe for appellees to conduct their business in the proposed new location; that he then told Sham-berg that appellees could have the place if they wanted, and that appellees then signed the lease. Appellant further denied having made any statement or promises other than those embodied in the lease.\\nThe written proposal for the lease signed by appel-lees and the written acceptance of such proposal signed by appellant were introduced in evidence. These writings embody the agreements of the parties with reference to the terms of the proposed lease and certain improvements and changes in the premises to be made by appellant, and the lease as executed conformed to the terms of such agreement.\\nOn April 29, 1909, appellees were notified by the health department to discontinue making hides in preparatory processes to tanning, on account of foul odor from \\\"bait.\\\" The business was abated on June 28th following, and appellees then vacated the premises.\\nJ. A. Spallard, one of the- inspectors in the health department, testified that upon the occasion when he inspected the premises occupied by appellees he asked them how they came to be there, by what authority, and that appelles told him that they had permission from the secretary, if they didn't commit a nuisance.\\nSection 692 of the Municipal Code provides, in part, as follows:\\n\\\"It shall not be lawful for any person or corporation to locate, build, construct or maintain, on any street or alley in the city, in any block in which two-thirds of the buildings on both sides of the street are used exclusively for residence purposes, any building for a boarding, livery or sale stable, gas reservoir, blacksmith shop, foundry, packing house, rendering plant, soap factory, tannery, etc., without the written consent of a majority of the property owners to frontage, on both sides of such street or alley.\\\"\\nThe chancellor appears to have granted the relief prayed for in the bill upon the ground that, in leasing the premises to appellees to be used as a tannery, appellant was guilty of a violation of said section of the Municipal Code, and that said lease' was thereby rendered void and unenforcible.\\nThe relief prayed in the bill is predicated solely upon the alleged false and fraudulent representations of appellant, whereby appellees were induced to execute the lease in question. The jurisdiction of a court of equity is invoked upon that ground alone, and unless the proof sustains the allegations of the bill in that particular appellees are not entitled -to the relief prayed.\\nIt is not controverted that appellant and appellee, Shamberg, at the solicitation of the latter, interviewed one of the officials connected with the department of health for the express purpose of ascertaining whether the work in question, as performed by appellees, might properly be carried on in the building belonging to appellant, and that the lease was not executed until appellees were assured by such official that they might safely do the work there. The proof shows that appel-lees did not rely upon the representations of appellant, if any such were made, but that they insisted upon making an independent investigation of the subject, and that they relied upon the result of such investigation. Under such circumstances appellees are not entitled to invoke the aid of a court of equity for the purpose of procuring a cancellation of the lease. Crocker v. Manley, 164 Ill. 282; Hooker v. Midland Steel Co., 215 Ill. 444.\\nThe lease is a contract in writing and is presumed to embody all the terms of the contract between the parties.\\nIf evidence, tending to show that appellant orally agreed to cancel the lease if a permit to appellee to conduct the business was denied, had been competent, it would avail appellees nothing, because fraud cannot he predicated upon a promise or agreement to do something in the future. Miller v. Sutliff, 241 Ill. 521.\\nThe decree is reversed and the cause remanded with directions to dismiss the hill.\\nDecree reversed and cause remanded with directions.\"}"
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+"{\"id\": \"856573\", \"name\": \"Christian Hanke v. Charles Cobiskey\", \"name_abbreviation\": \"Hanke v. Cobiskey\", \"decision_date\": \"1895-01-10\", \"docket_number\": \"\", \"first_page\": \"267\", \"last_page\": \"268\", \"citations\": \"57 Ill. App. 267\", \"volume\": \"57\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T21:12:05.031685+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Christian Hanke v. Charles Cobiskey.\", \"head_matter\": \"Christian Hanke v. Charles Cobiskey.\\n1. Burden of Proof\\u2014Oro Him Holding the Affirmative.\\u2014The burden of introducing evidence on any issue is upon him who asserts the affirmative of that issue. So where the defendant admits the indebtedness to have once existed and pleads payment, he has the affirmative of the issue made by his plea.\\n3. Credibility of Witnesses\\u2014For the Jury.\\u2014The question of the credibility of witnesses is one of fact for a jury, as for the court when a jury is waived.\\nMemorandum.\\u2014Assumpsit for wages. Appeal from a judgment of the Superior Court of Cook County; the Hon. George W. Blanks, Judge, presiding. Submitted at the October term, 1894.\\nAffirmed.\\nOpinion filed January 10, 1895\\nEdwin C. Crawford, attorney for appellant.\\nWilliam W. Wheelock, attorney for appellee.\", \"word_count\": \"446\", \"char_count\": \"2559\", \"text\": \"Mr. Justice Shepard\\ndelivered the opinion oe the Court.\\nThis was a suit for a'balance claimed to be due for wages. Hothing was in dispu fce except the amount that had been paid. It was admitted that the original indebtedness was $1,068.20. The parties themselves were the only witnesses and differed in their testimony only as to how much had been paid on the account. The defendant admitted that there was a balance of $80.20 due to the plaintiff, and the plaintiff claimed $145.70, making a difference between the two of $65.50.\\nThe cause was heard by the court without a jury and judgment was rendered for the balance claimed by appellee, the plaintiff.\\nIt is contended by appellant that the court erred in not holding that the plaintiff had not sustained his claim by a preponderance of the evidence. The rule is just the reverse where payment of an originally admitted claim is relied upon. \\\" The burden of introducing evidence on any issue is upon him who asserts the affirmative of that issue.\\\" Smith v. Grant, 30 Ill. App. 150.\\nHere an indebtedness was admitted to have originally existed. The defense was payment down to a sum less than what was claimed by plaintiff, and the affirmative of the issue so presented was upon the defendant. Witner v. Zeman, 30 Ill. App. 195; Johnson v. Breaton, 1 Ill. App. 293.\\nThe question of credibility of witnesses is also raised, but that is a question of fact for a jury, or for the court when a jury is waived.\\nIt is not true, as a matter of law, that unimpeached witnesses a\\u00edre of equal credibility, but the credibility of witnesses is always a question of fact. Johnson v. People, 40 Ill. App. 382; same case, 140 Ill. 350.\\nThe court having found the fact upon conflicting evidence the finding will not be disturbed.\"}"
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+"{\"id\": \"869022\", \"name\": \"Henry E. C. Peterson v. Charles J. Currier\", \"name_abbreviation\": \"Peterson v. Currier\", \"decision_date\": \"1896-01-22\", \"docket_number\": \"\", \"first_page\": \"163\", \"last_page\": \"170\", \"citations\": \"62 Ill. App. 163\", \"volume\": \"62\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T19:07:13.640865+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Henry E. C. Peterson v. Charles J. Currier.\", \"head_matter\": \"Henry E. C. Peterson v. Charles J. Currier.\\n1. Gambling Contracts\\u2014What Are, eta\\u2014A contract by which an option to buy or sell any commodity is reserved, is a gambling contract.\\n2. Commodity\\u2014The Term Defined.\\u2014The term commodity includes everything movable which is bought and sold, the subject of trade and acquisition.\\n3. Same\\u2014Bonds of a Coal Company Are.\\u2014The bonds issued by the Chicago and Iowa Coal Company, a corporation, running ten years at seven per cent semi-annual interest, are commodities within the meaning of section 130 of the Criminal Code, providing, that whoever contracts to have or give to himself or another the option to sell or buy, at'a future time, any grain or other commodity, stock of any railroad or other company, or gold, or forestalls the market, etc., shall be fined, etc., and all contracts made in Violation of this section shall be considered gambling contracts, and shall be void.\\n4. Construction of Statutes\\u2014Statute Concerning, Applies to the Criminal Code.\\u2014Section 1, chapter 181, R. S., entitled \\u201cStatutes,\\u201d providing that in the construction of all general statutes, provisions, terms, phrases and expressions shall be liberally construed, in order that the true intent and meaning of the legislature may be carried out, unless such construction would be inconsistent with the manifest intent of the legislature, or repugnant to the context of the same statute, applies to the Criminal Code.\\nAssumpsit, for moneys, etc. Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding. Heard in this court at the October term, 1895.\\nAffirmed.\\nOpinion filed January 22, 1896.\\nStatement of the Case.\\nOn the 5th day of September, 1889, Charles L. Currier, appellee, entered-into the following contract with Henry E. C. Peterson, appellant:\\n\\u201c Chicago, September 5,1889.\\nDeceived of H. E. C. Peterson the sum of \\u00a75,000, to be invested in bonds issued by the Chicago and Iowa Coal Company at par, said bonds being a series of sixty, of the amount of $500 each, and are secured by a mortgage on all of the property of said company, being first lien, and valued at $200,000, which bonds I agree to purchase of said Peterson, on thirty days notice, at par, with accumulated or accrued interest unpaid, if any.\\nSaid bonds run ten years with seven per cent semi-annual interest, to pay which a sinking fund of eight cents per ton is to be paid to the trustee (the Illinois Trust and Savings Bank of Chicago). Said bonds date September 1, 1889.\\nChables L. Currieb.\\u201d\\nOn the 20th day of November, 1891, appellant served on appellee the following notice:\\n\\u201c To Charles L. Currier:\\nDear Sib : Whereas, on the 5th day of September, A. D. 1889, 1 handed to you the sum of five thousand dollars ($5,000) to be by you temporarily invested in the bonds of the Chicago and Iowa Coal Company, and you afterward handed me an equal amount of said bonds, to wit, bonds of the par value of $5,000, the same being ten in number of the par value of \\u00a7500 each.\\nAnd, whereas, you then and there executed to me a written agreement setting forth the terms upon which said temporary investment was to be made, which said agreement in writing is in the words and figures following:\\n' Chicago, Ill., September, 1889.\\nDeceived of H. E. C. Peterson the sum of five thousand dollars, to be invested in bonds issued by the Chicago and Iowa Coal Company at par, said bonds being a series o\\u2018f sixty of the amount of five hundred dollars each, and are secured by a mortgage on all the property of said company, being first lien and valued at two hundred thousand dollars ($200,000), which bonds I agree to purchase of said Peterson on thirty days notice at par, with all accumulated or accrued interest unpaid, if any.\\n\\u2018 Said bonds run ten years at seven per cent semi-annual interest, to pay which a sinking fund of eight cents per ton is to be paid to the trustee (the Illinois Trust and Savings Bank of Chicago). Said bonds date September 1, 1889.\\nCharles L. Currier.\\u2019\\nAnd, whereas, I have heretofore repeatedly requested you to carry out the terms of said agreement and receive said bonds and return to me said sum of five thousand dollars ($5,000) with such interest as might have matured thereon under said agreement.\\nAnd, whereas, you have hitherto wholly refused, declined and neglected, and still do refuse, decline and neglect to carry out said agreement and return said money and receive said bonds.\\nI therefore hereby notify you in writing, this 20th day of November, A. D. 1891, to return said money and receive said bonds, which said bonds I herewith tender to you, with which notice you will please comply within thirty days from this date.\\nDated Chicago, November 9,1891.\\nH. E. C. Peterson.\\u201d\\nOn the 5th day of February, 1892, appellant brought his action in assumpsit to recover back said money.\\nChilds & Hudson, attorneys for appellant,\\ncontended the bonds mentioned in the contract are certainly not \\u201c grain,\\u201d they are certainly not \\u201c stock of any railroad or other company,\\u201d they are certainly not \\u201c gold.\\u201d It is axiomatic that bonds are neither grain, stock nor gold. There remains, then, only the term \\u201c commodities.\\u201d\\nThis term, \\u201c commodity,\\u201d is not a technical term. It has no special trade meaning. It is not a term of science or learning. It is not a legal term. There is no expert who could enlighten us as to its meaning, except the lexicographer. It is a common word, in ordinary daily use, with no particular or hidden meaning, and we must go to the English dictionaries to learn its meaning.\\nWorcester, the lexicographer, thought by\\u2018many to be the foremost authority upon the use and meaning of words in the English language, defines the word \\u201ccommodity\\u201d as \\u201c merchandise,\\u201d \\u201c goods,\\u201d \\u201c wares,\\u201d \\u201c produce,\\u201d and in a note explaining the synonyms given in the definition, he says, \\u201c Commodity is a term applied to articles of the first necessity or importance of the products of a country; goods are the articles of the tradesman; merchandise is what belongs to merchants, and is the object of commerce; wares are manufactures, and may be goods or merchandise. The staple commodities of a country; a tradesman\\u2019s or shopkeeper\\u2019s goods; the merchant\\u2019s merchandise; the manufacturer\\u2019s wares.\\u201d\\nCommodity, then, means merchandise. It includes grain. It also includes flour, lumber, potatoes, probably fruits, groceries, manufactured goods, as cotton cloth, woolen goods, hardware, probably tools, machines, also meats, possibly cattle on the hoof, or even horses and mules. It might even be stretched to include works of art, pictures, photographs, statuary, etc. But it could not possibly be made to include a promissory note, a bill of exchange, a chose in action, negotiable or non-negotiable, nor real estate. Neither the bond mentioned in the contract nor the real estate securing the same is a commodity. Paper by the ream may be a commodity, but the contract written upon a sheet of paper is not an article of merchandise, and if neither a promise to pay nor the real estate securing that promise are commodities, certainly the two together can not constitute a commodity.\\nThe only contracts which have been held void under this statute, as reported in the books, relate strictly to grain, stocks, gold, or articles of common merchandise, i. e., articles of personal property, and in no instance has any contract for sale of a promissory note of an individual or of a corporation, under seal or not under seal, secured by real estate mortgage or unsecured, been held void under this statute.\\nIn Pickering v. Cease, 79 Ill. 328, the option was one calling for grain.\\nIn Tenney v. Foote, 95 Ill. 99, the dealing was in options in oats. Furthermore, the settlements were to be made by payments of \\u201c differences.\\u201d\\nIn Pierre v. Foote, 113 Ill. 228, the gambling was on the Board of Trade, in grain, to be settled by the payment of \\u201c differences,\\u201d as in the last case mentioned.\\nIn Cothran v. Ellis, 125 Ill. 496, the gambling was on the Board of Trade, in grain and provisions, and was to be settled by the payment of \\u201c differences \\u201d and not by delivery of the goods.\\nIn Schneider v. Turner, 130 Ill. 28, the option was for the purchase of railroad stocks.\\nIn Pope v. Hanks, 155 Ill. 617, the option objected to was for the purchase of wheat and corn.\\nIn all of the following cases, found in the Appellate Court reports, the transaction was one in grain or provisions: Tenney v. Foot, 4 Ill. App. 594; Webster v. Sturges, 7 Ill. App. 560; Beveridge v. Hewitt, 8 Ill. App. 467; Colderwood v. McCrea, 11 Ill. App. 543; Coffman v. Young, 20 Ill. App. 76; Miller v. Bensley et al., 20 Ill. App. 528; Kennedy v. Stout, 26 Ill. App. 133; Miles v. Andrews, 40 Ill. App. 155; Watte v. Costello, 40 Ill. App. 307; Griswold v. Gregg, 24 Ill. App. 384; Carrol v. Holmes, 24 Ill. App. 452; N. Y. & C. G. & S. Exch. v. Mellen, 27 Ill. App. 556; Wheeler v. McDermid, 38 Ill. App. 179; Woolcott v. Reeme, 44 Ill. App. 196.\\nHo possible interpretation of the statute can be made to include notes or bonds. We say \\u201c interpretation,\\u201d and not \\u201c construction,\\u201d for the reason that there is no occasion for any \\u201cconstruction.\\u201d Construction is resorted to only when, on comparing two different writings of the same individual, or two different enactments of the same legislature, there is found contradiction where there was evidently no intention of such contradiction, one of the other. But here we have oiie simple statute to be interpreted, and the first and most elementary rule of interpretation is that it is to be assumed that words and phrases are used in their popular'or common acceptation, unless the subject-matter indicates that they are used in a technical sense. 23 Am. & Eng. Cyc. Law, 298.\\n\\u201c Where the object of the legislature is plain and the words of the act unequivocal, courts ought to adopt such construction as will best effectuate the intention of the legislature, but they must not, even in order to give effect to what they may suppose to be the intention of the legislature, put upon the provisions of a statute a construction (interpretation) not supported by the words, even though the consequences should be to defeat the object of the act. The fittest course in all cases where the intention of the legislature is in question is to adhere to the words of the statute, construing (interpreting) them according to their nature and import, in the order in which they stand in the act, rather than to enter upon an inquiry as to the supposed intention.\\u201d Frye v. C., B. & Q. R. R., 73 Ill. 399; Martin v. Swift, 120 Ill. 488; Beardstown v. Virginia, 76 Ill. 34.\\nPrior to this statute it was lawful to contract to have or give an option to sell or buy, at a future time, even grain and other commodities, and such contracts were neither void nor voidable at the common law. Schneider v. Turner, 130 Ill. 39.\\nThe statute which takes away the rights of the parties as they would have been at common law, and renders their contract void, being in derogation of the common law, should be strictly construed, and should not be extended to bonds unless bonds are mentioned in the act. Sutherland on Statutory Construction, Secs. 362, 400; Thompson v. Wheeler, 85 Ill. 197; Cadwallader v. Harris, 76 Ill. 372; Canadian Bank v. McCrea, 106 Ill. 289.\\nThere can be no departure from the plain meaning of a statute on grounds of its unwisdom or of public policy. The courts are interpreters, not makers, of the law. 23 Am. & Eng. Ency. 299; St. P., M. & M. R. R. v. Phelps, 137 U. S. 528.\\nThis section is also highly penal in its nature, and will be strictly construed. Sutherland on Statutory Construction, Sec. 319; Hankins v. The People, 106 Ill. 106.\\nL. S. Hodges, attorney for appellee,\\ncontended that the contract is within the provisions of section 130 of the Criminal Code, as that section is applied to a like contract in Schneider v. Turner, 130 Ill. 28.\\nThe rule to be observed in the construction of this statute is stated in Starr & C. Statutes, Chap. 31, Sec. 1.\\nThis statute has been interpreted by the Supreme Court in Hankins v. The People, 106 Ill. 628; Richmond v. Moore, 107 Ill. 429.\\nIn Reid\\u2019s Dictionary, \\u201c commodity \\u201d is defined as \\u201c anything bought and sold.\\u201d I have found no dictionary which does not in effect give it a like meaning, and it is believed that in the ordinary use of the word that meaning has always attached to it. Shakespeare says: \\u201c I would God, thou and I knew where a commodity of good names could be bought.\\u201d Henry IV, Pt. 1, Act. 1, Sc. 2.\", \"word_count\": \"2431\", \"char_count\": \"14040\", \"text\": \"Mr. Justice Waterman\\ndelivered the opinion of the Court.\\nUnder the holdings of this and the Supreme Court, that a contract whereby an option to buy or sell any commodity is reserved is a gambling contract (Schneider v. Turner, 27 Ill. App. 220; Schneider v. Turner, 130 Ill. 28; Corcoran v. Lehigh & Franklin Coal Co., 37 Ill. App. 577; Wolsey et al. v. Neeley, 62 Ill. App. 141), the only question here presented is, whether bonds are a commodity.\\nCommodity, according to Webster's Dictionary, includes everything movable which is bought and sold, except animals. According to the Century Dictionary, it is anything \\u2022movable that is a subject to trade or acquisition. _\\nAn equally extensive meaning is given to the word in Portland Bank v. Apthorp, 12 Mass. 252.\\nThe statute of this State, Sec. 1, Chap. 131, directs that in the construction of \\\"all general statutes, provisions, terms, phrases and expressions shall be liberally construed, in order that the true intent and meaning of the legislature may be carried out,\\\" \\\" unless such construction would be inconsistent with the manifest intent of the legislature, or repugnant to the context of the same statute.\\\"\\nThis statute has been held to apply to the criminal code. Hawkins v. The People, 106 Ill. 628; Richmond v. Moore, 107 Ill. 429.\\nWe are therefore of the opinion that bonds are a commodity, within the meaning of Sec. 130 of the Criminal Code of this State, and - that the contract in question was invalid.\\nThe judgment of the Circuit Court is affirmed.\"}"
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+"{\"id\": \"872812\", \"name\": \"Gus Hontros v. City of Chicago\", \"name_abbreviation\": \"Hontros v. City of Chicago\", \"decision_date\": \"1904-03-18\", \"docket_number\": \"Gen. No. 11,008\", \"first_page\": \"318\", \"last_page\": \"320\", \"citations\": \"113 Ill. App. 318\", \"volume\": \"113\", \"reporter\": \"Illinois Appellate Court Reports\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T17:54:35.185047+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Gus Hontros v. City of Chicago.\", \"head_matter\": \"Gus Hontros v. City of Chicago.\\nGen. No. 11,008.\\n1. Final decree\\u2014when, proper upon dissolution of temporary injunction. Where the court upon inspection of the bill dissolves a temporary injunction, it is proper, where it appears that the bill is without equity, to, likewise, dismiss the same for want of equity.\\n2. Public streets\\u2014right of public to exclusive use of. The public streets of a city are dedicated to the public for public use and li private individual cannot, by the permission of the owner of the abutting property. or by continued occupancy, acquire the right to use any portion of such street to the exclusion of the public.\\nProceeding to restrain municipality. Appeal from the Circuit Court of Cook County; the Hon. Elbridge Hanecy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1903.\\nAffirmed.\\nOpinion filed March 18, 1904.\\nH. J. Gibbs, for appellant.\\nCharles M. Walker, Corporation Counsel, and Michael F. Sullivan, Assistant Corporation Counsel, for appellee.\", \"word_count\": \"469\", \"char_count\": \"2731\", \"text\": \"Mr. Justice Baker\\ndelivered the opinion of the court.\\nAppellant filed his bill in the Circuit Court and obtained a temporary injunction restraining defendant from interfering with the business of appellant at 112 State street, in the city of Chicago. On motion of defendant made upon the bill only, the court below dissolved the injunction and dismissed the bill for want of equity and the complainant appealed.\\nThe decree of the Circuit Court was proper if the bill was without equity, and the only question before us, is whether the facts set forth in the bill entitle the complainant to the relief prayed for.\\nThe bill avers that the space occupied by complainant is a triangular space, once a part of the building, 112 State street; that the owner of the building by permission of defendant changed the front of his building and thereby left said space vacant and that complainant occupied the' same by permission of the owner of the building. For all that appears from the bill the space so occupied by complainant is a part of a public street, and his only claim of right to occupy the same is based upon the permission of the owner or occupant of the abutting property, and the fact that he had occupied the same for a considerable time and built up there a valuable trade and business.\\nThe public streets of a city are dedicated to the public for public use, and the complainant could not by permission of the owner of the abutting property, or continued occupancy, acquire the right to occupy any portion of the street to the exclusion of the public.\\nIn our opinion the bill does not state a case for relief in equity and it was therefore properly dismissed.\\nThe decree of the Circuit Court is affirmed.\\nAffirmed.\"}"
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+"{\"id\": \"894450\", \"name\": \"THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SZYMON NIEZGODA, Defendant-Appellant\", \"name_abbreviation\": \"People v. Niezgoda\", \"decision_date\": \"2003-03-14\", \"docket_number\": \"No. 2-02-0322\", \"first_page\": \"593\", \"last_page\": \"597\", \"citations\": \"337 Ill. App. 3d 593\", \"volume\": \"337\", \"reporter\": \"Illinois Appellate Court Reports, Third Series\", \"court\": \"Illinois Appellate Court\", \"jurisdiction\": \"Illinois\", \"last_updated\": \"2021-08-10T20:14:36.155989+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SZYMON NIEZGODA, Defendant-Appellant.\", \"head_matter\": \"THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SZYMON NIEZGODA, Defendant-Appellant.\\nSecond District\\nNo. 2\\u201402\\u20140322\\nOpinion filed March 14, 2003.\\nStanley J. Horn and James J. Macchitelli, both of Azulay, Horn, Khalaf & Yoo, of Chicago, for appellant.\\nJoseph E. Birkett, State\\u2019s Attorney, of Wheaton (Martin P. Moltz, of State\\u2019s Attorneys Appellate Prosecutor\\u2019s Office, of counsel), and Kristine A. Karlin, of Mt. Prospect, for the People.\", \"word_count\": \"1572\", \"char_count\": \"9425\", \"text\": \"JUSTICE GILLERAN JOHNSON\\ndelivered the opinion of the court:\\nThe defendant, Szymon Niezgoda, appeals from the February 27, 2002, order of the circuit court of Du Page County dismissing his petition for postconviction relief. On appeal, the defendant argues that the trial court erred in dismissing his petition without an evidentiary hearing because he presented evidence that he received the ineffective assistance of counsel and that his plea was involuntary. We affirm.\\nThe record reveals that on November 22, 2000, the defendant was charged by indictment with unlawful possession of less than 15 grams of cocaine (720 ILCS 570/402(c) (West 2000)). On April 16, 2001, the defendant pleaded guilty to the charged offense and was sentenced to 24 months' probation and 100 hours' community service and assessed certain fees and costs. The defendant did not file a timely notice of appeal.\\nOn September 19, 2001, the defendant filed a petition pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122 \\u2014 1 et seq. (West 2000)) seeking to withdraw his guilty plea. The petition alleged that, before he entered his plea, the defendant consulted with his attorney as to the effect of a guilty plea on his status as an immigrant from Poland. His attorney allegedly told him that his conviction would not be reported to the Immigration and Naturalization Service (INS) and that he would not be deported. Based on his attorney's advice, the defendant waived his right to a jury and entered a plea of guilty. On July 25, 2001, the defendant was taken into custody by the INS.\\nOn October 12, 2001, the trial court found that the defendant's petition was not frivolous or patently without merit and ordered that the State file a response to the petition within 35 days. On November 13, 2001, the State filed a motion to dismiss the defendant's petition. The State argued that there was no evidence in the record that the defendant had received erroneous advice from his counsel or that he had otherwise been prejudiced by his counsel's representation.\\nOn February 5, 2002, the defendant filed an amended postconviction petition. The defendant additionally alleged that he was never admonished that he had the right to consult with Polish authorities about his arrest. In support of his petition, the defendant attached his own affidavit and those of three other people. None of these affidavits were notarized. On February 27, 2002, the trial court granted the State's motion to dismiss the defendant's petition. The defendant thereafter filed this timely appeal.\\nAt the outset, we address the State's motion to dismiss the defendant's appeal or, alternatively, strike certain portions of his brief. The State argues that the defendant's statement of facts includes statements that are not supported by the record, in violation of Supreme Court Rule 341. 188 Ill. 2d R. 341(e)(6). The State also argues that the defendant has not included a complete record of the proceedings below for this court's review, in violation of Supreme Court Rule 608. 177 Ill. 2d Rs. 608(a)(4), (a)(8). We agree with the State that the defendant has not included a complete record for our review. We also find that the defendant's brief is not in full compliance with the applicable supreme court rules governing the content and form of appellate briefs, as the brief includes facts that are unsupported by the record. Nonetheless, we find that the brief and record are sufficient to allow us to review the merits of the appeal. See Taake v. WHGK, Inc., 228 Ill. App. 3d 692, 714 (1992). We therefore deny the State's motion and instead will disregard any inappropriate materials or argument. See Kincaid v. Smith, 252 Ill. App. 3d 618, 621 (1993).\\nTurning to the merits of the defendant's appeal, we note that the Act provides that a defendant may challenge his conviction by alleging that \\\"in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both.\\\" 725 ILCS 5/122 \\u2014 1 (West 2000); People v. Tenner, 175 Ill. 2d 372, 377 (1997). A petition filed under the Act must \\\"clearly set forth the respects in which defendant's constitutional rights were violated.\\\" 725 ILCS 5/122 \\u2014 2 (West 2000). The petition shall have attached \\\"affidavits, records, or other evidence,\\\" as required by section 122 \\u2014 2 of the Act, \\\"supporting its allegations or shall state why the same are not attached.\\\" 725 ILCS 5/122 \\u2014 2 (West 2000). A postconviction petition that is not properly supported by affidavits or other evidence is dismissed without an evidentiary hearing unless the defendant's allegation stands uncontradicted and is clearly supported by the record. People v. Johnson, 183 Ill. 2d 176, 191 (1998).\\nBecause the defendant's affidavits were not notarized, we must first address whether they were sufficient to be considered by the trial court under the Act. The Illinois Supreme Court recently addressed on two separate occasions what constitutes a sufficient affidavit. See Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d 490 (2002); Robidoux v. Oliphant, 201 Ill. 2d 324 (2002). In Robidoux, the supreme court held that an affidavit need not be notarized in order to comply with the requirements of Supreme Court Rule 191(a) (145 Ill. 2d R. 191(a)). Robidoux, 201 Ill. 2d at 340. In so ruling, the supreme court found that Rule 191 contained no express requirement that the affidavit be notarized. Robidoux, 201 Ill. 2d at 340. Rather, the supreme court held that notarization was not required so long as the affidavit was either signed by the affiant or his name appeared as one having taken an oath. Robidoux, 201 Ill. 2d at 347.\\nIn Roth, the appellant's attorney filed an affidavit in support of his petition for leave to appeal to the supreme court pursuant to Supreme Court Rule 315 (177 Ill. 2d R. 315). Roth, 202 Ill. 2d at 491. His affidavit was not notarized. Roth, 202 Ill. 2d at 491-94. The supreme court held that the affidavit had no legal effect and, therefore, the appeal should have been dismissed for the lack of a supporting affidavit. Roth, 202 Ill. 2d at 497. The supreme court explained that \\\" ' \\\"[a]n affidavit is simply a declaration, on oath, in writing sworn to before some person who has authority under the law to administer oaths.\\\" ' [Citation.]\\\" Roth, 202 Ill. 2d at 493. Thus, statements in writing that have not been sworn to before an authorized person cannot be considered affidavits. Roth, 202 Ill. 2d at 494.\\nIn so ruling, the supreme court explained that Robidoux was distinguishable because that case applied only to affidavits filed pursuant to Rule 191(a). Roth, 202 Ill. 2d at 495. The supreme court found that Rule 191 expressly provides what is required of the affidavit but omits any reference to notarization. Roth, 202 Ill. 2d at 496. In contrast, Rule 315 sets forward no specific affidavit requirements. Roth, 202 Ill. 2d at 496. Therefore, the supreme court held that the affidavit requirements under Rule 315 would be the same as the court's traditional requirements for an affidavit, including a notarization. Roth, 202 Ill. 2d at 496.\\nWe believe that Roth sets forward the state of the law in Illinois as to what is required in an affidavit and that Robidoux presents an exception to this law. Thus, unless otherwise provided for by a specific supreme court rule or statutory authorization, an affidavit must be notarized to be valid. See Roth, 202 Ill. 2d at 496. Here, the defendant's affidavits at issue were filed pursuant to the Act. The Act sets forth no such specific affidavit requirements. See 725 ILCS 5/122 \\u2014 1 et seq. (West 2000). Thus, an affidavit filed pursuant to the Act must be notarized to be valid. See Roth, 202 Ill. 2d at 496.\\nIn the present case, the defendant alleged in his postconviction petition that he received the ineffective assistance of counsel because his counsel misinformed him about the effect of a guilty plea on his immigration status. The defendant also alleged that he was not properly admonished that he had the right to consult with Polish authorities concerning his arrest. None of these allegations are supported by the record. Thus, the defendant was required to support these allegations with sworn affidavits. See Johnson, 183 Ill. 2d at 191. However, none of the defendant's affidavits were notarized or sworn before anyone who has authority under the law to administer oaths. See Roth, 202 Ill. 2d at 493. Consequently, the affidavits the defendant filed had no legal effect. See Roth, 202 Ill. 2d at 497. As the defendant's postconviction petition was not supported by the record or any valid affidavits, the trial court properly dismissed his petition without an evidentiary hearing. See Johnson, 183 Ill. 2d at 191.\\nFor the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.\\nAffirmed.\\nHUTCHINSON, PJ., and CALLUM, J., concur.\"}"
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