*1 (see Felbinger & Co. v. plaintiffs entitle to relief pleadings which would 1289), Traiforos not err motion granting court did defendants’ to dismiss first amended complaint. failed to facts plaintiffs allege any

Since which entitle defendants, them to relief need not plaintiffs’ argu- we address are ments that entitled to remedies of a lien they equitable purchaser’s accounting. and an

Accordingly, the of the trial court is affirmed. judgment Affirmed.

WHITE, P.J., J., McNAMARA, concur. ASHFORD, THE ex Plaintiff-Appellant, PEOPLE rel. BEVERLY WIL ZIEMANN, Defendant-Appellee. LIAM (2nd Division) District No. First 81 — 858 26, 1982. filed Opinion October *2 STAMOS,P.J., dissenting. M. Daley, Chicago (Jane Casey,

Richard State’s Clark Attorney, Nancy Donnellan, Kay Wheeler, and Attorneys, Barbara M. State’s Assistant counsel), the People. O’Malley, Chicago, appellee.

William P. JUSTICE DOWNING opinion delivered court: Plaintiff Ashford an to the Pa Beverly brought pursuant action 1351 et (Ill. Act seq.) ternity Rev. Stat. ch. par. have defendant Ziemann daughter, William declared be the father of her born September Following 1978.1 jury nonpaternity, verdict daughter opinion. 1The name the infant in in the record but not used that: the trial appeals, contending (1) refusing court erred plaintiff evidence; (2) the trial daughter’s to admit birth certificate into of one of defense wit- court should have excluded nesses; argument (3) closing remarks made defense counsel reversal; (4) were so as to verdict was prejudicial require manifest weight evidence. Ziemann Beverly Plaintiff Ashford and defendant William agree each since Both parties early known other 1965. steadily had sexual relations years relationship they their dated saw other During sporadically. 1970’s each frequently. parties when, December Plaintiff had not seen defendant for some time walking and her roommate were down the street on she coming out of way buy their Christmas tree and saw defendant offered to help his car. Plaintiff testified alley an Defendant, go that he had to to work first. get them the tree but said that he take said Chicago police department, a detective for home, work, into and return to take them shop- the two women check apartment evening later. Defendant came to an ping unmarked car took a tree. police buy the two women After bringing the tree back to and defendant plaintiff’s apartment, plaintiff out for a drink then to Defendant apartment. went defendant’s left there while he returned to work to check out. When he *3 returned, going couple had intercourse “a times” before they that en- morning. parties and in the Plaintiff testified sleep, again 1977, 17, on January in on and gaged sexual intercourse December 31, 1977, Eve, each time on Year’s December and also New Eve that plaintiff It was on New Year’s apartment. at defendant’s During she she was Jan- thought pregnant. first told defendant that 1978, also dinner at parties plaintiff’s apartment had uary occasions defendant was officer. duty police twice. On both those din- present during Plaintiff’s that she was roommate testified up to plaintiff and at times when defendant picked ners some did 1978, parties After January take her to his apartment. 1978, plaintiff the summer of for several months. In communicate child. their unborn responsibilities called defendant discuss and that responsibility her child not his Defendant told that was get lawyer. she should on No- period that her last menstrual was

Plaintiff also testified 28, dated anyone except and that she had not vember 1976. since 1965 and 1969 he dated plaintiff

Defendant testified that between rela- friendly maintained dating they that they stopped and after He did tionship. stated that he and her roommate with help plaintiff their Christmas tree in but recall early December could not date that exact and stated the tree in his they picked up personal car he did and not take to his Defendant plaintiff apartment day. occasion, also testified that was at his on one plaintiff apartment Eve, which may have been New Year’s he drove her home late that night. having during Defendant denied intercourse with plaintiff of 1977 or January December 1978. Defendant went to plaintiff’s apartment several in her He early help times 1978 to with her car. stated that her they implied had discussed and that she pregnancy was the he father of child. Defendant testified plaintiff 1960’s, had talked about marriage often in the late and once had if asked him he if still marry single her he was he was when 35. only

James Storz was the other called by witness the defense. His existence was revealed to during counsel confer- jury ence after the bulk of case in had He presented. chief been was first trial during deposed interviewed defense counsel and was by plaintiff’s day counsel the before he called as a witness. Storz that he testified is a bartender who has worked several taverns plaintiff’s neighborhood. He first met the summer of 1977 plaintiff while he was then working. Between and November of he en- plaintiff countered times several had drinks each they together time. During weekend before Thanksgiving he met plaintiff at a where bar they stayed They several hours. then to his went where apartment had intercourse. they He met chance the neighborhood twice these December on one of occasions went met they apartment to his and had intercourse. Storz plaintiff again in of 1978. him that she January pregnant She told and they giving baby discussed an abortion and the possibility see up adoption. rejected suggestions. Plaintiff both Storz did not cross-examination, plaintiff again until the trial. On Storz was asked tall, plaintiff. describe He stated that she was five feet six inches has weighed pounds “shapely” legs, brown and no scars eyes, drank identifying marks. He also stated that she scotch and water or scotch on the rocks.

Plaintiff testified as a rebuttal She stated that she had witness. *4 never seen Storz said before he walked into the courtroom. She also tall, is pounds, eyes, that she five feet two inches has weighs blue legs has is noticeable scars and birthmarks and one of her shorter and thinner other of She than the result childhood polio. also stated that she drinks or that she nothing spritzer but beer and her. claimed to have met where Storz frequent did not bars I that the trial court erred consider contention

We first into A cer certificate evidence. daughter’s to admit the birth refusing Abel, signed Stuart plaintiff’s daughter by birth of tificate of live Septem of health on M.D., Chicago department was received name, and listed the child’s date 1978. The birth certificate ber sex, The certificate also listed the birth, of of birth. place time mother. The address, of of name, age, place plaintiff, birth (Illinois) of the fa age (37) place birth certificate contained included, in accordance with sec ther, name was not but the father’s lll1^, 1981, ch. (Ill. Records Act Rev. Stat. 12(4) tion of the Vital states: 12(4)),which par. 73— to the father of the child If mother was not married

“(4) birth, the name of the father time of conception either at the the certificate of birth without writ- shall not entered on and the to be named as person ten consent of the mother aby has been made paternity a determination father unless name of the which case the jurisdiction, court of competent entered.” the court shall be father as determined certificate, a certified Plaintiff, the live identified signed who birth Also in in her case chief. of it her copy and asked an adverse witness chief, was called as case in sought then admission Plaintiff place his date of birth and birth. objection, defendant’s Upon certificate into evidence. the birth admission, stating: trial court denied is that it will be denied. The law case,

“In ruling my father alleged the name of the cannot insert clear that very you innuendo now going permit by his I am without consent. him as on the identified stand and put that she the defendant rul- Chicago. my in the That’s living City 37 and being age ing.” relevant certificate constituted birth

We believe admis refusing its evidence, trial court erred in and that the proper of a “child born proof case is paternity element of sion. An essential seq.) 1351 et This par. ch. (Ill. of wedlock.” Rev. Stat. out entered, probative certificate, name not with the father’s birth Thus, the certifi birth out wedlock. the fact that a child was born evidence. cate was relevant objection hearsay address the potential

We next we Initially, reasons. certificate, it not for two and find valid birth

39 conclude that the certificate was not hearsay, because oút-of-court declarations were those plaintiff of and she testified at trial and was subject cross-examination ex defendant whom the 120-22, hibit is (People Carpenter 116, offered. v. 28 Ill. 2d 190 (1963), 738.) N.E.2d This case not a is situation in which an is made attempt a introduce third is of the testimony by person, any nor there issue declaration; rather, remoteness of the we are with a certifi dealing cate of signed by live birth the plaintiff subject who testified and was (See cross-examination. v. 53 People (1977), Osborn Ill. 3d App. 319, 608; 312, 374, 368 People v. Clark 52 Ill. 2d 388- 89, 363; Gard, 14.09, 288 N.E.2d 2 Illinois Evidence Manual sec. at (2d 1979).) 72-73 ed. if the birth certificate was Alternatively, hearsay, it was exception hearsay admissible because rule for re McCormick, cords vital statistics. Fed. R. Evid. 803(9); Evidence 316, at (2d 1972); Graham, sec. 736 ed. & of Illinois Cleary Handbook 803.14, (3d Evidence sec. at 1979). 450 ed.

It also might be noted that this relevant corrobo evidence rates as prior consistent statement. contest By ing action, the paternity challenges plain defendant veracity circumstance, tiff’s Under testimony. such the evidence is admissible. See Cleary Graham, 611.14, & Handbook of Illinois Evidence sec. at (3d 1979); McCormick, 319-20 ed. sec. (2d Evidence ed. 2 Gard, 1972); 14.09, Illinois Manual sec. (2d 1979); Evidence at 71 ed. 801; 374, 382; Fed. R. v. People People Evid. Clark 52 Ill. 2d 170, 174, Rosario (1978), 382 N.E.2d 31. The trial court excluded birth certificate be apparently of prejudice cause to defendant. disagree any preju We find dice to is outweighed defendant value of birth probative action, certificate. Of course in any paternity may there be evidence prejudicial court, to the defendant. If might we understand trial it never be possible a birth certificate complete pursuant section 12(4) lllVa, Act (Ill. par. Vital Records Rev. Stat. ch. 12(4)). 73— age That listed the of the father as 37 and his place completing of birth as Illinois at the time of the certificate September probative in this action. paternity

II next We consider contention that the trial court erred in refusing to exclude from for testifying James Storz sanction defendant’s violation of rules. On discovery January defendant, plaintiff propounded a set of which in- interrogatories cluded other men that request disclosure of the existence any filing defendant contended had plaintiff. intercourse with Despite by plaintiff compel two motions interrogato- answer these ries, defendant never filed an answer. 13, 1981, trial,

On to set the al January plaintiff moved case leging discovery complete. Monday, On March trial, a continuance requested date scheduled commence defendant trial, 10, at start defendant next On March day. until the At he one two the conclu told court that would have witnesses. date, advised the court he on that proceedings sion plus one more witness. On Wednes defendant on stand put commenced, defendant advised the court March before trial day, the notification took Apparently James Storz. plaintiff about *6 presence reporter.2 the out the a court court’s chambers place emerge: the facts following (1) Based the record before us the upon anything stated he did not know about court said defendant’s counsel ago 4); (2) until a defendant’s counsel said (March this witness week week, maybe Friday his attention some time last Storz came to (March 7); (3) and Storz testified on March (March 6), Saturday maybe on days ago of the case about 10 12 and said he first became aware (March 1). upon any interpretation Based reasonable Sunday evening record, Storz at the the it is defendant became aware of obvious it any respect, 1 at the latest on March 7. In earliest on March re scheduled for trial when defendant prior was to March the date continuance, reason, unexplained for some the yet quested one-day until March ll.3 Storz was announced surprise witness Storz objection permitting trial overruled plaintiff’s The court during the Storz a lunch depose permitted but testify, sought a continuance because There no record that plaintiff break. is surprise the of this witness. disclosure 219(c)(iv)) per 2d 219(c) (iv) (87 Rule Ill. R. Supreme Court comply of a for unreasonable failure mits the exclusion witness determination of whether witness requests. The discovery with de- of the trial court’s is the sound exercise should excluded within place in significance take of this that a discussion 2It is inconceivable recording entire manner the discussion. without opposing talk the wit- suggest counsel does not that if 3The dissent seems advising party court is excus- trial, the other delay in ness until of the witness fact that was aware position counsel think this overlooks able. We faith, good duty disregards plaintiff, and days least five before he informed ignores fact that counsel, this. It particularly in a case such as requirement of plus going one fact he was to call defendant referred to the that counsel twice more witness.

41 (Kirkwood v. 12 Ill. (1973), App. cisión. Checker Taxi Co. 3d The 233.) determining N.E.2d factors be considered whether are: “the to the adverse proper surprise party, preju exclusion dicial nature of dili effect testimony, testimony, gence of the party, timely objection testimony adverse the good faith of the 12 Ill. 3d party calling App. witness.” 132.

In our the record that defendant opinion, clearly established wilfully supreme violated court rules governing discovery. We therefore conclude that trial court abused its discretion in refus ing testimony to bar of Storz. It is that apparent defendant knew existence this witness for several before disclosure to days plaintiff. Due to the explosive impact that this witness’ had case, time investigation might substantially plaintiff. reason, aided For the same late disclosure worked defend advantage. ant’s dissent states “the trial court’s field of discretion in the of this

employment sanction is narrowly (See circumscribed. Mason v. Lanes, 990, 993-94, Mundelein Inc. Ill. 3d App. 391 N.E.2d 151; Smith Realcoa Construction Co. Mason, 855.)” In the excluded witness was first

named as a potential witness early over two years before In Smith, trial. permitted to call as a person witness not listed on interrogatories. However, defendant’s answers to plain tiffs were aware the witness on the job while were also they employed job. on the We think inapposite. these cases are realize

We failed to protect plaintiff’s counsel inter- *7 to ests the fullest extent possible failure to insist on answers to the interrogatories and failure to move for a continuance once the sur- prise presented. cannot, however, witness was We find a waiver in diligence light lack of in by counsel deliberate concealment of a material witness we Accordingly, defendant. hold that the trial court abused its discretion in refusing impose to the sanction of bar- the ring of Storz. testimony

III The errors of the in failing circuit court exclude Storz as a witness and the denying admission of birth certificate into evidence warrant reversal and a remand for trial. it Accordingly, a new we find unnecessary reach the other raised These by plaintiff. two issues likely issues are to arise not on remand.

The judgment reversed, re- circuit court and this cause is opinion. consistent with this proceedings manded for further Reversed and remanded.

HARTMAN, J., concurs.

STAMOS,P.J., dissenting: respectfully I from hold that the birth certificate was excluded properly and that the trial court did not abuse its discretion in refus- evidence to exclude the of James Storz. ing that evi found the birth certificate was relevant

My colleagues action, an of ille dence of essential element of cause namely declarations, thereof, The gitimate plaintiff’s birth of child. and lack which relate to the parentage contained the birth certificate of element of the hearsay, prove pater child are inadmissible Stat. nity (Ill. action. Section 25 of Records Act Rev. Vital IIN/b, of 25) evidentiary ch. section outlines uses permissible 73— scope or certification of thus the of a birth certificate birth and it as relates to such hearsay exception “records of statistics” 'vital Graham, of Illinois Evidence (See documents. Handbook Cleary 803.14, (3d pro ed. 6 of that statute 1979).) at 450 Subsection sec. of a issued or certified certificate copy certification “[a]ny vides as evi prima section shall be considered facie in accordance with this ***.” provides perti therein stated Subsection dence of facts name, of birth shall contain only nent certification part “[t]he it sex, birth, birth, relates person whom place date two interpreted provisions, ***.” has these which Our court supreme dealing vital records Rev. Stat. (Ill. in the with appeared prior statute of a IllVz, limiting evidentiary use certified par. 55), ch. as certificate) all information on the birth (containing of birth record in a certifi placed which could properly those facts proof only 20 Ill. 2d rel. Moran Teolis (See People ex cation of birth. information in re the birth certificate 232.) 169 N.E.2d in a not certifi of the child could be included lating parentage hearsay exception within the records does fall cation and vital statistics. which counsel attempted

It is clear from the foundation was not offered that the document for the certificate lay birth wedlock, but, asserts as of the child out of birth prove identity father brief, to as to her prove belief her credi- thereby out bolster filled the time certificate was mind certificate when a witness. Plaintiffs state bility

43 case, purpose made out never at issue and the sole of the was hearsay have the statements contained in the certificate offer was to admitted into evidence. plain holds that out-of-court declarations majority a hearsay

tiff in the certificate are not because declarant was wit at for ness the trial therefore was available cross-examination. 116, 120-22, (1963), v. 28 Ill. 2d 190 N.E .2d (Citing People Carpenter However, 738, rule.) of this interpretation hearsay support a statement is Carpenter frequently objection involved heard that it if was made “out of the of the presence inadmissible [criminal] holding defendant.” In that this objection essentially meaningless,1 the court went to state that the “fundamental of the hear purpose rule is to say by was and test the real value exposing (28 116, 121.) source of the assertion to cross-examination.” Ill. 2d However, the thrust of that opinion that in most cases the pres ence of of the absence an opposing party when out-of-court statement is made is immaterial. case That does not a rule explicitly propound out-of-court every statement a declarant witness is nonhear say simply because the declarant is for available cross-examination. Rather, the rule generally accepted prior is that out-of-court state ments of witnesses are not available for use as substantive evidence. Board (See McCoy v. Fire & Police (1977), Commissioners 54 Ill. 281, 276, 369 N.E.2d 278.) Such out-of-court statements have been characterized as “pure Kubisz v. 29 hearsay.” (1975), Johnson genesis objection opinions 1The of this curious can traced to be several of our supreme People 113, court. In v. Schallman Ill. 113 N.E. court 273 purveyor goods held that the prove sales records of a of stolen were inadmissible to purchased had knowingly property. defendant stolen The records had been declarant/witness, seller, bookkeeper dictated to the a time for when the present. defendant was not The court stated that: court, any person “Declarations out of statements kind a third against the accused and made in knowledge, his absence and without his are against elementary, inadmissible as evidence him. The rule is and a violation of it is violation of right only the accused’s he constitutional shall not charge permitted informed nature him but be to meet accusing witnesses face face.” Ill. 569. 273 People Blockburger (1933), In v. Ill. 188 court N.E. reiterated commenting improper this rule in on a witness which it found to be examination several reasons other than the when the statements which absence sought prosecutor People elicit were made. In Bennett again court held that a statement made out the defendant’s presence primary purpose was inadmissible. The which the was offered statement repeated in that case was have the defendant’s silence when statement guilt. him as an construed admission of 381, 383-84, Ill. 329 N.E.2d 815. App. 3d are out-of-court statements which unfavor Frequently, party’s *9 are into evidence ad party’s able to the cause allowed as substantive 262, McCormick, sec. at 628-31 (See generally (2d missions. Evidence are However, ed. a out-of-court statements which con 1972).) party’s sistent his or her in-court do not pleadings testimony with receive the to same treatment. Such declarations are referred as commonly and are the “self-serving” statements held inadmissible under hearsay (See v. Ill. 2d 242 People (1968), App. rule. Colletti 101 N.E.2d 63.) Prior are the out-of-court statements which consistent with wit ness’ in court are testimony only purposes rebutting admissible a that the is a recent that some charge testimony fabrication or mo (See tive arisen that the prompt testify falsely. has witness 474-75, 409; People 465, Powell Ill. 2d 292 (1973), Cleary v. 53 N.E.2d Graham, Illinois at 319-20 Handbook of Evidence sec. 611.14 (3d 604; 49, McCormick, ed. Evidence sec. sec. at 106 1979); (2d 4 rev. 1972); (Chadbourne ed. sec. at 255 ed. Wigmore cf. Evidence, the Rules of 1972).) prior Under Federal consistent state may ments are classified and thus be used as substan nonhearsay, as evidence, offered after a charge tive such statements bemay only but made. R. Evid. 801(d)(1)(B). recent fabrication has been Fed. the attack

Although general finds that defendant made majority action, there on the by contesting paternity plaintiff’s veracity the suggest attempted specific in the that defendant nothing record the type hearsay would render declarations impeachment which the the I therefore hold that trial certificate admissible. would birth excluding certificate from evidence. properly court acted the birth Illinois held that a trial This case is the first which has opinion severe sanction of exclusion of witness court’s failure the apply In Kirkwood Checker was an of the trial court’s discretion. abuse plaintiffs Taxi 3d App. Co. to the any of the witnesses nonparty failed to disclose the names The plaintiffs of the action. that was subject automobile collision surprise The five months before trial. interrogatories had answered occurrence wit only nonparty called plaintiffs witness plain one of the ness testified in the case. She was sister of who nonparty had three other wit tiffs, knowledge and she at least called to testify. were not and not deposed nesses collision who The the defense was allowed witness was disclosed trial and testimony. prior for five minutes her interview witness faith good of lack of strong court stated that there were indications identity, “deposition” nondisclosure of the witness’ brief, were to take was inappropriately defendants allowed the nondisclosure the wit severely prejudiced by defendants were discov nonparty ness because the other witnesses would have been her, ered that the were be through prejudiced defendants also must great cause the court deal of reliance on placed to the occurrence only nonparty testify available However, at issue. the court the trial did not its held that court abuse in refusing (Kirkwood discretion to exclude the witness. v. Checker Taxi Co. 133.) holding Ill. While that part judge based fact that the was not informed at the trial time of ruling relationship his of the witness to one of the witness, she plaintiffs or that was an occurrence that case nonetheless illustrates the extreme reluctance with which sanction witness exclusion should applied. Kirkwood,

In were aware of the plaintiffs existence witness, probably witnesses, existence of the other occurrence In prior case, months trial. the instant defendant contacted the *10 witness a week 10 days prior to trial. Defendant’s counsel not did witness, to the speak and thus had no chance to if wit- determine the called, ness should be until day the the witness On before was called. witness, the same day that he interviewed the defendant’s counsel no- tified the court and counsel that he to opposing intended present Storz’ given the testimony, plaintiff’s counsel was belated oppor- tunity to take a full deposition of the witness. Although record plainly shows that defendant and his counsel could have acted awith good deal diligence more in courtesy making plaintiff aware of witness, the existence of this this conduct does not amount to the showing of deliberate concealment that was present in Kirkwood.

The instant case is distinguishable also from in Kirkwood that the delay in disclosure probably resulted in less prejudice opposing party. In Kirkwood the made it delay impossible for defendants to depose or even contact two occurrence witnesses other than wit- ness who testified. Knowledgé those witnesses would least been helpful trial, the defendant’s case for preparing might have resulted in presentation of testimony which would have been less favorable to than the plaintiffs testimony witness Although called. plaintiff here would have benefited from an surely opportunity investigate to the basis of Storz’ there is noth- testimony, ing record that a suggest important whole class witnesses was made plaintiff unavailable to because of the delay. prejudice plaintiff that was worked is delay speculative therefore far more than the prejudice obvious the defendants in Kirkwood. the only nonparty in Kirkwood was witness

Additionally, surprise trial, undoubtedly testimony called at and her occurrence witness case, it difficult to In the instant is the trial court. given great weight by testi- on case. His testimony affect Storz’ had ascertain what alone, damaging plaintiff. direct, appear if taken would mony on Storz a series of cross-examination, counsel asked However, answers attributes. concerning plaintiff’s physical questions Storz’ taken with impeachment, inaccurate. That wildly these were all questions whole, this court might justify as a testimony of Storz’ vagueness of this wit- disregarded that the concluding jury completely of proof. not met her burden had plaintiff ness still determined but of exclusion dealt with the sanction cases which have Other Illinois of this in the employment field of discretion that the trial court’s illustrate Lanes, Inc. (See Mason v. Mundelein circumscribed. narrowly sanction 151; v. Realcoa Con 990, 993-94, 391 N.E.2d Smith 72 Ill. 3d App. 855.) Although struction Co. condoned, cannot be discovery process defendant’s attitude toward make as to egregious was not so of defendant and his counsel the conduct court did I hold that the trial appropriate. of the witness exclusion testify. allowing witness not its discretion abuse weight manifest was not I hold that the verdict would also counsel defendant’s remarks of evidence, improper that the because prejudicial were during closing argument the court. counsel and of remarks of curative Therefore, I would affirm. ILLINOIS, Plaintiff-Appellee, v. OF THE STATE

THE PEOPLE OF BUFORD, Defendant-Appellant. DENNIS *11 Division) (2nd No. 81 — 171 First District 26, 1982. Opinion filed October