*1 braith, 271 Ill.App. which hold that a note be confessed be fore its due date where the note contains a clause it to be authorizing note, confessed at any time after the date of the but state that such clause constitutes an unconscionable contract ask that the provision old cited cases be оverruled. The in First National Bank v. Gal braith, supra, stated at 244: page
“By many Courts, decisions of our Court Supreme and Appellate is well established law this State that is nоt judgment prematurely taken on note, a warrant of attorney, of a forming promissory note, for the amount unpaid the note is not due although terms, its where the warrant taken judgment may at time any after the date of execution of the note. * * * Where a warrant of in a note authorizes attorney any torney to ‘at time’ and appear any confess for the judgment due, words, note and interest then ‘then due’ do not limit the to confess power judgment any at time
The trial court jurisdictiоn did not lack to confess judgment herein, nor does confession of authorizing judgment a bona debt par. 50(3)) fide due prevent entry judgment by confession herein. The argumеnt defendants, the clause in the note confession allowing at time after date constitutes an unconscionable more provision, directed to the rаther than legislature to this court.
The judgment of the Circuit Court of Stephenson County affirmed. affirmed. Judgment GUILD,
T. MORAN and concur. JJ., Wayne of the State al., et Defendants-Appеllees. 71-141, (Nos. 71-142, cons.; 71-363 *2 MORAN, J., T. concurring in part part. in Wheaton, William V. of Hopf, Attorney, Gust, As- (Ralph J. sistant State’s Attorney, Murphy, Special Assistant State’s James Attorney, counsel,) for People.
O’Rrien, Burnell, Rarnett, Aurora, Puckett & for appellees. Mr. PRESIDING SEIDENFELD delivered the court; each State from by The above an order of appeals, court, this were cоnsolidated Court for by disposition. All defendants were counsel and each was represented by charged with separately a motor vehicle while under thе influence of intoxicating liquor. (Ill. 95½, each, State. In court, ch. par. 11— State, face of the com amended by and over objection 1969, ch. plaint the offense reckless Rev. Stat. (Ill. 95½, and, evidence, 503) accepted par. hearing 11— and assessed costs to the reduced a fine of charge, $100 in the of $10. sum differ in the was following pre- only respects: had in a Prello resulting jury”; tried
viously par. “hung 11— also been dismissed improper usage lane which was ordered, in fine court on its own was addition to costs, her drivers license with the for six months deposit court (the was later amended to period one month). question
The threshold raised defendants whethеr the by the has the Court Rule appeal. Supreme (in part pertinent that the State an here) from order or appeal only judg ment, “the dismissing substantive effect which results in any of grounds enumerated section 114—1 of Code of Crimi Procedure nal 1). 114— argues in effect dismissed reducing charge, the original charge brought. People Love 438- 440, it held was that the intent of section 114—1 was not to reduce State’s Attorney’s right of appeal to ten set forth grounds only *3 statute, but to include within that those instanсes the right whereby effect of substantive the judgment would be the dismissal of indict the ment, also, information or See v. People Petropoulos (1966), 179, 34 181, Ill.2d People 186, and v. Finkelstein 372 192. (1939), Ill. We agree with the State that the substantial effect of amending a complaint and accepting on lesser a substituted charge judge amounted to а dismissal of the for influence of intoxicating liquor. We conclude that could prop erly appeal.
It is conceded that the re-filed the original charge or for petitioned a writ of mandamus to seek to the court’s expunge Re-filing burdensome procedure under the circum stances and amount to a collateral order; attack the court’s upon while mandamus, action, though an is appropriate an extraordinary remedy which the State was not required when the relief it pursue may seeks upon obtained direct appeal. without clearly authority court was as it By
The did. proceed is Attorney the commencement and 1969, of criminal within prosecution county, (Ill. Stat. his 14, duty, granted the exercise of he public certain of which is one to determine the offense can discretionary powers, which
199 constitution Article III be charged. and should properly executive legislative, among government divides the powers exеrcise pow these shall none of judicial departments is a office part Attorney’s The State’s the others. ers belonging take may department that the judiсial It is clear branch. executive v. People officer. an executive vested powers as its own discretionary 362, 394 Ill. 396; (1946), v. Graber People Ill.2d Rhodes 38 (1967), 264 N.E.2d Ill.App.2d Baron People (1970), v. 425-426. the court under which authority with no furnished have been
We no or amend dismiss, prosse, nolle the court’s The extent no evidence taken. and with defect in pleading the attempted review is to brought to be to the relative one seeking is the Attorney the State’s when of discretion exercise 325; People 284 Ill. v. Newcomer (1918), People nolle prosse. 14, 29; v. Daniels 8 Ill.2d Sears (1971), 25th, the com- amending February court’s order dated The trial the defendants judgments pleas is reversed. plaints to the The cause is remanded are vacated. to the amended complaints with this opinion. consistent court for further proceedings Reversed and remanded with directions.
ABRAHAMSON, concurs. J., THOMAS MORAN concurring Mr. J. in part: I concur with the that the trial court was of the opinion but must dissent from that portion in this matter. which сoncludes that the State had the to appeal our interpretation given relies conclusion Finkelstein, all Love, three Petropoulos yet 604(a) Rule present instant each of from the case. In distinguished easily of these cases are cases, a motion to motions were quash, defendants filed cited In thе instant de- were released without penalty. and they allowed court, on its own amended the action but the fendants took no and suffered not set free but were convicted defendants were complaint; *4 costs; fines and and Peru their paid Campbell (Rotramel, penalty. her for one deprived privileges was additionally all, assume, a mark on their month; driving records). sustained we amendment in that the court’s effect amounted reasons majority under the influence of intoxicat- of the to dismissal of the court’s amend- that the substantive effect It view ing liquor. my not to dis- ment was reduce the original complaint, miss or re- discharged not toto. The dеfendants were Now, leased found their but a less after fulfilled having offense. sentences, trial stand on that opinion requires they again the original due to charges, on judge. .error
The majority concedes that have the original re-filed charge but concludes it be a burdensome procedure would collateral attack on the court’s Were we assume the procedure burdensome I such burden (an assumption do share), would be minimal to that on the defendants herein. compared placed justice to the an in- weighed defendants cannot be against that, instance, convenience to the State. I am of the in this it would have been appropriate and for the State to proper collaterally tack the unauthorized order by re-filing original charge.
The majority further man- concedes that the State could filed a have damus but was not required to so do “when the relief it seeks obtained on direct Thus, statement, with a apрeal.” conclusionary majority dispenses with the issue very raised on appeal thereby begs the question. Such position issue, fails to that the acknowledgе ques- tion did, of the of the trial act as he was never raised judge in or here, Under passed court. believe that State should followed one pro- cedures which earlier suggested.
I therefore would dismiss the brought herein but include appeal my opinion portion of the opinion substantiating court’s lack of v. Merle L. the State
Ford, Defendant-Appellee.
(No.