text:
    John R. Hayes, Appellee, v. Wabash Railroad Company, Appellant.
    Gen. No. 16,968.
    1. Pleading—where declaration purports to state cause of action under the federal statute. In a personal injury action, the fact that plaintiff’s declaration purports to state in all its counts a cause of. action under the Federal Employers’ Liability Act and in one, also a cause of action under the Federal Safety Appliance Act, does not eliminate the possibility of its stating a cause of action under the common law of Illinois.
    2. Jurisdiction—where declaration states cause of action under federal statutes. In a personal injury action the fact that plaintiff’s declaration states a cause of action under the Federal statutes does not deprive the State courts of jurisdiction.
    3. Statutes—cumulative remedies. Remedies given by statute for personal injuries may be cumulative and not in abrogation of a right of action at common law.

      4. Pleading—when allegations may be regarded as surplusage. In a personal injury action where the allegations in the declaration, that the defendant was engaged and the plaintiff employed in interstate commerce are not descriptive of any fact or condition essential to recovery under the common law, they may be regarded as surplusage.
    5. Pleading—when declaration is sufficient statement of cause of action. In a personal injury action where plaintiff, a switch-man, on defendant’s railway was injured by being knocked from a car when the train became uncoupled while being backed into an elevator, the declaration is held to state a good cause of action, the allegations that defendant was engaged in interstate commerce being regarded as surplusage.
    6. Pleading—causal connection between defendant’s negligence and plaintiff’s injury. In a personal injury action where the declaration alleges that defendant’s track was negligently left dilapidated, that because of that cars uncoupled, that because of the uncoupling .they rolled with great speed and without control into an elevator, that solely from this the plaintiff was in reason obliged to look for means of escape from a position in which he was placed in the course of his duty and in so doing was injured, there is a sufficient statement of a direct causal connection between defendant’s negligence and plaintiff’s injury.
    7. Negligence—when question for jury. In a personal injury action, the question whether plaintiff, a switchman on defendant’s railway, was in the discharge of his duty and in the exercise of due care, in attempting to protect himself from injury, at the time cars became uncoupled is for the jury.
    8. Jury—question of fact. In a personal injury action the question whether the uncoupling of cars resulted from the condition of the track is for the jury.
    9. Inspection—duty of railroad as to tracks. In a personal injury action, where plaintiff’s injury is alleged to have resulted from a defective condition of the track causing cars to be uncoupled, it is held that the defendant railroad owed a duty of inspection and investigation of the condition while plaintiff is held only to observation.
    10. Assumed bisk—defective tracks. In a personal injury action, where the defective condition of defendant’s tracks is alleged to have uncoupled cars and caused injury to plaintiff, a switchman, the decision of the jury that plaintiff did not assume the risk is affirmed where the evidence shows plaintiff did not understand and appreciate the danger.
    11. Evidence—as to custom of switchmen to ride detween cars. In a personal injury action, where plaintiff, a switchman in the employ of defendant, was injured by being knocked from a car, evidence that switchmen were accustomed to ride between the cars is admissible.
    12. Evidence—as to removal of ties after the accident. In a personal injury action, where plaintiff’s injury is alleged to have been caused by the defective condition of defendant’s tracks, there being evidence on direct examination that the ties were not bad enough to take out at the time of the accident, it is proper to show on cross-examination that they were rotten a week afterward and were then taken out.
    ■ 13. Damages—for loss of arm, when not excessive. In a personal injury action, where a switchman lost his arm, a judgment for $14,000 is held not excessive.
    Appeal from the Superior Court of Cook county; the Hon. Mabous Kavanagh, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed May 26, 1913.
    Statement by the Court. This is an appeal from a judgment of the Superior Court of Cook county for $14,000 rendered May 28, 1910, against the appellant, the Wabash Eailroad Company, in a suit brought against it by the appellee, John E. Hayes. For convenience we shall in this statement and in the opinion following uniformly designate Hayes as plaintiff and the Eailroad Company as defendant.
    The judgment was rendered on the verdict of a jury, which verdict, however, was for $18,000. When a motion for a new trial came on to be heard by the Court below the plaintiff remitted $4,000 and thereupon the record shows that after argument, etc., and “in consideration of said remittitur,” the motion for a new trial was denied. A motion in arrest of judgment was also overruled and the judgment in question entered.
    A synopsis of the pleadings will show the nature of the case resulting in this judgment.
    The first count of the declaration alleges the defendant to be the owner and operator of a railroad from Chicago into different States and a common carrier thereby of commerce between several States; that it had a track extending into and ending in a butting post inside a grain elevator in Chicago; that the plaintiff was employed as switchman in the defendant’s handling of commerce, “to assist as its servant in the work of putting said cars into and taking them out of said elevator, and that it was the duty of the defendant to exercise due care to maintain said track in a reasonably safe condition for the purposes for which it was used.”
    The count then proceeds to allege that the defendant violated said duty by permitting ties of said track to be broken, rotten and decayed and the track to be uneven and dilapidated, in consequence of which cars run upon and over said track were likely to become uncoupled, endangering the plaintiff and other servants of the defendant; that on July 9, 1908, the defendant, while engaged in Inter State Commerce and in said commerce had six cars coupled together and to one of its switch engines, and by means of said engine was shoving said cars along the track and into the elevator, that the plaintiff while employed in such commerce and exercising ordinary care, was riding between two of the forward ears of this string of cars; that as the result of the condition of said track two other cars of the string between the plaintiff and the engine became uncoupled from each other and thereby all cars forward of the uncoupling point, including those between which the plaintiff was riding, were detached from the power of the engine and could not be controlled or stopped by said engine, and ran into the elevator and against the butting post at great speed and were wrecked.
    The further allegation is: That when the plaintiff learned the cars had become uncoupled they were closely approaching said butting post, “and he * * * believed and was justified in believing that said cars would run against said butting post with great force, * * * and that if he remained between said cars until they struck said butting post he was * * * likely to be severely injured or killed, and in order to avoid such injuries or death, he thereby then and there attempted to get from between said cars and while he was doing so and while, as he alleges, he was in all respects exercising ordinary care for his own safety, he was * * * knocked down and from between said cars by an obstruction alongside of said track,” and that one of the cars ran over the plaintiff’s arm injuring it so as to require amputation.
    The second count adds to the allegations of the first count the averment that the defendant unlawfully and negligently was using cars coupled by drawer bars not complying with the standard required by the Federal Safety Appliance Act and the action of the Inter State Commerce Commission thereunder, and that this unlawful action, together with the unsafe and improper condition of the track, caused the cars to become uncoupled, with the results as detailed in the first count.
    The third count makes no reference to the use of improper drawer bars, but adds to the allegations of the first count one that “the defendant’s engineer, by means of the engine, pushed and ran said cars upon and along said track at an unusually high and dangerous rate of speed,” and that the uncoupling of the cars and the subsequent injuries to the plaintiff were the direct result thereof and of the unsafe and improper condition of the track.
    The fourth count alleges the same matters as the first count, and in addition that the brake appliances with which one of the cars was equipped "for the purpose of setting the brake and stopping the car was in such a defective and inoperative condition that the brake could not be set; that the defendant knew or should have known of this, but that the plaintiff did not learn of it in time to avoid the injuries complained of; that while he was riding on top of one of the forward cars of the string of cars as they were being run towards the elevator, he attempted to set the brake on the car with the defective brake appliances in order to check and stop said car, but was unable to do so on account of said defective condition of the brakes, and as the car on which he was riding was closely approaching the door of the elevator, he climbed down between two of the forward cars of said string of cars in order to avoid being struck by the door; that while so riding between said cars and after the cars had entered the elevator and were closely approaching the butting post,1 ‘ he learned that the forward cars of said train had accidentally become uncoupled from said engine, and then knew that as the brake was not set upon said car upon which he had attempted to set it,” they were likely to run against the butting post at a high rate of speed, and he be injured or killed, wherefore he attempted to get from between said cars and was struck by an obstruction alongside of said track and knocked down onto the track and run over, with the result of a loss of his arm.
    The defendant pleaded the general issue of not guilty to this declaration.
    Shope, Zane, Busby & Weber, for appellant; J. L. Mirons, of counsel.
    James C. McShane, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This case has been argued in the briefs and printed arguments of the respective parties very thoroughly and elaborately, with much analysis of the evidence and with a great wealth of cited authorities upon various points which it is contended are properly involved in its decision.

We have given it on our part a prolonged and very careful consideration. But the conclusions which we have reached do not require for their expression or discussion an opinion proportionate in extent. In view of the contention of the plaintiff that the court below made an error by which, however, the defendant should not profit, in instructing the jury, at the defendant’s request, that the evidence was “insufficient to show that the train of cars or any of them upon which the plaintiff was working at the time of his injury was engaged in inter state traffic,” thus withdrawing from thé jury the alleged effect of .the Federal Safety Appliance Act and the Federal Employers’ Liability Act, and leaving them to consider in full effect under the law of Illinois the defenses of contributory negligence and assumed risk,—we have examined at length the arguments and authorities of the respective counsel on this matter. But a discussion of it herein, or even an expression of our conclusions thereon, does not seem to us necessary or even desirable; for we have determined that the pleadings and the evidence made a proper case for the jury to pass on, and justified their verdict, even under the theory which was taken by the trial Judge and embodied in his instructions. Under those instructions it inhered in the verdict of the jury that they found the plaintiff not guilty of contributory negligence but in the exercise of ordinary care, and that they found that he had not assumed the risk of the injury. These conclusions we think they were justified in reaching. Therefore we express no opinion on whether the cars on which plaintiff was working were engaged in inter state commerce.

The defendant maintains, however, that inasmuch as the plaintiff’s declaration purports to state in all its counts a cause of action under the Federal Employers’ Liability Act, and in one also a cause of action under the Federal Safety Appliance Act, this eliminates the possibility in a legal and technical sense of its stating a cause of action under the common law of Illinois.

The contention was originally made by the defendant that by the statement of this cause of action under the Federal statutes, the jurisdiction of the state courts of Illinois was ousted; and that the matter became one of Federal cognizance solely. This contention, in view of the decision of the Supreme Court* of the United States in Mondou v. New York, N. H. and H. R. Co., 223 U. S. 1, the defendant has abandoned, but still insists that although the Superior Court of Cook county had jurisdiction of the case at bar, it was bound, on holding as it did that the participation of the cars in question in Inter State Commerce was not proven, to have instructed the jury that no cause of action as stated in the declaration had been proven and that they should therefore return a verdict for the defendant. To sustain this point counsel have cited various opinions of District Judges of the United States holding Circuit courts, in cases in which they have decided either that the Federal statutes involved have superseded state statutes regulating the liability for personal injuries of railroads engaged in Inter State Commerce, inconsistent therewith, or have held that in the Federal courts and as affecting the question whether a suit may be brought in a district in which the plaintiff resides and the defendant does not, a suit in which the. declaration states a case under these statutes cannot be held to rest “only” on diverse citizenship. See for example, Whittaker v. Illinois Cent. R. Co., 176 Fed. Rep. 130.

We cannot agree with the defendant’s counsel as to the controlling force in this case of these decisions: So far as expressions in the opinions cited and quoted may seem to give color to the contention that the mere statement in a declaration that the plaintiff was injured while engaged in Inter' State Commerce must serve to render nugatory in a state court the allegations which, without this one, show a complete cause of action under the common law of the state, they are and must from the nature of things be merely obiter dicta as applied to the case at bar. Rightly interpreted, however, we think there is nothing in the opinions signifying an intention so to hold. At all events, we think such. a holding, contrary to sound logic and inconsistent with the well considered reasoning of many opinions in various jurisdictions that remedies given by statute for personal injuries may be cumulative and not in abrogation of a right of action at common law. Kleps v. Bristol Mfg. Co., 189 N. Y. 516, as reported in 12 L. R. A. (N. S.), p. 1038, and the cases cited in the note thereon; Payne v. New York, S. & W. R. Co., 201 N. Y. 436.

We hold that the allegations in the first, second and fourth counts of the declaration, that the defendant was engaged and the plaintiff employed in Inter State Commerce were not descriptive of any fact or condition essential to recovery under the common law, if the other allegations of those counts were sustained, and that therefore they may be regarded as surplus-age. Chicago & G. T. R. Co. v. Spurney, 197 Ill. 471.

Treating as surplusage the allegations relating to Inter State Commerce in the first count of the declaration, to which count we purpose to confine our discussion, we find this cause of action stated—that the defendant was the operator of a railroad, of which a part was a track extending into an elevator and ending at a butting post therein; that the plaintiff was employed as a switchman in putting cars into said elevator; that it was the duty of the defendant to exercise due care in maintaining said track in a reasonably safe condition for the purpose of which it was provided ; that in violation of said duty it permitted the said track to remain unsafe and in an improper condition of repair for such use, in that certain ties in said track were broken, rotten and decayed and said track was uneven and in a dilapidated condition, in consequence of which, to the knowledge or legally imputed knowledge of the defendant, but through no lack of ordinary care of the plaintiff, unknown to him, the cars running on said track were likely to become uncoupled and the plaintiff exposed to great danger; that the plaintiff, while in the discharge of his duty and in the exercise of ordinary care, and while assisting in the work of shoving by a switch engine six cars coupled together and to the switch engine along said track and into the elevator, was riding between two of the cars of said string of cars as they were being pushed along into said elevator; that as a direct result of the unsafe and improper condition of said track, two other cars of said string of cars, which other cars were between the plaintiff and said engine, became uncoupled from each other, and in consequence the cars between which the plaintiff was riding were detached from the engine and from the cars which remained coupled to the engine, and could not be controlled or stopped by said engine, as they would have been if this uncoupling had not occurred; that as a direct result of this, the said two cars between which the plaintiff was riding unavoidably ran along said track into said elevator at a high rate of speed, and were wrecked by striking said butting post; that when the plaintiff learned that the said cars had become uncoupled they were closely approaching said butting post, and he believed and was justified in believing that if he remained between said cars until they struck the post he would be severely injured or killed, and therefore, in the exercise of ordinary care for his own safety, he attempted to get from between said cars and in so doing was knocked down and from between said cars by an obstruction alongside of said track, was run over by the cars and lost thereby his arm.

We think this is a sufficient statement of a cause of action arising from the neglect of the defendant to take care that its track should be in reasonably safe condition, and that the connection between that negligence and the injury of the plaintiff is clearly alleged and shows the one to have been the proximate cause of the other. It is true that it is stated that there were intermediate or concurrent matters involved in the accident. There are generally such things between the “causa causans” and the ultimate result. But in this count it is stated with sufficient clearness for any one to understand, that the track was negligently left dilapidated; that because of that the cars uncoupled; that because of the uncoupling they rolled with great speed and without control into the elevator; that solely from this the plaintiff was in reason obliged to look for means of escape from a position in which he was placed in the course of his duty and in so doing was injured. The causal connection between the first and last of these propositions, namely, that the track was negligently left dilapidated and that plaintiff was injured, seems to us direct, notwithstanding the intermediate steps.

Defendant maintains, however, that whether or not stated, no sufficient causal connection was proved, to warrant the jury in finding the negligence of the defendant in regard to its track the proximate cause of the plaintiff ’s injury. It contends that the plaintiff is not shown to have been necessarily or properly between the cars and therefore in a position which required his attempt to escape the impending crash by jumping or looking for a place to jump near the pillar or “obstruction,” as the declaration terms it, by which he was struck and thrown to the tracks inside of the elevator. Therefore, it is said, not even the uncoupling of the cars and the consequent speed with which they were rushing uncontrolled to the butting post, can be considered proximate causes of the injury. That proximate cause rather was the plaintiff’s own acts in taking or remaining in the position between the cars, or, at the worst that can be said of the defendant, in its having the pillars in its elevator too near the track, no complaint of which is made.

With this contention there can, for practical purposes, be connected another position taken by the defendant, that the plaintiff, by riding between the cars into the elevator, and by projecting his body sufficiently from the train to be hit by the pillar, or by attempting to jump with the same result, was guilty of negligence proximately contributing to the injury, which of course, if the common law governs, prevents his recovery.

It would not be useful for us to discuss in detail, as counsel have done, the evidence which bears on these contentions of the defendant. We have carefully and patiently considered it all in the light of the elaborate opposing arguments on it. It seems to us on the whole that fair questions for the jury were whether the plaintiff was not where he was when the couplings parted, in the discharge of his duty as usually and properly performed, and in the exercise of due care; whether, considering all things, he was not placed by that parting, by his inability to set the brake (even if that arose from no defect in the brake itself) and by the increasing speed of the cars which had been freed from the drag which the forward car and the engine, with the power shut off, usually made at that point,—in a position of imminent danger which allowed him no time and imposed on him no obligation to balance chances and attempt one method of escape instead of another, even if subsequent events showed that it would have been less dangerous; in short, whether his conduct was not, up to the time of the injury free from any taint of blameworthy negligence.

It inhered in the verdict of the jury, we think, under the instructions of the court, that they found it was, and we are not inclined even to disagree with their conclusion, much less to overrule it.

Defendant, however, still further maintains that the evidence does not show that the uncoupling resulted from the condition of the track. It might, it is argued, have resulted from other causes. We think this also was an issue for the jury t.o decide, and even more strongly than in relation to the previous questions indicated, we incline to the opinion that their decision of it was correct. The evidence is convincing that the couplers on the two cars that parted were closed and locked when they were examined immediately after the accident, and that they were without defect or in any condition which could explain their parting and remaining so closed, unless there had been a drop of several inches by one of the cars from the level of the other. The weight of the evidence also seem to us to show not only that the couplers were closed and locked when examined, but also that they had remained so during the parting. The hypothesis that they or either of them could have been opened when the parting occurred, but closed afterward by the jar of collision with the post, furnished ground undoubtedly for argument to the jury, but there was evidence inconsistent with it, and this evidence seems to us to negative it. So the jury evidently considered. If they held that the evidence was sufficient to show that one of the cars which parted sank below the other, so that the couplers parted perpendicularly and one overrode the other, they were also amply justified in finding that a “low joint” in the rails of the track at the point very near which at least the uncoupling occurred, where the track had been pieced or spliced with a short rail about four feet long, which “went up and down” under the weight of one man and rested on a tie so rotten that the piece of it outside the rail could be kicked off with the foot, was the direct cause of the uncoupling.

As to its being negligence in the defendant to allow such a condition to exist in a track over which men were shoving cars, and where there was a grade which rendered it certain that the cars would run with an increasingly accelerated speed if an uncoupling took place, there can hardly be two opinions. It is by no means necessary to hold that the tracks in this switch yard should be kept in the condition required on the main line, to reach the conclusion that reasonable care had not been taken by the defendant to keep its tracks in a reasonably safe condition.

It is contended very vigorously that the plaintiff must be held to have assumed the risk of this condition of the track. We do not think so. It was a question for the jury, and it was decided by them in our opinion, correctly. The defendant owed the duty of inspection and investigation of the condition; the plaintiff was held only to observation. He might well have known that the joint was “low” and the track rough, so that cars “swayed” in passing over it, and yet not have known the depth to which the weight of a loaded car would depress the rail, nor appreciated the danger resulting therefrom. If he did not so understand and appreciate the danger, he did not assume the risk. The evidence strongly tends to this conclusion.

The final contentions of the defendant are that incompetent evidence was admitted; that two instructions tendered by the defendant, which should have been given, were refused, and that a new trial should have been granted because the amount of the damages assessed by the jury showed passion and prejudice, and even after the remittitur of $4,000 is excessive.

We do not hold that there is reversible error to be found in any of these matters.

The first evidence complained of is that the switch-men were accustomed to ride between the cars as the cars were pushed into the elevator. This was properly admitted both as bearing on the question of the alleged contributory negligence of the plaintiff and because the defendant’s counsel had indicated that he was intending to prove or attempt to prove that orders had been given that such a position should not be taken by the men. He failed to adduce any evidence of such an order, but he afterward tendered and obtained an instruction based on the assumption that the jury might believe that such an order had been given.

The other evidence which is alleged to be incompetent is the statement made on cross-examination by the defendant’s track foreman, that new ties were put under this track a week or so after the accident. There was no error in this, we think. On direct examination the witness had testified that the ties were not bad enough to take out at the time of the accident. We think cross-examination was proper to show that they were rotten a week afterward and that he did then take them out.

We do not think the refusal of tendered instructions 14 and 15 was error. The jury were correctly and sufficiently instructed as to contributory negligence, and in our opinion to have called attention to the specific acts which these instructions particularize’and segregate would have been misleading. All the circumstances and actions of the plaintiff, taken together with the imminence and anticipation of danger or the want of it, had properly to be considered in judging of his exercise or want of ordinary care.

The damages are large, but the amount of earning power of an arm as compared with that of the money damages assessed for its loss is not now, if it ever was, the sole test which can be applied to ascertain if the damages are excessive; and we do not feel that we should interfere with the judgment of the jury in this case under the practice now established in case of such injuries.

The judgment of the Superior Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Bill Board Publishing Company, Plaintiff in Error, v. F. C. McCarahan, Defendant in Error.
    Gen. No. 17,366.
    1. Appeals and errors—orders reviewable. It would seem that a writ of error cannot properly be sued out to reverse a void order.
    2. Dismissal—when erroneous. Where after a chancery cause has been placed on the trial calendar it is by agreement of the parties referred by the court to a master, but no notation of such reference is made on the calendar, it is erroneous to dismiss the cause for want of prosecution, when it is reached in the regular call, the proceedings before the master being still pending.
    3. Dismissal—effect of Practice Act. Section 21 of the Practice Act of 1907 does not deprive a judge of the power to pass a chancery case on the docket without action where he finds that it has been referred to a master.
    4. Jurisdiction—ouster. A chancery court after reference of the cause to a master to take evidence is not ousted of jurisdiction, and has power to make an order dismissing the cause for want of prosecution.
    5. Jurisdiction—void order. Where a court has jurisdiction of a chancery cause an inadvertent order of dismissal is not void.
    Error to the Circuit Court of Cook county; the Hon. Adelob J. Petit, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed May 26, 1913.
    Statement by the Court. F. C. McCarahan, the plaintiff in error, about May 1, 1907, became the Chicago representative of the Bill Board Publishing Company to solicit advertising orders for a publication issued by that corporation. November 16, 1907, he left this employment. During the course of it there were many business transactions which involved the accounts between McCarahan and the Bill Board Publishing Company. After it was over McCarahan contended that the Bill Board Publishing Company owed him $1,475.13, but the Bill Board Publishing Company denied this and maintained that McCarahan had been overpaid and was indebted to them in a large sum. February 26, 1908, McCarahan sued out of the Circuit Court of Cook county a writ of attachment against the Bill Board Publishing Company on the grounds of its non-residence and of its alleged indebtedness to him. Debtors of the Bill Board Publishing Company were garnished on the writ of attachment but the garnishments were released under a statutory bond filed by the Bill Board Publishing Company on March 10, 1908, and the said Bill Board Publishing Company appearing, the time for it to plead to said attachment suit was by order of Court extended until May 8,1908.
    May 5, 1908, the Bill Board Publishing Company filed a bill of complaint in chancery in the Circuit Court for an accounting of all transactions and dealings between it and McCarahan, offering to pay any money to McCarahan that might be found to be due from it to him on such an accounting and asking for a money decree for anything that might on such an accounting be found due it from McCarahan and for an injunction restraining McCarahan and his agents and attorneys from prosecuting against it the suit at law in attachment which he had begun, or any other suit at law founded on said transactions.
    A motion for a temporary restraining order was made on said bill and referred to a master. On his recommendation Judge Carpenter of the Circuit Court on May 12, 1908,- ordered that a temporary injunction issue as prayed, on the complainants giving bond in the sum of three thousand dollars to pay any decree that might be rendered against it in said cause and all costs and damages resulting from the wrongful issuance of the injunction if it should be dissolved. The bond was given and on May 13, 1908, an injunction writ was issued and on May 14th duly served on McCarahan, from prosecuting against the Bill Board Publishing Company said suit at law or any other suit at law founded on the transactions set out in the bill of complaint until the further order of the Court.
    May 20th a solicitor of the court entered his appearanee for McCarahan and on June 1,1908, filed for said McCarahan an answer to the bill of complaint of said Bill Board Publishing Company, insisting that there were no accounts between the parties which could not be properly adjudicated in the suit at law. Meanwhile on May 29, 1908, a motion was made by the defendant to dissolve the injunction, June 29, 1908, the complainant by leave amended his bill and the defendant filed an additional answer to the bill as amended and the complainant filed a general replication. On July 3,1908, a Chancellor in the Circuit Court, after a hearing, denied the motion to dissolve the injunction and an appeal was taken to this court. This interlocutory appeal was heard by the Branch Appellate Court, which on July 9,1909, affirmed the order of the Circuit Court on the grounds that there was an intricate and involved state of accounts between the parties, that there was a fiduciary relation of the defendant to the complainant, and that there was fraud and mistake alleged by the bill. The opinion rendered by the Branch Appellate Court is reported in 151 Ill. App. 227. In said opinion is a detailed statement of the allegations of the bill and answer.
    Some time before September, 1909, the Circuit Court entered a general order to the clerk of the said court to prepare three individual chancery calendars of all the chancery cases on the docket of the court up to and including July 31, 1909, and to apportion the cases between the three Judges of the Circuit Court sitting as Chancellors. Calendar No. 3 was assigned to Judge Petit. Said calendars were prepared and printed and the case at bar, the Bill Board Publishing Company v. McCarahan, appeared on said calendar 3 as calendar number No. 1,028. On October 29, 1909, the case was reached on a call made by Judge Petit of this calendar; but it was then placed on a further special calendar composed of cases which had been taken off the general calendar of Judge Petit, the object, as announced by authority in the Chicago Daily Law Builetin, being to constitute a smaller calendar of live cases and afford litigants an opportunity for an early hearing where it was desired. It was announced that the cases on this calendar would be called in their order, the call beginning on November 16, 1909. On this calendar the case at bar was the 130th in order.
    On November 16, 1909, both parties appeared in court and it was then and there agreed or understood that the cause should be referred to a master. On November 19, 1909, both parties, by their solicitors, again appeared before Judge Petit, when the following order was entered:
    “On motion of complainant this cause is hereby referred to Granville W. Browning, Master in Chancery, to take evidence and report his findings and conclusions of law to this Court.”
    No other proceedings were had in said cause until January 26, 1910, when the complainant and defendant, by their solicitors, appeared before said master, and complainant began the introduction of its proof. Several sessions for the hearing of said case were had before the Master during January, February and March, 1910.
    March 9, 1910, there appeared in the Chicago Daily Law Bulletin the call of cases to be made before Judge Petit the following day, March 10th. This call was, like those made on the preceding days since November 16, 1909, of cases which had appeared on the special calendar made up as heretofore stated, the call of which was to begin on said November 16th. This call for March 10, 1910, contained the case at bar, Bill Board Publishing Company v. McCarahan, which on its being referred to the Master, through inadvertence or otherwise had not been physically stricken from the printed calendar of these cases which had been prepared. As it was so far down on that calendar, No. 130, it had not been reached until March 10. None of the parties or their counsel knew then, nor for months thereafter, that the case was likely to be called on that day or that it was called. But it was called on said day and the following order was entered in it:
    “This canse coining on to be heard having been reached in its regular order upon the trial calendar and neither party appearing in court nor being represented by solicitor, it is ordered that the bill be and the same is hereby dismissed at complainant’s cost for want of prosecution.”
    Not knowing that any such order had been entered, the parties and their solicitors continued their appearances from time to time before the Master and took evidence. There were sessions before the Master on March 25th, March 28th and March 30th, 1910. April 5th both parties appeared before the Master and the complainant formally closed his proof. On April 12, 1910, both parties, by their counsel, appeared before the Master and the defendant made a motion for a report recommending the dismissal of the bill on the evidence which had been adduced by the complainant. This motion was argued by both parties before the Master on May 12th and 16th, 1910, and overruled by him. The defendant began the introduction of his testimony before the Master June 30, 1910, and several sessions were held before him in June and July at which both parties appeared. On July 15th and 27th, 1910, the complainant introduced evidence in rebuttal and the proof was closed by both parties after twenty-eight sessions before the Master and after 689 pages of testimony had been taken.
    ■ During the week or ten days prior to September 30, 1910, counsel for complainant and defendant agreed on the date of September 30, 1910, for the hearing of final argument in said cause before the Master and the cause was set down for hearing before him for said date. The Master under that date made a report to the court, stating that the matter before him was ready for argument and final decision. September 21, 1910, the attachment case of McCarahan v. The Bill Board Publishing Company was on the call before Judge Windes of the Circuit Court, whether on the so-called “first call” or on the regular trial call does not clearly appear. On that date, however, the attorney of record in that case for McCarahan, who was also his solicitor in the chancery case at bar, appeared before Judge Windes and told him the chancery suit in question was pending and that the prosecution of the suit at law had been enjoined. He asked Judge Windes, therefore, to have the law case continued generally and according to his statement in the certificate of evidence filed herein, Judge Windes did so continue it.
    After September 21st and before September 30th, 1910, the attorney for McCarahan learned of the order of dismissal entered by Judge Petit on March 10,1910, and gave notice to the attorneys for the Bill Board Publishing Company that on September 30, 1910, he should move before Judge Windes for an order placing the law case on the trial call of the court for trial on a day to be fixed by the court. While attending in accordance with said notice, the counsel for the Bill Board Publishing Company first learned of the order entered on March 10, 1910, dismissing the Bill in Equity herein involved.
    The motion before Judge Windes was continued until October 1, 1910, when Judge Windes vacated the order of continuance and set down the attachment suit of McCarahan v. The Bill Board Publishing Company for trial on December 30, 1910.
    On October 1st, The Bill Board Publishing Company by its solicitors appeared before Judge Petit and 'filed a written motion to set aside the order of dismissal of March 10, 1910, and apparently contemporaneously or shortly afterward a petition for a rule on F. C. Mc-Carahan to show cause why he should not be punished for contempt in prosecuting and threatening to prosecute the suit at law “in defiance of the injunction,” etc. This original petition, however, is not in the transcript of any of the records brought to this court in this matter, but an appearance of McCarahan and his solicitor “for the special purpose oí denying the jurisdiction of the court to entertain such petition and for the further purpose of filing and arguing demurrers to said petition, ’ ’ and a demurrer to said petition filed therewith, were filed in the clerk’s office of the Circuit Court on October 27, 1910, and afterward, by order, allowed to stand to an amended petition which was filed December 21, 1910, and which does appear in the transcript in cause No. 17,253, in this court. This cause, No. 17,253, was consolidated for hearing with cause No. 17,366 in this court, to the opinion in which this statement is prefixed. It may be noted here that for convenience this statement will be made to include some other matters not properly before this court in cause No. 17,366, but which are the subject of consideration in other cases between the parties, involving the same matter of litigation. The court will thereby be relieved in deciding said other cases from repeating any part of that which here appears. Reference will be made to this statement.
    The amended petition of December 21, 1910, set up the matters heretofore detailed in this statement, and then averred that said suit at law was about to be reached for trial, but that as a consequence of the foregoing facts the suit in equity in which the petition was filed was still pending in this court and said injunction still in full force, and that McCarahan was in contempt of court in having appeared and prosecuted and continued to prosecute the law case before Judge Windes.
    The demurrer heretofore referred to asserted that on the face of the petition it appeared that the suit on which it puported to be based was dismissed at complainant’s costs on March 10, 1910, and had never been revived or reinstated, and that the injunction granted under said bill was made void by the said dismissal, in consequence of which the defendant Mc-Carahan should not be called on further to answer the petition.
    December 21,1910, after a hearing and argument on the motion to set aside the order of March 10, 1910, (in which hearing the facts as before set forth were made to appear) and a hearing and argument on the demurrers to the petition for a rule on McCarahan to show cause, etc., the court denied the motion to set aside the order of March 10, 1910, dismissing the bill and sustained the demurrer to the petition for a rule, and dismissed the said petition at the petitioner’s costs.
    Separate orders were entered in these matters and from each of them an appeal was perfected to this court. The appeal from the order denying the motion to set aside the order of dismissal is No. 17,313, in this court; that from the order dismissing the petition for a rule to show cause is No. 17,253.
    The appeal No. 17,253 was docketed in this court on December 21, 1910, and the appeal No. 17,313 on Februray 2, 1911. On February 24, 1911, the Bill Board Publishing Company sued out from this court a writ of error to the Circuit Court, seeking to reverse the order of dismissal of March 10, 1910, and this writ of error is cause No. 17,366 in this court and is the one in which the opinion immediately following this statement is to be filed.
    In the meantime on the disposition in the Circuit Court on December 21,1910, of the motion to vacate the order of dismissal of March 10, 1910, and of the petition for a rule on McCarahan to show cause why he should not be punished for contempt, McCarahan and his counsel appeared before Judge Windes and on said December 21, 1910, obtained a judgment in the attachment suit at law in favor of McCarahan and against the Bill Board Publishing Company for $1,690.23 and costs. At this hearing of the suit before Judge Windes the Bill Board Publishing Company, through its attorneys and solicitors declined to appear, stating through them that it relied on its rights under the suit in equity in the Circuit Court enjoining the prosecution of said suit at law.

      January 25,1911, McCarahan caused to he issued an execution on this judgment and delivered the same to the Sheriff of Cook County, who levied the same on certain property of the Bill Board Publishing Company situated in its Chicago offices. February 6,1911, the Bill Board Publishing Company by its solicitors filed in the Superior Court of Cook county a bill in chancery against McCarahan and the Sheriff of Cook County, which alleged all of the matters hereinbefore set forth, and claimed that great and irreparable injury and loss would result to it from the further enforcement of the execution against it in the hands of the Sheriff; that McCarahan was insolvent and that if it should be finally successful in its litigation it would be unable to collect any decree which it might recover against him.
    The bill prayed for a vacation of the judgment at law against the Bill Board Publishing Company and an injunction against the further enforcement of the execution, against the retention by the Sheriff of the property levied on, and against suit on the bond given to release the garnishments in the attachment suit or on the injunction bond given in the equity suit in the Circuit Court, until the determination of the appeals in the Appellate Court; Nos. 17,253 and 17,313.
    February 14,1911, a temporary restraining order in accordance with the prayer of the bill, until the further order of the court, was entered by the Superior Court without notice
    February 17, 1911, McCarahan and the Sheriff entered their appearance to said bill in the Superior Court and filed an affidavit of McCarahan with reference to the action of this court on certain motions made in the said appeals. On said affidavit and on the face of the bill he moved for the dissolution of the temporary injunction and on said February 17th the Superior Court dissolved it, and granted an appeal from the order of dissolution to this court. But on February 24th the Chancellor in the said Superior Court vacated said allowance of an appeal, the language of the order being that the same “is hereby revoked and set aside, for the reason that the law does not permit an appeal from an interlocutory order revoking a temporary injunction while the cause is still pending and undetermined. ’ ’
    February 27, 1911, the solicitors for the Bill Board Publishing Company moved in the Superior Court, 1st, that the court should vacate the order of February 24th, which set aside the order allowing the said company an appeal; 2nd, allow to it “an appeal to the Appellate Court from said interlocutory order of February 17th dissolving the injunction on a bond of $250 then offered;” and, 3rd, “dismiss the bill of complaint herein because the same is for injunction only.”
    On this motion the court entered an order “That the said motion he and the same is hereby denied without prejudice to complainant’s right to dismiss the said bill on its own motion if it so desires to do.”
    On March 1, 1911, the Bill Board Publishing Company moved to dismiss its bill on its own motion, and for the allowance of an appeal to the Appellate Court “from said order of dismissal.”
    March 2nd the court, reciting in its order that it had theretofore decided that the bill did not state a case entitling complainant to an injunction, ordered ■the bill dismissed “on motion of complainant and at complainant’s costs,” with the provision that “said cause is retained specially only for the purpose of hearing and disposing of the defendant’s suggestion of. damages. ’ ’
    An appeal was thereupon perfected to this court, where it was docketed as cause No. 17,392. A suggestion of damages had been filed by the defendant McCarahan on February 27th, and on April 12th, 1911, the court heard “the suggestion of damages for the wrongful issuing of the injunction” and on “proofs heard in open court and on personal knowledge of the Judge of the Court who heard the cause,” assessed damages at $200 as McCarahan’s “reasonable and necessary damages for solicitor’s fees incurred by him upon the dissolution of said injunction.” From this order the Bill Board Publishing Company prayed, obtained and perfected an appeal to this court, which is docketed as cause No. 17,899.
    Simmons, Mitchell & Irving, for plaintiff in error.
    J. S. McClure, for defendant in error; William Street, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

The errors assigned in this cause, No. 17,366, are comprised in the two statements: First, that the order of dismissal on March 10, 1910, described in the preceding statement of facts was erroneous; and second, that it was void.

To the first of these propositions we give our assent; from the second we must withhold it.

We may pass over with a mere mention the question whether a writ of error should or can be properly sued out to reverse a void order. A “void” order seems necessarily to be a nullity which requires no reversal.

We prefer, however, since the decision of other causes connected with the one at bar depends on it, herein to state why we consider the order erroneous and why we do not consider it void. The contention that it is either, rests on the fact that on November 19, 1909, by consent of the parties, the order of reference to a Master described in the statement was made.

Counsel argue that an order of dismissal made after that order of reference, without a previous express vacation of the latter, was inconsistent therewith (which may be conceded), and void in consequence of such inconsistency (which is an entirely different proposition.)

The facts that the cause had been referred by the court, under an agreement of the parties, to a Master after it had been placed on the trial calendar of November 16, 1910, and that the hearing of evidence by him from time to time had gone on during several sessions before the order of March 10, 1910, was entered, and that neither party appeared on that last named date, when the cause appeared in the Law Bulletin on the trial calendar, or learned that any such order had been entered until long after many other sessions before the Master had been held, make apparent to us that the order of March 10, 1910, was entered by inadvertence. It is impossible for us to suppose that in the actual absence of both parties, the Chancellor,. had his attention been directed in any manner to the exact situation of the case, would have dismissed the bill for want of prosecution when he had less than four months before referred it to a Master to take evidence and state conclusions, and the complainant had not closed its proof, nor any complaint of want of expedition had been made by the defendant. Had the docket of the court been before him, showing the situation of each case as it was called on the trial calendar, as is practicable and usual for example in country districts, where the business of the courts is small, no such order as that of March 10, 1911, would have been entered. That it was so entered was undoubtedly because no notation had been made, on the trial calendar from which the court was calling the cases, of the order of November 19, 1910, referring the case to the Master.

Section 21 of the Practice Act of 1907 does not affect the matter; neither the provision that “all causes shall be tried or otherwise disposed of in the order they are placed on the docket unless the court for good and sufficient cause shall otherwise direct,” nor the further one that “no suit or action or proceeding at law or equity shall be dismissed for want of prosecution at any time except when such cause shall be actually reached for trial in its order as set for trial or upon the short cause or daily trial calendar of the court,” can in reason be held to mean that a judge finding, on reaching a chancery case on the docket, that it has been referred to a Master, may not pass it without action and proceed to dispose of cases beyond it.

We are not obliged to pass on the question whether when an order of this kind is plainly entered by inadvertence, as we think this one of dismissal was, it is ipso facto erroneous. For certainly the order cannot be less erroneous because entered by inadvertence than it would be-had it been entered with full knowledge and intention and in the exercise of the discretion of the court. If this order was not entered by inadvertent mistake, then it was entered as an exercise of the discretion of the court, and, in our opinion, if this was the case, was an abuse of discretion. It is needless to discuss this point, as the facts speak plainly for themselves.

The proposition that the order was erroneous under the circumstances we think the reasoning of many cases cited by the appellant, such as Cook v. Gwyn, 3 Atkins, 689; Bailey v. District of Columbia, 4 App. Cas. D. C. 358; Dexter v. Young, 40 N. H. 130; Tyson v. Robinson, 25 N. C. 333; Wilby v. Durgen, 118 Mass. 64, and others, fully sustains. Cases dependent on the law concerning references to arbitrators, however, although the reasoning may be applicable, are hardly authoritative on the question of reference to a Master. We think, moreover, that these cases are far from sustaining the position that the order was void.

When a court has taken, through sufficient process, jurisdiction of the persons of litigants in a subject-matter of which it also has jurisdiction, something beyond a reference to a Master in Chancery “to take evidence and report his findings and conclusions of law to this court” is necessary to oust it of jurisdiction. And if when it made the order of March 10, 1910, the court had jurisdiction to make it, it is not void nor a nullity, however erroneous it may be.

A Master in Chancery, as the Supreme Court through Mr. Justice Scholfield in Schuchardt v. People, 99 Ill. 504, said, quoting approvingly from Bouvier’s Law Dictionary, was originally a clerk for a chancellor, and became afterwards an assistant to the chancellor, and has been invested with other powers by local regulations. His function, as the same court said in Ennesser v. Hudek, 169 Ill. 494, is primarily to perform clerical and ministerial duties in the progress of a case.

The court had power on March 10, 1910, to do exactly as it did do with the cause, namely, dismiss it at complainant’s costs, but its action was a misuse of that power and was erroneous.

We think that none of the cases cited by the plaintiff in error to show that the order was erroneous will be found on close examination to ignore this distinction or negative its existence.

When in Gregory v. Spencer, 11 Beav. 143, Lord Langdale said, “I can make no order,” it is clear that he meant “I can properly make no order,” and so we hold in this case. But we can go no further.

What Judge Cowen said in Gould v. Root, 4 Hill (N. Y.) 554 (as cited by plaintiff in error), if slightly changed would fit this case and the order under discussion :

“I am not aware of any principle which authorizes a party to treat an order as a nonentity merely because a commissioner is forbidden to grant it or a party is forbidden to apply for it,” or a ju,dge should not have granted it.
“It may be said of every order improvidently granted that the party and officer” or judge “have done what the law has forbidden. To say that it was fraudulently and collusively obtained is no more. But to allow as a consequence that it may therefore be disregarded would be letting in a principle under which every judicial act might be questioned collaterally.
The remedy is by direct proceeding, which in the case of orders is revocation,” if ashed while the judge retains jurisdiction, “appeal” or writ of error “or motion to supersede” if ashed in time.

The italics represent that which we have added to the quotation to make it exactly fit the case at bar, and with those additions it is as true as without them. As the same judge said in Starr v. Frances, 22 Wend. (N. Y.) 633, of the order he was then discussing, we may say of the order of dismissal in this case: “It is a judicial act done in the course of the cause, opén to a rehearing and appeal to this court, and we are not aware of any case in which such an act has been holden void even for fraud.”

For the reason, however, that it was erroneous it is reversed and the cause remanded to the circuit court for such othe$ and further proceedings therein as to justice shall appertain.

Reversed and remanded.


text:
    Bill Board Publishing Company, Appellant, v. F. C. McCarahan, Appellee.
    Gen. No. 17,313.
    1. Judgment—power of court at subsequent term. The court has no supervisory power of a judgment at a subsequent term except to amend it in matters of form and correct clerical errors.
    2. Appeals and ebbobs—order dismissing suit. An order of dismissal is final and an order at a subsequent term setting it aside is void rather than erroneous.
    3. Appeals and ebbobs—when order dismissing motion is appeal-able. Where a suit is dismissed for want of prosecution and a motion to reinstate at a subsequent term is denied, the order is appealable and a motion to dismiss the appeal is denied.
    4. Appeals and ebbobs—motion to reinstate at subsequent term. Where a suit is dismissed for want of prosecution, a motion to reinstate at a subsequent term is properly denied, the court having jurisdiction to hear the motion but not to reinstate.

      Appeal from the Circuit Court of Cook county; the Hon. Adelok J. Petit, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 26, 1913.
    Simmons, Mitchell & Irving, for appellant.
    J. S. McClure, for appellee; William Street, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from the order of December 21, 1910, denying the motion to set aside the order of March 10, 1910, which dismissed at complainant’s costs the bill in equity of the Bill Board Publishing Company v. F. C. McCarahan.

The facts are fully set forth in the statement prefixed to the opinion in cause No. 17,366, filed contemporaneously herewith.

We have decided in that case that the order of March 10, 1910, was erroneous. If the motion, the denial of which is complained of in this appeal, had been made in time, it would have been a repetition of the error previously committed to deny it. But it was not made in time. The term in which the order of March 10 was entered had ended, and several other terms had elapsed. The case illustrates the distinc; tion pointed out in the opinion in No. 17,366 between an erroneous order and one void for want of jurisdiction. The order of reference was interlocutory only, and the court did not lose jurisdiction of the cause by making it. The order of dismissal was final and after the term went by the cause was no longer in the court, nor did any power remain in it by reservation or otherwise to make an order of any kind in it. Such an order as was asked for would have been void rather than erroneous. There has never been any doubt on this point in Illinois since the decision in Cook v. Wood, 24 Ill. 295, where, in a well-considered case, Judge Breese, speaking for the court, said: “When the judgment is perfected by the solemn consideration of the court, and duly entered on the records of the court, and the term closed, and the court adjourned, the same court which rendered the judgment, cannot have, and ought not to have, any supervisory power over it, at a subsequent term, except to amend it in mere matters of form.” And again, “These views do not deprive courts, at a subsequent term, of the power to set right, matters of mere form in their judgments, or to correct misprisions of their clerks, or of the right to correct any mere clerical errors, so as to conform the record to the truth. * * * But for relief for errors in law, there can be no other appropriate proceedings, than by new trial, bill in chancery, writ of error, or appeal, as either may be found most appropriate and allowable by law.”

This case was shortly followed by Smith v. Wilson, 26 Ill. 186, where the same judge, after holding that a certain dismissal of a suit was irregular and erroneous, said: ‘ ‘ On the dismissal of the suit at the October term, 1860, the appellee should have taken an appeal, or sued out a writ of error. That was his remedy. At the ensuing November term, the case was off the docket—it had no longer a place in court, and the court had no jurisdiction over it to reinstate it.” This doctrine has ever since been followed. A more recent decision, affirming it, Tosetti Brewing Co. v. Koehler, 200 Ill. 369, also explicitly declared that the Practice Act of 1872, abolishing the writ of error cormn nobis and giving certain powers over a judgment to a court on motion after the term at which it was entered, had no application to orders or decrees in equity. As to them, therefore, the rule remains entirely unchanged since the decisions in Cook v. Wood and Smith v. Wilson, supra.

The Chancellor could have properly disposed of the motion under our consideration no otherwise than he did. Our decision in this appeal, since we have on writ of error in cause No. 17,366 reversed the order of dismissal, is rather academic than otherwise except as to costs. But we must affirm the order of the Chancellor below. It is contended by appellee that the order was not an appealable one, and that we should dismiss the appeal. A motion to that effect was reserved until the hearing. It is now denied. The Supreme Court and this court have frequently affirmed such orders. See, for an example, National Ins. Co. v. Chamber of Commerce, 69 Ill. 22.

While the court below had no jurisdiction which would enable it to reinstate the cause on the motion herein discussed, it did have inherent jurisdiction to deny the motion on this ground; and such an order has been often treated as appealable. The order of the Circuit Court of December 21, 1910, denying the motion of the Bill Board Publishing Company to set aside the order of March 10, 1910, dismissing its bill against McCarahan is affirmed.

Affirmed.


text:
    Bill Board Publishing Company, Appellant, v. F. C. McCarahan, Appellee.
    Gen. No. 17,253.
    1. Contempt—violation of injunction. After the bill upon which an interlocutory injunction is based has been dismissed defendant cannot be punished for contempt in disregarding the injunction, although the order of dismissal was erroneous.
    2. Injunctions—contempt. Although a writ of error has been sued out to review an order dismissing a bill upon which an interlocutory injunction is based, and has been made a supersedeas, the injunction is not revived and disobedience thereto cannot be punished as contempt.

      Appeal from the Circuit Court of Cook county; the Hon. Adelob J. Petit, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 26, 1913.
    Simmons, Mitchell & Irving, for appellant.
    J. S. McClure, for appellee; William Street, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from the order of December 21, 1910, by the Circuit Court of Coolc county, described in the statement prefixed to the opinion in No. 17,366, ante, p. 525, which sustained a demurrer to and dismissed at the costs of petitioner a petition for a rule on McCarahan to show cause why he should not be punished for contempt “in disregarding and violating the injunction” ordered by the said Circuit Court on May 12, 1908.

It will be apparent from what we have said in the opinions in causes Nos. 17,355, and 17,313, in this court, that we must hold that the demurrer was properly sustained and the rule denied.

Long before the petition for the rule was filed and long before the action complained of as contempt was taken, the injunction had ceased to exist by the dismissal of the bil.1 on which it was founded. There could be, therefore, no contempt in disregarding it. In Thomson v. McCormick, 136 Ill. 135, it was held that even where the bill was not as a whole dismissed, the action of the court in sustaining demurrers to portions of the bill and thus “dismissing out of the case all the charges in the bill on which the injunction was based,” was a dissolution of the injunction. Although the order dismissing the bill was erroneous, it was not, as we have decided, a nullity." Nor could a writ of error, even though made a supersedeas, revive it. Blount v. Tomlin, 26 Ill. 531; Jenkins v. International Bank, 111 Ill. 479. The order of the Circuit Court of December 21, 1910, sustaining the demurrer of McCarahan to the amended petition of the Bill Board Publishing Company for a rule on him to show cause why he should not be punished for contempt and dismissing the petition at petitioner’s costs is affirmed.

Affirmed.


author: Mr.. Justice Brown

text:
    Bill Board Publishing Company, Appellant, v. F. C. McCarahan and Michael Zimmer, Appellees.
    Gen. No. 17,392.

      Injunctions—action at law. Where after an erroneous order dismissing a bill for an injunction against the prosecution of an action at law has been entered, the action at law is prosecuted to a judgment, a bill for an injunction to restrain the enforcement of such judgment is properly dismissed, the order of dismissal of the previous injunction having been merely erroneous and not void.
    Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 26, 1913.
    Simmons, Mitchell & Irving, for appellant.
    J. S. McClure and William Street, for appellees.
   Mr.. Justice Brown

delivered the opinion of the court.

This is the appeal described as cause No. 17,392 in the- statement prefixed to the opinion in cause No. 17,366, contemporaneously filed.

The decree appealed from was entered by the Superior Court of Cook county on March 2, 1911, and dismissed at complainant’s costs and a bill in chancery filed in said Superior Court by the Bill Board Publishing Company against MeCarahan, on February 6, 1911. This bill was based, as its whole tenor shows and as the arguments of appellants in this court assert, on the position from which in the opinions in Nos. 17,366, 17,313 and 17,253, we have expressed our dissent, namely, that the order of the circuit court entered March 10, 1910, dismissing the bill of the Bill Board Publishing Company was void and a nullity and left the injunction in full force; thus rendering the judgment at law against the Bill Board Publishing Company, entered by Judge Windes on December 21, 1910, at the instance and through the prosecution of his suit at law by MeCarahan, invalid and unenforceable.

The faith of the parties interested in this erroneous position and the determination to vindicate it, seems even to have led to a postponement of that proceeding which we deem and have decided to be the proper one to correct the error made by the circuit court by its order of March 10, 1910, until after the suit in equity at bar was brought and a temporary injunction obtained and on hearing dissolved.

This dissolution took place on February 17, 1911, and the writ of error to the circuit court to reverse the order of March 10 was not sued out until February 24.

We see no error in the action of the Chancellor of the Superior Court in dissolving the injunction, the action which led to the dismissal of the bill of complaint. If the scope of the bill was limited by the prayer for an injunction, the complainant, although dismissing its bill of its own motion, had a right to appeal. As the prayer of the bill, however, couples with the prayer for an injunction against the enforcement of the judgment at law a prayer in the alternative that the said judgment be set aside and vacated, there may be doubt under the doctrine of Cahill v. Welch, 208 Ill. 57, whether this appeal will lie. The appellee taking the view that it will not, has inserted in his argument herein a motion to dismiss the appeal. Giving appellant the benefit of the doubt, however, and entertaining this appeal, we must affirm the decree of dismissal. The order of dismissal of the bill in the circuit court of March 10, 1910, was not void or a nullity. In refusing to take any part in the trial of the law suit before Judge Windes, the defendant was acting at his peril. There being no injunction at that time in force, the court of law and its officers were right in proceeding when called into action. The Superior Court rightly so held, and its order of March 2, 1911, dismissing the bill of the Bill Board Publishing Company is affirmed.

Affirmed.


text:
    Bill Board Publishing Company, Appellant, v. F. C. McCarahan, Appellee.
    Gen. No. 17,899.

      Injunction—damages. Evidence held to justify the assessment of certain expenses of securing the dissolution of an injunction as damages against complainant.
    Appeal from the Superior Court of Cook county; the Hon. William Fenimoee Cooper, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed May 26, 1913.
    Simmons & Irving, for appellant.
    J. S. McClure, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

We do not think this appeal merits extended discussion. We have decided in cause No. 17,392, ante, p. 544, that the injunction, the expenses of securing the dissolution of which to the amount of $200 have been assessed against the appellant herein as damages, was properly dissolved.

We have read and considered the certificate of evidence found in the transcript of the record herein, and see no error in the rulings of the Judge on the evidence and enough in the evidence presented to justify the assessment that was made. It was evidently confined to services performed prior to the order of dissolution.

The judgment or decree of the Superior Court is affirmed.

Affirmed.


text:
    Nora Bevier, Appellee, v. W. H. Horn et al., Appellants.
    Gen. No. 17,465.
    1. Judgment—motion to set aside. Where an affidavit in support of a motion to set aside a judgment obtained by confession does not disclose a clear and equitable reason for opening the judgment the motion is properly denied.
    2. Set-off—unliquidated damages. In an action on a note the defendant cannot set off a claim for unliquidated damages arising out of a different transaction, and a judgment by confession will not be opened to allow the set-off to be interposed.
    3. Sf.t-off—in action against several defendants. In an action on a note against several defendants a claim of indebtedness due to any number of the defendants less than the whole cannot be set off.
    4. Damages—vexatious appeal. An appeal from an order denying a motion to set aside a judgment obtained by confession held not to demand assessment of damages for vexatious appeal.
    Appeal from the Circuit Court of Cook county; the Hon. Chables M. Walkeb, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed May 26, 1913.

      Dwight D. Boot, for appellants.
    Charles V. Clark, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

A judgment by confession for $2,767.49 against W. H. Horn Cedar and Lumber Co., a corporation, W. H. Horn and W. F. Horn, in favor of “Mrs. Hora Be-vi'er”was entered by the Circuit Court of Cook county on a narr. and cognovit December 14, 1910.

. December 27, 1910, W. H. and W. F. Horn were heard on their motion, recited by the judgment order of that date to have been “heretofore entered,” to set aside and vacate the said judgment by confession and allow them “to file pleas in the cause so that there might be a trial thereof on the merits.” This motion after argument was denied by the court and this appeal by the said W. H. Horn and W. F. Horn followed.

The cognovit on which judgment was rendered was based on warrants of attorney to confess judgment at any time thereafter, incorporated in two notes, each signed by The W. H. Horn Cedar and Lumber Company, W. H. Horn, Prest., W. H. Horn and W. F. Horn. One note was for $2,000, dated May 28, 1906, payable December 1, 1906, to the order of H. E. Bose, with interest at seven per cent, per annum after date. The warrant of attorney attached to this note authorized a confession of judgment in favor of the holder of the note for such amount as might “appear to be unpaid thereon, together with costs and ten per cent, attorney’s fees.” The other note was for $500. It was dated August 8, 1906, and made payable to the order of Hiram E. Bose ten days after date. The warrant of attorney attached thereto provided for ten' dollars attorney’s fees. Each of these notes bore the endorsements:

“Pay to the order of N. B. Bose,
H. E. Bose.”
and
“Pay to the order of Mrs. Nora Bevier,
May 6th, 1909.
N. B. Bose”
and other endorsements showing payments of interest to February 9, 1910. They each bore also the following endorsements of extension:
“October 12, 1908.
For and in consideration of one dollar in hand paid it is hereby mutually agreed that this note and interest thereon is hereby extended to Jan. 2/09, provided however that this extension of time shall not prevent the holder thereof from taking judgment thereon in accordance with the face of this note if not paid when due. As a further consideration for this extension the makers have delivered a certain Trust Deed on mortgage on the Str. Adiramled with mortgage notes as collateral security for the payment of the within note and when paid in accordance with the terms hereof the said collateral security shall be returned.” and
“May 4, 1909.

In consideration of the above, time of payment is extended to May 8, 1910.”

By the bill of exceptions in the record it appears that the contention of the appellants was founded on a petition which was sworn to by the said appellants, in which the judgment was set forth, and in which it was alleged that for some years they had dealings with H. E. Bose and had been told by him that he was keeping his property in the name of his wife, N. B. Bose, and in the name of his wife’s mother, Nora Bevier, and further alleged that Bose signed his wife’s name to contracts and endorsed her name on notes, and that N. B. Bose had told them that whatever H. E. Bose did would bind her, and that the petitioners were “informed and believed” that said plaintiff, Nora Bevier, had no property “except as the same had been put in her name by said H. E. Eose for his own use and benefit,” and that said H. E. Eose for a longtime had, and the petitioners believed yet had, a bank account in the name of Ms wife and drew checks thereon in her name alone and without her personally signing the checks. Following these allegations is this statement: •

“Your petitioners therefore have reason to believe and do believe that the said H. E. Bose was the legal and equitable owner of both the notes on which and at the time when the judgment herein was rendered thereon, and that his said mother-in-law, Nora Bevier, was and is only a nominal plaintiff herein for the convenience of said H. E. Eose and without any real interest in said judgment.”

The petition then goes on to set out at length a written contract of- the date of November 16, 1908, between W. H. Horn on the one hand and H. E. Eose and Nellie B. Eose on the other, relative to the conveyance of some real estate by W. H. Horn to the Eoses, and the consideration to be given therefor, a part of wMch was to be—

‘ ‘ certain notes amounting to $4,000 and accrued interest thereon made by The W. H. Horn Cedar and Lumber Co. and held by the party of the second part, together with a certain mortgage and. notes on the Steamer Adiramled held as collateral security to said notes of $4,000.”

The petition then states that the “Adiramled” had been recently wrecked; that thereafter it was to be sold for salvage; that the petitioners (W. H. Horn and W. F. Horn) agreed to advance $400, and H. E. Eose the remainder of what was necessary to bid for the boat at the sale; that this remainder was about $2,500; that H. E. Eose would buy the boat at the sale; that he and petitioners would resell it; that said Bose should then receive $5,500 from the resale and one-fourth of the amount over $5,500 which was realized on said resale; that on the reception of $5,500 he should cancel and surrender the notes on which judgment was confessed herein, the payment of said notes having been secured by a chattel mortgage on said boat; that the petitioners advanced H. E. Bose the $400, according to the agreement, but that Bose after receiving it “did not bid in said boat, but permitted it to be sold to others and thereby entirely lost to the petitioners.” The petition proceeds with these allegations :

• “And your petitioners say that they have reason to believe and do believe that they are damaged thereby to the extent of $10,000 because said H. E. Bose broke his said last mentioned contract. And your petitioners desire to set off or recoup so much of said damages as may be necessary to cancel or pay said notes on which said judgment was rendered.
And your petitioners further say that whatever business aforesaid was done in the name of N. B. Bose or the plaintiff was in reality and in fact simply the business and interest of said BE. E. Bose, done in the name of his wife or her mother, the plaintiff, for the use and benefit of said H. E. Bose.
Said $400 was paid to said H. E. Bose on November 17, 1910, and was due from him to' your petitioners when judgment was entered herein, and said H. E. Bose owned the notes on which judgment was rendered when the judgment was rendered.
The notes amounting to $4,000 mentioned in the written contract above set forth, included the two notes on which judgment was rendered herein. The notes on which said judgment was rendered were past due before and when they were endorsed to the plaintiff.”

There are further allegations of the petition to the effect that H. E. Bose and his wife refused to exchange properties with W. H. Horn, according to their written agreement thereinbefore set forth, and that—

“thereby your petitioner, W. H. Horn, lost about $15,000 as damages which he otherwise would have received and your petitioners desire to set off or recoup in this suit such part of said damages as may be necessary to satisfy the two notes on which judgment was rendered herein.”

The Bill of Exceptions recites:

“The Court, having heard said affidavits and petitions, ruled that unless the plaintiff remitted or reduced said judgment to the extent of Four Hundred Dollars, the Court would set aside said judgment and thereupon the plaintiff credited upon and reduced said judgment to the extent of Four Hundred Dollars. And thereupon the Court denied said motion and refused to vacate or set aside said judgment herein and also refused said defendants W. H. Horn and W. F. Horn leave to file their pleas herein and to have a trial on the merits of the cause.”

The appellants contend in their assignments of error and argument that the Circuit Court should have vacated the judgment and allowed them to file pleas and have a trial on the merits, or that in any event it should have compelled the crediting on the judgment in addition to the $400, of interest on the same from November 20, 1910, and of the costs of the case, and should have deducted from the judgment the “excessive and unreasonable sum therein allowed as attorney’s fees.”

We do not see any error in the action of the court unless it was as the appellee suggests, “in compelling appellee to elect whether she would credit $400 on the judgment or submit to have the confession opened to let in defenses.”

There was no defense shown by the sworn petition to the notes in the hands of the plaintiff or of any previous holder.

If the affidavit in support of the motion to open the judgment did not “disclose a clear and equitable reason for opening the judgment and allowing the appellant to plead, ’ ’ then it was not an abuse of the discretion with which the court is vested in this matter of judgments by confession to deny the motion. Pearce v. Miller, 201 Ill. 188.

In this case, although the petition does in one paragraph aver “The notes on which said judgment was rendered were past due before and when they were endorsed to the plaintiff,” yet in another part of the petition the petitioners and affiants purport to set out the reasons for their belief that Nora Bevier was not a holder in due course and before maturity (after the second extension) as, according to the purport of the notes and endorsements, she appeared to be. Those reasons are manifestly insufficient and we think the affidavit considered together is far from clear and satisfactory on this point.

But if this be passed by and the notes and judgments assumed to belong to H. E. Bose, we see no “clear and equitable reason” for opening this judgment.

In the first place, the claim made is that of set-off or recoupment. No injury would be done to the appellants by relegating them to their own action against H. E. Bose who is not alleged to be insolvent or irresponsible. In the meantime the notes are outstanding legal obligations, to which the plaintiff certainly has the legal title whether or not she has the beneficial one.

Secondly, the damages claimed cannot, on account of their nature, properly be set off or recouped in an action on the notes, if the judgment was opened. They are unliquidated and it is plain that they do not spring from the same transaction as the notes.

Again, they are claimed as due only to W. H. Horn and W. F. Horn in the matter of the proposed purchase and resale of the “Adiramled,” and to W. H. Horn in the matter of the exchange of real estate. The judgment was against three parties jointly, The W. H. Horn Cedar and Lumber Co., W. H. Horn and W. F. Horn. Indebtedness due to any number of the defendants less than the whole could not be set off in this action. Dameier v. Bayor, 167 Ill. 547; Priest v. Dodsworth, 235 Ill. 613-615.

As we do not think that the court was under any obligation to compel the crediting or deduction of $400, which was, in his discretion, made a condition of his order and which was acquiesced in by the appellee, we do not think the complaint about the fact that the interest should have been added, tenable.

Nor were the attorney’s fees unauthorized by the notes, nor so exorbitant as to require correction.

But we do not think the case is one which demands an assessment of damages in this court as for a vexatious appeal.

The judgment of the circuit court is affirmed.

Affirmed.