author: Ms. PeesidiNG Justice Brown

text:
    S. Rogers Touhy, Plaintiff in Error, v. Arthur B. Wells et al., Defendants in Error.
    Gen. No. 15,876.
    1. INJUNCTIONS — when hill should he dismissed. Where the only object of a bill is an injunction the same should be dismissed for want of equity upon the dissolution of the injunction.
    2; Injunctions — when assessment of damages sufficiently sustained hy folding. If the decree finds as an ultimate fact that the damages awarded were sustained by the evidence heard, the deeree is sufficiently supported.
    3. Decrees — when evidence need not he preserved to support. If the decree is such that the court would be bound to render it in the event of a total failure of evidence, no evidence need be preserved to support it.
    Error to the Circuit Court of Cook county; the Hon. Paul McWil-liams, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed November 20, 1911.
    Addison Blakely, for plaintiff in error".
    JohN IV!. Blakely, for defendants in error.
   Ms. PeesidiNG Justice Brown

delivered the opinion of the court.

As we have, in an opinion in 15877, filed contemporaneously with this (Post, p. 195), declared that on June 8, 1909, in the cause McCagg v. Touhy, reported in 150 Ill. App. 15, we affirmed the order of September 30, 1907, as well in its effect on S..Rogers Touhy as on Catherine C. Touhy, we can hardly he expected to hold that the Circuit Court erred in dissolving an injunction which we must hold was improvidently granted to restrain the enforcement of an order of the Superior Court, which we had thus affirmed.

The only object of the bill was an injunction, and on the dissolution the bill was properly dismissed for want of equity.

To support such a decree no evidence need be preserved, “as that is the decree which the court would be bound to render in case of a total failure of evidence.” Jackson v. Sackett, 146 Ill. 646.

This leaves as the only question before ns, whether that part of the decree assessing the defendant’s damages by reason of the wrongful suing out of the injunction at $200 is sufficiently supported in the absence of any certificate of evidence presented by either party, by the findings of the decree.

The part of the decree involved in this question reads as follows:

“This cause coming on to be heard upon the suggestion of damages in writing this day filed by the defendants to this cause, and the court having heard evidence upon such suggestion and being fully advised doth hereby find that the sum of Two Hundred ($200) Dollars is the amount of damages heretofore sustained, by said defendants by reason of the suing out of the temporary injunction in this cause and for obtaining a dissolution thereof.
“And the court doth order, adjudge and decree that said defendants have and recover of and from said complainant the sum of Two Hundred ($200) and it is ordered that execution issue in their behalf and against complainant therefor.”

Counsel for plaintiff in error say that this does not preserve the evidence. “To preserve the evidence,” in the sense that it is necessary for a party in whose favor a decree is rendered to preserve it, it is sufficient that the findings of fact in the decree sustain the ordering part.

As this court pointed out in Meisel v. Roos, 107 Ill. App. 179, if when there is a finding of fact sufficient to sustain the decree, the defeated party is dissatisfied with it, it is for him to secure, by a certificate of evi-deuce, the preservation of the evidence on which the finding purports to be based. In a case such as the plaintiff in error, contrary to the express recitals of the decree, claims this to be, where no evidence is heard, “the certificate of evidence,” like a bill of exceptions in an analogous case, could so show.

In the absence of any certificate of evidence or showing beyond “an assignment of error” annexed to the record we certainly must accept the recitals of the de--cree as correct, and that the court “heard evidence” on the suggestion of damages. Indeed this would seem to be rather confirmed by its appearing that when the plaintiff in error was granted an appeal, which he did not perfect, he was given twenty days to file “a certificate of evidence.”

The question simply is, therefore, whether the finding of fact that “the sum of $200 is the amount of damages heretofore sustained by said defendants by reason of the suing out of the temporary injunction in this cause, and for obtaining a dissolution thereof” is sufficient to sustain the assessment of that sum. "With some hesitation we decide that it is. It is very meagre — more meagre, it is true, than that which was sustained as sufficient in Kohlsaat v. Crate, 144 Ill. 14, for there the court found that “the sum allowed was paid out to solicitors and counsel. ’ ’

But it is the finding of an ultimate fact on evidence, and if the defendant was to this extent damaged, he was entitled to recover the amount. While not approving the meagreness or the form of the finding, we do not feel obliged to reverse the decree on account of it, and it is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Brown

license: Public Domain

text:
    Ezra B. McCagg, Executor, Defendant in Error, v. S. Rogers Touhy, Plaintiff in Error, and Catherine C. Touhy et al., Defendants in Error.
    Gen. No. 15,877.
    Res judicata — when judgment on review binding. Regardless of the time when a party is joined in a proceeding if his claim is taken cognizance of on review, he is hound hy the judgment rendered.
    Error to the Superior Court of Cook county; the Hon. Earlin Q. Ball, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed November 20, 1911.
    Addison Blakely, for plaintiff in error.
    John M. Blakely, for defendants in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

With a persistency worthy of comment if not of ■commendation, the plaintiff in error in this canse attempts hy this writ of error to secure another review in this court of an order entered hy a judge of the Superior Court on September 30, 1907, against him jointly with Catherine C. Touhy (his mother, from whom he derived, hy his own statements and those of his counsel in this litig’ation, the only color of title he has ever claimed in this litig’ation to the premises involved) and all persons claiming hy, through or under them or either of them, for a writ of assistance to remove him and his mother and such persons from a corner of block 2 in Rogers Park. The order was entered in a foreclosure suit of Ezra B. McCagg as executor, etc., Catherine C. Touhy and others. From this order of September 30, 1907, Catherine C. Touhy appealed to this court. S. Rogers Touhy was her bondsman on the appeal bond. The solicitor who sued out this writ of error for S. Rogers Tonhy was the solicitor who appeared for Catherine C. Tonhy in the appeal. In the decision of that appeal we took cognizance of the claim of S. Rogers Touhy and affirmed the order. Under the circumstances he is bound by it, although he was first brought into this litigation by a petition for a writ of assistance filed in the above entitled cause by Jane Creigh Wells on July 13, 1905.

Both in answer to that petition and in the course of the proceedings on a later one, on which the order of September 30, 1907, was entered, S. Rogers Touhy claimed a right to the premises, which he seeks to retain under a lease from Catherine C. Tonhy which expired September 10, 1905.

We do not consider that the plaintiff in error is in any position to claim that the court below was without jurisdiction to make the order complained of, nor that he is entitled to any further review of it. We might dismiss the writ of error properly enough, but we have also the power again to affirm the order, as we did in the judgment indicated in the opinion in McCagg v. Touhy, 150 Ill. App. 15.

Then there can be no longer doubt that it has been affirmed against S. Rogers Touhy as well as against Catherine C. Touhy.

Affirmed.


author: Mr PresidiNg Justice Brown

text:
    George Galloy et al., v. Hannah S. Sparrow et al. T. M. Tobin Bros. Company, Appellant, v. Hannah S. Sparrow et al., Appellees.
    Gen. No. 15,899.
    Mechanic’s lien — what not equivalent to filing of intervening petition by subcontractor. The mere appearance of a party to a bill pursuant to an allegation made by the complainant that he had been informed that the party appearing claimed some interest, is not the equivalent of “filing a petition’’ or “commencing a suit’’ or filing an answer, intervening petition or cross-bill, arresting the running of the statute.
    Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed November 20, 1911.
    RobbiNs & Whittlesey, for appellant.
    Kruse & PedeN, for appéllees; James G-. Skinner, of counsel.
   Mr PresidiNg Justice Brown

delivered the opinion of the court.

The question presented by this appeal is a very simple one. The defendant, Hannah S. Sparrow, was the owner of certain premises in Chicago, and made a contract with one John A. Hartman to erect a building thereon. Hartman sublet the masonry part of the contract to one E. E. Peterson. Peterson defaulted and ran away owing material men from whom he had purchased his material. He owed T. M. Tobin Bros. Company, the appellant, $658.67 for brick, cement, lime, etc., and he owed the firm of G-alloy & Yan Elten (composed of George Galloy and Abram Yan Elten) $238 for cut stone. The material furnished Peterson by the “Tobin Company” and by G-alloy & Yan Elten had gone into the building on Hannah S. Sparrow’s property, and on December 11, 1907, Galloy & Van Elten began a proceeding to enforce a mechanic’s lien against that property, making Hannah S. Sparrow, John A. Hartman, E. E. Peterson, T. M. Tobin Brothers Company, W. Shomacker, W. Kingston, E. Bon-chard, George Shortridge and Henry Mnssnn, the William E. Dee Company and the Union Foundry Works, parties defendant. After making the necessary allegations to entitle themselves to enforce a mechanic’s lien against the property, the complainants made the only allegation which mentions the T. M. Tobin Brothers Company. It is that “Your orators further represent that they have been informed that T. M. Tobin Brothers Company, a corporation, William E. .Dee Company, a corporation, Union Foundry Company, a corporation, claim some interest in said premises, but that said interest, if any, is subject to the rights of your orators in the premises.”

There was, however, in addition a prayer for process against, and an answer from, the T. M. Tobin Brothers Company. Process was issued, but does not appear to have been served on the T. M. Tobin Bros. Company, which, however, on December 16,1907, filed in the Circuit Court an appearance to the bill in the following words:

“We hereby enter the appearance of T. M. Tobin Bros. Company (sued as T. M. Tobin Brothers Company), defendant above named and our appearance as their attorneys.
Bobbins. & Whittlesey,
Attorneys for T. M. TobimBros. Company.”

According to the Tobin Bros. Company’s own statement of their claim, made in the answer hereinafter referred to, the final payment under its contract with Peterson became due on September 1, 1907, and therefore the time (four months) in which, by the provisions of section 33 of the Act of May 18, 1903, “To Revise the Law in Relation to Mechanics Liens, ’ ’ the petition or suit of a subcontractor or material man mnst be filed or commenced to enforce his lien, expired as to said company on January 1, 1908.

The T. M. Tobin Bros. Company, however, took no steps within the four months except to file the appearance above recited, in the canse of Gralloy et al. v. Sparrow et al.

On February 3, 1908, it filed an answer in the same cause, in which it made all the allegations necessary to prove, to entitle it to a lien and to participate in the proceeds of any sale made under the petition of Gral-loy & Van Elten, except an allegation that it commenced its suit or filed its petition within four months of the date that the final payment came due.

The cause was referred to a master in chancery, and proof taken, and the master found that the T. M. Tobin Bros. Company was entitled to a mechanic’s lien for the amount it claimed, and reported the said finding to the court, with the further statement that a motion had been made before him by the solicitors for Sparrow and Hartman to report to the court adversely to the “intervening petition” of the T. M. Tobin Bros. Company, for the reason that its petition for a mechanic’s lien was not filed within four months from the time final payment was due it, which motion he had denied.

To this part of the master’s report the defendants, Hannah Si Sparrow and John A. Hartman, filed objections separately, and when these objections, which, by order, stood as exceptions to the master’s report, came to be argued before the chancellor, he sustained them and found in his decree that because of the 'failure of the T. M. Tobin Bros. Company to file its answer within four months from the 1st day of September, 1907, it was without right to a mechanic’s lien on the premises involved, and dismissed “the answer of the said defendant T. M. Tobin Bros. Company in the nature of an intervening petition” for want of equity. Prom this order and decree the T. M. Tobin Bros. Company has appealed to this court and assigns as error the action of'the chancellor in this regard.

We think he was clearly right in it.

The ground on which the master appears to have found differently, and which the appellant company urges here in argument, is that the appearance to the petition or bill of G-alloy & Van Elten within the four months was equivalent to filing a petition or commencing a suit, or, in any event, extended the time for it to do so. We see no merit in this contention.

. Section 9 of the Mechanic’s Lien Act, hereinbefore described, provides that original contractors may, within two years after the completion of the contract,. file a bill to enforce a lien, either jointly or separately, and may contest each other’s rights .if one or more of them make other claimants defendants, or other claimants make, as they may, themselves defendant “by answer to the bill or petition in the nature of an intervening petition” which “shall be taken as a cross bill against all the parties to said suit.” A further provision is that “such suit shall be commenced or answer filed within two years after the completion of the contract.”

Section 28 of the same Act provides that a subcontractor, such as the appellant, “may file his petition and enforce his lien as hereinbefore provided for the contractor in sections 9 to 20, inclusive, of this Act, except as to the time within which suit shall be brought.” And section 33, as before indicated, makes that time “four months after the time that the final payment is due the subcontractor. ’ ’

We do not see how there can be any reasonable question as to the effect of these three sections taken together. The mere appearance by the defendant on December 17, 1907, to a bill which made it defendant, under an allegation that the complainant had been informed that it claimed some interest in the premises, was not “filing a petition” or “commencing a suit” or filing an answer, intervening petition or cross hill. It saved no rights for the T. M. Tobin Company as a lien claimant.

If authority he needed for what seems to us so plain a proposition, the language of this court in the opinion in Boylan v. Cameron, 126 Ill. App. 432, would fur: nish it, although in that case the appearance was not filed, as it was in this, within the four months allowed for the beginning of suit or filing answer.

In Davis v. Arthur, 170 Mass. 449, the identical question was raised under a very similar statute, and decided in accordance with the views we have here expressed. The Supreme Judicial Court of Massachusetts said in that case, as we may say here •

“The filing of an appearance by the intervening petitioners after notice served upon them was not commencing a suit to enforce their lien within the meaning' of the statute. The appearance filed by counsel contains no statement of a claim of a purpose to enforce or attempt to enforce a lien. ’ ’

The decree of the Circuit Court is affirmed.

Affirmed.


author: Me. Pbesiding Justice Beown

text:
    The People of the State of Illinois, ex rel The Attractograph Company, Petitioner, v. William H. Dietrich, Respondent.
    Gen. No. 16,914.
    1. Mandamus — when alternative writ issues in Appellate Court. “An alternative writ” or "rule to show cause” or "summons” on a petition for a mandamus will not issue unless leave has first been obtained to file the petition and a summons or rule has been ordered. (The former practice in this district changed.)

      2. Mandamus — when verification of petition insufficient. A verification of a petition for a writ of mandamus is insufficient, — indeed, is no verification at all, where it is sworn to to the best of the "knowledge, information and belief” of the petitioner.
    3. Mandamus — appropriate form of traversing answer. - The proper pleading in mandamus suits to traverse the answer of a respondent (which answer takes the place of a return to the alternative writ under the old practice) is by a plea to such answer.
    4. Mandamus — when motion to strilce inappropriate. A motion to strike in mandamus is not adapted to test the substantial rights of the parties, and when a doubt as to the materiality of an allegation in pleading sought to be stricken out exists, a demurrer should be interposed.
    5. Mandamus — when judge of Municipal Court cannot be compelled to sign statement of facts. A judge of the Municipal Court cannot be compelled to sign a statement of facts which he does not concede to be correct, as the determination of the correctness of the statement of facts is a judicial duty with which the Appellate Court will not interfere. Either a statement of facts must be presented to the judge which he concedes to be correct or a correct stenographic report of the proceedings at the trial, etc., must be resorted to as the means of obtaining an adequate review.
    Petition for mandamus. Heard in this court at the October term, 1910.
    Petition dismissed.
    Opinion filed November 20, 1911.
    S. M. Meek, for petitioner.
    William C. Moody, for respondent.
   Me. Pbesiding Justice Beown

delivered the opinion of the court.

This canse is a proceeding in which the writ of mandamus is prayed from this (court against a judge of the County Court of Schuyler county, who,' under the Municipal Court Act, had presided at a branch of the Municipal Court of Chicago at the request of the judges thereof. The writ was prayed in aid of the jurisdiction of this court in a writ of error from this court to said Municipal Court, which is upon the docket of this (court as No. 16569, and is entitled the Moore-Bond Company, defendant in error, v. The Attractograph Company, plaintiff in error.

In this last entitled canse the writ of error was sned ont of this conrt on March 16, 1910, to reverse a ¡judgment for $734.70 and costs rendered by the Municipal Court — Judge William H. Dietrich, the defendant herein, presiding — on February 23, 1910, against the At-tractograph Company and in favor of the Moore-Bond Company.

The allegations of the petition for the writ, in addition to those setting forth the judgment above described and the pending writ of error, are that the At-tractograph Company, the defendant in the said judgment and the relator herein, after said judgment, obtained time under the statute, by an extension of time granted within, thirty days from the judgment until April 14, 1910, to file “its bill of exceptions,” that on April 14, 1910, it presented, by its counsel, to Judge Dietrich, who tried the cause, “a correct statement of facts appearing upon the trial of the case,” and that said statement of facts so presented was on the same day marked “Presented to me for signature this 14th day of April, 1910. W. H. Dietrich,” and was then turned over by Judge Dietrich to plaintiff’s counsel for examination, and the settlement thereof continued until two o’clock in the afternoon of the same day; that at two o’clock the settlement of the proposed statement of facts came up for hearing, and the “statement” was objected to by counsel for plaintiff on the ground that the same did not contain all the evidence or facts heard in the trial of the cause; that thereupon the relator “by its counsel requested the court to point out to it in what respect the statement of facts so .tendered was insufficient, that the court refused to point out to the relator or its counsel in what respect said statement of facts so presented was insufficient and endorsed thereon,” “Refusal of signature on the ground that the bill does not contain a correct transcript of the evidence of witnesses, and the rulings of the trial court on testimony introduced, and sets out matters and documents which are not admitted in evidence. W. H. Dietrich, Trial Judge;” that the matter again came on to he heard on the 28th day of April, 1910, on the motion of the relator to settle and sign the proposed statement of facts; that at that time the court (the defendant herein) instructed counsel for the plaintiff to point out the errors in the statement of facts so presented by the relator, and the proposed statement of facts was delivered by the relator to the,counsel for plaintiff, for the purpose of allowing him to point out the errors therein, if any; that the “statement” remained with the plaintiff’s counsel until June 22,1910; that on June 24th the matter again came on for hearing before Judge Dietrich on the motion of the relator to “settle and sign the proposed statement of facts,” and that “thereupon the court refused to settle and sign the proposed statement of facts, by means whereof the relator is prevented from incorporating in the record of the Municipal Court a correct statement of the facts or correct stenographic report or a correct bill of exceptions, to properly prosecute its writ of error heretofore sued out of the Appellate Court of Illinois,” etc.

The petition then “prays a writ of mandamus directed to said William IT. Dietrich as judge, commanding him forthwith to settle and sign the proposed statement of facts presented and marked presented by him on the 14th day of April, 1910, and cause the same to be filed of record in the Municipal Court of Chicago, and that such further order may be made in the premises as justice may require.”

The petition purports to be “verified” by the president of the relator in the following terms:

“B. Grlendenning being first duly sworn deposes and says that the several matters and things in said petition contained are true to the best of his knowledge, information and belief. ’ ’

Under the practice which then prevailed in this court, process denominated “a mandamus alternative writ,” but which is certainly differentiated from the common law “alternative writ,” and is more properly a mere “rule to show cause,” was issued as of course by the clerk and without leave from the court to file the petition, or a reference of the petition to the court or an order from the court for an “alternative writ” or a “rule to show cause” or “a summons.” We do not regard this practice, although one followed for many years in this court, a correct or desirable one. It is not the rule in the Supreme Court even, which has, like the Circuit Court, original jurisdiction in mandamus proceedings; while the Appellate Court can entertain such an application only when the mandamus desired is in necessary aid of its previously acquired jurisdiction in some other matter. The Supreme Court has always held that the statute of 1874 — “To Revise the Law in Relation to Mandamus ” — applies only to practice in the Circuit Courts, and that in the Supreme Court the summons even in an original independent proceeding will not be awarded as a matter of course, but only upon cause shown by petition, and the petition can be filed only upon leave granted for that purpose. People ex rel. Cunningham v. Thistlewood, 103 Ill. 139.

This used also to be the practice in this and other Appellate Courts in this State. Hawkins v. Harding, 35 Ill. App. 25, and People v. Knodell, 40 Ill. App. 101.

It may still be the rule in other districts than this. Why it was changed in this district we are not advised, but we have returned to the former practice, which we approve, and hereafter no alternative writ or “rule to show cause ” or “ summons ” on a petition for a mandamus will issue unless leave has first been given by the court to file the petition and a summons or rule has been ordered.

The “alternative writ” or “rule to show cause” or “summons,” whichever it may be properly called, given to the relator, was served by the sheriff on Judge Dietrich on September 26, 1910. He, thereupon, on October 6, 1910, entered, by bis counsel, a special appearance for the purpose of making a motion “to strike the petition from the files and to quash the writ theretofore issued. ”

For this requested action by the court he assigned four reasons:

First: That no leave to file the petition had been given.

Second: That there was no order for the issuance of the so-called “alternative writ.”

Third: That the affidavit to the petition was insufficient.

Fourth: That it appeared on the face of the petition that the respondent had lost jurisdiction to sign said statement of facts, and could not therefore be compelled by mandamus to do so.

On October 13, 1910, this motion was overruled by this court. As our conclusions in this case, after full consideration, are based on our opinion that the original petition was insufficient and that no mandamus could properly be ordered on it, it is perhaps proper to notice here our present view that the motion in question was not inapt, and should perhaps have been granted.

The conclusion that the first two reasons assigned by the moving party were not sufficient, were doubtless based on what had been the long continued practice of the court, and that the third was held insufficient, must have been in the last analysis, because the court held that the sufficiency of the petition, like the issuance of a summons upon it without order, was regulated in this court, as in the Circuit Court, by the Mandamus Act. For, if the practice in this court be not regulated by that Act, but by the common law as modified by the Statute of the 9th Anne (as we think it is), both the leave and order were necessary, and a verification of the petition was required. Merrill on Mandamus, 246; People ex rel. Chamberlain v. Chicago, 25 Ill. 402. But the supposed verification before set forth is none at all. It is one which a person who had no knowledge whatever of the matter could make with impunity. Such an affidavit was held insufficient in Gunning v. Sheahan, 73 Ill. App. 118.

Referring to the fourth reason given for the motion, however, the real objection to the sufficiency of the petition on the merits, which should, according to our present views, have prevented leave being granted to file it, lay not in the loss of jurisdiction on the part of the defendant to sign a correct statement presented to him within the statutory thirty days but not within said time signed by him, but deeper still, in the insufficient showing that the statement presented to the respondent was one which it was his administrative or ministerial duty as distinguished from a judicial one (involving exercise of his judicial power and discretion), to sign. Of this we shall treat hereinafter, however.

On the overruling of the motion to strike the petition from the files, the respondent, Judge Dietrich, on October 20,1910, filed “an answer to the petition,” or, more properly, a return to the “alternative writ” or “rule to show cause,” in which he set up:

First: That he (the respondent) was always willing to sign a correct statement of facts.

Second: That no correct statement of facts was ever prepared and presented to him for signature.

Third: That the statement presented April 14,1910, was incorrect and defendant, although presenting the same one again, never presented another.

Fourth: That it is not the duty of the judge, under paragraph 6, sec. 23, of the Municipal Court Act, to point out errors in a statement presented, or to prepare the statement, nor to sign one prepared by counsel which is incorrect.

(Note: This fourth proposition of the answer is based on the words of the Municipal Court Act, which are: “It shall be the duty of the Judge by whom such final order or judgment was entered to sign and place on file in the cause, in which the same was entered, if so requested by either of the parties to the suit, a correct statement, to be prepared by the party requesting the signing of the same, of the facts appearing upon the trial thereof and of all-questions of law involved in such ease and the decisions of the Court upon such questions of law. ’ ’

It is to be seen from this language that it is not a “bill of exceptions’1 that the Judge by this language is compelled to sign, and that his duty as to it is a different one from that imposed by the common law on a trial judge in relation to exceptions. The “statement” provided for was, however, doubtless understood by the framers of the law as in a sense a substitute in a simplified practice for a “bill of exceptions.”)

Fifth: That even if the statute imposed on the judge the duty of rendering assistance in the preparation of “a correct statement of facts,” the relator was so negligent and presented his statement so late that it was impossible for respondent to do so.

Sixth-. That after April 14, 1910, respondent lost all jurisdiction to sign and file a statement.

The proper pleading in mandamus snits to traverse the answer of a respondent (which answer takes the place of a return to the alternative writ under the old practice) is by a “plea to the respondent’s answer,” and this is what the pleading denominated by the relator a “replication to respondent’s plea” must he considered. It was filed by the relator on March 18, 1911.

Before describing it we will note what we consider the correct "theory of pleading to an answer in a mandamus proceeding. Before the Statute of 9th Anne concerning mandamus, the return made to the common law “alternative” writ was conclusive if it set up matters which were sufficient in themselves to prevent the issuance of a mandamus. Whether the return was true or false, the chance of the petitioner for a mandamus was gone if it was legally sufficient.

The only remedy of the defeated petitioner of the return or “answer” was by an action for money damages for a false return. The petitioner thus began a new law suit, setting up in as many counts of the declaration as were necessary the falsity of the respective allegations of the return. To do this of course required in many instances the repetition of the allegations of his petition, hut in such forms as lent themselves to the purpose and end of common law pleading, singleness of separate issues of law or fact to be reached by further pleading or demurrers.

The Statute of Anne merely changed this practice by allowing the answer or return to be traversed by pleas to it in the same suit, instead of by a declaration in a new suit, and by giving the relator a chance in that same suit to secure a mandamus as well as damages. It will thus be seen that the relator’s pleas to the answer ¡correspond to the declaration in the former practice in an action on the case for a false return, and necessarily, like such a declaration, required often the repetition of the allegations of the original petition.

The plea of the relator in the case at bar to the answer of the respondent was not artificially drawn for a common law pleading in mandamus, but as we shall dispose of this matter on its substantial merits according to our view of the law, it is not necessary to discuss the question of its form as presenting double or immaterial issues. It contained these points or allegations. Relator asserts that—

1. Respondent did refuse to sign a correct statement of the facts.

2. Respondent was at no time willing to sign a correct statement of facts, but refused to do so.

Relator denies that—

3. “No correct statement was presented.”

4. “That the statement that was presented did not contain a correct version of the facts or did contain anything improper to be inserted.”

The relator alleges also that—

5. Respondent spoke of errors when that statement was presented, but refused to point out errors in it— “Because, as lie claimed, it would put upon Mm, the respondent, tlie burden of making up a correct statement of facts for the relator. ’ ’

6. The plaintiff in the said case that had been tried —the Moore Bond Co. — had a stenographer at the trial, and respondent used the notes and relator could not get at them, and respondent refused to order them submitted to relator, and so relator was not negligent as alleged, and ought not to be prevented from getting his “statement” signed.

On April 24, 1911, the respondent made a motion to strike this plea of the relator from the files, setting forth reasons substantially repeated in the general and special demurrer afterward filed to the plea, on which demurrer we purpose to dispose of the entire case. The reasons given for this motion, therefore, need not ■be recited. The motion was denied by this court on May 8,1911, on the ground that the “motion to strike,” although known to the common law as an extraordinary part of the system of pleading in mandamus (and other common law) proceedings, should not be used to take the place of a demurrer to test the legal sufficiency of the theory of the case which the relator desires to present.

As the court says in "Whitney v. Cady, 71 Conn. 166, the “motion to strike” was never intended and is not adapted to test the substantial rights of the parties, and when a doubt as to the materiality of an allegation in pleading sought to be stricken out exists, it is the right of the party to be heard in full on demurrer.

The motion to strike the plea of relator to respondent’s answer having been denied, the respondent was ruled to demur or reply to the said plea.

• On May 17, 1911, he filed his general and special demurrer to said plea. It is on this demurrer that we are now, after argument, called to pass.

The special grounds of demurrer assigned are:

First: That a large part of said replication is a repetition of tlie allegation of relator’s original petition in said canse.

Second: That said replication contains new matter not contained in relator’s original petition.

Third: That said replication contains statements of alleged facts which are immaterial to any issne in the canse.

Fourth: That said replication 'concludes in effect with a chancery prayer for relief.

Fifth: That said replication does not tender any issne and that the same is in other respects uncertain, informal and insufficient.

What we Jiave already said concerning the proper form and course of pleading in mandamus shows thai neither the first or second of the special causes assigned (which, incidentally it may be said, are mutually self-destructive) is a valid objection to the plea. The third, fourth and fifth are as to matters of form and might demand discussion and perhaps sustainment if it were not, as we think, necessary and desirable to dis? pose of the case on the merits. These came before us on the general demurrer.

For although the allegations of the plea are not de-murrable because they are the repetitions of the allegations of the petition, or because they are new matter not repetitions of the allegations of the petition— they may he demurrable in either case, because they are insufficient in law. They may, in other words, present no ground for a judgment against the respondent, and, moreover, under the familiar rule of pleading which carries back the searching qualities of a demurrer through previous pleadings to one where the insufficiency in legal theory first appeared, we may and should, under this demurrer, go back, if necessary, to the petition in the 'cause.

We have done so, and have come to the conclusion that no case has been presented by the pleadings of the relator demanding or justifying an issuance of a mandamus on our part.

The petition on its face shows that the respondent declined to sign the “statement,” which the relator says was “a correct statement of facts appearing upon the trial of the case” (and which is “the proposed statement of facts ’ ’ which the relator prays a mandamus on the respondent to sign) because he, the respondent, did not hold it to he correct, hut, on the contrary, held it contained incorrect statements.

It has indeed been argued before us that his ground of refusal, as set out in the petition, does not amount to this position; but we are of the opinion it does. How are we to determine the question whether or not the “proposed statement” was correct? By what machinery? It would be an impossible position in which to place the Appellate Court to require it to determine, in any given case in the Municipal Court which the defeated party desired reviewed, whether or not he had presented a correct statement of facts to the court. It is a part of the judicial function of the judge of the Municipal Court to decide and determine this, and a part of his judicial duty which we cannot constrain by mandamus.

An analogous rule as to “bills of exceptions” has been recognized both early and late in the jurisprudence of this State. The Supreme Court has said that no mandamus will issue to a trial judge in the Circuit Court to sign any particular “bill of exceptions.” The People v. Pearson, 2 Scammon, 189; The People v. Anthony, 129 Ill. 218.

“He must at last determine the accuracy of the bill which he verifies, ” says the court in the last case. And so it is here. If the court should admit a “statement of facts” presented to be correct, and still refused to sign it, a different question would be presented.

But it is said that although the Supreme Court has said that a mandamus will not lie to a trial judge in the Circuit Court to file auy particular bill of exceptions, it expressly holds that he may be commanded to sign some bill of exceptions. This is true, but apart from the fact that the petition in this case calls on him to sign “the proposed statement of facts” — a prayer which might be changed by amendment of the petition —the “statement of facts” provided for in fourth and fifth class cases by the Municipal Court Act, is not “a bill of exceptions,” as we have before indicated. It is, in the event that the party desiring the review shall so elect, undoubtedly intended to take the place of “a bill of exceptions ’ ’ — ‘ ‘ exceptions ’ ’ being expressly rendered unnecessary by the Act. But it is differentiated from a bill of exceptions by being even more absolutely a matter of judicial determination than a bill of exceptions could be. It is to be a statement of “the facts appearing” and “of the questions of law involved, ’ ’ the determination of which is the very gist of the judge’s judicial function; and as the express language of the Act relieves the judge of the duty of drawing the statement by saying it is “to be prepared by the party requesting the signing of the same, ’ ’ the result must necessarily be that where the judge does not concede the correctness of the statement presented to him, and refuses to sign it, the party must prepare and. present to him, within the allowed time, one the correctness of which the judge will concede, or choose the other alternative allowed him By the Act and present a correct stenographic report of the proceedings at the trial, etc., — a very different thing from “a statement of facts appearing” and “questions of law’'involved. ’ ’

By what we have said, however, we must not be supposed to indicate that a judge of the Municipal Court should not, in the exercise of his judicial discretion, point out to counsel, on proper occasion and opportunity, the.points in which a proposed statement that he declines to sign is incorrect, in order that if there be time it may be amended and again presented. It may be presumed that this would be the usual course.

We think the general demurrer of the respondent to the plea of relator to the respondent’s answer in this case should be carried back to the petition and sustained, and that as it appears on the face of the petition that it cannot be so amended (now that' the time has long passed in which any other “statement of facts” could be presented to the court) to make a case for the issuance of a mandamus to the respondent of the nature prayed for, the petition should be dismissed. Tt is so ordered.

Petition dismissed.


author: Mr. Justice Smith

text:
    Sarah Walensky, Defendant in Error, v. United States Grand Lodge of the Independent Order Brith Abraham, Plaintiff in Error.
    Gen. No. 15,854.
    Municipal court — when stenographic report stricken. A stenographic report not filed within thirty days after the judgment date or within an extension of time granted within such period of thirty days, will he stricken.
    Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed November 20, 1911.
    Samuels & Samuels, for plaintiff in error.

      HobNStbiN & Fisher, for defendant in error.
   Mr. Justice Smith

delivered tlie opinion of the court.

A judgment was entered in this, a fourth class case, in the Municipal Court of Chicago, July 29, 1909, for the sum of $500. On August 25, 1909, an order was entered that the time to file a hill of exceptions he extended thirty days from date. On September 22, 1909, an order was entered that the time to file a hill of exceptions he extended thirty days from date. On October 22, 1909, a correct stenographic report of the proceedings at the trial was filed.

The defendant in error moves the court to strike from the record said stenographic report because same was not filed within the first extension of time given therefor, as provided by the statute. Under the authority of Lassers v. North German Steamship Co., 244 Ill. 570; Wurlitzer Co. v. Dickinson, 247 Ill. 27; Haines v. Danderine Co., 248 Ill. 259; Lakeside Fish & Oyster Co. v. Mutual Fish Co., 155 Ill. App. 681, and Devine, Adm’r, v. Prudential Ins. Co., 156 Ill. App. 477, the motion is allowed.

No error appearing in the remaining record, the judgment is affirmed.

Affirmed.


text:
    Caroline Kneip et al., Appellees, v. Charles H. Schroeder, Appellant.
    Gen. No. 15,872.
    1. Easements — when custom not competent. A custom by which a building line has been habitually violated, held, under the circumstances, incompetent.

      2. Easements — what infraction of Tmilding restriction. A building line restriction is infracted by the erection of bay windows over such line.
    • 3. Injunctions — when do not lie to restrain infraction of Tmilding line restriction. The infraction of a building line restriction cannot be enjoined at the instance of one who himself has violated such restriction.
    Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Ear-lin Q. Ball, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded with directions.
    Opinion filed November 20, 1911.
    ArNold Tripp, for appellant.
    Charles A. Williams and J. B. Langworthy, for ap-pellee.
   Mr. Justice Smith

delivered the opinion of- the court.

The anpellees, hereinafter called complainants, filed their hill in chancery alleging, among other things, in substance, that thev were residents of Chicago and the owners of certain described premises located on Jans-sen avenue between Cornelia and Roscoe streets; that . the plat of the subdivision including said premises was made and recorded in 1886, showing^fchereon a building line twenty feet back from the front lines of the said lots on Janssen avenue; that the said premises were platted and. sold as residence lots; that two thirds of the said premises had been improved with substantial buildings, all in compliance and conformitv with the said twentv foot building line, and was entirelv residence nropertv; that the said appellant, hereinafter called defendant, had knowledge of the said building line and had prior thereto erected upon other of the lots mentioned buildings in conformity with the said building line: that the said defendant was about to erect upon certain of said described nremises a three story stone and brick building extending to the street line thereof, in violation of the said building line restriction; that the erection of said proposed building would be in violation of the said building line condition under which the complainants purchased and improved their respective premises, and would shut out the complainants’ view, cause irreparable damage to their property, etc. The complainants prayed that the defendant be enjoined from so erecting said proposed building. An interlocutory injunction was issued and on appeal affirmed in this court, and reported in 144 Ill. App. 620.

The defendant thereupon answered, and the cause was placed at issue. On a hearing before the chancellor the court entered a decree finding the issues for the complainants and, among other findings, “that in each and every instance the building line as so established and shown on said plat has been substantially observed and respected and adhered to,” and enjoined the defendant from erecting the said proposed building over or beyond the said twenty foot building line.

While much evidence was introduced on the trial, there was very little controversy pertaining to tlie physical conditions existing in the locality in question. Janssen avenue, begins at Roscoe street and extends north sixty-six feet wide. About one hundred fifty feet north of Roscoe street the Northwestern Elevated Railroad structure crosses Janssen avenue. On the west side of Janssen avenue, just south of and adjacent to the elevated railroad structure, is a two story basement and frame building. This is the only building on Janssen avenue between the elevated structure and Roscoe street. The defendant proposed to erect a three story building on the east side of Janssen avenue just south of and adjacent to the elevated railroad structure. The complainants’ premises are on Janssen avenue between the said elevated structure and Cornelia street, the next street north of Roscoe street. It is a residence block. That portion of Jans-sen avenne north, of the elevated structure is nearly all built up with residences and flat buildings. The lots are 37 1-2 feet front and 120 feet deep, but many of the buildings occupy a lot and a half. A twenty foot building line had been established and the so-called front walls of all the buildings had been built substantially on the building line, in compliance thereto. With every building bay windows, porches and steps were erected extending beyond the building line; except a one story frame building, where only the steps extended beyond the building line. In most instances the bay windows extended from the foundation up the whole height of the building and were of various dimensions. On the premises owned by the complainant Helwig the bay window extends over the building line substantially two feet, four inches; and on the premises owned by the other complainants the bay windows extend over the building line substantially three feet. On other premises the bay windows extend over the building line four feet; others four feet and five inches, another five feet and three inches, and another five feet and eight inches. Some of these bay windows are what are called square extensions, being built at right angles with the building from the foundation to the roof, and some extend more than half way across the front of the building. In most instances the bay windows and porches together extend substantially across the entire front of the building. The porches are of various dimensions and the steps begin at various distances from the street line of the lot. The steps on the premises owned by complainants Eosalie and Augusta Schulta begin about three feet from the street line of their lot.

The bay windows, or square extensions, built from foundation to roof, as shown by the evidence in this case, are manifestly the outer walls of that portion of the building. It follows that these extensions come within the rule laid down in Curtis v. Rubin, 244 Ill. 88. The court there said: “The bays, which extended into the reserved space over the hnilding line and ran up the whole height of the houses on the same foundations and with the same walls, were violations of the restrictions. (Linzee v. Mixer, 101 Mass. 512; 5 Am. & Eng. Ency. of Law, 2nd ed., p. 7). * * * Unquestionably if they had observed the line themselves and not assented to its violation by others, equity would have protected their rights. * * * "We do not think that the complainants, who had disregarded the restriction and abandoned the building line created by the plat, could he heard to object that the defendants were violating the condition to a greater extent than they were.” This authority seems to us to be controlling and its language especially applicable to the case at bar.

The testimony of an architect, a former building commissioner of the city of Chicago, building contractors and men in the real estate business, was introduced that it was the custom in said city to build architectural or ornamental designs, that is, bay windows, porches, steps, water tables, cornices, etc., extending beyond the building line, and that the same was not in violation of the building line. One contractor testified that a bay window built more than five feet over the building line would be in violation thereof. The architect testified that about seven feet over the building line was as far as a bay window might extend without violation thereof. It seems that it was largely a matter of opinion of the witnesses how far a bay window, or square extension, built from the foundation to the roof of the building, might safely be constructed and not be in violation of the building line. On a careful examination of the testimony, we find no evidence of a general usage or custom of any certain or uniform distance over the building line that a bay window, or square extension, might be constructed from the foundation to the roof of the building without being in violation of the building line restriction.

In Wilson v. Bauman et al., 80 Ill. 493, tlae court said, in relation to proof of a custom: “It must be shown to be ancient, certain, uniform, reasonable, and so general as to furnish this presumption of knowledge by both parties,” and also, “it cannot be in opposition to any principle of general policy, nor inconsistent with the terms of the agreement between the parties, or against the established principles of law.” C. C. C. & St. L. Ry. Co. v. Jenkins, 174 Ill. 398; Cold Storage Co. v. Produce Co., 197 Ill. 457.

Moreover, the evidence pertaining to a custom of building bay windows in violation of a building line was incompetent. The complainants cannot be permitted to show a custom whereby they and others have violated a building line, for the purpose of invoking the power of a court of equity to compel the defendant to conform to and observe a building line restriction that they have themselves violated, and claim it is the custom to so do.

The decree is reversed and the cause remanded with directions to dissolve the injunction and dismiss the bill for want of equity.

Reversed and remanded ivith directions.


author: Mb. Justice Smith

text:
    Fratto & Mustari, Plaintiffs in Error, v. Henry Horner et al., Defendants in Error.
    Gen. No. 15,881.
    Municipal court — when ruling upon motion to vacate not subject to review. In the absence of a certificate of any kind pertaining to the issue made by the defendant on a motion to vacate and set aside a judgment, the propriety of the ruling of the court upon such motion is not presented for review where there was no correct statement of facts or stenographic report of the proceedings at the trial filed.

      Error to the Municipal Court of Chicago; the Hon. Charles 1ST. Goodnow, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed November 20, 1911.
    James T. Jabbell, for plaintiffs in error; Caiboli Gigliotti, of counsel.
    Whitman & Hoeneb, for defendants in error.
   Mb. Justice Smith

delivered tire opinion of the court.

This is a writ of error to the Municipal Court of Chicago in a case of the fourth class, to reverse a judgment there entered for the plaintiffs on the default of the defendants, for the sum of $157.89.

The transcript of the record here filed contains neither a correct statement of the facts and the law involved nor a correct stenographic report of the proceedings in the court below on the hearing of the defendants’ motion to vacate and set aside said judgment.

The record contains no certificate of any kind by the trial court pertaining to the showing made by the defendants on the motion to vacate and set aside said judgment. The record as here filed disclosing no error, the judgment is affirmed.

Affirmed.


text:
    Joseph Kokes et al., Appellees, v. William R. Walleck et al., Appellants.
    Gen. No. 17,696.

      Injunctions — when pendency of prior chancery suit precludes. Where a bill for an injunction against the maintenance of actions at law discloses the pendency of a prior suit in equity pertaining to the same subject-matter, and in which the relief sought by injunction in the new suit might have been obtained by motion or petition in the cause, an injunction will not be granted in the second cause.
    Bill for injunction. Appeal from the Superior Court or Cook county; the Hon. Wit. Eenimore Cooper, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed.
    Opinion filed November 20, 1911.
    Rehearing denied December 4, 1911.
    David K. Tone and John C. Wilson, for appellants.
    Novak & Pollack, for appellees.
   Mr. Justice Smith

delivered the opinion of tlie court.

This is an appeal from an interlocutory injunction, issued on a hearing by the chancellor on the hill and affidavits, restraining the appellants from prosecuting certain suits at law pending in the Municipal Court of Chicago or beginning other suits against the appel-lees pertaining to the subject-matter involved between said parties as disclosed by said bill. This bill was filed by the appellees in the Superior Court of Cook county April 14, 1911, and averred that.the appellants, sixty-four in number, filed a bill in said court on the chancery side thereof February 18, 1910, against said appellees, the Hudson Coal & Mining Co., Joseph Filip and Joseph Vrba; that the appellees answered and the Hudson Coal & Mining Co. filed a cross-bill; that the appellants amended said bill by leave of court by striking out a paragraph thereof and said cause was so pending in said court; that after the .appellants filed said hill, six of them, on December 4, 1910, began suits in the Municipal Court against the ap-pellees, and others were about to begin like suits; that the relief sought in the Municipal Court is a part of the same relief sought by the same parties in the said bill filed by them February 18, 1910, and further that the filing of said suits in the Municipal Court and the intention of the said several parties, fifty-six in number, to begin other suits would cause a multiplicity of suits against the appellees, and attached thereto as exhibits the pleadings in the said chancery snit and statements of claim in the Municipal Court suits; and prayed that the said parties be restrained from further prosecuting said suits in the Municipal Court, and also from beginning other suits for the purpose of litigating the matters now in controversy in said chancery suit pending in the Superior Court between the same parties.

From the view we take of the case, it is unnecessary to discuss the proposition whether or not the restraining order so entered might be sustained because of a multiplicity of suits.

In the statement of claim made by each of the appellants as plaintiff in the suits in the Municipal Court, it is alleged that certain money was paid to the defendants therein with the agreement and understanding that the said money was to be used to purchase certain notes, obligations of the Hudson Coal & Mining Co., of which each of said appellants was a stockholder, and thereby the said plaintiff was to have an interest in and become a part owner of said notes. The bill filed in the Superior Court by the appellants, being the plaintiffs and proposed plaintiffs in the Municipal Court suits, clearly puts in issue the ownership of said notes as between certain of the said parties, and the. transactions relating thereto. The Superior Court having jurisdiction of the parties and the subject-matter might properly have entered the order in that proceeding restraining the parties therein from attempting to litigate a part of the issues therein involved in another forum. The Superior Court having first obtained jurisdiction of the parties and the subject-matter, would retain the same; and the complainants, having voluntarily submitted the subject-matter to a court of chancery, would not be heard to complain that they had a right to .separate the issues, go into a court of law and there have a trial by jury.

The appellees, however, did not go into said chancery suit begun by appellants February 18, 1910, but began a new proceeding by filing this bill making defendants the parties complainants in the proceeding-then pending, and secured therein the restraining order in question. In beginning this action, another and separate suit, it would seem they are doing that, as to multiplicity of suits, of which they complained of the appellants.

1 High on Injunctions, section 55, lays down the rule as follows: “Where a bill for an injunction against an action at law discloses the pendency of a prior suit in equity pertaining to the same subject matter, and in which the relief sought by injunction in the new suit might have been obtained by motion or petition in the cause, an injunction granted in the second cause will be regarded as improvidently allowed, and will be accordingly dissolved.” See, also, Shaw v. Hill, 67 Ill. 455.

It is with much reluctance that we hold that the restraining order entered in this cause should be dissolved; but we feel it important that the practice followed in this proceeding should not be sanctioned.

The interlocutory injunction is reversed.

Reversed.


author: Mr. Presiding Justice Baldwin

text:
    Jacob Beemsterboer, Administrator, Plaintiff in Error, v. City of Chicago, Defendant in Error, et al.
    Gen. No. 15,740.

      Negligence — when city not liable for injury resulting from electric lamp. If electric lamps are furnished by an independent corporation to a city and if the obligation for the maintenance thereof is solely upon such corporation, and if the city bear to such corporation a relation no different from that of any other customer, the administrator of a servant of the city killed by an electric shock while' as a volunteer, acting under no orders, seeking to adjust such lamp, cannot recover of such city.
    Action in ease for death causéd by alleged wrongful act. Error to the Circuit Court of Cook county; the HoN. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed November 28, 1911.
    Charles J. Traiwor, for plaintiff in error.
    William H. Sexton and N. L. Piotrowski, for defendant in error; David E. Levy and Edward C. Fitch, of counsel.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Plaintiff in error, as administrator, brought suit in the Circuit Court of Cook county against the Commonwealth Electric Company and the City of Chicago to recover $10,000, for their alleged negligence, which resulted in the death of plaintiff’s intestate. A trial was had in February, 1909, at the close of which the ■court took the case from the jury, and instructed a verdict in favor of each of the defendants, whereupon the plaintiff brought the cause to this court upon writ of error. On the 26th of October of that year, the cause was dismissed as to the Commonwealth Electric Company by stipulation. We are asked to reverse the judgment of the court below upon the ground that the court improperly withdrew the cause from the jury by its peremptory instruction in favor of both of the defendants.

The City of Chicago assigns as cross error the action of the court below in sustaining a demurrer to its plea of the Statute of Limitations.

It appears that on December 18,1906, G-eorge Beem-sterboer was killed at one of the pumping stations of the City of Chicago, in which he had been employed by the city as an oiler for about two months, his duties being to oil and polish the machinery there. The pumping station had been recently constructed and was not then entirely finished. The engine in operation there was large, and to light it and the engine room, there was suspended near it a large electric lamp, installed and maintained by the defendant, Commonwealth Electric Company. This lamp was suspended by a rope running over a pulley, and could be lowered to any desired position. It was defective at the time, and had been regulated by the Commonwealth Company several times shortly before the accident. On the night of the injury, the lamp again got out of order, and the engineer lowered it with the intention of changing the carbons in it, so it would burn, he himself standing upon a dry blank, and thus insulating himself. Beemsterboer held a lantern so that the engineer could see to perform the work. While thus engaged the engineer removed a carbon from the lamp and handed it to deceased. He then told deceased to raise his lantern higher, so that he could see better, and in raising it, either the lantern or the stick of carbon, which Beemsterboer was holding in his hand, came in contact with the lamp, from which he received the electric shock which killed him. Until this occasion, the engineer had never attempted to adjust or put new carbons into the lamp, and it does not appear that the deceased was aware that the lamp was charged, nor that the engineer notified him that there was any danger, though there was passing through the lamp a heavy current of electricity, — approximately 5500 volts.

Plaintiff claimed that the Commonwealth Company was liable for allowing the defective lamp to remain in the building under the circumstances, and that the City of Chicago, as employer of the deceased, was negligent in ordering him to raise the lantern so that he came in contact with the lamp and in not informing him that the lamp was heavily charged with an elec-trie current, and, therefore, dangerous.

With the question of the liability of the Commonwealth Electric Company, we have nothing to do, that defendant having been dismissed out of the case. The sole question before us is whether, upon the record in this case, a liability is established against the City of Chicago. It is conceded that the Commonwealth Electric Company owned the lamp, — that it was installed by it for the purpose of furnishing light to the employes of the pumping station, and that it was the duty of the electric company to properly maintain it.

The declaration avers that the duties of decedent were: “that, as such oiler, his work consisted in keeping the machinery in said pumping station oiled and cleaned, and free from rust.” And it is also averred that “the work on, around and about such lamp was different than the work he had been hired to perform.”

It is further averred that the defendant electric company owned, controlled and operated the lamp with its entire apparatus attached thereto. The testimony seems to fully support these allegations, and to show, in addition, that the City was under no obligation or duty respecting the care or maintenance of said lamps, but occupied the same relation to the Commonwealth Company in relation thereto as did any other of its customers using electric light.

We do not find the evidence tending to show that the engineer at the time of the accident ordered or even requested the deceased to assist him by holding the lantern for him or otherwise. We think it a fair conclusion from the testimony that the decedent was merely a volunteer, and, though doubtless actuated by good motives, and a desire to assist, he was, nevertheless, acting outside the scope of his employment. And the evidence seems also to warrant the «conclusion that the engineer himself, in attempting to adjust the lamp, was acting outside the scope of his employment. The pumping station in question was used exclusively for the purpose of pumping sewerage from the level of one system of sewers into a great intercepting sewer, from which it was carried into the drainage canal. For the purpose of lighting this station, the city bought electric light service from the Commonwealth Company, the wires, lamp, carbon, current and care of them all being furnished by the company. With none of them was the city concerned, nor had it anything to do with any of them. The company was obligated to furnish the light, and the city’s obligation was but to pay therefor. The city had provided its employes there other lights, consisting of kerosene lamps of various sizes and shapes, to furnish illumination in the event that 'the electric lights should fail. Some of these lamps had reflectors and some could be carried about by the employes when and where needed.

Not only did plaintiff fail to prove that the engineer had authority to himself handle the electric lights, or direct his subordinates to do so, but the testimony of the chief engineer, who was called by the plaintiff, was to the effect that even he had no right or authority to handle the electric lights, nor to direct his subordinates to do so. There is some testimony in the record to the effect that several of the employes trimmed, or tried to trim, the electric lights, but nothing to show that such service was other than voluntary, or that they considered themselves authorized to do so by any of their superior officers, nor, indeed, that their superiors had any knowledge of such a practice.

We think the testimony fully justifies the conclusion that, as to furnishing electric light for the pumping station in question, the electric company had exclusive charge, care and management of the entire electric lighting apparatus, and that as to the care of the lights of the company the city stood in the same relation as would any other customer.

We cannot see upon the evidence in this record any basis for bolding the city liable on the ground that the deceased, being unfamiliar with the dangers of the situation, was ordered by his superiors to perform a dangerous task without being warned of the dangers. Nowhere can we find any evidence that the engineer ordered or directed deceased to assist him in any manner. On the contrary, the testimony is unequivocal that no such order or request was made. It seems reasonably clear that deceased voluntarily brought the lantern and held it while the engineer was attempting to adjust the lamp, and it is evident from the testimony that decedent came to his death as a result of an accident. Numerous leases establish tbe proposition that a servant, who is injured while doing something outside the line of his duty, cannot recover. C. C. C. & St. L. Ry. Co. v. Carr, 95 Ill. App. 576; Mandel v. Wheeler, 59 Ill. App. 459; De Souza v. Stafford Mills, 155 Mass. 476; Baltimore & O. R. Co. v. Doty, 133 Fed. Rep. 866.

For tbe reasons given, we think tbe court below was justified in giving tbe peremptory instruction complained of. Tbe views we have already expressed render it unnecessary for us to consider tbe other questions discussed.

Judgment affirmed.


author: Me. Peesiding Justice Baldwin

text:
    The Peter Schoenhofen Brewing Company, Appellee, v. Johanna Welbourn et al., On Appeal of Walter Goggil et al., Appellants.
    Gen. No. 17,792.
    I. Injunctions — when He to enforce negative covenant. Held, under the showing made that an injunction enforcing a covenant of a contract by Tvhieh the defendant agreed not to sell upon certain premises other than a particular kind of beer, is properly granted.

      2. Contracts — what consideration sufficient to support negative covenant. Loss of money for the purpose of fitting up premises for saloon purposes constitutes sufficient consideration for a covenant not to sell upon such premises other than a particular kind of beer.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. W. Benimore Cooper, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 28, 1911.
    Feed Plotke and George E. Swaetz, for appellants.
    Lackner, Butz & Millee, for appellee.
   Me. Peesiding Justice Baldwin

delivered tlie opinion of tlie court.

This is an action brought hy the Peter Sehoenhofen Brewing Company (appellee) in the Superior Court of Cook county, against Johanna 'Welbourn, William J. Welbourn, Walter Goggil, and Joseph Goggil (the last two of which are appellants herein), praying an injunction against all the defendants,- prohibiting them or any of them from selling or permitting to he sold on the premises described in the bill, any beer other than that furnished by complainant.

The motion for a preliminary injunction was heard by the court below upon appellee’s amended bill and six affidavits in support thereof, and six affidavits in opposition filed on behalf of the Goggils, and three additional reply affidavits for complainant.

The contract which appellee seeks to have enforced in this cause was made by it with defendants, Johanna and William J. Welbourn, on October 20, 1909, and it was recorded in the recorder’s office of Cook county on November 10, 1910. This contract is under seal, and provides that in consideration of the appellee company making a loan of $5,500 to the said Welbourns to apply to completion of a building which the Wel-bonrns were then intending to erect upon the premises owned by one of them (Johanna), and to be used by them for a hotel and saloon business, the Welbourns would occupy the same for hotel and saloon purposes and would therein conduct and carry on, during the period of ten years next following their occupancy of the building, a reputable saloon and hotel business, and would carry in stock at all times, during the ten years, beer to supply the trade at said place, which should be purchased of the appellee company; and it provides, also, that the Welbourns would not permit beer manufactured by any other person to be sold, used, handled, or given away in or about said premises by themselves, their agents, servants, representatives or assigns, and that the Brewing Company should make the loan and furnish the Welbourns with sufficient beer 'to supply the demands of the trade at that place, such beer to be of merchantable quality and at such price or prices as the Brewing Company charged a majority of its other customers in Cook county for beer of like quality, etc.

The agreement also provided that in further consideration of the loan, the Welbourns further agreed that if at any time during said period of ten years, either they themselves, or their agents, representatives, servants or assigns, should commit any breach of the covenant covering the sale of beer in and about the premises, other than that manufactured and sold by the appellee Brewing Company, the company might at once, without notice, appear in any court of competent jurisdiction and enjoin the continuance of any such breach, and by injunction stop the sale of such other beer, whether the loan had been repaid or not. The contract further provided that if at the expiration of the said ten years, the loan and all the interest thereon should not have been then fully repaid, the agreement should continue and remain in full force until the loan, together with interest thereon, should have been fully repaid.

The amended hill further averred that the Brewing Company advanced $5,500 to the "Welbourns, and an additional sum of $1,202.08, to enable them to complete and pay for the building, and begin the saloon business therein; and, also, that the Brewing Company purchased and placed in said saloon premises an outfit of saloon furniture and fixtures, which it loaned to the Welbourns without cost to them, to enable them to proceed with the business contemplated.

It was further averred that on or about'the 12th of October, 1910, the saloon premises being then ready, the Welbourns engaged therein in the saloon business, and continued to purchase from the Brewing Company all the beer- used and sold thereon, in conformity with the provisions of the contract; and that subsequently, and about the 15th of May, 1911, Johanna Welbourn, being the owner or said property, executed and delivered to the G-oggils a lease of the saloon premises for a period óf five years, beginning May 15, 1911, and sold to them the stock of liquors on hand, and the good will of the saloon business; that such sale was made and said lease- executed to the said G-oggils upon the express agreement that they would fulfill and carry out all the terms of the agreement between the Welbourns and the Brewing Company, all of which were then well known to the G-oggils; and that a part of the consideration for the sale, and the making of the lease to the G-oggils, was their own agreement to carry out the terms of the contract with the Brewing Company.

By their sworn answer, the G-oggils deny that they in any way bound themselves to observe, or even knew of the alleged agreement between the Welbourns and the Brewing Company. They admit that they have refused to carry out its provisions, and say that they are taking beer from the Home Brewery under a five year contract with it. They admit being in possession of part of the premises in question as lessees of the Welbourns, and aver that at tbe time they leased them (May 17, 1911), they bought the stock in trade, good will and the saloon business of the Welbourns, for which they paid about $900; that the Home Brewery, from which they were procuring beer, is a corporation which operates on the co-operative plan and sells only to its members; that about the time of making the lease, they became members of said corporation and contracted to take all their beer from it for the period of the term of their lease.

At the time of the hearing of the motion for a preliminary injunction, there was on file the sworn answer of the. two Groggils. The interlocutory order (or decree) stated that the court had examined the affidavits, specifying them, and the amended bill of complaint, and found the equities to be with the complainant, and granted the injunction prayed for.

The Goggils appealed and insist that the court below erred in finding that the equities were with the plaintiff, and granting the injunction; and they further contend that the court erred in not' considering, upon the application for the injunction, their answer to the amended bill, which was then on file.

We have considered in detail all the points made in the brief and arguments for both sides, together with the numerous authorities cited in their support, and have also carefully examined the affidavits heard by the court below. The view we take of the controversy renders unnecessary an extended discussion of the arguments and authorities cited.

Upon the contentions “that the preliminary injunction was improvidently granted” because it 'compelled the doing of affirmative acts, and the further one which urges that an interlocutory injunction should not be granted except to avoid irreparable loss to complainant; as to the first we think the injunction clearly did not require the performance of any affirmative acts on the part of appellants, but, in its effect and character, was merely prohibitory. And, second, the case made by the record is one which fully justifies the interposition of an injunction by a court of equity. Abundant authorities exist for the granting of an injunction to enforce restrictive negative agreements without allegations or proof of irreparable injury, because, from the very nature of the case, the remedy at law is inadequate. 22 Cyc. of Law and Procedure, page 860; also Perris v. American Brewing Co., 155 Ind. 539-544.

Appellants contend that the contract between the Brewing Company and the Welbourns was a personal undertaking between the parties and one which was in no manner binding upon the Groggils, whose rights and liabilities were determined solely by the lease between themselves and the Welbourns; and they further contend that the filing of the Brewing Company-Welbourn contract with the recorder of deeds did not constitute notice to the Groggils. Upon the record before us, we do not consider it necessary to take up these suggestions in detail.

It was entirely competent for the Brewing Company and the Welbourns to enter into a contract, such as the one set out in the bill. The loans of $5,500 and $1,202.08, made to the Welbourns, with which to construct and finish the building so as to adapt it to saloon purposes, and the placing in the premises an outfit of saloon furniture and fixtures loaned without cost to the Welbourns, together with the agreement of the Brewing Company to supply the beer, undoubtedly, constituted a good and sufficient consideration for the restrictive agreement then made by the Welbourns. The entire transaction clearly shows the purpose of the parties to have been the establishment and maintenance, for a given number of years, of a reputable saloon upon the premises in question, and, by selling beer of the Brewing Company, to thus insure a market for that quantity of its product. We think the clear and well-understood agreement between theBrew-ing Company and the Welbourns was one wbicb courts of chancery clearly could enforce; indeed, the agreement itself provided that if the Welbourns, their servants, agents or assigns, should commit a breach of the agreement with respect to sales of beer in and about the premises, or permit the sale of any other beer thereon, then the Brewing Company might, without notice, enjoin such breach and sale. It appears that for several months this agreement had been kept by the Welbourns, and that appellants themselves received from appellee one delivery of its beer, which was delivered by it apparently under its contract with the Welbourns, and we think the record justifies the conclusion that appellants not only knew of this Wel-bourn agreement at the time they purchased the saloon business and rented the premises in question, but that, in fact, they agreed with the Welbourns that they would' fulfill and carry out all its terms. It is true the affidavits upon this point are conflicting. No substantial purpose would be subserved in setting out in detail the portions of the affidavits from which we have reached this conclusion. It is sufficient to say that, after due consideration of each of them, we tbink the court below was justified in reaching the conclusion that appellants bound themselves to observe and keep the original agreement made by the Welbourns, and, accordingly, fully justified it in granting a preliminary injunction as prayed for in tbe amended bill.

The injunctional order, as actually entered, is too broad, in that it does not sufficiently restrict the terms of the injunction to make it .conform to the facts disclosed in the record, and, though appellants have not specially complained of this, and are not, at present, suffering any injury on account of it, yet it should be modified in the particular mentioned.

The action of the court in granting the preliminary injunction was not erroneous, and its decree will, therefore, be affirmed.

Decree affirmed.