author: Mr. Justice Baume Per Curiam.

text:
    The People of the State of Illinois ex rel. Maclay Hoyne, State’s Attorney for the County of Cook, Plaintiff in Error, v. John E. Northup, Defendant in Error.
    Gen. No. 20,042.
    1. Quo warranto, § 10

      —when special State’s Attorney is incumbent of an office. The appointment by the court of a special State’s Attorney to prosecute, instead of the State’s Attorney, in certain cases authorized by statute, constitutes such appointee the incumbent of an office within the meaning of the Constitution and laws, so that his right and title to the office may be tested in a quo warranto proceeding.
    2. State’s attorney, § 3

      —at whose instance special State’s Attorney may be appointed. The jurisdiction of the court to appoint a special State’s Attorney need not necessarily be invoked at the instance and upon the petition of the State’s Attorney but may be properly invoked by the court on its own motion or upon the petition of a citizen.
    3. State’s attorney, § 3

      —when petition alleges facts sufficient to warrant appointment of special State’s Attorney. A petition for the appointment of a special State’s Attorney to investigate frauds practiced in a general election in which there were different candidates for the office of State’s Attorney, held to state facts to suffi ciently inform the court that the candidate elected was “interested” in the cause or proceeding which was or might be his duty to prosecute and to warrant the appointment of a special State’s Attorney.
    4. Courts, § 121

      —when acquisition of jurisdiction by one judge does not preclude another judge from, assuming jurisdiction. The fact that a judge of the Criminal Court of Cook county had already acquired jurisdiction of the investigation and prosecution of frauds committed in the election of State’s Attorney upon the petition of the State’s Attorney for the appointment of a special State’s Attorney, does not preclude another judge of the same court from assuming jurisdiction to hear and act upon a petition presented to him by other parties for the appointment of a special State’s Attorney to investigate and prosecute election frauds, where the scope of the investigation and prosecution involved in the latter petition is more comprehensive than that involved in the former petition. n
    5. Judgment, § 250

      —amendment of record pending term. At the same term all proceedings rest in the breast of the judge of the court, and he may amend his record according to the facts within his own knowledge.
    6. Appeal and error, § 936

      —when record shows basis for order to file amended petition nunc pro tunc. Where the record shows that a petition for the appointment of a special State’s Attorney was presented to a judge and that the judge assumed jurisdiction of the subject-matter involved and granted leave to file an amended petition and that on the following day, being of the same term of court, the judge directed the amended petition to be filed- nunc pro tunc as of the previous day, held that the record of the proceedings had on the first day, even if based solely upon the facts within the personal knowledge of the judge, imported verity and that such record constituted a sufficient note or memorandum, if any was necessary, upon which to predicate the nunc pro tunc order.
    Error to the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.
    Heard in the Branch Appellate Court at the 'October term, 1913.
    Affirmed.
    Opinion filed January 26, 1914.
    Rehearing denied and additional opinion filed February 6, 1914.
    Maclay Hoyne, for plaintiff in error; Frank Johnston, Jr. and Henry A. Berger, of counsel.
    John E. Northup, pro se; Willard M. McEwen and Northup, Arnold & Fairbank, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number*

   Mr. Justice Baume

delivered the opinion of the court.

On June 5, 1913, Maclay Hoyne, State’s Attorney in and for the county of Cook, for and in behalf of the People of the State of Illinois, filed his petition in the Circuit Court for leave to file an information in the nature of a quo warranto against John E. Northup, who was then and since June 2, 1913, alleged to be assuming or pretending to exercise the franchise, functions and powers of the office of State’s Attorney of Cook county without warrant or authority of law. The respondent, Northup, having answered said petition the matter was heard by the court and upon such hearing it was ordered by the cqurt that said petition be denied, and said petition was thereupon by order of the court dismissed at the costs of the petitioner. This writ of error is prosecuted by the petitioner, Hoyne, to reverse said orders of the Circuit Court.

As the salient facts embodied in the petition and answer, or disclosed upon the hearing, and necessary to a consideration of the questions involved must be here stated, it will be unnecessary to set forth at length the averments of said petition and answer.

For the purposes of this case it is conceded that the petitioner, Hoyne, was duly elected State’s Attorney in and for the county of Cook at a general election held November 5, 1912, and that he regularly qualified as such State’s Attorney. It is also conceded that among other candidates' for said office at said election were Lewis Rinaker, William A. Cunnea and George I. Haight.

On May 19, 1913, the said Rinaker, Cunnea and Haight, by their counsel, Frank D. Ayers, appeared before Hon. William Fenimore Cooper, one of the judges then presiding in a branch of the Criminal Court, and presented to the court a petition for the appointment by the court of a special State’s Attorney to investigate the election held November 5, 1912, with power and authority to prosecute offenders of alleged frauds committed at said election. The duly authenticated record of the proceeding of said branch of the Criminal Court had on said May 19, 1913, relating to said petition, contains the following recital:

“This day the said People by Maclay Hoyne, State’s Attorney and the said petitioners by their counsel also come.
And counsel for said petitioners now here present a petition to this court, praying for the appointment of a special State’s Attorney to investigate election frauds, and it appearing to the court that said petition is insufficient the court of its own motion suggests that said petition be amended which was done.
And it is ordered by the court that counsel for said petitioners serve notice on the State’s Attorney of the time of presentment of said petition to this court.”

Following the presentation of said petition to Judge Cooper, and "on the same day, counsel for said petitioners served upon the petitioner, Hoyne, a copy of their amended petition, together with notice that they would on Tuesday, May 20,1913, appear at 10 o’clock, a. m., before Judge Cooper and ask leave to file said petition, praying for the appointment of a special State’s Attorney and the convening of a special grand jury and would also ask that the hearing upon said petition be set down for Thursday, May 22, 1913, at 10 o’clock, A. M.

The said petition of Einaker, Cunnea and Haight represents that they are citizens and taxpayers of Cook county and members of the Bar of the State of Illinois ; that a proceeding by said Cunnea against Maclay Hoyne to contest the latter’s election to the office of State’s Attorney was then on hearing in the Circuit Court; that a recount then had in said contest proceedings of the votes cast at said election disclosed certain specified grave frauds and irregularities; that although several grand juries had been convened since said Hoyne had assumed the office of State’s Attorney, and the attention of the grand jury then in session had been particularly called by the court to the question of election frauds, the said Hoyne had done nothing towards the investigation of said frauds, but had refused to follow out the directions of the court in that regard, and had announced that he would not present any such matters to the grand jury then in session; that the said Hoyne “is interested in the investigation of election frauds in connection with the election for State’s Attorney held on November 5, 1912.”

On the following day, May 20, 1913, at 9:30 o ’clock, a. m., being about thirty minutes prior to the time set for the presentation to Judge Cooper of the amended petition for the appointment of a special State’s Attorney and the calling of a special grand jury, said Hoyne appeared before the Hon. George Kersten, one of the judges then presiding in a branch of the Criminal Court, and presented a petition requesting the appointment by Judge Kersten of some Competent and disinterested person to investigate and inquire into all alleged frauds and irregularities at said election for State’s Attorney, and, if any there be, to present evidence thereof to a special grand jury to be convened by the court at an early day for the purpose of investigating frauds and irregularities alleged to have been committed at said election and to prosecute such person or persons who may be guilty of criminal acts pertaining to said election, and that the attorney so appointed be clothed with all the necessary authority to act as special State’s Attorney in accordance with the statute. The petition alleges that soon after the election held on November 5, 1912, said Cunnea filed a' petition in the Circuit Court to contest the election of Hoyne to the office of State’s Attorney; that during such contest proceedings, several of the defeated candidates for the office made various charges to the effect that various frauds and violations of the election law and the statutes of this State were committed by the judges and clerks of election in counting the votes of the various candidates for said office; that the petitioner did not participate in any frauds or violations of the election law at said election, and has no personal knowledge of any such frauds committed in his favor; that said Cunnea, Einaker and Haight each claims or pretends to desire to prosecute such persons who may have been guilty of the frauds and violations of the election law, the ballot law, and other felonies and misdemeanors which they claim occurred in and about the counting of the votes and ballots cast at said election, and for that purpose they have served notice on said petitioner that they will request Judge Cooper to appoint a special State’s Attorney, and to convene a special grand jury; that said Einaker and Cunnea have made, allegations in said contest proceedings to the effect that gross frauds were committed in and about said election, but petitioner avers that such allegations have not been proved; that the said petition of said Einaker and Cunnea about to be filed before Judge Cooper, requesting the appointment of a special State’s Attorney and the convening of a special grand jury, is not made in good faith, and is for the purpose of securing the appointment as such special State’s Attorney of a person who would not be wholly disinterested or impartial in conducting the said investigations of frauds, and the prosecutions of such persons as might be found to be guilty of same, and would not fairly and properly present the evidence relating to said alleged frauds before the said special grand jury; that upwards of two weeks ago, on the day that the regular grand jury then and since in session was impaneled, it was advised and instructed by Judge Cooper to consider such evidence as might be presented to it with reference to any frauds and irregularities that may have been perpetrated in the election aforesaid; that at that time the said Judge Cooper, in instructing said grand jury according to the publication of said instruction in the public press, invited all persons having or claiming to have any knowledge of frauds or irregularities in said election to communicate such knowledge to the court, or to said grand jury; that said petitioner did thereupon publicly announce to the press of the city of Chicago that he would receive and transmit to said grand jury any and all evidence of any such alleged frauds or irregularities; that neither the said Cooper, nor any of the opposing candidates of said petitioner at said election, nor any other person, has presented or offered to present to the grand jury any evidence of any frauds or irregularities in said election, although they had full opportunity so to do; that by reason of said petitioner being a successful candidate at said election, and his having a personal interest "in the said contest now pending in the Circuit Court, it would be inexpedient for him to„ present the evidence of such alleged frauds and irregularities in said election to the said special grand jury, or to prosecute any person or persons who might be indicted by said special grand jury for such frauds or irregularities.

Upon the presentation of said petition to Judge Kersten an order was entered finding.that the petitioner, Hoyne, was personally interested in the investigation and prosecution of persons against whom there might appear to be just and reasonable grounds to establish guilt of criminal offenses committed in and about the casting of ballots and counting of votes for State’s Attorney at said election, and appointing Clyde L. Day special State’s Attorney, and directing the clerk of the court to forthwith issue a special venire for a grand jury returnable on the following day, May 21, 1913, when said grand jury should be convened for the sole and special purpose of investigating any and all frauds and irregularities alleged to have been committed in and about the casting of ballots and the counting of votes for the election of State’s Attorney at said election.

On the same day, May 20, 1913, Clyde L". Day took the oath of office as special State’s Attorney and a special venire for a grand jury was issued as ordered.

About an hour later on the same day, May 20,1913, counsel for Rinaker, Cunnea and Haight presented to Judge Cooper an amended petition for the appointment of a special State’s Attorney and the calling of a special grand jury, which petition was then ordered by the court to be filed nunc pro tunc’as of the preceding day, May 19, 1913, and thereupon said petition was so filed as ordered and a hearing on the matters involved in said petition was set for May 22d, following. On May 22d the parties appeared before Judge Cooper, when and where a partial hearing was had and a further hearing was continued to May 27th, following. On May 27th, upon the Court’s own motion, a further hearing was continued to May 29th, following. On May 29th the Court (Judge Cooper) directed the clerk to forthwith issue a special venire for a special grand jury returnable June 6, 1913, and also then allowed the prayer of the petition for the appointment of a special State’s Attorney, and reserved the entry of an.order appointing such special State’s Attorney until a later date. On June 2, 1913, the Court (Judge Cooper)- entered an order appointing John E. Northup special State’s Attorney to be and appear before the special grand jury theretofore summoned, with full power and authority in said Northup as such special State’s Attorney to conduct investigations into any matters proper for said special grand jury to inquire into as charged by the court. On the same day, in pursuance to such appointment, the said Northup qualified as special State’s Attorney by taking the oath of office and tendering his official bond, which was then approved and filed.

The arguments of counsel cover a wider scope than is necessary to the consideration and determination of the two dependent controlling questions involved in the case. First, whether or not the appointment by the court of an attorney as special State’s Attorney to prosecute, instead of the State’s Attorney, in certain cases authorized by the statute, constitutes such appointee the incumbent of an office within the meaning of the Constitution and laws, so that his right and title thereto may be tested in a quo warranto proceeding. If this inquiry must be determined in the affirmative, then, second, whether or not the appointment by Judge Cooper of the respondent, John E. Northup, as special State’s Attorney to prosecute alleged offenders of the election laws at the general election held November 5, 1912, was authorized, and constituted said respondent a special State’s Attorney de jure.

Neither the regularity of the proceeding's, wherein a special grand jury was convened by Judge Cooper, nor the integrity of said special grand jury, as being lawfully authorized to act in the premises, are properly involved in this case. No such necessary relation exists between the appointment of a special State’s Attorney and the convening of a special grand jury as that an inquiry into the functions of the court in one particular may influence a determination of the functions of the court in the other particular.

On behalf of petitioner, Hoyne, it is insisted that the decision of the Supreme Court in Lavin v. Board Com’rs Cook County, 245 Ill. 496, conclusively establishes the position of a special State’s Attorney to be an office as distinguished from a mere employment or agency. The decision in the Lavin case in its entirety was concurred in by a bare majority of the court. A separate opinion concurred in by three of the justices expressly withholds assent to the proposition that by the appointment of an attorney as special State’s Attorney to prosecute particular causes he became an officer de facto or otherwise. Such separate opinion continues as follows:

“An office is defined in the constitution as being ‘a public position created by the constitution or law, continuing during the pleasure of the appointing power, or for a fixed time, with a successor elected or appointed.’ (Const. art. 5, sec. 24.) The appointment by the court of an attorney to prosecute, instead of the State’s attorney,, in certain cases authorized by the statute, does not constitute such attorney an officer but confers merely a temporary authority for a special occasion, which falls within the constitutional definition of an employment as ‘an agency, for a temporary purpose, which ceases when that purpose is accomplished.’ (Const. art. 5, sec. 24; Bunn v. People, 45 Ill. 397; People v. Loeffler, 175 id. 585.)”

The opinion of the majority of the court is admittedly open to the construction that the position of special State’s Attorney is an office and that a special State’s Attorney is an officer, within the meaning of the Constitution and laws, and in view of the fact that the separate opinion specifically expresses the dissent of the minority of the court upon those propositions we are unable to escape the conclusion that the precise status of a special State’s Attorney was considered by the court as being involved in the case, and as being determined by the opinion which was concurred in by a majority of the court. Following the decision in the Lavin case, supra, it must be held that the appointment of the respondent, Northup, as special State’s Attorney, if authorized, constituted his appointment to an office and that upon his qualification as such special State’s Attorney he became the incumbent of an office within the meaning of the Constitution and laws.

It is said that the order entered by Judge Cooper appointing the respondent, Northup, special State’s Attorney is void. We shall consider the several grounds urged in support of such contention in so far as the same are pertinent in the order of their presentment :

First, that there is no showing in the petition presented to Judge Cooper that State’s Attorney Hoyne was interested in any frauds committed in the general election held on November 5, 1912.

The facts relating to the frauds and irregularities alleged in the petition to have been practiced at said election are set forth with sufficient definiteness to inform the court that the public interest required that the offenders should be prosecuted. The pétition further informs the court that Mr. Hoyne, together with other persons named, were candidates of their respective political parties for the office of State’s Attorney at said election, and alleges that the frauds and irregularities charged to have been practiced at said election were committed in pursuance to an organized effort to accomplish the election of Hoyne. The statement in the petition that Hoyne was “interested in the investigation of election frauds in connection with the election of State’s Attorney” was merely the conclusion of the petitioners perhaps not aptly phrased, but the facts set forth in the petition sufficiently informed the court that Hoyne was “interested” in the “cause or proceeding,” which it was or might be his duty to prosecute, following the language of the statute. The charges in the petition with reference to frauds and irregularities committed at the general election held November 5, 1912, were also sufficiently broad to involve the interests of persons who were then candidates for offices other than the office of State’s Attorney. It is a matter of common knowledge, as to which the courts cannot feign ignorance, that under the existing system wherein candidates for public offices are affiliated with and nominated by the respective political parties to which they belong, and the voters generally are affiliated with political parties of their choice, charges affecting the integrity of the election of any one of the candidates nominated by a certain political party almost necessarily involve the interests of each of the other candidates nominated by that political party. The verified petition alleges facts sufficient to justify the court in the- exercise of its judicial discretion in holding that State’s Attorney Hoyne was so . interested in the cause or proceeding in question as to warrant the appointment of a special State’s Attorney to prosecute said cause or proceeding.

Second, that Judge Kersten had already acquired jurisdiction of the investigation and prosecution for frauds committed in the election of State’s Attorney, and the assumption thereafter by Judge Cooper of such jurisdiction was without warrant of law.

It is a sufficient answer to this contention to say that the scope of the investigation and prosecution involved in the petition presented to Judge Cooper and in the order entered upon said petition is so much more comprehensive than that involved in the petition presented to Judge Kersten and the order entered thereon, that the pendency of the proceeding before Judge Kersten upon the petition of Mr. Hoyne did not as a matter of law preclude Judge Cooper from assuming jurisdiction to hear and act upon the petition presented to him. Furthermore, it appears from the record that the original petition of Rinaker, Cunnea and Haight for the appointment of a special State’s Attorney was presented to Judge Cooper on May 19th, and that Judge Cooper then assumed jurisdiction of the subject-matter there involved, and that on May 20th, the day following, said petition as amended was directed by Judge Cooper to be filed nunc pro tunc as of May 19th. It is practically conceded that if Judge Cooper acquired jurisdiction of the subject-matter in question on May 19th, the order subsequently entered by him. providing for the appointment of the respondent, Northup, as special State’s Attorney to prosecute alleged offenders of the election laws of the election held on November 5, 1912, in so far as said order involved the prosecution of such alleged offenders for frauds and irregularities affecting the election of State’s Attorney, was not unauthorized.

It will be observed that the proceedings had before Judge Cooper on May 19th and May 20th were had at the same term, both of said days being days of the May term, 1913, of the Criminal Court. It is well settled that at the same term all proceedings rest in the breast of the judge of the court, and he can amend his record according to the facts within his own knowledge. Hansen v. Schlesinger, 125 Ill. 230; West Chicago St. R. Co. v. Morrison, Adams & Allen Co., 160 Ill. 288. The record of the proceedings had before Judge Cooper on May 19th, relative to the presentation to him of the original petition for the appointment of a special State’s Attorney and of the action of the court with respect thereto, even if based solely upon facts within the personal knowledge of the judge, imports verity, and such record constitutes a sufficient note or memorandum, if any such was necessary, upon which to predicate the nunc pro tunc order entered on May 20th directing the clerk to file the amended petition as of May 19th.

We conclude that Judge Cooper acquired jurisdiction of the subject-matter of the proceedings involving the appointment of the respondent, Northup, as special State’s Attorney on May 19th, and that the subsequent appointment by him in said proceedings of said Northup as such special State’s Attorney was and is valid.

We cannot give our assent to the doctrine that the exercise of judicial power to appoint a special State’s Attorney can only be invoked at the instance and upon the petition of the State’s Attorney. True, the jurisdiction of the court in that respect may be thus invoked, but such jurisdiction may also be properly invoked by the court upon its own motion or upon the petition of a citizen.

We refrain from a discussion of other contentions which upon the record before us involve purely academic questions.

In People v. Sullivan, 247 Ill. 176, it is said:

“Whether leave shall be granted to file an information in the nature of quo warranto is in a large measure within the sound discretion of the court. Such discretion, however, is not to be exercised arbitrarily but in accordance with principles of law.”

There was no abuse by the Circuit Court of its discretion in denying leave to file the information sought to be filed in this case and the judgment is affirmed.

Judgment affirmed.

0pinion on Petition for Rehearing.

Per Curiam.

In the petition for a rehearing of this cause filed by plaintiff in error it is urged that in the opinion heretofore filed this court misconceived the facts, erroneously construed the law and overlooked the authorities cited by plaintiff in error in the respects following:

First, that it is a misnomer to speak of the petition which was presented to Judge Cooper on May 20th as an amended petition.

This case was properly considered and determined here upon the record as actually made and not upon casual remarks of court and counsel in the course of certain proceedings preliminary to the action of the court, as evidenced by the record actually made. The recitals in the record of the proceedings, had before Judge Cooper on May 19th upon the presentation of the original petition of Binaker, Cunnea and Haight are, in part, as follows:

“And counsel for said petitioners now here present a petition to this court, praying for the appointment of a special State’s Attorney to investigate election frauds, and it appearing to the court that said petition is insufficient the court of its own motion suggests that said petition be amended which was done.
And it is ordered by .the court that counsel for said petitioners serve notice on the State’s Attorney of the time of presentment of said petition to this court.”

It is submitted that the designation of the petition which was presented to Judge Cooper on May 20th as the “amended petition” or the “petition as amended” is fully justified by the record as actually made. The record discloses that the petition which was presented to Judge Cooper on May 19th was amended on the same day and there is no pretense that this was not the same petition that was presented to Judge Cooper on May 20th.

Second, that this court misconceived the facts when it stated that Judge Cooper assumed jurisdiction of the petition on May 19th. C

The recitals in the record as above set forth unquestionably disclose an assumption by Judge Cooper of jurisdiction of the petition which was presented to him on May 19th. The court then directed the petition to be amended, noted the actual making of such amendment and ordered the petitioners to serve notice on the State’s Attorney of the time of presentment of said petition. It is clear that by “said petition,” notice of presentment of which was ordered to be given, was meant the amended petition or the petition as amended.

Third, that the court misconstrued the law relative to the entry of a nunc pro tunc order and overlooked the authorities cited by plaintiff in error upon that question. .

As the proceedings in question were had at the same term and rested in the breast of the judge, no note or memorandum upon which to predicate a nunc pro tunc order was absolutely essential to authorize the entry of such an order. All of the authorities cited by plaintiff in error relate to the necessity of some note or memorandum made at the term at which the proceedings were had to authorize the entering of a mmc pro tunc order at a subsequent term. The authorities cited are, therefore, not in point.

The petition for a rehearing is denied.

Petition denied.


source: Caselaw Access Project

author: Mr. Presiding Justice Philbrick

license: Public Domain

text:
    Marie Baldwin, Plaintiff in Error, v. J. E. Bolan, Defendant in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Edgar county; the Hon. E. R. Kimbrough, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.
    Statement of the Case.
    Petition filed by J. E. Bolán in the County Court for the appointment of a conservator for Marie Baldwin alleging the defendant to be a lunatic and unfit to properly manage her property. A judgment was entered in the County Court on a verdict finding the defendant to be a distracted person and on appeal from such judgment to the Circuit Court a like judgment was rendered and a conservator appointed. From the judgment of the Circuit Court, defendant brings er-ror.
    The grounds urged for reversal are: That court had no jurisdiction because of the insufficiency of the petition and because the transcript on appeal from County Court to the Circuit Court was not marked “filed” by the clerk of the Circuit Court; that the court erred in submitting to the jury the question whether plaintiff in error was a lunatic and a spendthrift instead of whether she was a lunatic or distracted person; and that the court erred in receiving a verdict as merely advisory.
    Abstract of the Decision.
    1. Insane person, § 17

      —when petition for appointment of conservator sufficient. A petition for the appointment of a conservator alleging that the defendant is a lunatic and unfit to properly manage her property, held sufficient to give the court jurisdiction.
    2. Appeal and error, § 917

      —when filing of transcript on appeal from County Court to Circuit Court sufficient. On appeal from County Court to Circuit Court the mere fact that the transcript was not marked “filed” hy the clerk of the Circuit Court does not deprive the Circuit Court of jurisdiction where the transcript was delivered to the clerk and placed in his office under his control.
    3. Appeal and errop., § 1744

      —grounds for affirmance. Where the records contains no bill of exceptions no questions of fact are preserved for review, and unless the record shows some error of law was committed the judgment should be affirmed.
    4. Appeal and error, § 1290

      —when jurisdiction of County Court will he presumed. Where the County Court has general jurisdiction of the matter involved and has obtained jurisdiction of the person, it will be presumed, in the absence of a bill of exceptions, that the evidence sufficiently showed that the court had jurisdiction of the person and subject-matter, ■ unless the record discloses affirmatively that it did not acquire jurisdiction.
    George B. Leonard and S. I. Headley, for plaintiff in error.
    Frank E. Shopp, for defendant in error; Dyas & Dyas, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.


text:
    William G. Brown and M. A. Brown, trading as Bank of Rochester, Plaintiffs in Error, v. John E. Melick et al., Defendants in Error.
    1. Corporations, § 305

      —personal liability of officers of railroad corporation under section 18 of General Incorporation Act. Section 18, ch. 32, Hurd’s R. S. 1911, J. & A. f 2435, making persons who assume to exercise corporate powers or use the name of a pretended corporation without complying with the provisions of the act liable jointly and severally for all debts and liabilities contracted in the name of such corporation, is not applicable to railroad corporations which are incorporated under Hurd’s R. S. 1911, ch. 114, J. & A. 8735 et seq.

    2. Corporations, § 305

      —when promoters of incompleted corporation not liable as partners. Co-operating together and subscribing for stock in a contemplated corporation, and carrying on" the business of the corporation before the corporate powers are completed and full authority had for the transaction of corporate business, cannot create a partnership among the persons co-operating unless there is an express provision of the statute making them liable as such.
    3. Partnership, § 7

      —when partnership liability exists. A partnership is a contractual relation created either by an express or implied agreement, and unless there is such an agreement between the parties or an act of the legislature creating a partnership liability, no partnership exists.

      4. ' Corporations, § 59

      —when persons estopped to deny corporate existence of railroad company. Where a person as payee of a note accepts the same from a railroad corporation as the note of such corporation, he cannot deny its corporate existence whether it be a de facto or a de jure corporation, nor can a bank as assignee of such note, who. has transacted business with such corporation as such and permitted it to overdraw its account as a corporation, deny its corporate existence.
    5. Corporations, § 34

      —when railroad company is a de facto corporation. Where persons attempting to create a railroad corporation comply with the statute by executing and filing the necessary papers with the Secretary of State and establish its home office in a certain county, the organization thereby becomes a corporation de facto, though the articles of incorporation are not filed in all the counties through which it is intended to operate the road.
    6. Corporations, § 32

      —how existence of a corporation de jure may be inquired into. The right of a railroad corporation to exist as a de jure corporation can only be inquired into by the State in a quo warranto proceeding.
    Error to the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.

      Certiorari denied by Supreme Court (making opinion final),
    S. H. Cummins, for plaintiffs in error.
    George M. Morgan, for defendants in error.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Defendants are the promoters of an interurban railroad known as the Mississippi Valley Interurban Railway Company, organized under the statute of Illinois for the incorporation of railroads by steam and other power. The incorporators after filing the incorporation papers with the Secretary of State, as required by law, proceeded with the corporate powers of a corporation duly and regularly organized as a railroad company. They borrowed money and created obligations in the name of the corporation. The defendants herein are the officers and directors of the corporation, and caused to be executed to one Warren E. Lewis a note for $6,075, due on or before eighteen months after date of October 19, 1910. The note was signed by the Mississippi Valley Interurban Railway Company, by John E. Melick, President. This note was assigned to the plaintiffs, doing business as the Bank of Rochester. After plaintiffs obtained this note defendants made arrangements with the Bank of Rochester to do business through their bank and in the course of business overdrew their account.

Plaintiffs bring this action against the defendants to recover the amount of the note and overdraft, alleging that they failed to complete the incorporation and falsely assumed the corporate powers of a railroad company and assumed to act as such without authority of law, and having falsely assumed such powers are liable as partners for the indebtedness created by them in the name of the corporation.

The trial court sustained a demurrer to the declaration; plaintiffs elected to stand by their declaration and appeal from the judgment of the court on the demurrer.

The declaration sets forth in apt words in its various counts an alleged attempt to incorporate the Mississippi Valley Interurban Railway Company by the defendants, the execution of articles of incorporation and filing the same with the Secretary of State, and then alleges that the defect and failure to complete the organization consists in a failure to file the articles of incorporation in the recorder’s office of the various counties through which the railroad was intended to be constructed, as set forth in the articles of incorporation, there being seventeen counties named therein through which it was intended to construct and operate the road, plaintiffs insisting that by reason of the failure to file the articles of incorporation in these counties the incorporation was never completed, and that the defendants had no right or authority to assume corporate powers or create any indebtedness in the name of the corporation, and in doing so became liable as partners in the transaction.

Plaintiffs insist that the recording of these articles of incorporation in all these counties was a condition precedent to the right of the defendants to assume corporate powers, transact business and create any indebtedness in the name of the railroad company, and to support their contention rely upon section 18, chapter 32 (Hurd’s R. S. 1911, J. & A. ¶ 2435) of the General Incorporation Act of the Statute of Illinois concerning corporations organized for pecuniary profit, which is as follows: “If any person or persons being, or pretending to be an officer or agent, of board of directors, of any stock corporation, or pretended stock corporation, shall assume to exercise corporate powers or use the name of any such corporation, or pretended corporation without complying with the provisions of this act, or before all stock named in the articles of incorporation shall be subscribed in good faith, then they shall be jointly and severally liable for all debts and liabilities made by them and contracted in the name of such corporation or pretended corporation.”

Chapter 32, regarding the formation of corporations for pecuniary profit, especially provides, however, that railroads cannot be incorporated under that act, and for the purpose of incorporating a railroad the requirements necessary to be complied with are found in chapter 114, Hurd’s R. S. 1911. (J. & A. ¶ ¶ 8735 et seq.) This chapter, providing for the incorporation of railroads, is a separate and distinct act from chapter 32, which is the General Incorporation Act. Chapter 114 contains no such provision or condition as is contained in section 18, of chapter 32, and unless this section 18 is applicable to the incorporation of a railroad under chapter 114, then the trial court properly sustained the demurrer to this declaration,.

Appellants insist that section 18 must be construed as applicable to chapter 114, under the general rule of construction of statutes that where different enactments of the legislature relate to the same matters, and there is no restriction in their application, then, so far as applicable, the two acts must be read together.

Appellants contention is untenable for the reason that chapter 32 provides that railroads shall not be incorporated thereunder, and section 18 of chapter 32 further provides that parties creating any indebtedness before all the requirements of “this act” (meaning the act providing for the corporations organized for pecuniary profit), which act does not include railroads, are complied with shall become liable as partners. Where the legislature specifically provided that section 18 should apply only to the assumption of corporate powers by persons attempting to organize corporations under chapter 32, section 18, it cannot be applied to chapter 114, á separate and distinct act.

A partnership is a contractual relation created, either by an expressed or implied agreement, and unless there is an agreement, expressed or implied, between the parties, or an act of the legislature creating a partnership liability, no partnership exists. It is a contract that cannot be created by mere operation of law. Co-operating together and subscribing for stock in a contemplated corporation, and carrying on of the business of the corporation before the corporate powers are completed and full authority had for the transaction of the corporate business, cannot create a partnership among the persons so co-operating, and unless there is an express provision of the statute making them liable as such they cannot be so held. Priest v. Essex Hat Mfg. Co., 115 Mass. 382; Terry v. Little, 101 U. S. 218.

Persons in their individual capacity have no right, no power or authority to organize, build or operate a railroad. The only manner by which persons intending to operate a railroad in this State can acquire the right to do so is by incorporating under chapter 114, Hurd’s R. S. 1909. (J. & A. ¶ 8735.) Plaintiffs must be held to have known of the conditions and requirements of this statute.

The note sued on in this case is the note of the corporation, executed by it by its president. The payee accepted this note as the note of a corporation, the Mississippi Valley Interurban Railroad Company. He thereby recognized and dealt with this Company as a corporation, and he could not be permitted, under the law after dealing with a corporation and recognizing it as a corporate body, to deny its corporate existence, whether it be a de facto or de jure corporation. The right of the corporation to do business can only be inquired into by quo warranto, and the plaintiffs in this action, being the assignees of this note and having transacted business with the defendant corporation as such and permitted it to overdraw its account as a corporation, cannot now be permitted to deny its corporate existence, and hold the officers and directors liable unless permitted to do so by express statute.

Defendants attempted to create a railroad corporation, and having complied with the provisions of the statute relating thereto by executing and filing the necessary corporate papers with the Secretary of State, establishing its home office in Sangamon county, the organization thereby became a corporation de facto, and even if the contention of plaintiffs is correct, that it was a condition precedent to create a de jure corporation, that the articles of incorporation must be filed in all of the counties through which it was intended to operate the road, the railroad company nevertheless became a de facto corporation, and its right to exist as a de jure corporation can only be inquired into by the State by writ of quo warranto.

The trial court properly sustained the demurrer and the judgment is affirmed.

IAffirmed.


text:
    C. C. Digby et al., Plaintiffs in Error, v. Venora L. Butler, Defendant in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Coles county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.
    Statement of the Case.
    Action by O. O. Digby and others against Venora L. Butler to recover a commission alleged to be due the plaintiffs for services rendered in finding a purchaser in the sale of a stock of merchandise owned by defendant. From a judgment entered for defendant upon a directed verdict, plaintiffs bring error.
    Abstract of the Decision.
    Brokers, § 88

      —when evidence insufficient to show that brokers produced a person able to make a trade. In an action to recover a commission for services rendered by plaintiffs in finding the defendant a person who was able and willing to make an exchange of real estate for a stock of merchandise, action of court in directing a verdict for defendant at the close of plaintiffs’ evidence held not error, it appearing that the person produced did not have sufficient means or real estate and that after negotiations were abandoned such person induced another party to join with him in trading real estate for the stock of goods, the plaintiffs having no knowledge that such a deal was consummated until some considerable time thereafter.
    Albert C. Anderson, for plaintiffs in error.
    Green & Parmer, for defendant in error; Oris Barth and E. C. Craig, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.


text:
    E. L. Cannon, Sole Trader, Appellant, v. Turner-Hudnut Company, Inc., Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed December 27, 1913.

      Abstract of the Decision.
    I. Sales, § 199

      —when delivery to carrier completes sale. An order sent by mail to a paint company for a barrel of paint directing that it be shipped at once, when accepted by letter constitutes a contract of purchase and sale, and a delivery thereafter of the paint to the railroad company for transportation to the buyer completes the sale and delivery.
    2. Sales, § 817

      —when buyer cannot refuse to accept consignment on account of price charged,. An order was sent by mail to a paint company for a barrel of paint suitable for painting boats with directions to ship at once, without any reference to the price. The paint company accepted the order by letter and delivered the paint to the railroad company for transportation. Upon arrival of the paint at destination the buyer refused to accept the same. In an action for the price the buyer urged as a defense that the price charged was greater than that quoted to him by the company’s agent for such paints several months before he sent the order. Held that the contract of sale was complete and that the buyer was liable, it appearing that there were different qualities of paint for painting boats, that the paint company had no knowledge of the quotations made by the agent and that no mention was made of the agent’s quotations in the written order for the paint.
    Statement of the Case.
    Action by E. L. Cannon, sole trader and doing business as The Warren Refining Company, against Turner-Hudnut Company, a corporation, to recover the price of a barrel of paint shipped to defendant in compliance with an order therefor sent by mail. Defendant refused to receive the paint at destination claiming that the price charged was more than he agreed to pay. From a judgment in favor of defendant entered upon a verdict directed for defendant, plaintiff appeals.
    W. B. Cooney, for appellant.
    H. C. Frings, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Presiding Justice Philbrick

delivered the opinion of the court. ■


text:
    The People of the State of Illinois for use of DeWitt County, Plaintiff in Error, v. George G. Argo and R. B. Young, Defendants in Error.
    1. Bail, § 75

      -—what scire facias on forfeited recognizance must aver. A scire facias issued upon a forfeiture of a recognizance stands as a declaration, and it must set forth by its averments all of the material matters necessary to recover a judgment against the sureties.
    2. Bail, § 75

      —when scire facias issued on forfeited recognizance shows jurisdiction to take recognizance. A scire facias issued for sureties on a forfeited recognizance held sufficient on its face to show that the justice of the peace had jurisdiction to take the recognizance, and not demurrable for failure to aver that the recognizance was taken by the justice before the order of commitment was entered.
    3. Bail, § 35

      —when two justices of the peace required to take a recognizance. After an order of commitment has been made by a justice of the peace the law requires that a recognizance must be taken before two justices of the peace.
    Error to the Circuit Court of De Witt county; the Hon. Willlam Gh Cochean, Judge,' presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed December 27, 1913.
    Louis O. Williams,- for-plaintiff in error.
    George B. Marvel, for defendants in error.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

One Fred Joyce was taken before Lawrence Murphy, a justice of the peace in DeWitt county, on a charge of burglary, and was bound over by the justice of the peace to appear at the next term of the Circuit Court in DeWitt county, convening on the 11th day of November, 1912. He entered into a recognizance in the sum of two hundred dollars for his appearance and defendants in error became his sureties in this, recognizanee. Joyce failed to appear in the Circuit Court in accordance with the conditions of his recognizance, a default was entered in the Circuit Court and a judgment rendered against Joyce upon the forfeiture and a scire facias issued out of that court for defendants in error herein as sureties. Defendants were duly served and appeared, filed a demurrer to the scire facias, the demurrer was sustained by the trial court, and the State’s Attorney of DeWitt county elected to stand by the scire facias and judgment was rendered against the People in bar of action and for costs. An appeal is prosecuted to this court to reverse the judgment.

The only question presented is whether the court properly sustained the demurrer. Under the practice a scire facias issued upon a forfeiture of a recognizance stands as a declaration, and it must set forth by its averments all of the material matters necessary to recover a judgment against the sureties. If this scire facias is sufficient, then the court erred in sustaining the demurrer; otherwise this judgment is correct. The scire facias alleges the entering into the recognizance by Joyce with the defendants in error as sureties; that the same was taken and approved by the justice of the peace; that the said Lawrence Murphy, before whom the recognizance was entered into, was a duly authorized acting justice of the peace, and that said recognizance was certified to and filed in the office of the circuit clerk in DeWitt county, thereby becoming a matter of record in the Circuit Court; that the principal in the recognizance failed to appear in compliance with its conditions, and that a default was taken and entered in said court upon said recognizance against the said Fred Joyce; that the recognizance was thereupon forfeited, and that a judgment of such forfeiture was entered by the court and a writ of scire facias ordered to issue against the defendants in error ; that the default, forfeiture and judgment were all entered at a regular term of court.

The objections urged by the defendants in error against the sufficiency of this scire facias are that the record does not show that the justice of the peace had authority to take the recognizance, and insist that it was necessary to aver in the scire facias that the recognizance was taken by the justice of the peace before an order of commitment had been entered by the justice of the peace.

If an order of commitment had been made, then the law required that the recognizance must be entered into before two justices of the peace.

If when Joyce appeared before the justice of the peace on the charg*e of burglary and was bound over he failed to enter into a recognizance before the justice as required, and by reason of such failure an order of commitment was entered by the justice of the peace, then the justice of the peace was not empowered to take the recognizance, and it would then have been necessary that the recognizance be entered into before two justices of the peace, but if no order of commitment had been entered, the recognizance was properly taken by the justice of the peace by whom Joyce was bound over.

The scire facias is sufficient in its averments to show that the justice of the peace had jurisdiction to take the recognizance, and it was taken by him and his acceptance and approval noted upon the recognizance; this was all the certificate that was necessary or required to be made by him, and upon the filing of the recognizance in the office of the circuit clerk it then became a matter of record in the Circuit Court.

This being sufficient on its face, if an order of commitment had been entered by the justice who bound Joyce over and it was necessary that the recognizance be taken by two justices, this would be necessary to be pleaded in this case. The demurrer should have been overruled and defendants should have been required to plead thereto. McNamara v. People, 183 Ill. 164; Reardon v. People, 123 Ill. App. 81; Johnston v. People, 31 Ill. 469.

The trial court erred in sustaining the demurrer to this scire facias, and its judgment is reversed and cause remanded with directions to overrule the demurrer and require defendants to plea.

Reversed and remanded with directions.


author: Mr. Justice Eldredge

text:
    The Commissioners of Highways of the Town of Dillon, Appellants, v. The Commissioners of Highways of the Town of Hopedale, Appellees.
    1. Roads and bridges, § 163

      —duty of adjoining towns to maintain bridge on boundary and to contribute to cost of new bridge. Where highway commissioners of two adjoining towns by their joint action laid out and opened up a public highway along the town line, in consideration that the county would build a bridge across a river on the boundary line, and after the bridge was built they jointly accepted the bridge and assumed jurisdiction over it and kept it in repair, held that the law implies a joint duty on the towns to maintain the bridge and that in case the bridge is washed away by a flood and one of the towns refuses to aid in the construction of a new bridge, the other town may build the same and be entitled to contribution from the town refusing to aid.
    2. Roads and bridges, § 151

      —when boundary bridge between towns not abandoned for failure to build after washout. Where two adjoining towns have laid out a highway preparatory to the construction of a bridge at the boundary line and the bridge is washed away by a flood, the bridge cannot be said to have been abandoned because of the fact that the bridge had not been rebuilt for many years, where since the destruction of the bridge the highway had been constantly used by the public to cross the stream at the ford instead of over the bridge.
    3. Roads and bridges, § 267

      —defense not available in action between towns for contribution to cost of bridge on boundary. In an action by highway commissioners of one town to require the highway commissioners of an' adjoining town to contribute to the cost of a bridge constructed on the boundary line, a defense that the contract for building the bridge was void for the reason that at the time of contracting for the bridge the plaintiff town did not have sufficient funds and that therefore the defendants cannot be compelled to contribute to a liability under a void contract, held,
      not available for the reason that it is .of no concern to defendants how the funds were raised, it appearing that the bridge had already-been paid for.
    4. Appeal and error, § 1414*—when finding of fact by trial court without a jury conclusive upon appellee. A finding of fact by the trial court without a jury must be conceded by the appellee to be established by the evidence, where no cross-error is assigned with reference thereto, and he does not contend in his argument that the finding is contrary to the evidence and no question is raised as to the correctness thereof.
    Appeal from the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed with judgment entered.
    Opinion filed December 27, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Beach & Trapp, for appellants.
    Jesse Black, Jr., for appellees.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

      See Hlinois Notes Digest, Veis. XI to XV, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

This is an action in assumpsit brought by the Commissioners of Highways of the Town of Dillon, appellants, against the Commissioners of Highways of the Town of Hopedale, appellees, for contribution to recover one-fourth of the cost of rebuilding a bridge across the Mackinaw River on the town line between the two townships. The cause was heard before the court, who found the issues for appellees; from the judgment on which finding appellants prosecute this appeal.

Tazewell county adopted the form of township organization in 1849. Dillon and Hopedale Townships adjoin and lie east and west of each other. The Mackinaw River flows across the north and south line which divides the townships. In 1859 it was desired by the people residing in Said townships that a bridge be built over the river at the point where it crossed the town line between said towns, anu the Board of Supervisors of Tazewell county by a resolution instructed the bridge committee of said Board to contract for the building of a bridge across the river at said point, provided that the committee get a release of the right of way to and from said bridge both north and south of the river until such highway shall intersect other leading roads, and that said contract should not be let until the right of way should be obtained and a guaranty made in writing that said right of way or public road should be opened and put in repair by the time the bridge was completed. Pursuant to this resolution of the Board of Supervisors, the Highway Commissioners of the Towns of Dillon and Hopedale held a joint meeting on the 25th of August, 1859, and by proper proceedings laid out a road on the town line between said towns and divided the same for repairs and maintenance, allotting to Hopedale Township the part lying north of the river and to Dillon Township the part lying south of the river. The Board, of Supervisors thereupon erected said bridge and the same was completed in September, 1860. The public road on the town line thus laid out and opened up by the joint action of the Commissioners of the two towns has been in continual use as a public highway since that time. The bridge in question was used by the people of the two townships, and by the public generally, until 1868, when it was washed away by the high water and floods in the spring of that year. The evidence shows, and the court found, on the hearing, as a proposition of fact, that said bridge was accepted, controlled, repaired and in. charge of the commissioners of the said two townships, respectively, jointly and continually until the same was washed away and destroyed by the flood. There has been no cross-error assigned by appellees challenging the correctness of this finding, nor is it contended in the argument of appellees that such finding is contrary to the evidence, and no question is raised as to the correctness thereof, and, as the case was tried before the court without a jury, under these circumstances it must be conceded that such fact is established by the evidence.

After the destruction of the bridge the public continued to use the highway by fording the river until 1909. In November of that year twenty-nine citizens of Hopedale Township and thirty-one of Dillon Township signed a joint petition addressed to the Commissioners of Highways of the two towns jointly, asking them to rebuild the bridge across said river at said point, alleging that said ford was an exceedingly dangerous one and that the bridge was a necessity to the property owners and to the traveling public. In pursuance to this petition the Commissioners of Highways of the two towns held a joint meeting at the site of said old bridge on December 3, 1909. A controversy exists as to what occurred at this meeting. The records of the Commissioners of Highways of both towns made at, or shortly after, this meeting show that the petition was read and accepted and the prayer of the petition granted; that it was estimated the probable cost of the bridge would be $8,000, and it was decided to petition the Board of Supervisors for county aid to help pay for the bridge. The Board of Supervisors subsequently passed a resolution providing for the payment by the county of one-half of the cost of the bridge. The Commissioners of Highways of the Town of Hope-dale refused to take any action or have anything further to do with the construction of the bridge. The Dillon Commissioners met with the bridge committee of the county, let the contract for the building of the bridge and the approaches thereto for $8,361. Tazewell county paid one-half of this and Dillon Township the other half, and this suit is brought to recover of the Commissioners of Hopedale Township their proportion, or one-fourth of the total price. The original minutes of the Commissioners of each of the two towns of the joint meeting held December 3, 1909, while they set out that the petition to build the bridge was read and accepted and the prayer granted, did not set out the aye and nay vote upon that proposition. After the bridge had been completed and suit brought, the clerk of the Commissioners óf Highways of the Town of Hopedale amended the minutes of the Commissioners of that town so as to show that two of the Commissioners of Dillon Township voted in favor of said petition and two Commissioners of Hopedale Township voted against said petition and that the chairman, who was a Dillon Commissioner, did not vote. The record of the Dillon Commissioners shows the vote to have been four against two in favor of said proposal.

Counsel for appellees assert in their brief that there are but three questions in controversy in this case, viz.: “(1) Have the Commissioners of Dillon Township power to compel contribution from the Commissioners of Hopedale Township for the payment of any portion of the consideration in what was a void contract on the part of the Dillon Highway Commissioners by reason of lack of funds at the time of making the contract? (2) Have the Commissioners of Dillon Township power to compel the Commissioners of Hope-dale Township to aid in the building of an entirely new bridge near the site of the.one washed out and abandoned by both sets of commissioners and the people of both townships on the theory of an implied contract after a lapse of more than forty years? (3) Are the Commissioners of Hopedale Township in the state of facts shown in this case entirely without discretion?” We will discuss these propositions in the inverse order of their enumeration.

It is urgently contended by appellees that this action is an attempt to enforce contribution from them under sections 22, 23 and 24 of chapter 121, Hurd’s E. S. (J. & A. fífí 9649, 9650, 9651), and that the record of the Highway Commissioners of the Town of Hope-dale shows that the Commissioners of that town did not agree to join in the construction of the bridge, and therefore under the authority of Wrought Iron Bridge Co. v. Highway Com’rs Towns of Utica and Deer Park, 101 Ill. 518, and Highway Com’rs Town of Dimmick v. Highway Com’rs Town of Waltham, 100 Ill. 631, there is no liability on their part to help pay for the building of the bridge.

If the liability of appellees rested upon these preñaises, then their contention would be correct and the cases cited would be applicable, but such is not the situation in this case. While it is true the county originally built the bridge in question, yet it was only built by it upon the consideration that the two towns should lay out and open up a public highway leading to it from both directions. The Commissioners of the two towns by joint action at a joint meeting laid out and opened up the highway along the town line, and after the bridge was built they accepted the bridge and jointly assumed jurisdiction over it and kept it in repair. The law in such case implies a joint duty on the towns to maintain the bridge. Highway Com’rs Town of Rutland v. Highway Com’rs Toion of Dayton, 60 Ill. 58; Highway Com’rs Town of Dayton v. Highway Com’rs Town of Rutland, 84 Ill. 279. The distinction is clearly pointed out in the case of People v. Highway Com’rs Town of Dover, 158 Ill. 197, which was an action brought on the relation of a property owner in one of the towns to compel the Commissioners of Highways of the towns of Dover and Ohio to reconstruct a bridge which had been washed out some ten years before. The Court in the opinion in that case, after holding that in the absence of an agreement between the Commissioners of Highways of adjoining towns in regard to the erecting and repairing of a bridge on the town line, then the rule announced in the ease of Highway Com’rs Town of Dimmick v. Highway Com’rs Town of Waltham, 100 Ill. 631, would govern and there would be no liability on the part of the one town to the other to contribute to the cost of building or repairing such bridge, and after reviewing the authorities heretofore mentioned, says: “The conclusion we deduce from that which we have said is this: that the repairing of a public bridge, (when such repairs are not chargeable to designated persons, lands, tenements or bodies politic,) is, by the common law, a public charge, and whenever the public authorities to whom is committed the matter of building, repairing and maintaining public bridges, either construct a bridge upon the line of a public road or recognize and accept for public use a bridge built there by others, and such bridge is used by the public, then liability for the cost of keeping such bridge in repair is by law imposed upon the county, town or adjoining towns, as the case may be, whose representatives such public authorities are.”

The Commissioners of both the Towns of Dillon and Hopedale, having accepted and recognized their joint interest in this bridge under the facts as shown by the evidence in this case, are liable to keep said bridge in repair and this duty may even be enforced by a property owner of either town by the peremptory writ of mandamus.

It is further contended that the bridge not having been built for so many years that the presumption is that it was abandoned and that the construction of the new bridge would necessarily fall under the provisions of the sections of chapter 121 hereinbefore mentioned, and that the Commissioners of the Town of Hopedale not having agreed to rebuild the bridge no liability for part payment of the same can attach to them. While it is true that the powers and rights of commissioners as to the construction and maintenance of bridges are separate and distinct under the statute from their powers and rights in regard to the construction and maintenance of highways, yet nevertheless a bridge on a public highway is an integral part of the highway itself. The highway on the town line has never been abandoned, but has been in constant public use since it was laid out and opened. The only difference in its use since the bridge was destroyed being that the public have been compelled in traveling over it to cross the river at the ford instead of over the bridge. The bridge itself was never abandoned, it was washed away by a flood. The public could not abandon that which did not exist. We conclude, therefore, . that this contention of appellees cannot be upheld.

It is also urged by appellees that they cannot be compelled to contribute because the contract entered into by appellants was void for the reason that at the time of contracting for said bridge by Tazewell county and Dillon Township, said Dillon Township did not have sufficient funds in the hands of its treasurer, as required by law, available for building said bridge, nor did they provide for the same by tax levy or bond issue. Appellees filed three special pleas to the declaration setting up these facts. The trial court sustained a demurrer to each plea and appellees in this court have assigned cross-errors on the action of the trial court in sustaining the demurrers, and insist that the contract for the building of the bridge so far as Dillon township was concerned was void and that they cannot be compelled to contribute to a liability under a void contract. If the Town of Dillon had been sued on this contract by the builder of the bridge, it might possibly have pleaded these defenses, but it is of no concern to appellees how the Town of Dillon raised the money necessary to pay for its share of the bridge. The evidence shows that part of the money used by the Town of Dillon to pay for the construction of the bridge was furnished by private contributions; but whatever means the Town of Dillon used to obtain the money to pay its share of the cost of the bridge, the fact remains that the bridge is paid for and it is the duty of appellees to contribute their share towards its cost. The court did not err in sustaining the demurrer to these pleas.

The proof shows that the assessed valuation of the property in Dillon Township in the year 1909 was $479,601, and in Hopedale Township $636,268. The statute provides that the cost of repairs between adjoining towns for bridges or roads on the town line shall be such as is just and equitable, having regard to the taxable property in each town. Under this provision the liability of the two townships in the payment of their respective shares of the cost of the bridge should be in the proportion of the Town of Dillon paying four-elevenths and the Town of Hopedale paying seven-elevenths, but appellants have waived this and only seek to recover one-half of said cost.

The judgment of the Circuit Court is reversed, and as the case was tried before the court without a jury and there is no controversy over the facts, judgment in this court will be rendered in favor of appellants against appellees for $2,332.07, the same being one-fourth of the contract price, $2,090.25, with interest from September 8, 1911, unto December 8, 1913.

Reversed with judgment entered.


text:
    Vada C. Stines, Plaintiff in Error, v. Annie E. Brock, Defendant in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Fulton county; the Hon. Robert J. Grier, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.
    Statement of the Case.
    Petitions by Vada C. Stines praying for letters of administration to be issued to her in the estates of her father and mother who died intestate leaving Vada C. Stines and Annie E. Brock their only heirs at law. Annie E. Brock filed objections and petitioned to have some disinterested person appointed administrator of each estate, and subsequently filed a petition to have herself appointed administratrix of the estates. The County Court overruled the objections and appointed Vada C. Stines administratrix of each estate. Annie E. Brock appealed from the orders of the County Court to the Circuit Court where the appeals were consolidated, and upon a hearing the court ordered letters to be issued to Vada C. Stines in the estate of the father, and to Annie E. Brock in the estate of the mother. From this order, Vada C. Stines brings error.
    Abstract of the Decision.
    Executors and administrators, § 32

      —when issuance of letters to daughters to administer estates of father and mother not an abuse of trial court’s discretion. Where a father and mother died intestate leaving two daughters as the only heirs at law, the father leaving personal property consisting chiefly of a promissory note executed to him by the husband of the elder daughter, and the mother leaving personal estate consisting only of her share as widow in the estate of her deceased husband, the younger daughter intending to file a claim against the mother’s estate for services rendered, held that the appointment of the elder daughter as administratrix of the father’s estate, and of the younger daughter as administratrix of the mother’s estate was no abuse of discretion of the trial court, that it was eminently reasonable and fair to appoint the elder daughter administratrix of the father’s estate in order to collect the assets of that estate and to appoint the younger daugher administratrix of the mother’s estate so she could defend against the claim of her sister.
    M. P. Bice, for plaintiff in error.
    Harvey H. Atherton, for defendant in error.

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Eldredge

delivered the opinioh of the court.


text:
    Virgia V. Barton, Appellee, v. George E. Southwick, Appellant.
    1. Physicians and surgeons, § 22

      —when evidence insufficient to establish malpractice. In an action against h physician and surgeon for so improperly treating plaintiff as to necessitate the removal of her uterus, evidence held insufficient to show that the treatment by defendant was the cause making removal of uterus necessary.
    2. Damages, § 206

      —when giving of instruction alloiving recovery for elements of damages not supported by evidence is error. The giving of an instruction in an action for malpractice directing the jury to assess damages for the amount plaintiff had paid out or become liable for, for physician's fees, hospital bills and medicine, when there is no evidence to support either of such elements of damage, held error.
    3. Damages, § 189

      —sufficiency of proof of services and expenditures as elements of damage. Where services and expenditures are elements of damage they are capable of pecuniary measurement, and the law requires that the amounts of the same shall be specially proved.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed December 27, 1913.
    Graham & Graham and Stevens & Herndon, for appellant.
    W. St. J. Wines, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

This is an action of trespass on the case for malpractice. The declaration consists of three counts, each alleging that the defendant, Dr. George E. South-wick, was a practicing physician and surgeon and so improperly treated the plaintiff as to necessitate the removal of her uterus. To these counts the plea of general issue is filed. The trial resulted in a verdict for plaintiff assessing her damages at the sum of two thousand three hundred dollars, on which verdict judgment was rendered.

When this case was originally before us we held that the action by plaintiff was barred by a judgment before a justice of the peace in favor of appellant in an action brought by him against appellee and her husband for services rendered her, and reversed the judgment without remanding the cause. Barton v. Southwick, 171 Ill. App. 217. On a writ of certiorari to the Supreme Court it was held that the said judgment did not bar the action and the cause was remanded to this court to pass upon the merits. Barton v. Southwick, 258 Ill. 515.

Two assignments of error are presented for consideration upon the merits, viz., that the verdict is contrary to the evidence and that the court erred in the giving of instructions. The principal contentions of the parties in regard to the evidence are noted in the opinion in 171 Ill. App. 217, and need not be here repeated. The chief element of damage claimed by appellee is the loss of the uterus, and the trial court instructed the jury that if they found for the plaintiff they should consider that fact in assessing her damages, and the question of primary importance is whether the uterus had to be removed on account of the negligence of appellant.

Appellee and her husband testify, in substance, that they spent the day of August 18,1910, at a picnic at a park about three miles distant from the village of Chatham, where they lived; that they returned home about sundown on an interurban car, and when she reached her dooryard she commenced to flow excessively and she went into the house and laid down upon the bed; that her husband went after appellant to have him come and treat her; that appellant told him that she was going to have a miscarriage, that he could not call that night as he was about to make another call, but gave him some medicine for her to take and said he would call the next morning. Appellee took the medicine, which stopped the hemorrhage that night and there was no subsequent flowing. This flowing resulted in the loss of about one quart of blood, which was preserved in a vessel and shown to appellant when he arrived the next morning. They further testify that as soon as appellant arrived in the morning, without making any examination of appellee, he again announced she was in a family way and was having a miscarriage, and without giving her any anaesthetic immediately inserted some instruments into the vagina and uterus and worked for one and one-half to two hours with them; that one was like an augur and he bored around with it. Another was long, slim and sharp pointed and was inserted in like manner. The third was like a pair of scissors with a crimp or hook on the ends of the jaws. They further testify that he inserted these instruments and caught hold of the flesh inside and pulled so hard that it took the combined strength of the husband and a neighbor, Mrs. Tucker, to hold appellee from being pulled off the bed; that two pieces of flesh were torn out of the inside of the uterus, which they claim appellant said were pieces of the child; that this pulling, boring and prodding with these instruments in this manner continued for nearly two hours, but no hemorrhage or flowing resulted therefrom; that finally appellee said she could not stand any more and appellant said he would tampon her and let it go until morning* when the child and afterbirth and all would come together; that appellant called the next morning* about nine o’clock and with his instruments again “worked away for half an hour”; that he then told appellee that he was mistaken about there being a child there and that it was nothing more than a tumor; that appellee’s husband then said he wanted another doctor and it was agreed that Dr. Ottis of Springfield should be called, and Doctors Ottis and Rogers came out about one or two o’clock in the afternoon, and after an examination of appellee Dr. Ottis announced that she was suffering from a rupture of the uterus. She was taken to a hospital in Springfield and operated on by Doctors Ottis and Bernard, and the uterus removed. Appellee and her husband are corroborated more or less by Mrs. Tucker and Mrs. Heffron, another neighbor, who was present the second morning when appellant was there.

Appellant testified that the medicine he gave for appellee to stop the flowing was ergot, which the undisputed evidence shows was a proper remedy, and was effective. He further testified that when he called on the morning of August 19th he sterilized his instruments in hot water, dilated the vagina with a speculum, removed from it all the blood clots, some of which were dark and resembled pieces of liver, with a curette, and tamponed the vagina with antiseptic wool tampons, which he pressed against and around the mouth of the uterus with a pair of dressing forceps; that none of these instruments penetrated the uterus; that he took nothing but the blood clots from the vagina, and that the whole treatment occupied not to exceed twenty minutes. He further testified that on the following morning he removed the tampons, washed out the vagina with an antiseptic solution and tamponed it again; that he told appellee and her husband that he considered her condition serious and that it might be necessary to have an operation performed; that he was not a surgeon and advised them to consult a surgeon and that Dr. Ottis was agreed upon; whereupon Dr. Ottis came out and made the diagnosis and operation hereinbefore mentioned.

The undisputed evidence in the case is that when Dr, Ottis performed the operation he found a rupture of the fundus of the uterus at a spot where there had been a chronic degeneration thereof; that the degeneration had proceeded to such an extent that when he attempted to sew the ruptured parts together the tissues would not hold the stitches, and he was compelled to remove the uterus entirely; that no pieces of flesh had been tom from the uterus; that it showed no evideuce of laceration or bruising, or of having been abused by the insertion of instruments; that the uterus itself was preserved by appellee, introduced on the trial and corroborates the above facts; that the rupture found in the degenerated portion of the fundus of the uterus was sufficient to have caused the excessive flowing ; that this degenerated condition was sufficient to have caused the rupture therein; that the excessive flowing took place before the appellant did any of the acts complained of.

Any fair consideration of the above facts can lead to but one conclusion, viz., the excessive flowing was caused by a rupture of the uterus; the rupture of the uterus was caused by the chronic degenerated condition thereof; and that such chronic degenerated condition of the uterus was the cause of the necessity for its removal, and not anything the appellant may have done. We must hold therefor that appellant was not responsible for the removal of the uterus.

The second instruction given for appellee instructed the jury that among other things they should assess damages for the amount appellee had paid out or become liable for, for physician’s fees, hospital bill and medicine, in endeavoring to be cured. There was no evidence to support either of these elements of damage and as the operation was performed by two surgeons of reputation and standing, and appellee was confined for nearly six weeks in the hospital in Springfield, by this instruction the jury would have the right to, and from The amount of the verdict probably did, allow substantial damages therefor, without any evidence on which to base them.

Where services and expenditures are elements of damage they are capable of pecuniary measurement, and the law requires that the amounts of the same shall be specially proved. Krakowski v. Aurora, E. & C. R. Co., 167 Ill. App. 469; Harley v. Aurora, E. & C. Ry. Co., 149 Ill. App. 339; North Chicago St. R. Co. v. Fitz-Gibbons, 180 Ill. 466. Under the evidence in this case it was error to give this instruction.

If there was any error in appellee’s first instruction we think it was cured by appellant’s second instruction.

The judgment is reversed and cause remanded.

Reversed and remanded.


author: Mr. Justice Eldbedge

text:
    Leroy Marsh, Appellee, v. First State Bank and Trust Company of Canton, Appellant.
    1. Banks and banking, § 86

      —when bank, liable for misapplication of proceeds of check. In an action on the case against a bank for the wrongful application and conversion of a check, where it appeared that the check had been sent to the bank by the plaintiff to induce the bank to pay a protested check which had been previously drawn by a third person payable to plaintiff, and that the bank did not pay the protested check with the proceeds of ■ the check in question but credited the account of the third person therewith, held that the evidence was sufficient to sustain a verdict for plaintiff.
    2. Banks and banking, § 121

      —words on check construed. Words “a/c D. W. Thomas” on the bottom of a check cannot he construed to he a direction to the bank to deposit the amount of the check to the credit of D. W. Thomas, but rather a memorandum of the maker of the check to identify the transaction in which the check was issued.
    3. Appeal and ebbob, § 1561

      —when refusal of requested instruction not error. Refusal to give instructions fully covered by other instructions given, held not error.
    4. Interest, § 5

      —when allowed. Interest is properly allowed on moneys received to the use of another.
    Appeal from the Circuit Court of Fulton county; the Hon. Harry M. Waggoner, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.

      Certiorari denied by Supreme Court (malting opinion final).
    A. E. Taff, for appellant; W. S. Jewell, of counsel.
    Williams, Lawrence, Welsh & Green and Marvin T. Robinson, for appellee; F. O. McFarland, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Eldbedge

delivered the opinion of the court.

Appellee, Leroy Marsh, plaintiff in the court helow, brought an action in ease against appellant for the wrongful and unlawful application and conversion of a check drawn by appellee payable to the order of appellant for the sum of $2,000. Said check is as follows:

“Galesburg, III., Dec. 10, 1912—No. 9630. Pay to the order of First State Bank and Trust Co.,—
$2,000.00
Two thousand and no-100....................Dollars
To Bank of Galesburg, Galesburg, 111.
70-33 (Signed) Leroy Marsh.
a/c D. W. Thomas.”

The defendant filed a plea of general issue, and the trial resulted in a verdict in favor of the plaintiff assessing the damages at $2,016.67, on which verdict judgment was rendered.

The evidence for the appellee tends to show that on the 6th day of December, 1912, he was a resident of Galesburg, Illinois, and engaged in running a wholesale business of buying and selling at public auction on one or more days in each week large numbers of horses, and that in the course of his business of purchasing said horses he arranged with different persons to purchase horses to be bought and sold at his auctions; that among the persons who bought horses for him for such purposes was one D. W. Thomas, a resident of Fulton county, and that said Thomas prior to December 6, 1912, had purchased and delivered to appellee at his auction stable in the city of Galesburg certain horses of the value of $2,000; that appellee had furnished to said Thomas for the purchase of said horses money amounting to $2,000, and in consideration thereof said Thomas on December 6, 1912, drew his check on the First State Bank and Trust Company of Canton, Illinois, payable to appellee or order in the sum of $2,000, and delivered the same to appellee; that appellee placed said check in the Bank of Galesburg and in due course of business it was received by the First National Bank of Canton and presented by the latter bank to appellant for payment; that when it was so presented to appellant, payment was refused and the check was protested; that on or about the 10th day of December, 1912, appellee having received notice of the protest of said check called up appellant at its office in Canton and had a conversation with the assistant cashier of appellant Bank, George W. Lane.

The real contention between the parties in this suit arises out of what was said in this conversation between appellee and the witness Lane. Appellee testified that in this conversation with appellant’s cashier appellee told him that he did not like to have his checks thrown out that way and asked if he would send his personal check for $2,000, payable to the bank, whether the bank would take care of the protested check executed by Thomas, and that he, witness Lane, promised appellee that if appellee sent his personal check payable to the order of appellant Bank that the bank would pay the protested check of Thomas. Thereupon appellee sent his personal check for $2,000, payable to the order of appellant, to the appellant. The appellant did not take care of the protested check with the proceeds of appellee’s check, but credited the account of said Thomas with $2,000, which account was subsequently checked out by Thomas by other checks.

The witness Lane admits he had a conversation with appellee on that day concerning the protested check, but denies that he told appellee that if appellee sent the $2,000 check to the bank, the bank would pay the protested check.

Appellee’s testimony is corroborated to some extent by the witness Olds, who was appellee’s bookkeeper and was in the room while appellee was telephoning and heard appellee’s part of the conversation. If the facts are, as the evidence for appellee tends to show, that this check was sent to the appellant Bank for the particular purpose and the only purpose of paying the protested check of Thomas and the bank promised so to do, then there was a misapplication of the funds represented by this check and the appellant Bank became liable to appellee for the amount thereof. The contention of the parties in regard to this matter was purely a question of fact for the jury to determine and the jury having found this contention in favor of appellee, it cannot be disturbed on the ground that it is contrary to the weight of the evidence.

It is assigned for error that an action on the case will not lie because the check itself shows that it was to be a general deposit and not a special one. The basis for this claim is the words “a/c D. W. Thomas,” on the bottom of the check. It is insisted that this is a direction to deposit the amount of this check to the credit of D. W. Thomas. We do not think that the effect of these words warrants such a legal construction. The words do not pretend to be any instruction to the bank to do anything whatever with the proceeds of the check, but appear, rather, to be a memorandum of the maker of the check to identify the transaction in which the check was issued.

Complaint is made of the refusal to give instructions numbered 6, 7, 8, 9 and 10 offered by appellant. Instructions 6, 7, 9 and 10 have no application to the issues involved in this suit, and the proposition laid down in the 8th refused instruction was fully covered by the other instructions given for appellant. The criticism of appellee’s given instructions we think is without substantial merit.

Interest was properly allowed, as the statute provides for the allowance of interest on moneys received to the use of another.

We have carefully considered the other errors assigned, but find none that justify a reversal of the case, and the judgment of the Circuit Court will therefore be affirmed. ®

Affirmed.


text:
    Janet Teal by John W. Teal, Appellee, v. St. Louis & Springfield Railway Company and St. Louis, Springfield & Peoria Railroad Company, Appellants.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Carriers, § 367

      —when liable for failure to provide entrance from, the car platform into the car. In an action for injuries sustained by a passenger alleged to have been caused by being thrown from the rear platform of an interurban car by the swaying and lurching thereof when she was unable to gain entrance to the car because the doors were locked, or so tightly closed that she was unable to open them, and there was no employe of the defendants there to assist her, a verdict for plaintiff held sustained by the evidence.
    Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.
    Statement of the Case.
    Action by Janet Teal, by John W. Teal, her guardian, against the St. Louis & Springfield Railway Company and St. Louis, Spring-field & Peoria Railroad Company to recover for personal injuries sustained by plaintiff from falling from an interurban car operated by defendants. Prom a judgment in favor of plaintiff for one thousand dollars, defendants appeal.
    Rinaker & Rinaker, H. C. Dillon and Burton' & .Hamilton, for appellants.
    JQ. C. Knotts and Bell & Burton, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Eldredge

delivered the opinion of the court.

2. Carriers, § 384 —when rule of nonliability for ordinary swaying of car inapplicable. The rule that a railroad company is not liable for injuries resulting from the swaying and lurching of a car, unless the swaying and lurching were unusual, is not applicable where the gravamen of the action is not laid as the swaying and lurching of the car.

3. Carriers, § 486 —when instruction allowing recovery for negligently starting car erroneous. In an action fot injuries caused by being thrown from platform of car by the starting thereof when plaintiff was unable to gain entrance to the car from the platform, an instruction allowing plaintiff to recover if the conductor “negligently caused the car to start forward” without the limitation “before she had reasonable opportunity to enter it,” held erroneous; but the giving of same when considered together with other instructions given, held not to have misled the jury.