text:
    Katy Truty, Appellee, v. Spaulding & Merrick, Appellant.
    Gen. No. 14,950.
    Master and servant—who are fellow-servants. Servants of a common master are fellow-servants who are brought into close personal association and direct co-operation in the performance of their duties under conditions which give each of them opportunity to exercise toward the other an influence promotive of proper care and caution.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed with finding of fact.
    Opinion filed April 8, 1910.
    Rehearing denied April 26, 1910.

      Statement by the Court. Katy Truty,- appellee,, brought this action against Spaulding & Merrick, appellant, to recover damages for injuries sustained by her on February 26, 1904, while working for the defendant in its tobacco factory in Chicago. She was injured by the starting of a tobacco cutting machine, as. she claims, without warning while she was working at her table near the machine, the crank handle of the machine as it -revolved catching her clothing and pressing her against and into the revolving cog wheels of the machine. On the part of the defendant it is claimed that plaintiff, at the time the machine started, was sitting on the end of the machine shaft to which the crank handle was attached.
    The plaintiff was, and had been for more than a year prior to the time of her injury, familiar with the cog wheels, shaft and crank handle, during all of which time they were four feet from the table at which she worked and in plain view. She knew their exact position and their action when the machine was running. In the room where plaintiff worked there were eight machines standing in a row along the west side of the room with spaces of three or four feet between the machines. Bast of- the machines, and about four feet from them, stood a row of tables, a table standing opposite to each machine. The machine on which plaintiff was injured was known as No. 3, and it was operated by Chris Bggert. He cut the tobacco in the machine and placed it on the table opposite to his machine where the plaintiff and two other girls worked, spreading the tobacco and so handling it that the dust and small pieces were separated from the larger pieces. Plaintiff’s regular and proper position when at work was either at the north or south end of the table, where she was at least three feet from the crank. She claims, however, that she could not stand at the end of the table and sweep the dust and shorts into barrels underneath the table, but in order to do that work she had to stand at the side of the table, which was two feet wide and six feet long.
    The passageway running north and south on the east side of the machines was used by the operators of the machines, and to place the tobacco after it was cut on the tables, and by the men who brought the tobacco to the machines. The crank which caught plaintiff’s clothing was in shape something like the crank of an ordinary clothes wringer, and extended into the passageway no further than the handle on the end of it. This handle was long enough to take hold of with one hand. The cog wheels and crank by which plaintiff was injured were on the east side of the machine toward the table at which plaintiff worked, and were uncovered and unguarded during the whole time plaintiff worked for defendant.
    The evidence shows that just prior to the accident machine No. 3 was not running. Chris Eggert, the operator, was on the west side of the machine oiling it, and accidentally struck his elbow against a lever in such a way that it started the machine and with it the crank-handle which caught plaintiff’s clothing.
    Frank M. Cox and E. J. Fellingham, for appellant.
    F. W. Jaro, and Francis J. Woollet, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The main contentions of the parties relate to the relation of Eggert to the plaintiff, whether it was that of vice-principal, or as fellow-servant; and, second, whether the plaintiff was guilty of contributory negligence ; and, third, as to the assumption of risk by the plaintiff; and, fourth, as to the negligence of the defendant.

It is not contended that the various counts in the declaration are insufficient to make the evidence admissible which forms the basis of the contentions of the plaintiff. We may, therefore, pass directly to a consideration of the questions raised without special reference to the pleadings.

Upon the question of the relation of plaintiff to Chris Eggert, the operator of the machine, it may be observed in the first place that the evidence presents no ■controversy of fact that Joseph Shirley was the foreman in charge of the cutting, dressing and separating ■department in which plaintiff worked, at the time she was injured. Shirley was foreman of the entire basement of the factory in the main building and the annex, with the exception of the firemen and elevator men. The cutting machines and the tables referred to in the preceding statement were all in the basement. He had been the foreman for seven or eight months prior to plaintiff’s injury. He had run one of the machines for about eighteen years before he was made foreman of the department, and for a portion of that time he' had operated machine No. 2, next to Eggert’s machine. He succeeded John Nieman as foreman.

Shirley testified that he never gave Eggert any authority to direct or control the plaintiff or the other girls working at the table with plaintiff. He further testified that before he became foreman, and while he was operating the machine next to the one Eggert was operating, and within a short distance of the place where the plaintiff worked, Eggert never ■showed the plaintiff or the other girls how they should •do their work, and never saw or heard him give any orders and directions to the plaintiff as to how she should do her work. Up to the time of plaintiff’s injury he never heard the plaintiff or any one say or claim or talk about, or mention at all, any exercise of ■authority, control or direction by Eggert over the plaintiff and the girls with her at the table. Eggert and Nieman fully sustain Shirley on these points. Upon a consideration of the evidence bearing upon the question as to whether or not Eggert had any authority ■over the plaintiff and the girls with her at the table we are of the opinion that he did not have and never had any direct or delegated authority or supervision over them in their work of any kind or description from the defendant.

On behalf of the plaintiff the testimony is, that in the regular course of her work the plaintiff and the girls working with her received orders and directions from . Eggert. The plaintiff testified that “when we did work with the tobacco wrong he showed us how to do-it.” “He gave me these directions that when he started his machine up he always told me to get away. He did those things for a long time, from day to day during the whole time I worked there.”

Antonina Bubis, who worked four or five months at the same table with the plaintiff, testified that when Eggert started his machine he told the girls to step-aside, and when they did not do their work right he told them that they should do better work. “I didn’t understand except he showed us with his hands the tobacco was done wrong.”

And Frances Zuber testified that she worked a week at the same table with the plaintiff, and that during that week Eggert told the girl who was standing in the passageway between the machine and table to get out of the way or led her away before starting the machine.

To understand this testimony it must be stated that these witnesses are Polish girls and could not understand English, and Eggert is a German and cannot speak the Polish language. He can indeed speak but little English. He therefore had to lead the plaintiff and other girls away from his machine when he wished to start it.

This testimony on the part of the plaintiff is contradicted explicitly and directly by nine witnesses called by the defendant, and we think from the evidence the fact was that Eggert had nothing to do with the work of the plaintiff and did not direct or criticise the-work of the plaintiff or her associates at the table, or show either of them how to do their work. It does not appear to have been any part of his duty to oversee -or instruct them in their work. This was done by the foreman and by him only. Our conclusion from the evidence is that Eggert was not only not given any authority over the plaintiff and her associates working at the table with her, but that he did not in fact assume any such care, responsibility and authority.

It clearly appears from the record that it was Eggert’s duty to run the cutting machine in his charge, and after he had cut a quantity of tobacco to place the same upon the table at" which plaintiff was at work. It is shown further that when a new or different kind of tobacco was given him to cut, it was necessary for him to run a small amount of the tobacco through his machine and then take the cuts out and put them on the table and spread it and dress it himself in order to see whether the tobacco was being cut properly. The fact that the table at which plaintiff worked was placed near Eggert’s machine for convenience and that he thus used it in connection with his work, and the further fact that he was required to place on plaintiff’s table all the tobacco which he ran through his machine, brought the plaintiff and Eggert into close personal association and direct co-operation in the preparation of the tobacco for the dry-room, under conditions, which gave each of them opportunity to exercise toward the other an influence promotive of proper care and caution, in the discharge of their usual duties, and that they were therefore fellow-servants. Bennett v. Chicago City Ry. Co., 243 Ill. 420; Crane Co. v. Hogan, 228 id. 338; Illinois Steel Co. v. Coffey, 205 id. 206.

The uncontroverted evidence shows that when the cutting machine was not running the plaintiff was accustomed to go into the passageway between her table and the machine and work on the west side of her table. "When she was in this passageway and Eggert was about to start his machine, he frequently ordered or led her out to a place of safety, before starting his machine. From this course of conduct on the part of Eggert it is argued on behalf of the plaintiff that Eggert was not a fellow-servant but a vice-principal, ■charged with the duty of warning her seasonably when the machine was about to be started; and the doctrine of Illinois Steel Co. v. Ziemkowski, 220 Ill. 324, is said to apply to and to control the case. We find, however, no similarity in the case at bar and that case. In that case, while Howe had no authority over Ziemkowski, and they were not fellow-servants, Howe was charged by the master with the duty to give timely notice by ■sounding a whistle when a blast or heat was about to be blown, so as to warn the workmen and give them an opportunity to escape the danger from the sparks. 'This duty he failed to discharge. He was as to the plaintiff in that case a vice-principal, and his negli.gence was the negligence of the Steel Company. Eggert was not charged with any duty by the defendant to warn the plaintiff of the obvious and plain danger •of getting too near the machine. When he warned the plaintiff and others, as he did frequently, it was not done in pursuance of any duty laid upon him by the defendant, but Was in obedience to the human impulse to warn a fellow human being of danger.

Holding as we do, upon the evidence, that the plaintiff and Eggert were fellow-servants, and that the plaintiff was injured through the negligence or unintentional act of Eggert, while oiling the machine, it follows there can be no recovery against the defendant.

Another view of the case leads to the same conclusion. We think it is shown by a clear and satisfactory preponderance of all the evidence that the plaintiff at the time she was injured was voluntarily and negligently sitting upon or leaning against the end of the crank shaft of the machine, and that in so doing she was guilty of contributory negligence. This is shown by the testimony of Annie Gucic, Chris Eggert, Martin Vent, August Grcegwski and Mary Witek. It also appears from the testimony of Bickie Tutak, Eggert, "Vent, Grcegwski, Witek, and Bosie Knapczwk that on numerous occasions the plaintiff persisted in sitting on the end of this crank shaft; and from the testimony of some of these witnesses it appears that just before the accident she was sitting there and laughed when Eggert ordered her away, and that she went away, but almost immediately she returned to the same place and was injured.

It is unnecessary for us to consider the other errors assigned or grounds of reversal urged, for the case is necessarily determined by what we have said above.

The judgment is reversed with a finding of fact.

Reversed with a finding of fact.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Elizabeth Boynton, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,956.
    1. Verdicts——when not disturbed. A verdict will not he set aside on review as against the weight o£ the evidence unless clearly and manifestly so.
    2. Instructions—when submitting questions of law will not reverse. An instruction which leaves to the jury to determine what are the material allegations of a declaration will not reverse if other instructions given indicate to the jury what such material allegations are.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed April 8, 1910.
    James Gi. Condon and Watson J. Ferry, for appellant ; John E. Harrington, of counsel.
    C. S. O ’Meara, for app.ellee.
   Mr. Justice Smith

delivered the opinion of the court.

This action was brought by Elizabeth Boynton against the Chicago City Eailway Company to recover damages sustained by the plaintiff as a result of being thrown from one of defendant’s cars upon which she was a passenger, near the intersection of Thirty-fifth street and Vernon evenue, in the city of Chicago.

It appears from the evidence that the plaintiff boarded one of the defendant’s cars going west on Thirty-fifth street at Cottage Grove avenue in order to be carried west, to Rhodes avenue. She was unable to attract the attention of the conductor on the car until after the car had passed Rhodes avenue, but between Rhodes and Vernon avenues she attracted his attention, indicated her desire to alight and he signaled the’ motorman to stop. The plaintiff’s claim is that the car was brought to a stop at or near the intersection of Thirty-fifth street and Vernon avenue and while she was endeavoring to alight with due care and caution but before she had stepped from the car, it was suddenly started forward and she was thrown to the ground and injured.

The defendant’s contention is that the plaintiff carelessly and negligently attempted to alight from the car before, it was stopped and while it was in motion, and that in so doing she was .guilty of contributory negligence which caused or contributed to the injuries which she received.

On the liability question thus presented there is a sharp conflict in the evidence. The plaintiff’s contention is supported by the evidence of herself and two other witnesses, Mrs. Delia Bradley and F. L. Guffey.

On the other hand, the contention of the defendant is supported, by the testimony of John A. Dooley, G. H. Bowles, Mrs. Bowles, his wife, and James Gregan, the conductor of the car.

Upon a careful examination of and reflection upon the testimony on the question of liability, we cannot say that the verdict in favor of the plaintiff was the result of passion or prejudice on the part of the jury, or that it is manifestly against the weight or preponderance of'the evidence. We would not be justitied, therefore, in setting aside the verdict and judgment on that ground. Nor can we sustain the contention on the part of the defendant that there is nothing in the record which justified the jury in awarding anything more than nominal damages. We think the evidence sustains the verdict as to the damages sustained.

Upon .an examination of the errors assigned and argued relating to the rulings of the court in admitting and excluding evidence during the trial we are of the opinion that if there were errors they were of trivial importance and did not in any way affect the result reached. We do not think the judgment should be reversed for those matters.

It is urged that the' trial court committed error in permitting counsel for plaintiff, in his closing argument to the jury, to read portions of the deposition of a witness. Neither the abstract of record nor the record itself shows what was read to the jury from Dr. Helm’s deposition. We are therefore unable to determine what was read from the deposition, if anything. We cannot determine, therefore, whether any material error was committed in that regard, if it be error to read from depositions in an argument. On this record the question is not properly raised for decision.

At the request of the plaintiff the court submitted to the jury the following instruction:

“7. The jury are instructed that by a preponderance of the evidence is not necessarily meant the ■greater number of witnesses, but if the plaintiff has proven the material allegations of her declaration by such evidence as satisfies and produces conviction in the minds of the jury, then she has proven her case by . a preponderance of the evidence.”

The vice in the instruction, it is said, lies in the fact that it left it to thé jury to determine what the ma- . terial allegations of the declaration are. We have no doubt that considered by itself, and without considering the other instructions in the case, the instruction is objectionable on the ground stated. But, the court at the instance of the defendant instructed the jury, in the 11th instruction given, what the material allegations were in substance, by saying to them that to entitle the plaintiff to recover they must believe from the evidence that she has proved by a preponderance of the evidence the following propositions:

“1st. That she was exercising ordinary care for her own safety at and prior to the time of the accident in question. 2nd. That the defendant company was guilty of negligence in the manner charged in the declaration. And 3rd. That such negligence was the proximate, direct cause of the plaintiff’s injury in question.
“And if you find from the evidence she has failed to prove by a preponderance of the evidence these propositions as stated, or that she has failed to prove any one of them, she cannot recover against the defendant company, and you should find the defendant not guilty.”

The 17th, 18th and 21st instructions given at the request of the defendant also call the attention of the jury to the material facts to be proven by the plaintiff in order to entitle her to recover, and explain to them the issues and the meaning of the terms used in the instructions. In our opinion these instructions offered by the defendant fully informed the jury what the material allegations of the declaration were, and cured the vice in the instruction complained of.

Finding no material error in the record the judgment is affirmed.

Affirmed.


text:
    Anna Kakuska et al., Appellees, v. Filomena Roubyk, Appellant.
    Gen. No. 14,964.

      Wills—when legacy charge upon devise. A devise of real estate which, is accompanied by the giving of a legacy or legacies in a particular paragraph, held, to be subject to the payment by the devisee accepting such devise of such legacy or legacies.
    Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed April 8, 1910.
    Frank C. Souhrada, for appellant.
    DeWitt C. Jones, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The complainants, appellees, Anna Kakuska and Mary Daniel, filed their bill in the Superior Court alleging that they are the daughters of John Koubyk, who died testate; that by his will he devised a life estate in certain real estate to his wife, Katerina Koubyk, with the remainder in fee to his son John Koubyk, charged with the payment of certain sums of money to the complainants.

The bill represents that the life estate of Katerina Roubyk in the real estate terminated by her death on or about November 7, 1907; that prior to her death the remainderman, John Roubyk, conveyed the real estate to his wife, Filomena Koubyk, the defendant, subject to the life estate and subject to the charges placed thereon by said will, and that after such conveyance John Roubyk died, and Filomena Roubyk is seized and possessed of the real estate subject to the charges placed thereon by the testator in favor of the complainants.

A copy of the will of John Roubyk is attached to and made a part of the bill. The prayer of the bill is that by a decree the sums of money mentioned in the will to be paid to the complainants respectively be declared charges and liens upon the real estate and the defendant be ordered to pay them within a day to be fixed, and in default ,of such payments the said real estate be sold to pay said respective amounts.

The defendant filed a general demurrer to the bill which was overruled by the court and, the defendant electing to stand by her demurrer, the court entered .a decree in accordance with the prayer of the bill. This appeal is prosecuted from the decree.

The portions of the will involved are as follows:

“Second: After the payment of said funeral expenses and debts I give, devise and bequeath unto my beloved wife, Katerina Roubyk, all the property, real and personal, which I now have, may die possessed of, situated in the City of Chicago, County of Cook and State of Illinois, to-wit: Lot Fifty-five (55), in Stewart’s Subdivision of Block Nine (9) in Johnston and Lee’s Subdivision of the South-West quarter-of Section Twenty (20), Township Thirty-nine (39), North of Range Fourteen (14), East of the Third (3rd) Principal Meridian, and also Lot Twenty-seven (27), in S. S. White’s Subdivision of Block Eight (8) in Johnston and Lee’s Subdivision of the South-West quarter of Section Twenty (20), in Township Thirty-nine (39), North of Range Fourteen (14), East of the Third (3rd) Principal Meridian, together with all improvements thereon and to have and to hold the said property for her natural life only.
“Third: I give, devise and bequeath to my son, John Roubyk, the following real estate, to-wit: Lot Number Fifty-five (55) in Stewart’s Subdivision of Block Nine (9), in Johnston and Lee’s Subdivision of the South-West quarter of Section Twenty (20), Township Thirty-nine (39), North of Range Fourteen (14), East of the Third (3rd) Principal Meridian, with all improvements thereon from and after the decease of my beloved wife, and at the time the said John Roubyk, my son, have to pay to my daughter, Anna Roubyk, the sum of One Thousand ($1,000) Dollars and to my daughter, Mary Roubyk, the sum of Two Hundred ($200) Dollars as their inheritance.
“Fourth: I give, devise and bequeath to my son, Thomas Roubyk, the following real estate, to-wit: Lot Twenty-seven (27), in S. S. White’s Subdivision of Block Eight (8), in Johnston and Lee’s Subdivision of South-West quarter of Section Twenty (20), Township Thirty-nine (39) North, Range Fourteen (14), East of the. Third (3rd) Principal Meridian, with all improvements thereon from and after the decease of my beloved wife, Katerina Roubyk, and at the time the said Thomas Roubyk, my son, have to pay to my daughter, Mary Roubyk, the sum of Five Hundred ($500) Dollars as her inheritance.
“Fifth: To my daughter, Anna Roubyk, the sum of Five Hundred ($500) Dollars, which are loaned by John Smolik and secured by one judgment note.
1 ‘ Sixth: To my daughter, Mary Roubyk, the sum of Three Hundred ($300) Dollars, which are loaned by Martin Kesl and secured by one judgment note.”

Upon a careful consideration of the terms used in the third clause of the will in which lot 55 in Stewart’s subdivision is bequeathed to John Roubyk “from and after the decease of my beloved wife, and at the time the said John Roubyk, my son, have to pay to my daughter Anna Roubyk the sum of One Thousand ($1,000) Dollars and to my daughter Mary Roubyk the sum of Two Hundred ($200.00) Dollars as their inheritance”, in connection with the other portions of the will, we are of the opinion that the testator intended to create charges upon lot 55 described in the will for the payments of the sums of money in the third clause named to his daughters, the complainants, respectively, by his son John Roubyk, as the residuary devisee of that lot. The complainants, respectively, on the termination of the life estate of the widow Katerina Roubyk, did not have a claim or right of action against the estate of the testator or his personal representatives for the sums of money payable to them by the-son John Roubyk, and that such sums of money were not legacies in the strict legal sense of the term. It follows further that the rule making the personal estate of the testator the primary fund for the payment of legacies, invoked by counsel for the defendant, has no application to the case. By the terms of the devise the lot in question was given to the devisee John Roubyk, on condition or subject to the payment to complainants,, respectively, of the sums of money mentioned, and we think such sums of money are charges upon the lot. The provisions in the will for the payment of the sums of money to complainants are in the same sentence which makes the devise, thus making the intention of the testator clear that the sums of money were to be charges upon the lot devised, there being nothing in the will itself to indicate a contrary intention on the part of the testator. Bugbee v. Sargent, 23 Me. 269; Merrill v. Bickford, 65 id. 118; Perry v. Hale, 44 N. H. 363; Le Rougetel v. Mann, Exr., 63 id. 472; Birdsall v. Hewlett, 1 Paige Ch. 32; and Warner v. Bullen, 123 Ill. App. 138, and the authorities there cited.

The acceptance of the property by the devisee was subject to the charges, imposed upon him a personal obligation to pay off and discharge the equitable liens or charges created by the will for the amounts named, and the defendant and his grantee took the lot subject to the charges and liens placed thereon by the testator-in favor of complainants and charged with the payment thereof. This, in our opinion, was the meaning and legal effect of the will. Parsons v. Millar, 189 Ill. 107.

The decree is in accordance with these principles, and it is affirmed.

Affirmed.


text:
    Julius F. Taylor, Plaintiff in Error, v. Frank Marshall, Defendant in Error.
    Gen. No. 15,620.
    1. Judgments—what does not affect lien upon leasehold interest. Held, that the judgment in this case constituted a lien upon a leasehold interest of the defendant and that hy the sale and ensuing conveyance hy the sheriff the judgment plaintiff became vested with the legal title to such leasehold estate and, that the surrender of his leasehold interest by the defendant in such judgment did not affect the rights of the judgment plaintiff.
    2. Appeals and errors—what may he availed of on rehearing. If the appellee has misled the court by a statement in his brief he cannot thereafter question the right of the appellant upon petition for rehearing to call attention for the first time to the misstatements by which the court has been misled.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed on rehearing.
    Opinion filed April 8, 1910.
    A. D. Gash, for plaintiff in error.
    Edward H. Morris, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

Julius F. Taylor instituted a forcible detainer suit against Frank Marshall to recover possession of premises known as Nos. 171 to 175 Twenty-first street, Chicago. The court found the defendant not guilty and gave judgment against the plaintiff, who prosecutes this proceeding in error to reverse the judgment.

The evidence offered by the plaintiff tended to show that one Elnoria H. Fowler leased the premises to Poney Moore by a lease dated July 15,1905, for a term commencing August 1, 1905, and expiring April 30, 1915, at an annual rental of $1,200 payable in equal monthly instalments in advance. Among other things the lease provided as follows:

“It is expressly agreed between the parties hereto that if default be made in the payment of the rent above reserved, it shall be lawful for the party of the first part without notice to declare said term ended, to re-enter said premises and to expel party of the second part, and the said premises again to repossess and enjoy.”

On November 18, 1905, by a lease bearing that date, Moore sublet the same premises to Joseph Marshall for the balance of the term of the original lease, or to April 30, 1915, at a rental of $150 per month; and on November 9, 1906, Joseph Marshall, by a written assignment endorsed on the lease, assigned it to the defendant Frank Marshall.

The evidence further shows that on January 17,1907, the plaintiff, Julius F. Taylor, recovered a judgment in the Circuit Court of Cook county, Illinois, in an action on the case for malicious prosecution and wilful and malicious injury against Poney Moore for $18,000; and that on October 1, 1907, the plaintiff caused an execution issued on the judgment to be levied on Moore’s interest in the premises under the lease from Mrs. Fowler to him as real estate under section 3 of chapter 77 of the Revised Statutes, which provides that leasehold estates, when the unexpired term exceeds five years, are real estate as the term is used in that act. The estate was sold under the execution to the plaintiff, and after the period of redemption had expired, and on February 1, 1909, the plaintiff received a sheriff’s deed of Moore’s interest in the property.

On that date the plaintiff served a notice on the defendant that the plaintiff was the owner of Moore’s interest in the property by means of the sheriff’s deed (a copy of which was also served on the defendant), and that the defendant should pay the rent of $150 per month to the plaintiff. On February 2, 1909, the rent not having been paid, the plaintiff served on the defendant the usual landlord’s five days notice, notifying the defendant that unless $150 rent of said premises for February, 1909, was paid within five days defendant’s lease would be terminated.

The evidence also tended to show that the defendant, was in possession of the property.

The defendant’s evidence tended to show that on May 23, 1907, Moore surrendered his lease from Mrs. Fowler, and on the same day Mrs. Fowler leased the premises to one William Blunk. Moore notified Joseph Marshall by a letter dated June 4, 1907, that he had surrendered his lease to the owner, and directed him to see Blunk, stating he was in charge of the property. Following this, the agents of Mrs. Fowler on July 2, 1907, delivered a note or order to the defendant Marshall, addressed to Joseph Marshall and Frank Marshall, stating in substance that she had made a lease of the premises to Blunk and directing them to pay the rent of $150 per month to him. After this defendant. Marshall paid his rent to Blunk.

It further appears that the lease from Fowler toBlunk was assigned to one Blackburn .on January 8, 1908. Moore was adjudged a bankrupt August 12, 1907, and a trustee of his estate was appointed. The plaintiff filed his claim, based on his judgment, in the bankruptcy court and it was allowed.

In our opinion the judgment of the plaintiff was a lien upon the leasehold estate in the premises of Poney Moore, and that by the sale of that estate under the execution levied thereon, the plaintiff became the legal owner of the leasehold estate. The surrender of the lease by Moore did not affect the judgment lien on the leasehold.estate. Dobschuetz v. Holliday, 82 Ill. 371, 374; 15 Am. & Eng. Ency. of Law, 21.

It appears from the evidence that the defendant was still in the possession of the premises at the time the-demand for'the payment of rent and the notice were-served, and at the time of the trial, as the owner of the lease and under the lease.

The right, however, of the plaintiff to recover is-based upon the non-payment of rent to him, Taylor, by the defendant Marshall after the service of a five days notice on Marshall to pay rent under chapter 80, section 8, Landlord and Tenant Act, Revised Statutes of Illinois, or it is based upon chapter 57, section 2, clause 6, Forcible Detainer Act, Revised Statutes of Illinois, which provide for the bringing of forcible detainer by a purchaser at a sale after demand in writing for possession.

When this case was first presented to the court for decision we were misled as to the proof in the record by the following statement in plaintiff’s brief, “that Poney Moore sublet said premises to Joseph Marshall on November 18, 1905, at $150 per month, payable in advance on the first day of each month, for a term ending at the same time of the original lease April 30, 1915.” This statement that the rent was payable in advance on the first day of each month was not denied in defendant’s brief, and that being the usual custom in Chicago we were led to assume that the record showed that the lease contained such provision.

In the petition for rehearing, however, our attention is directed for the first time to the fact that the record contains no such evidence. And it is urged in the answer to the petition for rehearing that the defendant relied in his brief filed herein wholly upon other grounds to sustain the judgment of the court below, and further, that the point was not raised in the trial court as may be seen from the propositions of law sustained, marked “held” and “refused; ” and that we should riot consider a point raised for the first time in a petition for rehearing. But we cannot say from the. propositions of law submitted in the record that the point was not raised in the lower court, because one of the refused propositions involved the failure to pay rent and the forfeiture of the lease by Marshall in consequence thereof. If the refusal to hold this proposition indicates anything, it is that the trial court held that the evidence did not show a failure to pay the rent, and that there was a forfeiture of the lease for that cause.

Ordinarily we would not consider a point raised for the first time in a petition for rehearing, bnt the plaintiff in the court below prosecutes this writ of error to reverse a judgment of the lower court, and asks this court to reverse the judgment and remand the cause with directions to the court to make a finding and enter a judgment for the plaintiff. This we cannot do for the reason that on the proofs shown in the record the plaintiff was not entitled to recover, as he had not shown that any rent was due when he served his notice and demand. The defendant was not shown to be in default in the payment of his rent, and', therefore, his lease could not be declared forfeited on that ground.

Plaiiitiff having asserted in his brief a fact which the record does not show, and thereby misled the court, Is not in a position to ask the court to disregard the failure to prove an essential fact to his right of recovery, because counsel for defendant did not call our attention to his misstatement of that fact in his brief. Plaintiff made a fatal error in failing to make proof of the fact, if it be a fact, that the rent was due and unpaid when the notice was served, on the trial. His .statement in his brief filed in this court was inexcusable from any point of view. We cannot reverse the judgment on the ground that the insufficiency of plaintiff’s evidence was waived by the defendant.

Finding no error in the record, the judgment is affirmed.


text:
    Robert P. O’Connor et al., Appellants, v. Board of Trustees of Firemen’s Pension Fund of the City of Chicago et al., Appellees.
    Gen. No. 15,951.
    1. Pensions—who entitled to benefits under Police and Firemen’s Relief Fund Act of 1877. Nothing in the act above as amended in 1879 prevented a fireman or policeman who had been discharged from obtaining a pension under such Act if he had theretofore served ten years.
    2. Pensions—what not default in payment of assessments. The act of 1879 amending the Police and Firemen’s Relief Fund Act of 1877 providing for the payment of assessments by policemen and firemen after retirement provided that such assessments should be fixed and notice thereof given and until such assessments had been so. fixed and such notice given there could be no default with respect to the payment of assessments.
    3. Pensions—when right not barred by limitation or laches. None of the laws respecting pensions for retired policemen and firemen fix a time within which applications for pensions must be made and even a delay of twenty years does not bar the right nor does the doctrine of laches apply against the right, as any who may have failed to make application have themselves been the largest sufferers.
    4. Pensions—section 9 of act of 1887 construed. The words “now entitled” in the saving paragraph of the .act of 1887 known as section 9, include not only those who were at such time actually in re ceipt of pensions but those who were entitled upon application te obtain them.
    5. Pensions—act of 1907 construed. The act of 1907 did not re peal or in any way affect section 9 of the act of 1887.
    6. Pensions—appropriate remedy to prevent dissipation of funds. Where the controversy does not arise directly with those in control of the funds but is between future beneficiaries thereof and those claiming the right of participation therein, an injunction may be granted to prevent the payment of pension funds to such claimants if they are not legally entitled thereto,
    7. Pensions—powers of trustees of funds. When acting within the power and authority conferred upon it by the statute the board of trustees has full discretion and its acts are final and binding. But it is not vested with unlimited power and discretion in deciding who is entitled to a pension for the reason that the qualifications therefor are fixed by the statute itself. The power of the board must be exercised within the authority conferred by the statute and in accordance with its provisions.
    8. Pleading—when bill not multifarious. A bill to restrain unlawful participation in a pension fund is not multifarious in joining as co-defendants all parties who are attempting to obtain possession of any part of the trust fund through the illegal action of the trustees of the fund. The fact that the defendants to the bill claim under distinct titles does not alter the situation.
    Bill in chancery. Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed in part, reversed in part with directions.
    Opinion filed April 8, 1910.
    Hayes McKinney, for appellants; S. P. Shops and John K. Cochran, of counsel.

      Edward J. Brundage and Clyde L. Day, William A. Doyle (Joseph J.. Thompson, of counsel) and Thomas F. Dow, for appellees.
   Mr. Justice Smith

delivered the opinion of the court.

The complainants in this case filed an original bill and subsequently an amended and, supplemental bill. To the amended and supplemental bill the defendants filed demurrers and the Circuit Court entered a decree sustaining the demurrers and on motion of the defendants dismissing the complainants ’ bill. From that decree this appeal is prosecuted.

Inasmuch as the amended and supplemental bill states all that the original bill stated, with additional facts, the following statement of the allegations of the amended and supplemental bill is deemed sufficient for the purposes of this opinion.

The bill was filed by 0 ’Connor, Evans and Wolf, who are veteran captains in the Chicago Fire Department, each being now entitled to retire on half pay under the statute, against the Board of Trustees of the Firemen’s Pension Fund of the City of Chicago and against six pensioners of that fund to restrain a spoliation of the Firemen’s Pension Fund and to prevent a diversion of it from the purposes for which it was created by the statute. ■ The complainants base their rights to file the bill, which is filed both on behalf of themselves and on behalf of all other members of the fire department who are contributors to, and future beneficiaries of, the Firemen’s Pension Fund, upon the facts that they are now and for more than twenty years have been contributors to the Firemen’s Pension Fund and that the members of the fire department have contributed to this fund since its organization in 1887 more than the sum of $207,934.33; and also upon the ground that the statutes of the State of Illinois set apart this Firemen’s Pension Fund solely for the benefit of the members of the fire department, and not for the benefit of ex-members.

The six pensioners made defendants in the bill are Mathias Benner, Arthur J. Calder, Daniel H. Flynn, ■John D. Cavanaugh, John C. Schmidt and Adolph Wilke.

Mathias Benner was in the fire department, it is •averred, from April 5, 1859, to July 16, 1879, when he was discharged. He had been out of the service about twenty-eight years when he applied for a pension. He had been out of the service for nearly eight years when the act of 1887 created the Firemen’s Pension Fund, ■and he was in the department only two years of the time during which the Police and Firemen’s Belief Fund was in force. Benner had never paid anything into the Firemen’s Pension Fund and did not pay anything into the Police and Firemen’s Belief Fund after leaving the service on July 16,1879.

It is averred that Benner, in 1907, applied to the Board of Trustees of the Firemen’s Pension Fund of the City of Chicago for a pension of $1,800, being one-half of the salary of $3,600 which he was receiving when he was discharged, he being then. Chief of the Department. The Board of Trustees of the Firemen’s Pension Fund on December 21,1907, by formal resolution denied him a pension, basing their act upon the adverse opinion of the Corporation Counsel of the city of Chicago, who was ex-officio a member of the Board of Trustees of the Firemen’s Pension Fund. On May 25, 1908, Benner instituted a mandamus proceeding in the Circuit Court of Cook county to compel the Board of Trustees to pay him a pension of $1,800 per year. The defendants filed a general demurrer to this petition, and on September 24,1908, an order or judgment was entered in the Circuit Court in favor of Benner. The Board of Trustees elected to stand by their demurrer and prayed an appeal to the Appellate Court. These were all of the proceedings in the case, and the appeal was never perfected. The bill then charges-that the Board of Trustees of the Firemen’s Pension Fund made no adequate or sufficient defense to this Benner suit, and the order or judgment entered therein was by the consent and acquiescence of the Board of Trustees, and that no effort whatever had been made by the board to reverse that order or judgment, either by appeal, writ of error or otherwise; that the complainants ’ rights were not properly safeguarded and protected and that the Circuit Court’s order or judgment was null and void and that the court was without jurisdiction to enter it; that the Board of Trustees nevertheless proceeded to put Benner’s name on the Firemen’s Pension Fund pay roll and have been paying him $150 per month, the aggregate amount paid him up to the date of the filing of the original bill being” more than a thousand dollars. Benner was not a member of the fire department, it is averred, subsequent to July 16,1879, and had not served for twenty-two years, had never been a beneficiary of the Police and Firemen’s Belief Fund or of the Firemen’s Pension Fund,, and had not been retired from the fire department for disability, as provided by the statute.

The second defendant is Arthur J. Calder who, it is averred, entered the fire department May 9, 1868, and resigned July 5, 1884, his resignation being given to avoid meeting charges which were then pending against him, that he had absented himself from duty without the leave of his superior officer. He had been out of the service for about twenty-three years when he applied for a pension. He had been out of the service for about three years when the act of 1887 created the Firemen’s Pension Fund, and his service in the-department during the time the Police and Firemen’s Belief Fund Act of 1887 was about seven years. Calder had never paid anything into the Firemen’s Pension Fund, and did not pay anything into the Police and Firemen’s Belief Fund after leaving the service July 5, 1884.

In 1907 Calder applied to the Board of Trustees of the Firemen’s Pension Fund of the City of Chicago for a pension of $600, it being one-half of the salary of $1,200 which he was receiving when he resigned. The Board of Trustees of the Firemen’s Pension Fund on December 21, 1907, on the same dáy that similar action was taken in the Benner case, by formal resolution denied him a pension, basing their act, as in the Benner case, upon the adverse opinion of the Corporation Counsel of the City of Chicago. On May 25,1908, Calder commenced a mandamus proceeding in the Circuit Court of Cook county to compel the Board of Trustees to pay him a pension of $600 per year. He averred in his petition that he was suffering from physical disability. His averment in the petition that he was suffering from physical disability was fraudulent and untrue, it is charged, for, as a matter of fact, he was then a bailiff in the Circuit Court of Cook county, and had for a long time been performing his duties in that position and receiving the compensation therefor amounting to more than $1,200 per year. The defendants also filed a general demurrer to the Calder petition and on September 24, 1908, a judgment was entered in the Circuit Court in favor of Calder. The Board of Trustees elected to stand by their demurrer and prayed an appeal to the Appellate Court. These were all of the proceedings in the case, and the appeal was never perfected. The bill makes the same charges with reference to the Calder suit that was made in the Benner case and avers that nevertheless the Board of Trustees put Calder on the Firemen’s Pension Fund pay-roll and had been paying him $50 per month from the date of the judgment, the aggregate amount paid him before filing of the bill being over $350. The bill also avers that Calder was not a member of the fire department subsequent to July 5, 1884; that he had not served for twenty-two years and never had been a beneficiary of the Police and Firemen’s Belief Fund, or of the Firemen’s Pension Fund, and had not been retired from the fire department for disability as provided by the statute.

It is averred that the defendant Daniel H. Flynn entered the fire department February 1, 1889, and resigned September 16,1903, his resignation being given to avoid meeting charges of misconduct then pending against him, namely, that he had absented himself from duty without the permission of his superior officer. He had been out of the service for nearly five years when he applied for a pension. He had never been in the service during the time that the Police and Firemen’s Belief Fund Act of 1877 was in effect, and entered the department about two years after the Firemen’s Pension Fund Act of 1887 was enacted. On July 14, 1908, Flynn applied to the Board of Trustees of the Firemen’s Pension Fund of the City of Chicago for a pension and on October 13, 1908, the Board of Trustees voted him back payment of pension from the date of his application to the date of the action of the Board, amounting to $124.98, and also that he be paid in future a pension of $47.25 per month. Up to the filing of the original bill he had received out of the Firemen’s Pension Fund through such payments the sum of $450. Flynn was not a member of the fire department subsequent to September 16, 1903, had not served for twenty-two years, had never been a beneficiary of the Police and Firemen’s Belief Fund or of the Firemen’s Pension Fund, and had not been retired from the fire department for disability as provided by the statute.

The bill avers that the defendant" John D. Cavanaugh entered the fire department October 12, 1891, and was discharged on January 28, 1892, upon charges that he had been absent from quarters without leave, to which charges he pleaded guilty; that he again became a member of the fire department on May 20, 1896, and served until May 4, 1906, when he was discharged for neglect of duty, intoxication and disorderly conduct. He had been out of the service about two years when he applied for a pension. He had not been in the service at all during the time the Police and Firemen’s Belief Fund. Act of 1877 was in effect, and did not enter the service for the first time until four years after the enactment of the Firemen’s Pension Fund Act of 1887.

On July 9, 1907, Cavanaugh applied to the Board of Trustees of the Firemen’s Pension Fund of the City of Chicago for a pension, and on April 21,1908, the Board voted to grant him back payment of pension from the date of his discharge up to the date of the. action of the Board, amounting to $1,382.53, and also that he be paid in the future a pension of $57.91 per month. Up to the time of the filing of the original bill in this case he had been paid out of the Firemen’s- Pension Fund, through such payments, the sum of at least $2,000. Cavanaugh was not a member of the fire department subsequent to May 4, 1906, and had not served for twenty-two years, had never been a beneficiary of the Police and Firemen’s Belief Fund or of the Firemen’s Pension Fund and had not been retired from the fire department for disability as provided by the statute.

The bill avers that the defendant John C. Schmidt entered the fire department in the month of April, 1860, and was discharged August 1, 1882, because of his refusal to pay his just debts incurred while in the service. He had been out of the service over twenty-six years when he applied for a pension, and had been out of the service about five years when the Act of 1887 created the Firemen’s Pension Fund, and his service in the department during the time the Police and Firemen’s Belief Fund Act of 1877 was in effect was about five years. Schmidt had never paid anything into the Firemen’s Pension Fund, and did not pay anything into the Police and Firemen’s Belief Fund after leaving the service on August 1,1882.

January 12, 1908, Schmidt applied to the Board of Trustees of the Firemen’s Pension Fund for a pension. The Board of Trustees on January 26,1909, denied him a pension, basing their act, as in the Benner and Calder cases, upon the adverse opinion of the Corporation Counsel of the City of Chicago, an ex-officio member of the Board of Trustees. Schmidt commenced a mandamus proceeding in the Circuit Court of Cook county April 21,1909, to compel the Board of Trustees to pay him a pension of $41.67 per month for the rest of his life, being one-half of the salary he was receiving when he was discharged. The defendants filed a general demurrer to the Schmidt petition. On June 3, 1909, a judgment was entered in the Circuit Court in favor of Schmidt. The Board of Trustees elected to stand by their demurrer and prayed an appeal to the Appellate Court. The appeal was never perfected. The bill then makes the same charges with reference to the inadequate and insufficient defense to this suit that were made with reference to the Benner and Calder suits. The bill then avers that the Board of Trustees nevertheless proceeded to put Schmidt’s name on the Firemen’s Pension Fund pay roll and intended to pay him $41.67 per month. Schmidt was not a member of the fire department subsequent to August 1, 1882, had never been a beneficiary of the Police and Firemen’s Belief Fund, or of the Firemen’s Pension Fund, and had not been retired from the fire department for disability as provided by the statute.

The bill avers that the defendant Adolph Wilke entered the fire department January 5,1859, and resigned in January, 1868. He again re-entered the service December 12,1877, and continued therein until September 1, 1881, when he again resigned. He had been out of the service over twenty-seven years when he applied for a. pension, and about seven years when the Act of 1887 created the Firemen’s Pension Fund, and his service in the department during the time the Police and Firemen’s Belief Act of 1877 was in effect was about seven years. Wilke had never paid anything into the Firemen’s Pension Fund, and did not pay anything into the Police and Firemen’s Belief Fund after leaving the service on September 1, 1881.

Wilke applied, January 12, 1909, to the Board of Trustees of the Firemen’s Pension Fund for a pension. On January 26,1909, the Board of Trustees, by resolution, denied him a pension, basing their act, as in the Benner, Calder and Schmidt cases, upon the adverse opinion of the Corporation Counsel of the City of Chicago. On April 21, 1909, Wilke started a mandamus proceeding in the Circuit Court of Cook county to ■compel the Board of Trustees to pay him a pension of ;$37.50 per month, for one-half of his salary when he resigned, for the remainder of his life. A general demurrer was filed by the defendants, the Board of Trustees, and on June 3,1909, judgment was entered in the ■Circuit Court in favor of Wilke, and the same proceedings are set up and the same charges were made with reference to this suit that are made in the bill in regard lo the Benner suit. The bill then sets up that the Board of Trustees put Wilke’s name on the Firemen’s Pension Fund pay roll, and that it is the purpose and intention of the trustees to pay him the pension of :$37.50 per month. Wilke was not a member of the fire department subsequent to August 1, 1881, had not •served for twenty-two years, had never been a beneficiary of the Police and Firemen’s Belief Fund or of the Firemen’s Pension Fund and had not been retired from the fire department for disability as provided by "the statute.

The bill then avers that the Board of Trustees of the pension fund had been guilty of dereliction of duty and "had not protected the trust which the statute gave them, setting up specific facts which it is claimed show that the Board of Trustees had deliberately acted in ■such a way as to aid the claimants of illegal pensions and to hinder those who sought to prevent a spoliation of the funds. Among such facts it is averred that on July 3, 1909, after the filing of the original bill, the complainants addressed a written communication to the Board of Trustees, requesting the Board to take steps to procure a reversal of the orders of judgment in the Benner and Calder eases. At that time the complainants had no knowledge of the action taken in the Schmidt and Wilke mandamus cases, or that such cases existed. In the communication the complainants offered at their own expense and costs, through counsel employed therefor by the complainants, to take all the necessary and proper steps in endeavoring to procure a reversal 'of the Benner and Calder mandamus judgments, using the name of the Board of Trustees for the purpose, and offering to furnish reasonable and satisfactory indemnity against any loss or expense to be suffered by the Board of Trustees; that the Board made no reply to this communication; that the Board of Trustees, although not replying to the complainant’s communication, nevertheless through their authorized legal representatives informed the complainants that • they would not permit the complainants to interfere or participate by their counsel or legal adviser, or in any other way, in any such proceedings brought by the Board of Trustees to reverse such mandamus judgments.

The bill alleges that no efforts have been made up to the time of the filing of the amended and supplemental bill, to get these cases into the Appellate Court, for the October Term 1909, and that the failure of the Board of Trustees to take any action to get those cases ¡into the Appellate Court has the effect of extending 'the time of reasonable expectation for a hearing in that court indefinitely into the future.

■ The bill avers that the complainants were not aware ; of the Benner and Calder mandamus suits until the month of April, 1909, which was long after the judgments were entered, and had no knowledge of the Schmidt and Wilke cases, until July 15,1909, and after the Board of Trustees on that date had voted to place Schmidt and Wilke on the pay roll; that by the terms 'of the petitions in the Benner and Calder mandamus cases it was prayed that their pensions be paid out of , the ‘ ‘ Police Pension Fund, ” ii tstead of the ‘1 Firemen’s Pension Fund;” and in those two cases the orders of the Circuit Court, as entered, were that the writs issue as prayed for in the respective petitions; that complainants’ counsel called this condition of the record to the attention of the legal adviser and representative of the Board of Trustees, and on June 16, 1909, at the May 1909 term of the Circuit Court, without notice to the complainants or their counsel, and after the original bill in this case had been filed, and after notice had been served on all of the defendants that a temporary injunction would be asked on June 17,1909, the Board of Trustees of the Firemen’s Pension Fund appeared before Judge Gibbons, in the Circuit Court, by its counsel and legal adviser, and agreed and consented to the entry of orders purporting to amend the records in the cases by striking out the word “Police” and inserting the word “Firemen’sand also by inserting the word “Firemen’s” in numerous places in the respective petitions where the fund was referred to as the “Pension Fund” without designating either the Police Pension Fund or the Firemen’s Pension Fund; that these amendments were not based upon any memorial paper or other sufficient writing or memoranda as required by law; that the complainants first learned of the amendments on June 17,1909, and immediately on that day addressed a written communication to the Board of Trustees of the Firemen’s Pension Fund, which was received by that Board on the morning of June 18, 1909, objecting to the amendments being consented tu by the Board and notifying the Board that such amendments were without basis or legal foundation and requesting that the Board of Trustees file bills of excepceptions in each of these cases which should show upon what basis or memoranda or writing the amendments were made. This notice further advised the Board of Trustees that Saturday, June 19, 1909, was the last day of the May 1909 term of the Circuit Court, and therefore would be the last day upon which to obtain leave to file such bill of exceptions. To this the Board of Trustees made no answer and paid no attention, and did not at any time file such bill of exceptions or obtain leave to do so.

The bill alleges that it was the purpose and intention of the Board of Trustees of the Firemen’s Pension Fund, by consenting to those amendments, to aid and assist Benner and Calder and to hinder and interfere with and make more difficult the efforts of the complainants to oust Benner and Calder from the pay roll of the Firemen’s Pension Fund. A large number of other former members of the fire department, some of whom left the fire department prior to the enactment of the Firemen’s Pension Fund Act of 1887, and some of them afterwards, in addition to the defendants named in the bill, have applied for pensions; many others are preparing and planning to do so, encouraged by the successful efforts of the six named pensioners defendant; that defendants Flynn and Cavanaugh have organized an association for the purpose of aiding such former members to obtain pensions and afterwards retain them, and are financially interested in such association; that the questions involved in all of these cases, as well as the cases of the six pensioners specifically named, should be settled in one suit. To bring ¡separate suits to question the rights of all these claimants would require a large number of suits anil cause a very great expense, particularly upon the Board of Trustees of the Firemen’s Pension Fund.

The bill charges that the Board of Trustees have voted pensions to some of the defendants and refused pensions to others, solely upon grounds of political expediency and without regard to the law or what was right or just, and that the various acts of the Board in connection with these various cases were the result of a corrupt and fraudulent understanding or agreement among the members of the Board to satisfy each other by allowing pensions to the special favorites of the different members.

The bill prays that the Board of Trustees and the individual members be restrained and enjoined from paying, authorizing, ordering or directing the payment of pensions to the six pensioners named, and that those six defendants be restrained and enjoined from receiving or collecting, or from enforcing or endeavoring to enforce from the Board of Trustees of the Firemen’s Pension Fund, or its treasurer, payment of further pensions or annuities; and that the six defendants, pensioners, be each decreed and declared to have no right, title or claim to the pensions or annuities being paid them. The bill also prays for general relief.

The contentions of complainants are (1) that the Police and Firemen’s Belief Fund Act of 1877 was repealed by the Firemen’s Pension Fund Act of 1887; (2) that the defendants Benner, Calder, Schmidt and Wilke have no claim under the Act of 1887, except so far as they may take advantage of the saving effect of section 9 of that act, and that a true construction of that section excludes them from the benefits of the saving clause; (3) that defendants Flynn and Cavanaugh do not come under the Act of 1887; (4) that by the Act of 1907, amending the Act of 1887, the legislative intent was to exclude all claims of former members of the fire department such as the defendant pensioners who were not then or thereafter members of the fire department; and (5). that the decisions of the Board of Trustees of the Firemen’s Pension Fund upon applications for pensions are “final and conclusive, and not subject to review or reversal except by the board,” in all eases where the board has acted within the scope of the authority granted by the statute, and therefore the board’s decisions, by formal resolution, that Benner, Calder, Schmidt and Wilke were not entitled to pensions were binding, and the Circuit Court had no power or authority to overrule such decisions in the mandamus cases, and on the other hand, the board’s decisions in favor of Flynn and Cavanaugh were not binding because they were entirely outside the terms of the Pension Act.

On behalf of the Board of Trustees the contentions are that the bill is a collateral attack upon the judgments in the mandamus proceedings in which the court had jurisdiction of the parties and the subject-matter, and that a court of equity will not interfere by injunction to control the action of inferior quasi-judicial tribunals, nor review and correct errors in such proceedings, the proper remedy being at law by the writ of certiorari.

Counsel for Benner, Calder, Schmidt and Wilke urge that the Act of 1887 preserved their rights acquired under the Act of 1877 as amended, and that the Act of 1907 did not affect the rights of persons entitled to pensions under former acts. Second, as to certain questions within its powers the actions of the Board of Trustees are final and binding but that it has no discretion in deciding who is entitled to a pension, the qualifications being prescribed by the statute itself. Third, that mandamus was a proper proceeding to compel the board to comply with the statute. They also insist that the bill is multifarious, and rely upon certain points made by other counsel and stated above.

On behalf of defendants Flynn and Cavanaugh it is insisted that the decision of the Board of Trustees in their cases is final and conclusive, except for fraud or want of power, and not subject to review or attack in the courts.

Wé shall state our conclusions upon these questions in so far as we deem it necessary as they arise in connection with the discussion of the cases of the several defendants as made by the bill.

From a consideration of the various acts we are of the opinion that if either Benner, Calder, Schmidt or Wilke had applied for a pension immediately after leaving the service they would, under the law of 1877 as amended in 1879, have been entitled to it, there being nothing in the law- to prevent one who has been discharged from getting a pension if he had theretofore served ten years.

The provision of the Act of 1879 with reference to paying of assessments after retiring has no application inasmuch as it is not alleged that any assessment was ever fixed or that notice in writing was served on any of the parties requiring them to pay. The fixing of the assessment is essential inasmuch as the law specifies not $5 annually but not more than $5 annually. The notice in writing is specifically required by the Act before there can be a default.

In none of the laws is there any time limitation that prevents application even after twenty odd years.

If these defendants were entitled to apply for pensions immediately after the severance of their connection with the service, the doctrine of laches should not operate against them, because they are the ones who have suffered thereby inasmuch as they might have had their pensions during the entire period. Moreover, the fund has suffered no loss in their failure to pay the $5 a year inasmuch as if this sum had been demanded of them, in accordance with the statute, they undoubtedly would have made their applications for their pensions at a much earlier date.

The main question involved as to these four defendants is the effect of section 9 of the Act of 1887, and specifically, the meaning of the words “now entitled.’’ Complainants urge that by this phrase it was intended to include only those who were either in the actual receipt of pensions at that time, or those to whom such pensions had been voted. The defendants maintain that it includes those who were entitled to apply for pensions at that time, and therefore it includes the four persons in question. The complainants argue in support of their contention that the proviso to this section is that such persons shall no longer receive pensions under the Act of 1877 as amended, that such provision, therefore, necessarily presupposes that they had been receiving pensions under the old act. As against this, however, it may be said, first, that the complainants themselves concede that not only all persons in actual receipt of pensions under the old Act but also those to whom such pensions had been voted, come within the saving clause. In other words, the word “receive” in the proviso is not to be taken literally, but is to be interpreted as meaning either receive or entitled to receive. If this be so it can just as well be considered that the words “such persons” is to be limited as if it read “such of such persons as are receiving,” leaving the main provision broad enough to include not only those actually receiving and those to whom pensions had been voted but who were not yet in the actual receipt of them, but also those who if they had applied would, under the law, have been entitled to have the pensions voted to them. The word “entitled” would not ordinarily mean being in the actual receipt but having a right to receive, and those to whom the pensions had not yet been voted nevertheless clearly had rights to their pensions, though they had not then asserted such rights.

Complainants’ contention would involve this situation: that if a man died on June 30, 1887, or became disabled on that day, and his widow did not apply during that day, or he himself did not apply during that •day, for a pension, he or she would be forever barred. It cannot be supposed, even if the words “now entitled” were more doubtful in their meaning than we consider them to be, that the legislature contemplated cutting off this class of claimants.

But it is contended that whatever may have been the meaning of section 9 of the Act of 1887, the amendment of section 11 of this Act by the Act of 1907 operated in some manner to fix the class from July 1,1907, so as to exclude those four defendants. The answer to this is in the first place: Section 9 does not purport to be •amended, only section 11. More than this, section 9 is apparently re-enacted. Under these circumstances the language of section 11 would have to be perfectly clear before we could conclude that it was meant in any way to repeal or to affect section 9. Far from being clear to that effect, in onr judgment the meaning of the amendment is plain, and does not in the slightest degree affect section 9. Section 9 has reference only to claimants under the Act of 1877 as amended in 1879. Their rights were saved by the Act of 1887. That saving clause is not in any manner interfered with by the Act of 1907. In the second place, the Act of 1907 materially altered the Act of 1887. If section 11 had been literally re-enacted the benefits of the Act of 1907 would have been confined to those in the service on July 1, 1907, and those who would thereafter enter the service, and it might have been interpreted to cut out those who had become entitled to pensions solely by virtue of the Act of 1887 who were then drawing pensions but who were no longer in the active service on July 1,1907, To make it perfectly clear that this class should continue to receive the benefits of the Act of 1887 as changed by the Act of 1907 it was necessary to amend section 11 of the Act of 1887 by the addition of the words which were inserted in this amendment. Inasmuch, therefore, as these four defendants, Benner, Calder, Schmidt and Wilke, seem to have a clear, right to their pensions, it is unnecessary for us to consider the other objections urged in the bill, especially the effect of the judgments entered in the mandamus suits brought by them. The language of the Act of 1887 would seem to give the Board of Trustees powers as to the rights of individuals coming within the classes-provided for by the Act, and the power of a court by mandamus proceedings to control the discretion of the Board is at least subject to serious doubt, but as all that is asked in this bill is that the Board be enjoined from paying these claimants, and as we have concluded that they come within the class covered by the Act, it follows that the injunction cannot be granted, and it is therefore unnecessary for us further to consider whether the mandamus proceedings are absolutely void, or whether the bill contains sufficient charges in relation to those proceedings as would justify a court of equity on a collateral attack in setting aside the judgments.

Therefore, as to these four defendants the demurrers were properly sustained.

As to the other two defendants, Flynn and Cavanaugh, they came in under the Act of 1887, and claim only under that Act. They did not serve twenty-two years. They are clearly not within the class of persons contemplated by the Act because they were not retired while in the service by order of the Board of Trustees for disabilities incurred in the service. It is unnecessary, therefore, to determine whether by the amendment of 1907 those who would have been entitled to a pension under the Act of 1887 prior to July 1, 1907, but to whom such pension had not at that time been voted, come within the saving clause of section 11 under the designation therein used of beneficiaries.

It is urged, however, that an injunction is not the proper method of reaching these cases, but that the remedy is by certiorari. Ordinarily, where certiorari is an adequate remedy an injunction will not lie, but in the present case the controversy is not between these defendants and the Board of Trustees but on the one hand between these complainants, who were not parties' to the original proceedings before the Board of Trustees, and on the other hand, the defendants and the Board-of Trustees. We do not see how these complainants could bring the question to the attention of a court by certiorari proceedings. Moreover, the complainants are future beneficiaries of a trust fund. They charge substantially that their trustees are violating their trust for the benefit of third parties who are wrongfully confederating with the trustees to secure portions of the trust fund to which they are not entitled. A bill by the cestui que trust to prevent the payment of the trust funds to such a third party so conniving with the trustees falls within well-recognized principles of equity jurisdiction. It would seem wholly unnecessary to cite authorities in support of this position, but inasmuch as it is challenged by the defendants, we cite a few of the numerous authorities: Perry on Trusts, Vol. 2, pages 454 and 455, section 816; Cooper v. McClun, 16 Board of Trustees. 435; Sherman v. Leman, 137 id. 94; Waterman v. Alden, 144 id. 90; Dodge v. Woolsey, 18 Howard, (U. S.) 331.

We do not hold that a court of equity has absolute control over all the acts of the board of trustees. When acting within the power and authority conferred upon it by the statute, the board of trustees has full -discretion and its acts are final and binding. But it is not vested with unlimited power and discretion in deciding who is entitled to a pension for the reason that the qualifications therefor are fixed by the statute itself. Eddy v. The People, 218 Ill. 611. The power •of the board must be exercised within the authority conferred by the statute and in accordance with its provisions.

Upon the facts averred in the bill the defendants Flynn and Cavanaugh are not within the class of persons contemplated by the act, and, therefore, the Board of Trustees in placing them on the pension list and paying them respectively the amounts alleged in the bill, did not act within the power and authority conferred by the statute. Hence, a court of equity has jurisdiction, at the instance of the complainants, to restrain the board from diverting the pension fund from the purposes for which it was created by the statutes.

The bill, in our opinion, is not multifarious in joining as co-defendants all parties who are attempting to obtain possession of any part of the trust fund through the illegal action of the trustees of the fund in the manner set out in the bill. It is a bill by beneficiaries of the fund seeking to restrain a diversion of the fund from the trust, and it matters not that there are two ■or more persons who are illegally seeking to obtain portions of the fund. The complainants have a community of interest in the question of law and fact involved in the litigation, existing or prospective. Edward Hines Lumber Co. v. Scott, 101 Ill. App. 523; Fletcher on Equity Pleading and Practice, sec. 113, page 151. Complainants’ rights are based on the trust relation existing between them and the defendant trustees in regard to a particular fund in question, and all the-parties to the bill have a common interest touching the matter of the bill, although the defendants claim under distinct titles and have independent interests. United States v. Flournoy Livestock & Real Estate Co., 69 Fed. Rep. 886; Bailey v. Tillinghast, 99 id. 801; Kennedy’s Heirs et al. v. Kennedy’s Heirs, 2 Ala. 571; N. Y. & N. H. R. R. Co. v. Schuyler, 17 N. Y. 592; Brown v. Guaranty Trust Co., 128 U. S. 403.

The decree of the Circuit Court sustaining the demurrers as to defendants Benner, Calder, Schmidt and Wilke, and dismissing the bill as to them, is affirmed. So much of the decree as sustains the demurrers of the defendants Flynn and Cavanaugh and the Board of Trustees is reversed with directions to overrule the demurrers of Flynn and Cavanaugh and the Board of Trustees, and for further proceedings consistent with this opinion.

Affirmed in part; reversed in part with directions.