text:
    Clarence H. Venner, Appellant, v. Chicago City Railway Company et al., Appellees.
    Gen. No. 14,853.
    1. Corporations—when acts applicable to corporations organised by special charter. Statutes regulating corporations generally do not apply to those previously organized by special charter without the employment of words clearly evincing a legislative intent to that effect.
    2. Corporations—right of stockholders to examine books of corporation organized by special charter. A corporation organized by special charter prior to the adoption of section 13 of the General Corporation Act is not subject to the provisions thereof.
    3. Mandamus—what essential to issuance of writ at common law compelling corporation to allow stockholder to examine its books. A demand for inspection made upon the proper officer, with the statement of a sufficient reason why the inspection is desired, and a refusal to allow inspection, are necessary before the officers of a corporation can be adjudged so derelict in the performance of their duty towards the aggrieved stockholder as to justify the compelling by mandamus of the inspection sought.
    Mandamus. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed January 24, 1910.
    Elijah N. Zoline, for appellant.
    E. R. Bliss and George Gillette, for appellees.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Appellant, a stockholder in the respondent corporation, filed his petition for a mandamus commanding the respondent corporation and its officers to permit him to examine the books, papers and records of the corporation. A demurrer to the petition having been sustained, it was afterwards amended. Respondents filed an answer to the amended petition, to which, after denial of motion by petitioner to strike out certain parts of the answer, he interposed a general and special demurrer. Upon the hearing of this demurrer it was, on motion of respondents, carried back to the amended petition and sustained by the court, whereupon, petitioner electing to stand by his demurrer, the amended petition was dismissed with costs against petitioner, from which order and judgment petitioner prosecutes this appeal, seeking a reversal. The carrying back of the demurrer to the answer to the amended petition, and sustaining the same to the amended petition, eliminates from the case the answer of respond- ■ ents. Our inquiry on this review is consequently limited to the one controlling question—does the amended petition state such facts which, uncontradicted,. entitles petitioner to the writ of mandamus prayed.

The respondent corporation was organized under a special act of the Illinois Legislature passed February 14, 1859, and amended by the same authority by a further act passed February 6, 1865. These acts are public acts, and are to be taken judicial notice of as such.

The original petition was framed and the right to the writ grounded in virtue of the general incorporation act and the powers conferred by section 13 of that act. When the demurrer of respondents to that petition was sustained, upon the holding of the court that the general incorporation Act had no application to the respondent corporation, for the reason that it was incorporated and existed under special legislative enactments, the amended petition was drawn in an attempt to state a case which would entitle petitioner to the writ of mandamus sought by force of the common law. Section 13, chapter 32 Revised Statutes, title ‘ ‘ Corporations, ’ ’ which is the general corporation Act of the state, reads thus: “It shall be the duty of the directors or trustees of every stock corporation to canse to be kept at its principal office or place of business in this state correct books of account of all its business, and every stockholder in such corporation shall have the right at all reasonable times, by himself or by his attorney, to examine the records and books of account of the corporation.” The averments of the amended petition, it is contended, state sufficient facts entitling petitioner to the writ of mandamus prayed by force of the common law. These averments are to the effect that the board of directors, without the consent of petitioner or authority from the stockholders, executed a mortgage conveying all the property of the respondent corporation to secure its bonds, to be issued from time to time as the board of directors may direct; that such board is, in such issue, controlled by instructions from the New York financial firm of J. P. Morgan & Co., to whom large commissions for the sale of such bonds have been paid, and that petitioner has learned, through the public press, that the respondent company “has spent large sums of its money for the purpose of influencing the voters of the city of Chicago to vote favorably upon the ordinance of February 11,1907, at the election held in April, 1907; * * * that the inspection of the books, contracts and accounts of said railway company would reveal other irregularities and breaches of trust on the part of the directors and officers of said company.” It seems from petitioner’s original and amended petitions that the learned counsel who now appears for him acted in all that was done in the subject-matter of this controversy for Ms client, under a power of attorney given for that purpose prior to instituting this litigation; that several interviews were had between such counsel and some of the officers and one of the counsel of the respondent corporation, and that at one time petitioner’s counsel had access to certain books, from which he made some memoranda, and was offered a copy of certain proceedings appearing upon the record book, wMch latter counsel refused, and insisted upon continuing indefinitely his examination of and probing into the books and records of the respondent corporation, therefrom to judge of the condition of its affairs and the legality of its proceedings.

Counsel, at the request of the representative of the respondent corporation, left Ms task without completing it, and it is averred by the amended petition that he has not been able to resume or complete that task. In the succeeding* attempt to examine the books, records, etc., of the respondent corporation, counsel, representing his client, proceeded upon the assumption of his right so to do without making any special demand or assigning any particular reason why his request should be granted. It was of the essence of the right to examine that a demand for such examination should have been made, accompanied with a statement revealing its purpose and object. Such demand and accompanying statement cannot be dispensed with. They are not simply important, but absolutely essential, in order to charge the respondent corporation with such a dereliction of its duty in its refusal as to make it amenable to the writ of mandamus and to entitle the petitioner to so proceed to obtain, in that way, the redress sought, when wrongfully denied. The amended petition contains no information from which an inference would arise that such legal requirement had been met. We shall base our decision upon two grounds, deeming all other questions raised and urged upon us in argument as non-essential to the conclusions reached: First, does the right to the writ of mandamus demanded exist under section 13, chapter 32 R. S. supra, and is it inapplicable by reason of the fact that the respondent corporation is the creature of a special charter? Second, does the amended petition by its averments state necessary facts which entitle petitioner, as a matter of law, to an award of the writ of mandamus in force of the common law?

First. The Acts of the legislature creating the respondent corporation antedate the general incorporation Act, chapter 32 s%(,pra, and section 13 thereof. Those Acts constitute a contract between the state and the corporation, at least until the state, in the exercise of its powers, changes or alters the same by appropriate legislation. Until the state does so, the contract thus created remains inviolable. It was undoubtedly within the lawmaking power of the state to make section 13 supra applicable to and binding upon existing corporations brought into being as the creatures of special legislation, had it seen fit to so provide. Some sections of chapter 32 supra are made so binding by special provision that they shall be. It is doing no violence to the settled canons of construction to hold that the legislature not having so provided, did not so intend. Such is the trend of the Illinois cases cited. Wherever the general corporation Act has been held operative as to antecedent corporations, it has resulted from the fact that the Act, or some part of it, by the words used clearly made them subject to such provisions. Without any words clearly indicating an intent to make such corporations subject thereto, they will not be regarded as included by implication from words of uncertain meaning used; nor will presumptions be indulged contrary to the letter and spirit of such Act. Stone v. Kellogg, 165 Ill. 192, was a mandamus proceeding aimed at a corporation organized under the general corporation Act supra. In this case it was held that section 13, as to incorporations created under that Act, was enacted to relieve against the rigors of the common law, but nothing there said in any wise related to the effect of section 13 on corporations previously existing under special laws. Still it was there laid down as the law, that, at common law, before a mandamus could be awarded some specific interest must be shown by the applicant for the writ which rendered the examination of the corporation books, etc., sought, necessary or beneficial. The argument of counsel that the provision in section 1 of the Act of February 14, 1859, that the corporation was created “with all the powers and authority incident to corporations,” and by section 4 that the limitation as to power should be such as not “inconsistent with the laws of the state,” amounted to a declaration that the corporation was subject to the general corporation laws of the state, is fallacious and without force. That .such corporation may be bound by subsequent legislation has already been conceded, but it must be confined within the limits of such laws as are expressly aimed at it, as contradistinguished from the general laws of the state on that subject thereafter enacted. The statutes themselves demonstrate in many places that existing corporations under special charters are not affected by general corporation laws. The language used when the legislative intent is manifested that corporations specially chartered shall be included in the general Act is such as is found in section 5 of the general corporation act, which reads: “The provisions of this section shall apply to and .be binding upon all corporations now existing by virtue of any special charter granted by this state.” Surely, if section 13 was so intended to operate, like or similar language would have been incorporated into it to evidence such intent. Cases and instances might be multiplied, but to do so would serve no useful purpose. Such is the uniform doctrine of our courts, and on analysis of the cases we find no departure therefrom. We therefore conclude that petitioner has no right to a writ of mandamus in virtue of the general incorporation statutes of this state.

Second. Petitioner having unsuccessfully invoked the statute, we come to consider his right to the remedy sought by the course of the common law. In the first instance a demand for inspection made on the proper officer, with a statement of a sufficient reason why the inspection is desired, and 9 refusal to allow inspection, are necessary before the officers of a corporation can be adjudged so derelict in the performance of their duty toward the aggrieved stockholder as to justify the compelling by mandamus of the inspection sought. Stone v. Kellogg supra; People v. Walker, 9 Mich. 328; Williams v. College, 45 Ind. 170; Dye v. State, 70 Oh. St. 231; Giddings v. Quartermaster, 25 Mich. 340.

The amended petition fails to aver that when counsel for petitioner demanded the inspection he assigned any reason or purpose entitling him to a compliance with such demand. That a mortgage of the property of the respondent company was authorized by the board of directors, to secure an unlimited amount of bonds, to be sold through the medium of J. P. Morgan & Co., for which they were to receive' a commission, in our judgment, unexplained, falls far short of being a sufficient reason for an inspection of the books, records, papers and documents of the corporation. Why this conduct of the corporation was improper or injurious to the rights of petitioner as a stockholder, is unexplained. What he expected to discover by an inspection, which he did not already know, does not appear. What wrongdoing he expected to unearth is not even suggested. That the money to be received from a sale of the bonds was to be misapplied, is not claimed, or that the bonds were to be given away or improperly disposed of is not charged. Paying commissions on the sale of bonds is an everyday occurrence, and a resort to financial houses in Wall street to find an outlet for such bonds is oftentimes not only a necessity, but a prudent method of placing a large issue of bonds upon the market. What petitioner states he learned from the daily press, without any disclosure as to the purport of the news, is altogether of too uncertain a character to be worthy of notice by a court of law. The petition as amended does not show either a sufficient or proper reason for inspection, and for aught that appears to the contrary the motive of petitioner may be improper, and to harass and annoy, and for no legitimate, useful purpose, as affecting the rights of petitioner as a stockholder. The object which petitioner has in view in an inspection, he fails to state, and we are not at liberty to assume that his object is either proper or malign. That must be adjudged from the facts averred, and we find none on which we can predicate a finding as to the purpose to be served by the inspection sought.

It is our opinion that the demurrer to the answer to the amended petition was rightfully carried back and sustained to the latter pleading, and the petition for a writ of mandamus dismissed.

The judgment of the Superior Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Holdom

license: Public Domain

text:
    F. M. Cabiness, Plaintiff in Error, v. Texas Tie & Lumber Preserving Company, Defendant in Error.
    Gen. No. 14,876.

      Agent—burden of proof to establish authority. The burden is upon the party relying upon an agent’s authority as a basis for recovery, to establish such authority by competent evidence of a certain and specific character.
    Bill in chancery. Error to the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed January 24, 1910.
    George E. Wissler and Charles C. Spencer, for plaintiff in error.
    Scott, Bancroft & Stephens, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Complainant filed a bill in the Superior Court to correct a mistake alleged to have been made by the typewriter or scrivener who prepared the draft of a contract between him and defendant, represented and signing by its agent, W. C. Stapp (complainant being the scrivener and typewriter), in which the word “commission” and the words “of five per cent (5%) on the net price of $13,000” were omitted, but which were mutually intended by the parties. The contract purports to give complainant the right as agent to sell the mill plant of defendant formerly owned by the bankrupt firm of Stapp & Parish and located at Stapp’s Switch, Texas. The bill prayed not only for the reforming of the contract, but that defendant be decreed to pay to complainant the sum due him as commissions for the sale of the mill plant according to the terms of the contract when reformed. On hearing the chancellor dismissed the bill for want of equity, at complainant’s cost.

Complainant contends that the record discloses a conspiracy to cheat him out of the commissions earned by him in finding a customer for the mill plant who was not only able and willing to purchase the property, but in fact did so, and paid for it the- price agreed. A careful scrutiny of the evidence, giving to it all the weight and credence to which it is entitled, with all legitimate inferences from every part of it possible to indulge in complainant’s favor, utterly fails to sustain such charge of conspiracy.

The one crucial and decisive question to be disposed of is, was Stapp, the agent of defendant, authorized to execute the contract on its behalf for the sale of the mill plant upon which complainant bases his claim, or, if executed by Stapp without authority, did defendant subsequently ratify such unauthorized act so as to make the same binding upon it. It is our opinion that the evidence fails to prove that Stapp had any authority to execute the contract for defendant, or that defendant in any manner subsequently, by its actions or conduct, did anything from which it can be gathered that it knew of the existence of the contract and ratified it.

We will cite a few of the controlling facts which appear from the record.

Stapp had been a member of the firm of Stapp & Parish, which owned and operated the mill plant. The firm went into bankruptcy and the mill property into the jurisdiction of the bankruptcy court as an asset of the bankrupt firm. Defendant acquired the mill plant through the bankruptcy proceedings. These facts were all known to complainant. Stapp was, at the time of making the contract in litigation, foreman of the mill plant and continued to operate the same for defendant until its sale. Complainant was a real estate broker at Conroe, ten miles from the mill plant. J. S. Baker was the- general manager of defendant. Stapp in making the contract with complainant did so without authority from defendant or its general manager, Baker. In fact Stapp testifies that he told complainant that if he made a sale Baker would have to approve of it for defendant, otherwise it would not he a sale. There is no evidence tending to bring home to defendant or Baker or any of defendant’s officers either knowledge of the dealings of Stapp with complainant or of the subsequent doings of complainant in attempting to negotiate a sale of the mill plant. Stapp testified that he was not authorized to make any agreement for a sale by defendant or any of its officers, and that what he in fact did with complainant was not communicated to Baker, defendant, or any of its officers. The mill plant was about June 2, 1902, sold to the Darlington Miller Lumber Company by defendant through Baker, its general manager. The contract which complainant seeks to have performed gave him fifteen days to sell the mill, the date of that contract being May 15, 1902, so that the time limit expired May 30, 1902. Prior to that time complainant had some negotiations with Mr. Miller of the Darling-ton Miller Lumber Company, to whom he represented that the mill plant was owned by Stapp. Miller visited and inspected the mill at the request of complainant, who offered it to him at the price of $18,000. On May 12,1902, Miller wrote complainant offering $12,000 for the “Stapp saw mill property” and $8 per thousand feet for the lumber on hand. This offer complainant showed to Stapp and requested that a former pencil memorandum be reduced to a contract, which eventuated in the contract now sought to be reformed, of date May 15, 1902, being made. At this time complainant told Stapp not to mention the matter to defendant’s manager, Baker, and he complied with that request. Miller received a letter from complainant concerning his offer May 31, 1902, and having learned that Stapp did not own the mill, but that defendant did, got into telephonic communication with Baker June 2, 1902, and after a meeting of Baker and Miller at Cleveland, Texas, the sale was agreed upon at the price of $12,000. Baker knew nothing whatever concerning the negotiations between complainant and Miller until after Baker agreed upon the terms of the sale with Miller and sold the property to the Darling-ton Miller Lumber Company. Disregarding all other questions, it is clear that no contractual relationship at any time existed between the parties to this suit in relation to the sale of the Stapp Switch mill plant, and this being the case it is immaterial what dealings or negotiations complainant had with Miller or any one else which may have contributed ultimately to the consummation of the sale finally made. At the most, complainant relied upon Stapp’s authority, which rested, if at all, in parol, and was deceived or misled by Stapp, although we do not think that the evidence so proves. To entitle complainant to recover, it devolved upon him to establish the agency of Stapp by competent evidence of a certain and specific character. Proudfoot v. Wightman, 78 Ill. 554. Such quality of proof does not appear in this record.

The decree dismissing the bill for want of equity being without error is affirmed.

Affirmed.


text:
      Elizabeth E. Zeigler, Appellee, v. Chicago City Railway Company, Appellant.

      Gen. No. 14,890.

      1. VERDICTS-When inconsistency in testimony of witness wIZZ not reverse. The fact that the evidence of a party is not consistent in all its particulars will not work a reversal unless those parts of the testimony challenged as inconsistent relate to the facts upon which the right to recover rests.

      2. REs~ABKS OF CoUNSEL-when wiTh not reverse. Remarks of counsel will not reverse unless it appears that prejudice has resulted therefrom.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed January 24, 1910.
    George W. Miller, for appellant; John B. Harrington, of counsel.
    W. S. Johnson and H. M. Pierce, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment of $1,200 rendered on the verdict of a jury in an action on the case for personal injuries. Plaintiff charges in her declaration, which charges she sustained by her own evidence, that on the 23rd day of November, 1904, while in the act of boarding a car of defendant at the intersection of Halsted and 29th streets, Chicago, from the northeast corner thereof, she was injured by the sudden starting of the car while she had one foot upon the rear step; that the car was started by the motorman, who responded to the conductor’s signal before she was able to place both of her feet on the car step; that the car started with great force, causing her to lose her hold upon an iron stanchion which she had grasped in attempting to board the car, and to fall backward with great force and violence upon her back; that at the time she had with her her four year old daughter, whom she had placed upon the platform before reaching with her foot for the car step, retaining hold of one of the little girl’s hands, so that when she started to fall she dragged her child with her, who fell .upon plaintiff’s abdomen. Plaintiff claims to have been three months pregnant at the time of the accident, and as a result of such accident she suffered a miscarriage, which brought in its train other sexual difficulties common in such cases. .Notwithstanding this suit was commenced within three weeks of the happening of the accident, the defendant' claims to have neither record nor knowledge of it, and consequently to be without proof of its occurrence. So that the liability of defendant, if any there be, rests upon the testimony of plaintiff as to whether the accident in fact happened or not.

Defendant predicates a reversal of the judgment upon the hypothesis that there is no reliable evidence in the record to sustain the judgment; or, in other words, that plaintiff’s testimony is unbelievable, and that the court erred in not sustaining objections of defendant’s counsel to certain remarks used in the closing argument by plaintiff’s counsel. While the evidence of plaintiff is not in the highest" degree satisfactory as a whole as it might be, and is tainted with some contradictions and confessed deceits, yet on the main, crucial question as to the occurrence of the accident and the injury suffered as a consequence of the accident, the testimony of the plaintiff is not only uncontradicted but in some material particulars corroborated. It is a fact that she was pregnant, however peculiar and unusual her conduct may have been at the time of her miscarriage. Her medical man who attended her confirms the fact of her having suffered a miscarriage following the time she claims the accident happened. That subsequently she had one of her ovaries surgically removed is likewise corroborated by the hospital history of that operation. The testimony of Peters and his wife can only be harmonized with that of plaintiff on the theory that they are mistaken as to the time and place plaintiff told them the accident occurred. They may be very honest and well intentioned people and yet be mistaken in this matter. The jury were possessed of advantages, denied to us, in judging of the credibility of these witnesses and the weight to be given their testimony. They saw the witnesses upon the witness stand and observed their manner of testifying, their apparent fairness or lack of it, whichever was made to appear. They noted the comparative intelligence of the witnesses and which of them were more capable of correctly remembering the occurrences about which they gave testimony after the passing of several years between the time of happening and testifying. From all these conditions confronting the jury, but inaccessible to this court, they were better able to judge of the weight to be accorded the testimony of the several witnesses. The credibility of the witnesses and the weight to be accorded their testimony rest primarily with the jury, and if the testimony of the prevailing party is sufficient, uncontroverted, to sustain a verdict, and we are unable to say such verdict is contrary to the manifest weight of such testimony, or that all the evidence considered, the testimony of plaintiff is so improbable as to convince the mind of an ordinary person that the events testified about did not happen, then the law does not permit of our disturbing such verdict except for other reasons, if any appear in the record. The fact that evidence of a witness is not consistent in all its parts will not warrant a reversal, unless those parts of the testimony challenged as inconsistent relate to the facts upon which the right to recover rests. The suppression of the fact that plaintiff suffered a miscarriage, when she was subsequently interrogated in relation thereto, in no way affects the fact of the miscarriage of the plaintiff or the manner of the happening of the accident, or that it in fact happened as related. As said in Chicago City Railway Company v. Phillips, 138 Ill. App. 438, “The proof of appellee in this record if believed by the jury is amply sufficient to support the verdict.”

We do not think the remarks of plaintiff’s counsel in the closing argument are subject to the criticism made. The jury certainly were not misled thereby or their attention diverted from the grounds upon which a recovery was sought as outlined by the averments of the declaration and the testimony of plaintiff in support thereof. If any doubt of this at any time existed, it certainly was dispelled by the ruling of the presiding judge in disposing of the objection, when he said: ‘ ‘ The negligence charged is the sudden starting of the car, and that is the only negligence that can be recovered on.” What was said about the ear being one which might have been out of repair was said in illustration of the kind of car which plaintiff attempted to board and was in response to some question which arose during the trial about the kind of cars which traversed the rails of defendant at the time and place of the accident, as the car had not been fully identified. Exactitude of such identification was unnecessary to a recovery. Neither was there any contention that the car involved in the accident was out of repair.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Ands Koch, Defendant in Error, v. Charles F. Dickinson, Plaintiff in Error.
    Gen. No. 14,899.
    1. Municipal Court—power to adopt rules. Section 19 of the Municipal Court Act gave sufficient authority to the Municipal Court to adopt by rules such sections of the Practice Act as to such court seemed advisable, and in so far as such sections may be applicable to the jurisdiction conferred on that court by statute.
    2. Municipal Court—power to compel filing of affidavit of merits. It is within the power of the Municipal Court pursuant to rules duly adopted to compel the defendant in a fourth class case to file an affidavit of merits, and in default of failure so to do, to render judgment against him.
    Assumpsit. Error to the Municipal Court of Chicago; - the Hon. Stephen A. Foster, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed January 24, 1910.
    F. Wm. Kraft, for plaintiff in error.

      Winkler, Baker & Holder, for defendant in error; Gr. Raymond Collins, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

A judgment for $209.52 was rendered in the Municipal Court for principal, interest and protest fees on two promissory notes for $100 each, made by defendant, payable to the order of plaintiff, with interest at the annual rate of seven per cent.

This case is of the fourth class under the Municipal Court Act, and plaintiff’s pleading consists of a statement of claim with an affidavit stating the cause of action and the amount claimed.

On the return day of the summons defendant appeared by counsel and demanded a trial by jury. On that day defendant was ruled to file an affidavit showing a meritorious defense. This order defendant failed to comply with, and for such noncompliance he was defaulted and the cause proceeded to trial, a. jury being impaneled to assess plaintiff’s damages, which they did, and a judgment was duly entered thereon after the overruling of defendant’s motions for a new trial and in arrest of judgment.

Defendant seeks, by this writ of error, to reverse the judgment upon the contentions that the Municipal Court was without power to require defendant to file an affidavit of merits, that he was unlawfully deprived of the right to interpose any defense, and that the judgment is for too much.

It is argued that the Municipal Court was without power to rule defendant to file an affidavit of merits and that defaulting him for failure to comply with such rule was erroneous. If this contention be well taken, the remainder of the proceedings are erroneous and the judgment should be reversed. If, however, the court acted with authority, as we think it did, the judgment must be affirmed.

The order on defendant to file an affidavit of merits was made under rule 14 of the Municipal Court. We are therefore to decide whether that is a valid rule of that court promulgated in accord with legislative authority. The legislature by section 19 of the Municipal Court Act provided inter alia that “said Municipal Court shall be the sole judge of the applicability to the proceedings of said court of the rules of practice prescribed by law for similar cases in the circuit courts, and its decisions in respect thereto, shall not be subject to review on appeal or writ of error.” This provision, it seems to us, gave sufficient authority to the Municipal Court to adopt, by rule, such sections of the Practice Act as to such court seems advisable, and in so far as such sections may be applicable to the jurisdiction conferred on that court by statute. It confers broad plenary powers on the court in this regard, and as to certain matters makes its judgment final and binding on all, including courts of review. In the exercise of the power and discretion thus conferred, the Municipal Court by rule 14, adopted as rules of practice certain sections of chapter 110, IÍ. S., title “Practice.” Among such sections is section 55. The sections so adopted, rule 14 provides, “shall be held to apply to and govern all civil proceedings (x) in the Municipal Court as near as may be consistently with the provisions of the Municipal Court Act. * * *” Section 55, chapter 110 supra provides: “If the plaintiff in any suit upon a contract, express or implied, for the payment of money, shall file with his declaration an affidavit showing the nature of his demand and the amount due him after allowing all his just credits, deductions and set offs, if any, he shall be entitled, to a judgment as in case of default, unless the defendant, his agent or attorney * * * shall file with his plea an affidavit stating he verily believes that he has a good defense to said suit upon the merits, etc.” As a declaration is not required by the Municipal Court Act in cases of the fourth class, of which this case is one, it is said to follow that section 55 supra has no application. Our minds do not yield assent to such claim. By analogy, as applied to the new condition created by the Municipal Court Act, the statement of claim required to be filed by that Act in fourth class cases, serves the same office as a declaration in the Circuit Court, and by construction of section 55 supra, adopted by rule 14, fills the office of the declaration and must be regarded, for the purposes of section 55, as constructively that quality of pleading known to the common law as a declaration. The statement was accompanied by an affidavit of claim stating the amount thereof, conforming in this respect to section 55. This required from defendant an affidavit of meritorious defense, if he desired to avoid suffering a judgment by default. Furthermore, to require an affidavit showing a meritorious defense, worked no hardship to defendant. He could only succeed on a trial by showing a meritorious defense, and to so state on oath preliminary to a trial was not the imposition of an undue burden. We do not regard the adoption of rule 14 as judicial legislation. By the Municipal Court Act the legislature made every section of chapter 110 part of that Act, wherever it could be made applicable, in the opinion of the judges of that court, such opinion to be evidenced by rules of court. Aside from the power conferred by statute, all courts have inherent power to make all rules necessary to govern and control their procedure, and where such rules do not conflict with any statute they are as binding and of as much controlling force as they could be had they been engrafted into a statutory enactment. The defendant was denied no legal right by being ruled to file an affidavit of merits or in suffering a default for failure to obey the rule. Having failed to make oath that he had a meritorious defense, it is doing no violence to presumption to assume that restraint in such regard flowed from an absence of any defense upon the merits.

The amount of the verdict and judgment is arrived at by adding interest and protest fees to the amount of the principal of the notes. It is the-correct amount. There is no error of procedure in this record and the judgment of the Municipal Court is accordingly affirmed.

Affirmed.


author: Mr. Justice Baker

text:
    The Congregation of the Resurrection, Appellant, v. Frank J. Laibe, Appellee.
    Gen. No. 14,849.
    1. Judgments—what not collateral attach. A cross-bill to set aside a judgment on which a creditor’s bill is based, on the alleged ground that the defendant in the action at law and cross-complainant in equity, had a good defense to such action, which, without fault or negligence on his part, he was not permitted to make, in the action at law, constitutes a direct and not a collateral attack on the judgment so sought to be set aside.
    2. Judgments—when not set aside in equity. A court of equity will not set aside a judgment at law or enjoin its collection unless a meritorious defense is shown and the burden of showing the meritorious defense is on the complainant.
    3. Judgments—when assignment becomes effective. An assignment of a judgment becomes effective only upon acceptance by the assignee.
    4. Pleading—when filing of replication waived. Both parties having introduced on the hearing evidence in the cause made by the bill and answer thereto, the defendant to a cross-bill is deemed to have waived the filing of a replication.
    5. Practice—how authority of attorney to file bill of complaint should be raised. A defendant if he desires to raise the question of the authority of the complainant’s solicitor to file the bill of complaint, should do so by motion on that ground supported by affidavit.
    6. Agency—when superior of chapter not authorized to bind society. The superior general of a chapter which is a branch of a parent religious society is not authorized to bind such society by contracts made in its behalf.
    Creditor’s bill. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded with directions.

      Opinion filed January 24, 1910.
    Rehearing denied February 10, 1910.
    Statement by the Court. Appellant, as the assignee of a judgment for $1,255.75, recovered by Paul Smolikowski against appellee Laibe in the Circuit Court of Cook county May 15, 1906, filed in said court April 26, 1907, a creditor’s bill against appellee, Hattie Laibe, his wife, and Charles Deubler, to subject to the payment of said judgment the money due on a certain other judgment for $2,500 recovered by appellee Laibe against the city of Chicago April 20, 1907. The bill was before final hearing dismissed as to the defendants Hattie Laibe and Duebler. On the filing of the bill an order was made that a writ of injunction issue restraining Laibe and Duebler from collecting said judgment, etc. April 30, on motion of Laibe and Duebler, and on their admission in open court that, “the money consideration for the assignment of said judgment had not been passed as between the parties thereto,” and with the consent of all parties to said cause, an order was entered whereby Duebler was permitted to pay to the clerk of said court $2,450, the assignment of the judgment to him was confirmed and the bill dismissed as to him. May 14, 1907, by consent of parties, it was ordered that the clerk pay $850 of the sum so deposited with him by Duebler to Laibe or his solicitor. May 27, the demurrer of Laibe to said creditor’s bill was sustained, and complainant given leave to amend. The next day an amendment to the bill was filed. Laibe filed his answer to the bill as amended, and complainant filed a replication to the answer. December 11, 1907, Laibe filed in said cause his amended cross-bill against the complainant therein as sole defendant, praying that the judgment on which the cross-bill was based be set aside. The defendant to the cross-bill filed an answer, but no replication was filed. The cause was submitted to the court on the pleadings and evidence of the respective parties heard in open court, which was preserved by a certificate of evidence. The decree of the court was, “that said judgment be set aside, but to stand as security; that said cause be reinstated on the docket of the court as it was on April 13, 1906; that each party be permitted to take such further steps in the prosecution or defense of the cause as they may be advised,” and that the court “hereby reserves jurisdiction of the cause for the furtherance of the objects of this decree.” From this decree the Cong’regation of the ¡Resurrection, complainant in the bill and defendant to the cross-bill, prosecutes this appeal.
    Thomas J. 0 ’Hare, for appellant.
    J. W. Sutton, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

We think that the filing of the cross-bill to set aside the judgment on which the creditor’s bill of the complainant was based, on the alleged ground that the defendant in the action at law and cross-complainant in equity, had a good defense to such action, which, without fault or negligence on his part, he was not permitted to make, in the action at law, constitutes a direct and not a collateral attack on the judgment so sought to be set aside.

Both parties introduced on the hearing evidence on the case made by the cross-bill and answer thereto, and thereby the defendant to the cross-bill must be deemed to have waived the filing of a replication. Jones v. Neely, 72 Ill. 449.

The complainant corporation was organized under the laws of Kentucky, and its charter recites that it was organized to establish and carry on colleges and schools to assist in the spread of the Christian religion and to provide ministers for churches when requested by the bishop of the diocese. . It is not a “foreign“corporation for profit,” and is not within the provisions and prohibitions of the Foreign Corporation Act of this state. Appellee has assigned cross-errors, one of which is that the court erred in denying his motion to dismiss the original bill on the ground that the authority of the solicitor to file the same was not shown. We find in the record no motion in writing to dismiss the bill. June 21, 1907, after the consent orders had been made permitting Deubler to pay into court $2,450, and confirming the assignment of the judgment to him and permitting the defendant Laibe to withdraw $850 of the money so paid into court, and after appellee Laibe had answered the bill, an order was made denying Laibe’s motion to dissolve the injunction and dismiss the bill. The answer alleged, on information and belief, that the bill was filed “without the knowledge or consent of complainant corporation.” The defendant, if he desired to raise the question of the authority of complainant’s solicitor to file the bill, should have done so by motion on that ground, supported by affidavit. We do not think that on the motion to dismiss made in this cause, after answer, complainant’s solic- ' itor was required to show his authority to file the bill, and the motion to dismiss was therefore properly denied.

The judgment was recovered in an action at law brought by Valerian Przewlocki for the use of Paul Smolikowski against Frank J. Laibe on the following promissory note:

800.00. “Bomb, Dec. 23d, 1889.

Within five years from date I promise to pay to the order of Very Bev. V. Przewlocki, Superior General of the Congregation of the Besurrection, the sum of Eight hundred ($800) Dollars, without interest value received.

F. J. Laibe.

Attest

David Fewnessy.”

The defendant pleaded non assumpsit and a plea of set-off, in which he 'averred that the plaintiff was indebted to him in the sum of $1,000 for services, etc. March 27, 1906, the suit was dismissed for want of prosecution and- judgment entered that defendant go, etc., and recover of the plaintiff his costs. April 12, 1906, on motion of plaintiff’s attorney it was ordered that the judgment of March 27 be vacated and the cause reinstated and placed on the trial call. May 15, 1906, the cause was called for trial in the absence of the defendant, and on motion of plaintiff’s attorney the death of the plaintiff was suggested, and it was ordered that the cause proceed in the name of the usee, Paul Smolikowski, as plaintiff; that he be substituted as plaintiff in place of said deceased, and that the title of the cause and, “all papers herein stand changed and amended accordingly.” Leave was given the plaintiff to increase the ad damnum from $1,200 to $1,300, a jury was impaneled and sworn, a verdict for the plaintiff for $1,255.75 returned and judgment entered on the verdict.

On the hearing of the cause in equity, defendant and cross-complainant Laibe put in evidence certain rules of the Circuit Court and a notice by plaintiff’s attorney to defendant’s attorney in the action at law, that defendant would on April 12 move to vacate the order dismissing the cause for want of prosecution, with an affidavit that said notice was served on the defendant Laibe April 11, 1906, by leaving a copy thereof with his wife at his residence. Both parties introduced evidence as to the service of said notice; that for appellee tending to show that the notice was not served on Mrs. Laibe, and that appellee Laibe had no notice or knowledge thereof until after judgment; and that for appellant tending to show that a copy of the notice was delivered to Mrs. Laibe April 11, 1906. It is well settled that a court of equity will not set aside a judgment at law, or enjoin its collection, unless a meritorious defense is shown, and the burden of showing a meritorious defense is on the complainant. Cadillac Auto Co. v. Boynton, 240 Ill. 171. If, therefore, it be conceded that under the rules of the court the order and judgment of March 27 could not properly be vacated and the canse restored to the trial call without notice to the defendant, and that no copy of the notice of the motion to vacate and reinstate was in fact delivered to defendant’s wife, or served on defendant as required by the rules of the court, the question remains whether the evidence shows that the defendant had a meritorious defense to the action at law.

The society or order of the Congregation of the Resurrection is a Roman Catholic society or order. The principal object of the society is to establish and carry on schools for the education of prospective members of the society who are to become either ministers or teachers. The mother house or chapter of the society is at Rome, and there are eighteen or twenty chapters in different parts of the world. When a church, college or school is established by members of the Congregation, such church, college or school becomes a house or chapter of the Congregation of the Resurrection. Each church, college or school is under the charge of a superior, who receives the revenue and pays the expenses of such church, college or school. A group of churches, colleges or schools is formed into a congregation under a local head called a provincial. At the head of the mother house in Rome is an officer called the superior general. In 1889, when the note sued on was given, Valerian Przewlocki was superior general, and when the judgment was recovered Paul Smolikowski was superior general. The mother house of the congregation at Rome is not incorporated. It maintained there a college, at which' appellee Laibe was educated. If he had become either a priest or a teacher in a school of the society, no charge would have been made for his education, but when he decided to no longer remain a prospective member of the so-city, he was asked to give a note for his tuition and maintenance at the college of the society, and he gave the note sued on. He did not, in the action at law on the note, plead a want or failure of consideration. Nor has he in his cross-bill alleged that the note was without consideration. Appellee is a physician and surgeon and began practice in Chicago about 1894. At that time Father Vincent Barzinski was the provincial of the congregation in Chicago, and in his province were four churches or parishes, a college and a school, each under a superior, and Father Barzinski was the superior of the largest church, St. Stanislaus, as well as provincial. The defense which appellee in his cross-bill alleged that he had to the action at law on his note, was that at the request of Father Barzinski he, as a physician, treated members of St. Stanislaus church in behalf of the Congregation of the Resurrection; that in 1895 or 6 Father Barzinski told him that he would allow him to treat members of the congregation and of the parish in order to liquidate the note sued on; that he rendered services accordingly, and that Father Barzinski, some months prior to his death in 1900, told appellee that he would procure the note and have it cancelled; that he considered that appellee’s obligations to the congregation were fulfilled. There is no evidence tending to show that Father Barzinski ever had possession of the note, or that he had any correspondence or other communication with the payee of the note or with any officer or member of the mother house at Rome in respect to said note. We are unable to find in the record any evidence to show that Father Barzinski, either as provincial, or as superior of St. Stanislaus church, had authority, either from the payee of said note, or from the mother house of the congregation at Rome, to employ a physician to treat members of the congregation or members of his church in Chicago for or in behalf of the payee of said note, or for or in behalf of the mother house of the congregation at Rome. Each church or parish, college or school, while a house of the Congregation of the Resurrection, and in religious or spiritual matters subject to the control of the superior general at Rome, is, in respect to its revenues and business affairs, an independent, not a dependent house. It is true that the superior of each house was required once a year to make a report to his provincial of the receipts and disbursements of his house, and the provincial was required, to render each year to the superior general an account of receipts and expenses, with a copy of the accounts of each house under his jurisdiction. But there is no evidence tending to show either that the provincial or the superior of any house ever remitted money to the superior general, or that the superior general or the mother house at Borne ever paid anything towards the expenses of maintaining any church, school or college of the congregation other than those at Borne. The fact that each superior was required to make a report to his provincial, and the provincial to the superior general, does not tend to show authority on the part of the provincial or of a superior to make contracts for or in behalf of the superior general or the mother house. ■ The recovery was on the face of the note, with interest at five per cent from the maturity of the note, five years after its date, to the date of the judgment.

The evidence, in ouT opinion, fails to show a meritorious defense to the action at law, and for that reason the cross-bill should have been dismissed for want of equity.

The judgment of appellee Laibe against the city of Chicago was rendered April 20, 1907, in the Circuit Court. On the same day there was filed in the office of the clerk of said court an assignment of said judgment by Laibe to Deubler. The hill of appellant filed April 26, 1907, alleges that said assignment had not been consummated by the passage or payment of any consideration; that Deubler still retained the consideration and held said assignment for the use and benefit of Laibe. Laibe’s suit against the city of Chicago was prosecuted under an agreement with Mr. Sutton, his attorney, that the latter should receive for his services one-half of the recovery, and that out of Laibe’s half should be paid $200 to counsel who assisted Mr. Sutton in the trial of the case. Mr. Sutton testified that the assignment when executed and acknowledged by Laibe did not contain the name of an assignee; that Charles Boche told him that Deubler would pay $2,450 for the judgment provided the city attorney would execute a waiver of the right of appeal or writ of error; that he then inserted the name of Deubler in the assignment as assignee, and delivered it to Boche. The assignment recites that it was executed in consideration of $2,450 paid by Deubler to Laibe before the execution and delivery of the assignment. Neither Boche nor Deubler was called as a witness. The summons issued on the creditor’s bill filed by appellant was served on all of the defendants April 26, 1907. Mr. Sutton further testified that the city attorney did not execute the waiver of the right to appeal or a writ of error until eight or ten days after the judgment was rendered, and that Deubler would not pay the money he was to pay for the judgment until the waiver was executed. April 30, 1906, the defendants Laibe and Deubler moved for an order permitting Deubler to pay to the clerk $2,450 as the proceeds of the sale of the judgment and to permit a consummation of the sale thereof, and both admitted in open court that the money consideration for the assignment of said judgment had not yet passed as between the parties, and the court thereupon, by consent of all parties, ordered that Deubler pay to the clerk $2,450, and that thereupon said sale stand confirmed, and Deubler paid said sum to the clerk and the bill was dismissed as to him. The agreement between Laibe and Sutton gave to Sutton no lien on the judgment. North Chicago St. B. B. Co. v. Ackley, 171 Ill. 100. There is no evidence that Boche had any authority to make an agreement for Deubler that the latter would purchase the judgment. All that Boche said was that Deubler would pay a certain sum for the judgment provided the city attorney would waive the right of appeal or writ of error. Deubler was not bound to accept the assignment or buy the judgment. The assignment of the judgment to Deubler became effective only on its acceptance by Deubler, and there is no evidence tending to show that it was accepted by Deubler until April 30, when, pursuant to the consent order then made in the cause, he paid to the clerk of the court $2,450, and the bill was dismissed as to him. The general rule is that the filing of a creditor’s bill and service of process create a lien on the equitable assets of the judgment debtor. King v. Goodwin, 130 Ill. 102.

We think that under the facts shown by the evidence in the record, the complainant in the creditor’s bill is entitled to have the judgment against appellee Laibe, the defendant to that bill, paid in full out of the money deposited with the clerk of the Circuit Court by Charles Deubler.

The decree of the Circuit Court will be reversed and the cause remanded with directions to dismiss the cross-bill of appellee Laibe for want of equity and enter a decree on the original bill that the judgment recovered by Paul Smolikowski against appellee, Frank J. Laibe, be paid in full out of the money deposited with the clerk of the Circuit Court by Charles Deubler.

‘Reversed and remanded with directions.


text:
    James T. Patten, Defendant in Error, v. John N. Faithorn, as Receiver, Plaintiff in Error.
    Gen. No. 14,860.
    1. Appellate Court—wliat vñthout jurisdiction to review. The Appellate Court has no jurisdiction to determine the validity of an act of the legislature.
    2. Negligence—when safety appliances act applies. Held, under the evidence, that the safety appliances act of Illinois requiring the use of automatic couplers was applicable in this case, and that if the locomotive and tender in question were used in interstate commerce the burden was upon the defendant to establish such fact.
    3. Master and servant—when doctrine of assumed risk does not

      apply. In an action predicated upon the failure of a master to employ automatic couplers as provided hy the safety appliances act, the doctrine of assumed risk does not apply.
    4. Master and servant—who not fellow-servants, as a matter of law. Held, that a switchman and an engineer were not fellow-servants as a matter of law.
    5. New trial—when newly discovered evidence not ground for. Newly discovered evidence which tends to contradict answers given by a party upon cross-examination is not ground for a new trial where such answers were with respect to a collateral matter as to which he could not he contradicted.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Ben. M. Smith, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed January 24, 1910.
    Jesse B. Barton, for plaintiff in error.
    James C. McShane, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

This is an action on the case by defendant in error against plaintiff in error to recover for injuries sustained by plaintiff while in the service of defendant as a switchman. There was a trial by jury and judgment for the plaintiff for $12,500, to reverse which the defendant prosecutes this writ of error.

Plaintiff was injured in the Bobey street yard of the defendant in Chicago. He belonged to a switching crew, of which Pease was foreman. Canty was the foreman of another switching crew working in the same yard. A train of freight cars under Canty’s charge was on a track called the west main, east of a certain switch, and the locomotive was at the west end of the train. Canty, by direction of the yardmaster, cut off the four cars next to the locomotive and proceeded with them west on said west main track some distance west of said switch, and stopped. A switch track led from the south and west into said west main track at said switch. The yardmaster ordered Pease to take three freight cars on said switch track on to said west main track at said switch, go east far enough to clear the switch, and then reverse, uncouple said three cars from the locomotive, and “put them on to Canty.” The purpose of said orders was to place said three cars on said west main track west of the switch, so that Canty, after Pease’s-locomotive had gone back on to the switch track, might couple on to said ears and take them east beyond the switch and couple on to the cars which he.had left on said track. Pease’s locomotive was at the east end of the train. Pursuant to the orders of the yardmaster he took his train onto said west main track and proceeded east far enough to clear the switch, and the switch was thrown so as to make the rails of the west main track continuous. Pease and the plaintiff stood alongside said track some distance east of the switch. Pease gave the back up signal to his engineer and told the plaintiff to get on when the engine came back to them, and cut off said three cars. The coupler on the tender of the locomotive and the coupler on the car to which it was coupled were defective, and neither could be operated by the lever or handle. To uncouple the car from the tender plaintiff was compelled to go between the tender and the car, lift the pin and hold it up with his hand. Plaintiff went on the footboard of the tender and reached over to lift the pin with his hand. Just then Canty’s train came back east and collided with Pease’s train. In the collision the drawbar of the tender was broken and plaintiff was caught between the tender and the car and injured. It is conceded that Canty’s locomotive should have stood still until Pease’s engine had been uncoupled from the cars and gone on to the switch track, and that it moved east under some mistake of Canty’s engineer.

The first count of the declaration alleges that the receiver while engaged as a common carrier was moving traffic upon the railroad between points in the state of Illinois and was operating upon and in connection with said railroad certain locbmotive engines and cars and negligently and unlawfully, and contrary to the statute in such case made and provided, hauled and used upon said railroad in moving said state traffic, a certain switch engine equipped with a certain coupler in a defective and inoperative condition, so that it could not be uncoupled from the side of the engine without the necessity of switchmen going between the ends of the engine and the car to which it was coupled, and that as a direct result and in consequence of the defective and inoperative condition of said coupler and coupling appliance connected therewith, the plaintiff was unable to uncouple said engine from the side of the engine and was required to and did go between the ends of the engine and the car to which it was coupled for the purpose of uncoupling the same, and while he was so between the ends of the engine and car and in the exercise of ordinary care, other cars on the same track collided with the cars to which plaintiff’s engine was coupled, and the drawbar or coupler was broken, and the engine and car between which plaintiff was were jammed against each other and injured the plaintiff. The plea was not guilty.

The Act referred to in said count is the Act known as the Safety Appliance Act, approved May 12, in force July 1, 1905, Hurd’s Stat. ed. 1908, 1709. Section 2 of said Act provides: ‘ That from and after the passage of this Act it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any locomotive, tender, car or similar vehicle used in moving state traffic not equipped with couplers, coupling automatically by impact, and which cannot be uncoupled without the necessity of men going between the ends of the cars.” Section 6 imposes a penalty for a violation of the Act and concludes as follows: “Provided that nothing in this Act contained shall apply to * * * trains, locomotives, tenders, cars and similar vehicles used in interstate commerce.” Section 7 provides that the Act shall apply to common carriers engaged in moving traffic by railroad between points in this state, “and shall be held to apply to all trains, locomotives, tenders, cars and similar vehicles engaged in moving traffic between points in the state of Illinois, excepting * # * all those trains, locomotives, tenders, cars and similar vehicles used in interstate commerce. ’ ’ Section 9 is as follows: ‘ ‘ That any employe of any such common carrier who may be injured by any train, locomotive, tender, car or similar vehicle in use contrary to the provisions of this Act, shall not be deemed to have assumed the risks thereby occasioned, nor to have been guilty of contributory negligence because of continuing in the employment of such common carrier or in the performance of his duties as such employe after the unlawful use of such train, locomotive, tender, car or similar vehicle had been brought to his knowledge.”

In the brief for plaintiff in error it is said that “the questions which arise under this count and the evidence are: First: Is the statute of Illinois referred to in this count valid? Second: If valid, is it applicable to this case under the evidence? Third: If valid, does it abolish the defense of assumed risk?” The question of the validity of the Act is a question which this court, under the provisions of the constitution and the statute, is not authorized to consider.

It appears from the evidence that Pease’s locomotive and tender were used only in switching in Illinois. The immediate work in which they were employed when plaintiff was injured was the moving of three freight cars from one place to another in the yard of defendant in Chicago. The service- being wholly within the state, the traffic was presumably “state traffic,” and the burden was on the defendant to show that it was “interstate commerce.” There is in the record no evidence tending to show that the moving of said cars, or any one of them, was a part of a continuous interstate carriage or transportation, or that it was “interstate commerce.” From the evidence the jury might properly find that at the time of plaintiff’s injury Pease’s locomotive and tender were engaged “in moving state traffic.” It follows from what has been said that in our opinion the Safety Appliance Act of this state is, under the evidence, applicable to this case.

The ninth section of the Act expressly eliminates the defense of assumed risk in case an employe is injured by any locomotive, tender, etc., “in use contrary to the provisions of the Act.” The question of the validity of such provision is not open in this court. The tender was not equipped as required by the Act. We think that under the evidence the defendant was properly found guilty under the first count.

The second count is substantially like the first, except that it alleges that the coupler on the car to which the tender was coupled was in such a defective condition that the tender and car could not be uncoupled without going between the tender and the car. The evidence supports the allegations of the count. Plaintiff made no attempt to use the uncoupling appliance on the car, and its defective condition is only important because, if not defective, plaintiff might have uncoupled the car from the tender without going between them. It was because the coupling appliance on the car and that on the tender were both defective, that plaintiff was compelled to go between the car and tender to uncouple, and hence the defective condition of the coupling appliance on the car contributed to plaintiff’s injury. We do not think that evidence that the cars bore the marks, “B. G-. & W. 1750” was evidence tending to show that the car, at the time of the accident, was “used in interstate commerce.”

The negligence alleged in the third count is, that the “drawbar was broken, weak and otherwise so defective that it was liable and likely to break while in use; that in the collision the drawbar, because of said condition, broke and thereby plaintiff was injured.” From the evidence the jury might properly find that an inspection of the broken drawbar immediately after the accident showed that there was an old crack in the top and side of the drawbar, which was rusty, while the remainder of the broken surfaces were bright and fresh. It was the breaking of the drawbar that permitted the ends of the car and tender to come so near to each other as to injure the plaintiff. We think that the questions whether the defendant was guilty of negligence in respect to the drawbar, and, if negligent, whether such negligence contributed to plaintiff’s injury, and whether the plaintiff knew, or, if he had exercised ordinary care would have known, of the defective condition of the drawbar, and therefore be held to have assumed the risk, were, on the evidence in the record, questions of fact for the jury, on which their verdict must be held conclusive.

The negligence alleged in the fourth and fifth counts, is the negligence of Canty’s engineer in starting and running his train east on the west main track without signal or warning. Plaintiff in error does not question the negligence of Canty’s engineer in so starting and running his train, but contends that plaintiff and said engineer were fellow-servants. It is not claimed that they were fellow-servants on the ground that their usual duties brought them into habitual association, so that they might exercise an influence on each other promotive of proper caution, but that they were fellow-servants because they were directly co-operating with each other in the work in hand at the time of the accident." The order of the yardmaster to Pease, to put the three cars, “on to Canty,” did not mean that Pease was to shove said cars west until the front car reached the east end of Canty’s train, or that Pease or any one of his crew was to couple said cars to Canty’s train, but only meant that Pease was to put said cars on to the west main track east of Canty’s train, so that Canty might couple said cars to his train. Canty’s train was far enough west of the switch so that if it had remained standing, the three cars when cut off would have stopped, leaving a space of several car lengths between the east end of Canty’s train and the west end of Pease’s train. Pease did not intend that any one of his crew should make the coupling between his train and Canty’s, and had no man on the end of the car next to Canty to make such coupling. If the work had been done in the manner intended, plaintiff would have uncoupled the three cars, and with that act his duties and the duties of his crew in respect to those cars would have ceased before Canty’s duties in respect to them began. It was not intended that Pease should have anything to do with the three cars after they were cut loose from his engine, or that Canty should have anything to do with said cars until after they had been cut loose from Pease’s engine and gone west beyond the switch and Pease’s engineer had gone from the west main track at the switch on to the side track. In Hartley v. C. & A. R. R., 197 Ill. 440, and in Pa. Co. v. Chapman, 220 id. 428, s. c. 118 Ill. App. 201, one switching crew placed cars on a track to be taken away by another crew, and the plaintiff, a member of one crew, was injured through the negligence of a member of the other crew. In each case it was held that the question whether the plaintiff and the member of the other crew, through whose negligence he was injured, were or were not fellow-servants, was a question of fact for the jury. We think that under the evidence in this case, the question whether plaintiff and Canty’s engineer were or were not fellow-servants, was a question for the jury, on which their verdict must be held conclusive.

Plaintiff, on cross-examination, was asked about a proceeding in which his wife was granted a divorce from him some time prior to his injury. In support of a motion for a new trial on the ground of newly discovered evidence, defendant presented an affidavit and the record of said proceedings for divorce which, it is claimed, show that plaintiff’s answers, on cross-examination, as to the ground on which his wife obtained a divorce were not true; that he testified that his wife obtained a divorce on the ground of desertion, whereas the truth was that the divorce was granted to her on the ground that he was guilty of adultery. The defendant saw fit to interrogate the plaintiff, on cross-examination, as to a matter not material to the issue, and on the trial would not have been permitted to contradict plaintiff’s testimony as to such immaterial matter. The motion for a new trial on the ground of newly discovered evidence was properly denied.

Finding no error in the record, the judgment of the Superior Court will be affirmed.

Affirmed.


text:
    David Bloch, Defendant in Error, v. J. Stern & Sons, Plaintiffs in Error.
    Gen. No. 14,878.

      Contracts—when acceptance of proposition completes. A written, proposition may be verbally accepted and the contract constitute a complete contract.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed January 24, 1910.
    Rehearing denied February 3, 1910.
    Peter Sissman, for plaintiffs in error.
    ISTo appearance by defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff was employed by the defendants as a traveling salesman to sell goods on commission. The contract of employment was made by correspondence, and the principal controversy at the trial was as to the compensation agreed on. The contention of plaintiff was that by the terms of the contract he was to receive a commission of seven and one-half per cent on all bona fide orders taken by him; and the contention of defendants was that plaintiff was entitled to commission only on the goods actually delivered by defendants to the customers of plaintiff. Plaintiff put in evidence a letter to him from defendants, dated October 22, 1908, containing the following proposition: “We will send you our line * * * and you can sell same at 7%% commission. At the beginning of each month we will make out a statement of all shipments during the preceding month, and enclose a check for the amount of commission. * * * We have a fine line and one does not have to work hard to make sales. * * * We also wish to say that in case you want some money, we will allow 50% of commissions on future deliveries; provided of course, that your orders are bona fide.” He testified, without objection, that on the receipt of said letter he wrote defendants to this effect: “In reply to your letter will say that I will accept your line on a commission of 7%% on all orders taken;” that he received no letter from defendants in reply, but received from them a line of samples and price list and began to sell g’oods for them; that he sold goods for them from November 1, 1906, to April 8, 1908. Defendants offered no evidence tending to contradict plaintiff’s testimony as to the correspondence between the parties prior to the time plaintiff began to work for the defendants.

Defendants ’ letter of October 22 was an offer by defendants to employ plaintiff and to pay him a commission of 7%% on all goods delivered by defendants on orders taken by him. Plaintiff’s answer was not an acceptance, but a rejection of such offer and the substitution of a new proposition, that plaintiff would accept the employment offered “on a commission of 7%% on all orders taken.” If the proposition so made by the plaintiff was accepted by the defendants, an agreement was concluded, a contract made between the parties on the terms so proposed by the plaintiff. The acceptance need not be in writing, bnt may be inferred from the conduct of the defendants. Anglo Amer. Prov. Co. v. Prentiss, 157 Ill. 506, 514. The defendants, on the receipt of plaintiff’s letter, sent him a line of samples and price list, but did not answer his letter. Prom such acts defendants’ acceptance of the proposition contained in plaintiff’s letter is to be inferred. We think that by the contract thus made between the parties it was agreed that plaintiff should be paid a commission of 7%% on all orders taken by him. This conclusion is in accordance with the conclusion reached by the trial court; and allowing plaintiff commissions on all orders taken by him, the judgment is proper on the evidence.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    John Schwender, Appellant, v. Willis D. Smith et al., Appellees.
    Gen. No. 14,900.

      Libel—when demurrer to declaration properly sustained. If a declaration charges a libel as being contained in a pleading filed in a court of general jurisdiction, it being alleged that the libelous matter contained in such pleading was irrelevant, the facts showing the irrelevancy alleged should be set up in the declaration; otherwise it does not show a cause of action.
    Action on the case. Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed January 24, 1910.
    JoAn Schwender, pro se; L. P. Conover, of counsel.
    L”W. S- Wtes and Sherman M. Booth, for appellees,
   Mr. Justice Baker

delivered the opinion of. the court.

In an action on the case for libel a demurrer to the declaration was sustained, and the defendant electing to abide by his declaration judgment was given for the defendants and the plaintiff appealed.

The declaration contains but one count. It alleges that plaintiff is a member of the bar of Cook county; that defendants falsely and maliciously, etc., wrote and published a certain false, malicious and defamatory libel of and concerning the plaintiff and of and concerning his said profession and business, “in the form of a bill in chancery filed in the Circuit Court of Cook county, filed in a certain cause then pending therein, in which the said defendant, Willis D. Smith, is complainant, and one Mary C. B. Griswold and others are defendants (but the plaintiff herein is not a party to said suit), which said bill contained the following false, scandalous, malicious, defamatory and libelous matter, well known by defendants to be, and which was wholly irrelevant, impertinent and immaterial to the subject-matter or question involved in said bill, or to any remedy, right, or cause of action or relief which said Smith had in or to the subject-matter contained in said bill, namely, ‘that by the fraudulent, dishonest and unconscionable action of said Schwender ’ (meaning the plaintiff as such attorney and solicitor as aforesaid) ‘in omitting and wilfully failing and refusing to present said matter to the Probate Court’ (meaning a certain matter or proceeding then pending in the Probate Court of Cook county) ‘the amount or sum which would have been allowed to said Smith’ (meaning the defendant Smith herein, who was the moving party in said matter or proceeding before the said Probate Court) ‘as and for his services as such executor’ (meaning the defendant Smith as one of the executors of the estate of Edward P. Griswold, deceased) ‘was wrongfully paid to and divided between the heirs and each of them of said deceased’ (meaning the heirs of said Edward P. Griswold, deceased, of whose estate said Smith was one of the executors) ‘and that such heirs and each of them received’ (meaning the said heirs of said Edward P. Griswold, deceased) ‘as the proportion coming to them, and each of them from said estate’ (meaning said estate of said Edward P. Gris-wold, deceased) ‘just so much more than they’ (meaning said heirs) ‘would have received in equity and good conscience, as the amount of which said Smith’ (meaning the defendant Smith as such executor) ‘was wrongfully deprived by said Schwender’ (meaning the plaintiff) ‘being the same amount that said Smith’ (meaning the defendant Smith as such executor) ‘would and should have been allowed.’ And the plaintiff avers that by the writing, publishing and filing of said bill as aforesaid the defendants meant and intended to and did falsely and maliciously charge the plaintiff as such attorney and solicitor as aforesaid with having acted fraudulently, dishonestly and unconscionably in the said proceeding before the Probate Court as aforesaid, and by reason thereof the amount or sum which would have been allowed to said Smith as and for his services as such executor was wrongfully paid to and divided between the said heirs of said deceased as aforesaid. And the plaintiff further avers that the matters and things alleged in said bill as aforesaid are false, defamatory and libelous, and were wholly irrelevant and improper, impertinent and immaterial to the subject-matter or questions involved in the cause or alleged cause set forth in said bill, and that the court in which said bill was filed as aforesaid had no jurisdiction to hear and determine the cause or alleged cause in said bill set forth, all of which the defendants well knew at the time of the writing and filing of said bill as aforesaid.” The count concluded with an allegation of general damages only to the plaintiff.

In England all pleadings in judicial proceedings are absolutely privileged. In some of the American states the rule appears to be that the privilege is not absolute and cannot cover a case where a party injects into a pleading defamatory matter wholly irrelevant to the question in litigation, or where such matter is alleged in a pleading filed in a court which is without jurisdiction to hear the cause in which such pleading is filed.

In Ash v. Zwietusch, 159 Ill. 457, the Supreme Court found it unnecessary to decide whether the privilege is absolute or whether it does not cover such a case. Counsel in this case agree that the following is a correct statement of the law: “Statements made in pleadings, in the course of judicial proceedings, before a competent tribunal, though they are such as if used elsewhere, would import malice, and be actionable per se, are not actionable if they are applicable and pertinent to the subject of inquiry.”

The count alleges that the matter alleged to be libelous was published in a bill in chancery filed in the Circuit Court, a court of general chancery jurisdiction. Prima facie, at least, the matter was privileged. To state a cause of action it was therefore necessary for the pleader to aver facts to bring the case within some exception to the rule. It was not necessary to plead evidence of the facts relied on to bring the case within an exception to the rule, but enough of the facts relied on as bringing the case within an exception do the rule must be alleged to enable the court to determine their sufficiency. The allegation that the matter alleged to be libelous,' “was irrelevant, impertinent and immaterial to the subject-matter or question involved in said bill, or to any right, etc., which said Smith had in or to the subject-matter contained in said bill,” and the allegation that the matters alleged in said bill, “were wholly irrelevant, improper, impertinent and immaterial to the subject-matter or questions involved in the cause, or alleged cause, set forth in said bill, and that the court in which said bill was filed had no jurisdiction to hear the cause or alleged cause in said bill set forth,” rest on no alleged fact as to the contents, scope, purpose or object of the bill. Unaided by-presumptions or inferences from facts alleged, such averments are only statements of the legal conclusions of the pleader. The demurrer admits the facts pleaded, but not the mere conclusions of the pleader not based on alleged facts. We think that, conceding the rule of law stated by counsel to be a correct statement of the law-of this state, the declaration fails to state a cause of action and the demurrer was therefore properly sustained.

In Strauss v. Meyer, 48 Ill. 385, the declaration stated the scope and purpose of the bill, from which it appears that the defamatory matter stated in the declaration was pertinent and material. The Superior Court sustained a demurrer to the declaration and the judgment was affirmed on the ground that the matter was privileged. In Ash v. Zwietusch supra the alleged libelous matter was contained in an answer to a bill in chancery. The declaration set out in full the bill and answer and averred that the defamatory matter contained in the answer was wholly irrelevant and impertinent to the matter in controversy and was inserted in the answer maliciously, etc. A demurrer to the declaration was sustained. It was held that it appeared from a reading of the bill and answer that the defamatory matter was not wholly irrelevant and that the demurrer to the declaration was properly sustained.

The declaration in that case, as well as in this, averred that the defamatory matter was irrelevant. In that case the conclusion that the matter was irrelevant was inconsistent with the facts alleged. In this case the averment is without any alleged facts to support it.

The demurrer was properly sustained, and the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    John D. Casey, Administrator, Appellant, v. Chicago and Eastern Illinois Railroad Company et al., Appellees.
    Gen. No. 14,907.
    PansoNAL INJuRIEs-what essential to recovery by trespasser. A trespasser upon the right of way of a railroad company cannot recover unless from the evidence the jury may properly find that the conduct of the employee of the railroad company which resulted in the injury was not merely negligent but so reckless as ~to indicate a disregard for life or a general disposition to do injury.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. M. W. Tuo~IPsoN, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed January 24, 1910.
    OSSIAN CAMERON and A. S. LixEy, for appellant.
    CALHOUN, LYFORD & SHEEAN, for app ellees; E. H. SENEFF, of counseL
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the plaintiff from a judgment on a directed verdict for the defendants in an action for wrongfully causing the death of plaintiff's intestate. One of the defendant corporations constructed and the other operated a railroad, the tracks of which near Seventy-ninth street in Chicago ran nearly north and south. A suburban passenger train was going north on the east track, the locomotive running with the tender in front. When the fireman, whose seat was on the east side of the locomotive, first saw deceased he was about two hundred feet north of the locomotive and six feet east of the east track, walking north. The engineer could not, from his seat on the west side of the locomotive, see the deceased. Just as the fireman noticed the deceased the engineer shut off steam for the stop at Seventy-ninth street, and the fireman reached over inside of the cab and turned a valve to set a blower in motion that blew the smoke upwards. "When the fireman next saw deceased he had crossed over on to the track in which the locomotive was running and was then less than twenty feet ahead of the locomotive. The fireman at once called to the engineer to stop and the engineer made every effort to do so, but was unable to stop the locomotive before it struck plaintiff’s intestate and so injured him that death ensued.

Plaintiff’s intestate was a trespasser on the right of way, and plaintiff could not recover unless from the evidence the jury might properly find that the conduct of the fireman was not merely negligent but was so reckless as to indicate a disregard for life or a general disposition to do injury. In Martin v. C. & N. W. Ry. Co., 194 Ill. 138, the fireman saw deceased lying on the track when the locomotive was 1,400 feet distant and when, if he had notified the engineer, the locomotive might have been stopped in time to prevent injury to deceased; and it was said, p. 148, “The knowledge of this fireman was the knowledge of the defendant, and if he neglected his duty when he had knowledge that deceased was upon the track, and did not notify the engineer in time to enable him to avert the injury, and could have done so, then it was a question for the jury whether the defendant was not guilty of negligence, and whether that negligence was not wanton and reckless to the extent of wilfulness.” In C. T. T. R. R. Co. v. Kotoski, 199 Ill. 383, plaintiff was attempting to cross a trestle to reach an excursion train. "When he was near the middle of the trestle the train started to back toward bim and there was no place on the trestle on which he could stand and permit the train to pass by him in safety. A trainman stood on the rear car and saw plaintiff, but made no effort to stop the train. The train overtook plaintiff, threw him from the trestle and injured him, and it was said that the evidence tended to show that the injury was wilfully inflicted. In this case, when the fireman noticed deceased he was walking on a line parallel with the track and a sufficient distance from it as to be in no danger of injury from the approaching locomotive, and the fireman had a right to assume that deceased would remain at such safe distance from the track until he manifested a disposition to go upon, or so near to, the track as to be in danger of injury. C. R. I. & P. R. R. Co. v. Austin, 69 Ill. 419; C. U. T. Co. v. Browdy, 206 Ill. 615.

The act of the fireman in turning his eyes away from the deceased for a short time, under the circumstances disclosed by the evidence, was not an act indicating a disregard for human life or a general disposition to do injury. The instant that the fireman discovered that deceased had turned toward the track and was in danger of injury from the approaching locomotive, he called to the engineer to stop. There is in the record no evidence tending to prove wilful misconduct on the part of the fireman, or conduct so wanton or reckless as to amount to or constitute wilful misconduct on his part.

On the evidence in this record the instruction to find the defendants not guilty was proper, and the judgment is affirmed.

Affirmed.


author: Mr. Justice Freeman

text:
    Rose Pecararo, Defendant in Error, v. John Halberg, Plaintiff in Error.
    Gen. No. 14,835.
    1. Verdicts—when upon exercise of ordinary care not disturbed,. Whether the plaintiff at the time of the accident was in the exercise of ordinary care is a question of fact and in the absence of substantial errors of procedure or of erroneous instructions to the jury, the verdict of the jury in this respect if warranted by the evidence will not be disturbed.
    2. Verdicts—when upon amount of damages not disturbed. It is for the jury to determine the amount of damages which should be awarded for an injury suffered and unless the verdict rendered is not sustained by the evidence, it will not be disturbed.

      3. Instructions—when erroneous will not reverse. An erroneous instruction will not reverse in the absence of prejudice resulting.
    4. Evidence—token objection comes too late. An objection to evidence first made on appeal will not avail.
    5. New trial—effect of granting, as to one joint, tort-feasor. A joint tort-feasor cannot complain of the action of the court in granting to his co-defendant a new trial and denying a new trial as to him.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed January 24, 1910.
    Rehearing denied February 21, 1910.
    Statement by the Court. This is an action brought against the defendant Halberg and the city of Chicago to recover for personal injuries. The plaintiff was a child eleven years of age. There is evidence tending to show that about half after four o’clock in the afternoon of January 7, 1908, the plaintiff, accompanied by her mother, was walking along a wooden sidewalk in front of a store occupied by the defendant Halberg at 16 Milton avenue, Chicago. There was an opening in the sidewalk in front of the store, within which opening were stairs leading to the basement. This opening when closed was covered with a trap door four feet six inches in length and two feet one inch wide. It was attached to the sidewalk by hinges placed at the outer edge of the opening two feet one inch from the front of the building. When closed the trap door was even with the surface of the walk. When open it stood parallel with the front wall of the store, above and nearly perpendicular to the sidewalk but leaning somewhat outward. It was held in that position by a chain fastened at the lower end to the sidewalk at a point close to the front of the building. The chain therefore extended across one end of the opening at an angle of about forty-five degrees. The sidewalk at this point was nine feet eleven inches in width, and the outer edge of the opening and the trap door when standing open was abont seven feet ten inches from the outer edge of the sidewalk. About five o ’clock p. m. or a lit-tie later and when it was somewhat dark, the plaintiff and her mother were about to pass in front of the store where the trap door was situated. The door was open and the plaintiff, turning to speak to her mother, fell over the chain and partly into the opening beneath. The trap door fell on her, covering her except as to one foot, which stuck out from under the door. The plaintiff testifies that she did not see the hole and she fell “frontwards,” receiving the injuries complained of.
    There is evidence to the effect that the defendant was owner of the premises and conducting a grocery store on the first floor and a saloon in the rear. The upper part of the building was rented and the tenants used the basement in which to store wood and coal, obtaining access to it through the trap door in the sidewalk. The door had apparently been left open and unprotected at the time of the accident by some of these tenants. There is an ordinance of the city of Chicago providing that no “opening in any public sidewalk shall be allowed to remain uncovered or open except while the same is actually being used for the purpose of entrance or exit or for the purpose of introducing or removing any article through such opening.”
    The issues were submitted to a jury, and a verdict was returned finding the defendants guilty and assessing plaintiff’s damages at $750. Subsequently the court granted a motion for a new trial by the city and overruled a similar motion by the other defendant, Halberg, against whom judgment was entered upon the verdict. The defendant Halberg sues out this writ of error.
    J. W. Bichey, W. E. Hughes, A. W. Fulton and John F. Haebis, for plaintiff in error.
    Stedman & Soelke, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

1, It is urged the verdict is manifestly against the weight of the evidence and that it was error therefore to refuse plaintiff in error a new trial. That the opening into which the plaintiff fell was left exposed with the trap door open and that it was not actually in use for entrance or exit by any one at the time of the accident, is apparent from the evidence. That is was negligent to leave it open and unguarded in such manner in view of its exposed situation upon a public sidewalk at that hour of a winter afternoon, the jury have determined by their verdict. Whether the plaintiff was at the time in the exercise of ordinary care was a question of fact and in the absence of substantial errors of procedure or of erroneous instructions to the jury, the finding of the latter in this respect if warranted, as we think it is, by the evidence should not be disturbed. In City of Chicago v. Babcock, 143 Ill. 358-363, it is said that to hold that a pedestrian “is absolutely bound to keep his or her eyes constantly fixed on the sidewalk in a search for possible holes or other defects would be to establish a manifestly unreasonable and wholly impracticable rule. ”

2. It is urged that the verdict and judgment are excessive. There is evidence tending to show that plaintiff received a cut upon the face extending to the bone, that the cheek bone was fractured and the spine injured. The jury saw and heard the witnesses. The plaintiff herself was on the stand. From the testimony of one of the physicians called by the defense it appeared that the plaintiff was emaciated at the time of the trial. His opinion was that she had tuberculosis of the lungs and that such condition had then existed “approximately a year.” It was for the jury to determine from the evidence not only whether the plaintiff was entitled to recover but the amount of compensation, if any, which should be awarded for injuries shown by the evidence to have been caused by the accident. We find no sufficient reason for disturbing the verdict in this respect.

3. Complaint is made of certain instructions. Some of these objections are not well taken. The amount claimed in the bill of particulars is not a proper measure of damages, but the instruction complained of as it is given in the abstract limits recovery to such damages as from the evidence appear to have been sustained. There is not, it is true, any question under the evidence as to whether the trap door was “in good repair,” and the instruction in reference to that may be open to criticism. But the mere fact that instructions are in some respects inaccurate is not of itself sufficient ground for setting aside a verdict or judgment. To justify such action it should appear that alleged errors were harmful. In the present case the jury did not award the amount claimed in the bill of particulars, nor does examination of the instructions disclose harmful error.

4. Evidence admitted without objection on the part of opposing counsel cannot be objected to here for the first time. Any error of that kind must be deemed to have been waived.

5. It is urged the defendant Halberg is prejudiced by the action of the court in granting a motion for a new trial made in behalf of the city of Chicago and refusing the same motion in behalf of plaintiff in error. The ground of objection is that the jury may have considered in reaching the amount of the verdict that half of it would fall on each of the original defendants. “A plaintiff in an action of tort may take judgment against as many defendants as he pleases. The liability of tort feasors is joint and several, and the person injured can select which of them he chooses to have judgment against.” I. C. R. R. Co. v. Foulks, 191 Ill. 57-69. The plaintiff in error cannot be heard to complain because the court granted his co-defendant a new trial instead of dismissing the suit as to it. His rights are in no way affected thereby.

The judgment of the Municipal Court will be affirmed.

Affirmed.