author: Wilkin, P. J. Pillsbury, J., dissenting.

text:
    Chicago & Alton Railroad Company v. Sylvester McDonald.

      Railroads — Dufy to Prevent Collisions — Liability for Personal Injury to Employe — Conductor and Engineer of Construction Train and Shoveler, Felloiv-Servants — Company not Liable for Injury to Shoveler.

    1. Railroad companies are by the law held to a high degree of care and 'diligence in the adoption and enforcement of all needful rules and regulations to avoid collisions of trains, and thereby promote the safety of their employes and others. >
    2. The conductor and engineer of a construction train and a shoveler employed on such train, are fellow servants engaged in the same branch of service, and their common master is not liable for an injury to the shoveler through the negligence of the conductor and engineer, or either of them.
    3. In the case presented, it is held: That the collision causing the injury complained of was due to the negligence of the conductor, superinduced by the inexcusable carelessness or wilfulness of the engineer; and that, under all the circumstances, it was not reasonably necessary to prevent the collision for the train dispatcher to notify the conductor of the construction train that the regular passenger train- was late, it being the duty of the latter, under his working orders and the general rules, to wait until the passenger train had passed.
    [Opinion filed March 9, 1887.]
    Appeal from the City Court of East St. Louis; the Hon. William P. Launtz, Judge, presiding.
    Statement of the case by Wilkin, P. J. On the morning of May 13, 1886, appellee, who was employed by appellant, took passage with other laborers on a construction train of appellant, consisting of locomotive engine and caboose car, at Higbee, Missouri, a station on the line of appellant’s railroad. This crew of laborers had over them a foreman named Cavenaugli, also employed by appellant. The train was in charge of a conductor, O. F. Culbertson, who controlled and directed its movements. On the morning in question, about 7 o’clock a. m., conductor Culbertson received from F. M. White, the chief train dispatcher, the following order for the movement of his train on said day, viz:
    “ Slater, Mo., May 13, 1885.
    To Paine and Engineer Culbertson and Engineer Wright and engineer at Ilighbee; Paine, Culbertson and Wright, engines 204, 194 and 200, will work between Highbee and ' Clark, as three wild trains, and make arrangements to keep out of each other’s way, and work until 7.40 i\ m. regardless of train 74, Conductor Gibbs, engine 168; all other trains due have passed.”
    He was also supplied with a copy of the general rules of appellant, which were introduced by appellee, and by which he testifies he was governed; among which are the following:
    Rule 1 gives trains going north and ea-t absolute right of road over all trains going ’south -or west, of the same class. Prohibits trains going north or east.leaving stations or passing places where by time table they should pass trains of same class, until five minutes after its own lime, per table; the five minutes to be observed at every succeeding station until the expected train is passed.
    Rule 5. Provides that “ the safe side must always be taken in cases of the least uncertainty”; that trains are to bo run under the direction of the conductor, except when his directions conflict with train orders, etc.
    Rule 8. “ Irregular trains, running under special telegraph ■orders, must be run with great care.”
    Rule 20. “ Division, superintendents and appointed train dispatchers are alone 'authorized to move trains by telegraph.”
    ■ Rule 28 is as follows: “ Conductors of construction trains must notify the train dispatcher every evening, from the nearest telegraph office, where they desire to work the following day, and obtain working orders, a copy of which the engineer must have before starting out to work. Those orders, unless .otherwise stated, will be in force from 6 a. m. -until 8 p. m. only. Conductors must ascertain also the positions of all trains, and learn positively that all trains due during the night have arrived or passed, and under no consideration pass the limits given without permission.” This train went east some eight or nine miles, near Clark station, and proceeded to work on a new piece of road-bed, intended to straighten the track, the men shoveling on the cars under the directions of their foreman and the conductor moving the train as directed by him. The dirt, however, was not moved off the new line that day, and hence the train only used the main line in going to and attempting to return from the work, its headquarters being at Higbee. This train, with the same conductor, had been engaged in this work two months. About 6 o’clock in the evening the conductor started his train, with appellee and other laborers aboard, back to Higbee, but had only gone a short distance on the main line when he collided with passengcr train Ho. 47, east bound, some six hours late. Appellee, to avoid the consequences of the collision, jumped from the caboose of the work train, thereby receiving the injury for which he brings this suit. The injury complained of is hernia, and the evidence was sufficient to justify the jury in finding that it was occasioned by the fall in jumping from the car, to avoid the wreck of the two trains; also that the injury is permanent, and to some extent disables him for the performance of manual labor. In the first count of his declaration he bases his right to recover on the allegation that his injury resulted from the negligence of the servants of appellant in running and operating the said construction train; in the second, that the collision of the two trains and his consequent injury was caused by the negligence and fault of the train dispatcher; in the third, that the injury resulted from a failure on the part of appellant to have an office or stopping place for trains at the junction of the new work with the main track. The train dispatcher for this division of appellant’s road had his office at Slater, Missouri, west of the place of the collision. About 8:30 a. m. that day he knew that Ho. 47 was being delayed by a wreck west of his station, and about 9:40 a. m. he sent an order to trains east giving all trains the right to use four hours on the time of train 47. This order was c ek'vered to Paine and Wright (through Conductor Young, of train Ho. 99), the other two conductors of construction trains leaving Higbee that morning, but not to Culbertson. Afterward another order was sent giving certain trains five hours and thirty minutes on the time of No. 47, but it was not sent to either of the three construction trains. It does not definitely appear from the evidence whether Paine and Wright were on the new work exclusively or not, but the train dispatcher testified that the reason he sent the order giving four hours on the time of No. 47 to them, and not to Culbertson, was because they were working on the main line, and could no.t occupy it against passenger trains without special telegraph orders, while his work was on a portion of the new line not used by regular trains.
    Appellee introduced Conductor Culbertson, and as to his conduct in moving his train out on the main line against No. 47, he was interrogated and answered as follows: Do you know when No. 99, Young, conductor, passed over the main line ? Answer. I do. Wore any of your men at the main line, when' the train went, to watch for orders ? Answer. Yes; I was there myself. * * * I should say it was between 9 and 10 o’clock. I received no signal more than throwing up the hand. * * * The fireman and myself went up to the junction when train No. 75 passed. .It was a freight train and it was about 12:20 or 12:25 o’clock. What has been your custom previous to the 13th of May in regard to the time of returning to Higbee after work ? No matter where we were, at 6 o’clock in the evening, as soon as the men quit work, we went to Higbee every night. * * * The distance between the junction and Clark is between one and three quarters and two miles over the crooked road. Across it was about a mile. I did not go to Clark that evening to the telegraph office to get orders to find o.ut whether all trains were on time and had passed, because I would be in just as bad shape to go to Clark as the other way, because I never protected myself against trains coming between Clark and the junction, because I had no occasion to go to the junction. ■ The only three trains I had to protect myself against were coming east; for that reason I never paid any attention to trains the other way. 1 knew I had to guard in an out. A man running a work train has to fight in and out. When I' took a notion to go ahead of a train I didn’t care if it was ahead or behind, if it was going the same way, when through we would go. We had some general rules issued by the company. He identified the rules and was asked: Did you have any other rules and regulations except the general rules that appear on this table? Answer. Ho, sir; only telegraph orders. Did you have a, co py of this ? Answer. Tes, sir; I have been railroading about fourteen years — running a train about nine years. How I will ask you this question : When a passenger train, having the right of the road, is behind time according to the time table, whether it is customary and usual to send telegraphic orders to all trains running in an opposite direction, giving them time on the passenger train or notifying them that the train,is behind time? Answer. Tes; it is, on all roads. It is a means of safety and of preventing collisions. The telegraph is continually used in the running of trains; very seldom a train goes over the road or half way over the division without getting a pocket full of them. If I had received the same telegraph order as the one sent to Conductors Paine and Wright on that day the collision would not have occurred. On cross-examination he testified: I received no order from the superintendent that day. I received no verbal orders; my engineer received none to my knowledge. What means had you of knowing whether train Ho. 47 had passed ? Answer. The only means was going over there to see. Those were the means you had always adopted before that day ? Answer. Tes; there is a rule that requires you to keep out of the way of regular trains. How do you do that ? Answer. Get on the side track and wait. How long? Answer. Wait twelve hours if I can’t get any help. And if you don’t get any help in twelve hours, how long ? Answer. Twelve hours and five minutes. Then how much longer ? Answer. Ho longer. In this case how long did you wait after 47 was due ? Answer. Six hours. Tou waited six hours ? Answer. Tes, sir. Tou knew the time 47 was due? Answer. 12:05. How ■ ° long were you to wait.? It was your duty as a careful conductor to wait until you ascertained whether 47 had passed. This was not a switch? Answer. If 47 would be twelve hours late I would lose my right. How long would you have to wait after it was-due for. it- to pass? Answer. I said I would have to wait indefinitely because I had lost my right. Ton would have to wait until you had ascertained physically whether it had passed or not? Answer. Tes sir. If she was due at 12 o’clock in the day time and you hadn’t found at 6 or 7 o’clock that she had passed or have reason to believe it you would not have gone out? Ho sir, if I hadn’t reason to believe she had passed. What reason had you for believing she had passed ? Answer. The engineer told me he saw her go by. What engineer told you so ? Answer. My engineer, the engineer working with me. Was it not your duty to go up and see that she went by ? Answer. It was my duty to go or send some one. That was your means of finding out whether Ho. 47 had passed or not? Answer. That was the only way, yes, that was the only way I had of knowing positively unless they sent me an order; * * * in the absence of receiving a telegraphic order or any other -order it was my duty to be out there or send some one. I sent my engineer and he reported to me that he saw her go by about on time; that caused me to move out; afterwards I found out I was mistaken. Without that statement of your engineer you would not go out for a week. Answer. Ho," sir; I did not receive any telegraphic permission to move out that day. * * * I was working at the time of this accidept under these general rules already in evidence. * * * That day I was working under rule 28; under this rule in the absence of any telegraphic orders. I had to see the other train or have one of my men under my control in whom I had confidence, to tell me it had gone by; * * * failing to get an order would not have caused the accident unless I thought 47 had passed. * * * There was no work for me to do that day between the junction and Higbee. This order, 182, a working order, is the only one I received that day. On redirect examination he was asked, under this order what were your duties ? Answer. My duties were to work the main line in the way I saw fit between Higbee and Clark, to keep out of the Avay of trains. Regular time card trains Avere the ones I had to keep out of the way of. How in case one of the regular trains was late and had lost its place on the time card, was there any way by which you could know that it hadn’t passed or to know in any way to keep out of the way of that train except a telegraphic order ? Answer. Ho, sir, not without it had lost the right to the track. Ho. 47 had not lost its right that day. Ho instructions to the jury were asked or given on behalf of appellee. The jury returned a verdict in favor of appellee for §6,260. Motion for new trial was overruled and judgment rendered for the amount of the verdict and costs.
    The case comes here by appeal.
    Mr. J. L. Hite, for appellant.
    The refusal of the court to grant a new trial was erroneous? because the conductor and engineer, through whose carelessness and disobedience of orders plaintiff was injured, were his fellow-servants, working under a common master, and cooperating with each other in doing a particular piece of work.
    The principal is not liable to one servant foi the careless ness of another servant where both are engaged in a common employment, if the principal has used care in the selection of the fellow-servant. Honner v. I. C. R. R. Co., 15 Ill. 550.
    Where competent servants have been selected to perform a duty, one of them can not recover against the master for the carelessness of a fellow-servant, and it will be understood that each servant who engages in a particular business calculates the hazards incident to it, and contends accordingly. I. C. R. R. Co. v, Cox, 21 Ill. 20; Moss v. Johnson, 22 Ill. 633; C. & A. R. R. Co. v. Keefe, 47 Ill. 108; C. & A. R. R. Co. v. Murphy, 53 Ill. 336.
    The engineer, brakemen and sliovelers employed on a construction train are all co-servants, engaged in the same branch of service, and a shoveler who is injured through the negligence of the engineer or trackmen can not recover from their common employer for such injury, if the employer has used due diligence in their selection. And there was no claim made or proved that the employer was guilty of negligence in selecting its employes who - were working with the plaintiff. St. L. & S. E. R. R. Co. v. Britz, 72 Ill. 256; T., W. & W. R, R. Co. v. Durkin, 76 Ill. 395.
    We have cited these cases to show how they have hy evolution led to the decision in the Abend case, 111 Ill. 202, where the court is at last called upon to decide, not only what facts establish the relation of fellow-servants of a common employer, but also what the facts were in the case.
    Messrs. Flannigen & Canby, for appellee.
    The collision and consequent injury to appellee were occasioned by the negligence and fault of appellant’s train dispatcher in failing to send to Conductor Culbertson a proper and necessary order, notifying him that passenger train Fío., 47 was behind time, and that for such negligence the company is liable. C. B. & R. R. Co. v. McLallen, 84 Ill. 109; Darrigan v. N. Y. & N. E. R. R. Co., 52 Conn. 306; Sheehan v. N. Y. O. & H. R. R. R. Co., 91 N. Y. 332; L. C. & L. R. R. Co. v. Cavens, 9 Bush, 560; P., C. & C. R. R. Co. v. Henderson, 37 O. St. 549.
    A railroad company is bound to adopt such rules and regulations for the running of its trains as will insure safety, and having adopted them to conform to them or be responsible for consequences resulting from a departure from them. C. & N. W. R. R. Co. v. Taylor, 69 Ill. 461; C., B. & Q. R. R. Co. v. George, 19 Ill. 510.
    The question of negligence is one of fact, which must be left to the jury for determination; I. C. R. R. Co. v. Cragin, 71 Ill. 177; Northern Line Packet Co. v. Binninger, 70 Ill. 571; G. & C. U. R. R. Co. v. Dill, 22 Ill. 264; Burkett v. Bond, 12 Ill. 87; T., P. & W. R. R. Co. v. Foster, 43 Ill. 415; C. & A. R. R. Co. v. Pennell, 94 Ill. 448.
    The plaintiff, a common laborer, is not a fellow-servant with the train dispatcher. C., B. & Q. R. R. Co. v. McLallen, 84 Ill. 109; Darrigan v. N. Y. & N. E. R. R. Co., 52 Conn. 306; Shechan v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 332; Louisville, etc., R. R. Co. v. Cavens, 9 Bush. 560.
    The conductor was not a fellow-servant' with plaintiff, and that for his negligence in this case the plaintiff would be entitled to recover. In order to constitute servants of the same master “ fellow-servants,” within the rule respondeat superior, it is not enough that they were engaged in doing parts of some work, or in the promotion of some enterprise carried on by the master not requiring co-operation, nor bringing the servants together or into such personal relations that they could have exercised an influence one upon the other promotive of proper caution in respect to their mutual safety; but it is essentia] either that they were actually co-operating at the time of the injury in the particular business in hand, or that their usual duties should bring them into habitual consociation so that such proper caution would be likely to result. C. & N. W. R. R. Co. v. Moranda, 93 Ill. 302; C. & N. W. R. R. Co. v. Moranda, 108 Ill. 576.
    Who are fellow-servants, is a question of fact for the jury. C. , B. & Q. R. R. Co. v. Bell, 112 Ill. 360; C. & N. W. R. R. Co. v. Moranda, 108 Ill. 576; I. & St. L. R. R. Co. v. Morgenstern, 106 Ill. 216.
    We are aware it has been held by the Supreme Court of the State that the engineer, brakemen and shovelers employed on a construction train are all co-servants, engaged in the same branch of service. St. L. & S. E. R. R. Co. v. Britz, 72 Ill. 256; I. C. R. R. Co. v. Keen, 72 Ill. 512; C. & A. R. R. Co. v. Keefe, 47 Ill. 108.
    But it has never been held by our court, so far as we have been able to discover, that a conductor of a construction train, with power to direct and control its movements, is a fellow-servant with a common laborer on such train.
    It has been held, however, in other courts, that the conduct- or of a construction train is not a fellow-servant with a gang of laborers. St. P. & C. R. R. Co. v. Lundstorm, 16 Neb. 254; Moon v. Richmond & A. R. R. Co., 20 Iowa, 562; Little Miami R. R. Co. v. Stevens, 20 Ohio, 415.
    And it has been held by the highest court in the land that a conductor, who has charge of a train and commands its movements, is not a fellow-servant with the engineer so as to produce a recovery by the latter against the company for an injury resulting from the conductor’s negligence. C., M. & C. R. R. Co. v. Ross, 112 U. S. 377, and cases cited.
    It is immaterial whether the conductor or foreman of the train were fellow-servants of plaintiff or not; if the accident was the result of the mutual and concurrent negligence of the company represented by its train dispatcher and the conductor or foreman of the train, the company would still be liable. Grand Trunk R. R. Co. v. Cummings, 106 U. S. 700; P., C. & C. R. R. Co. v. Henderson, 37 Ohio St. 549; Elmer v. Locke, 135 Mass. 575; Busch v. Buffalo Creek R. R. Co., 29 Hun, 112; Boyce v. Fitzpatrick, 80 Ind. 526.
   Wilkin, P. J.

There are two theories upon which appellee’s cause of action is based, and they are set forth in the first and second counts of his declaration. There is' no evidence tending to support the third. There is no controversy of fact on the first count as to the allegation of negligence. Appellant concedes that whatever injury resulted to appellee by reason of the alleged accident was occasioned by the negligence of the engineer and conductor, or one of them; but maintains that they were fellow-servants with him at the time of the injury, and that therefore, in the absence of allegation or proof that it had failed to use due care in their selection, it is not liable. Appellee admits that by the law of this State this position is well taken, if the relation of fellow-servants existed, but he insists that as to the conductor, Culbertson, the evidence does not establish that relation. That the train in question was a construction train, and nothing more, is admitted; that the conductor, engineer, brakeman, fireman .and workmen, including the appellee, all belonged to it and worked together is also conceded. It is admitted by counsel for appellee, that under this state of facts, by repeated decisions of the Supreme" Court, the engineer, brakeman, fireman and workmen are held to be fellow-servants, engaged in the same branch of service, and hence the common master is not liable for any injury to one of them through the negligence of another; but they earnestly argue that the conductor sustains a different relation to the other employes connected with his train, and as to his negligent acts, the same rule should not apply. This position is not based on the theory that he and the shovelers are not consooiatech with each other, within the requirement of the rule announced in the Moranda and other cases decided by the Supreme Court. In fact, it is difficult to conceive how it could be maintained that he sustains a different relation to them, in that regard, from that of the engineer or brakeman. The ground upon which the distinction is- sought to be maintained is, that the conductor, being the superior officer of a train, and having the sole management and control of its movements, stands in the position of a vice principal, or as the personal representative of the corporation.” Whatever reason or authority may be adduced in support of this position, when applied to conductors of trains running on schedule time and under general rules, we do not consider it an open question in this State. T., W. & W. R. R. Co. v. Durkin, 76 Ill. 395 ; Clark v. C.,B. & Q. R. R. Co., 92 Ill. 43; Aben v. T. H. & I. R. R. Co,, 111 Ill. 210. Noris the reasoning in the case of C., M. & C. R. R. Co. v. Ross, 112 U. S. 337, and other cases, holding that certain superior employes of a corporation are to be held as vice principals, applicable to the facts in this case. It needs no argument to show that the position of a conductor in charge of a regular train is altogether different from that of one in charge of a mere construction train. The latter, as shown by the evidence in this case, acts under special orders at all times in the movement of his train, and is engaged in special service. On the first count the case is not distinguishable from that of the T. H. & I. v. Aben, supra, by fair construction and on that count the law must be held with appellant. The second count fails to specifically charge any act of negligence on the part of the train dispatcher, but alleges generally that the injury resulted through his neglect in permitting the two trains to come together, it being his duty to direct and control their movements. It is said in the argument that the evidence shows that he was guilty of negligence in failing to notify the conductor of the work train that Bo. 47 was late, and that omission caused or contributed to the-injury of appellee. The right to recover under this count is based on that theory. The only evidence tending to support this view of the case is that of Conductor Culbertson, given substantially, if not literally, in the foregoing statement. Railroad companies should be, and are by the law, held to a high degree of care and diligence in the adoption and enforcement of all needful rules and regulations to avoid collisions of trains, and if it can be fairly said from the evidence here, that the two trains in question were thrown together through the failure of appellant to provide for the government of its employes and officers such rules, its legal liability follows. And although there was no express rule of the company making it the duty of train dispatchers to notify those in charge of wild, or work trains, that regular passenger trains were late, yet if under all the circumstances proved such notice was reasonably necessary to prevent the collision, the failure of the dispatcher, who had control of the movement of all trains, to give it, would be negligence, and appc'lant liable. There is no pretense on the part of appellant that such notice was given, and therefore, by determining whether or not it was necessary, and whether or not the injury was the result of the failure to give it, we shall be able to settle the question of liability under the second count. In the absence of such notice, what were the rights and duties of the conductor of the wild train, and what had the train dispatcher a right to presume he would do? There can be, and there is, no dispute as to the fact that, by his working orders for that day and the general rules of the company, under which he says he was working, and which he fully understood, it was his duty to keep out of the way of Ho. 47, not only for the number of hours she was late, but as he says until he knew she had passed. He testifies : “Ihad to guard in and guard out. A man running a working train has to fight in and fight out.” It is true that an attempt is made in his redirect examination to confine his construction and understand, ing of the rules as to the rights of wild trains, to regular trains on time, but his testimony, all considered, bears no such con. struction and would be absurd if it did. A rule which would permit all wild or irregular trains to occupy the track against regular trains, whenever the latter were off their schedule time, Would be worse than nonsensical. These rules can not be so construed, nor did Culbertson so understand them. It is therefore clear that obedience to what he understood to be his plain duty, in the absence of notice or orders from the train dispatcher, would have prevented Culbertson’s moving his train on the main line, where the collision occurred, until Ho. 47 had passed; and up to the time the collision occurred the train dispatcher had no more reason to anticipate disobedience to the working order and rules of the company than he would have had for believing that a dispatch giving notice that 47 was late, would be disregarded if delivered to him. Again, did the failure to give notice of the fact that the passenger train was late, cause the accident? A direct answer to this question is found in the evidence of Culbertson.

He swears: I would not have started out that evening if I had not seen or if one of my men had not seen Ho. 47 go by first; if we had not, then in the absence of any order I would have stayed there ; failing to get au order would not have caused the accident unless I thought 47 had passed.” It is true he states in another part of his testimony that if he had received the same telegram that Paine and Wright did, the collision would not have occurred; and that perhaps is true, not, however, because it was necessary in order to fix his duty in the premises, but because he would have believed the dispatch, rather than his engineer, or taken steps to verify the statement of the latter. There can be no doubt that whatever necessity there was for notice from the train dispatcher as to the delay of Ho. 47, arose from the false statement of the engineer, and that alone. The train dispatcher had ho knowledge of such false statement being made. It certainly can not be said that it was his duty to assume that false information would be communicated to Culbertson; or that he would act upon it if given. He had a right to presume that he would do his duty. That duty requiring him to keep out of the way of 47, until he knew it had passed, and such knowledge being within the power of Culbertson, beyond peradventure, the dispatch or notice as the facts then appeared was wholly unnecessary. Whether the true reason for sending orders to Paine and Wright and not to Culbertson, is given by the train dispatcher, or whether there existed any reason whatever therefor, is wholly immaterial. The mere fact that they had orders based on the fact that 47 was late, could in no sense change or affect the question of negligence in not notify, ing Culbertson. The authorities cited by counsel for appellee in support of the proposition that if, through the negligence of train dispatchers or other officials having charge and control of the movement 'of railroad trains, they are brought into collision, thereby causing injury to employes or others, the company will be liable, certainly announce a correct rule of law; but under the facts of this case they are wholly inapplicable. • In the case of Schuhan v. New York Central and Hudson River R. R. Co., 91 N. Y. 332, the reported facts show that train Ho. 337 was irregular, and west bound from Auburn. Ho. 50 was a regular train, going east from Cayuga. No. 337 was ordered to Cayuga, regardless of Ho. 50, but no notice was given to the latter. The two collided, injuring the fireman of Ho. 337. It was held that there was negligence ip not giving notice to Ho. 50. It need scarcely be said that the facts in that case and this are wholly unlike. There the officers in charge of the irregular train were acting in strict obedience to orders; here the conductor of the wild train in direct disobedience to his orders, and the general rules. The other cases cited are equally inapplicable. The evidence in this record fairly considered, must, we think, force any impaitial mind to the conclusion that the facts in appellee’s case are truly stated in the first count of his declaration, and not in the second. That his injury resulted from the negligence of the conductor, superinduced by the inexcusable carelessness or wilfulness of the engineer of the work train, aiid not by reason of any omission of duty on the part of the train dispatcher.

Reversed and remanded.

Pillsbury, J., dissenting.

I can not concur in this opinion. The evidence shows to my mind that the negligence of the train dispatcher, at least, concurred with that of the conductor in producing the injury, and in such case, even if the conductor is to be held a fellow-servant with the plaintiff, the action I think can still be maintained.


source: Caselaw Access Project

author: Baker, J.

license: Public Domain

text:
    Second District
    May Term, 1885.
    Frank S. Bressler v. Thomas S. Beach and George G. Keefer.

      Action of Trespass against Sheriff and Deputy Sheriff — Right of Assignee of Plaintiff in Execution to Control Process — Notice—Fraudulent Sale — Possession—Instructions—Practice.
    1. The assignee of the plaintiff in an execution has an undoubted right to control such process. But an officer engaged in the service of process is not bound to regard the directions of one whose interest, therein is in no way indicated by or upon such process, or otherwise brought to his attention.
    2. in an action against a Sheriff and Deputy Sheriff for taking certain horses, it is held: That the evidence justifies the conclusion that the supposed sale of the horses by the defendant in certain executions to his son, the appellant, was fraudulent and void as against creditors; that there had been no delivery of the horses to appellant; that it does not appear that the officer had notice of the assignment of the judgments to the appellant and of his ownership of the executions prior to the levy and sale, and that the instructions when considered together were substantially correct.
    3. Where the court has sustained an objection to the admission of documentary evidence, the error, if any, is cured by the subsequent admission of such evidence when offered by the adverse party.
    [Opinion filed June 8, 1886.]
    Appeal from the Circuit Court of Whiteside County.

      Messrs. C. J. Johnson and O. F. Woodruff, for appellant.
    Mr. J. E. McPheran, for appellees.
   Baker, J.

This was trespass by appellant against appellees, Sheriff and Deputy Sheriff of Whiteside County, for taking four horses. The general issue was filed, and with it notice in writing of special matter in justification, to the effect the horses were the property of Peter Bressler and in his possession, and were taken by virtue of two executions issued out of the office of the Clerk of the Circuit Court of Whiteside County, upon judgments in favor of Frances Bressler and against Peter Bressler and August Schwertferger. The result of a jury trial was a verdict and judgment for appellees.

We think the evidence not only abundantly justifies the conclusion that the supposed sale of the horses by Peter Bressler to his son, the appellant, was fraudulent and void as against creditors, but also the further conclusion there had been no delivery of them to appellant, and that they were at the time they were levied upon in the possession and under the comtrol of Peter Bressler, the defendant in the executions. There was, however, some conflict in the testimony upon this latter question ; and if appellant was in possession, then such possession was sufficient to sustain the action against appellees, even though Peter Bressler was the real owner of the property seized, unless they had lawful authority to take the goods and chattels of Peter Bressler. Tort feasors can not justify a trespass by showing property in a third person. The right of appellees to levy upon the property of Peter Bressler was established, at least grima facie, by the two executions and judg. ments against him and Schwertferger which were in evidence before the jury; and it was wholly unimportant that the court had sustained an objection when they were offered as testimony by appellees, as they were afterward admitted in evidence at the instance of appellant, and it was the province and duty of the jury to pass upon the evidence as a whole.

It is objected, however, that the two judgments had been assigned on the record to appellant; that he thereby became the real owner of and. plaintiff in them and the executions issued thereon, and had a right to control such executions; and that he directed the Deputy Sheriff not to make the levies, which direction was disregarded and the property seized and sold. The plaintiff in an execution, or his or her assignee, has an undoubted right to control such process; and in this case the assignments of the judgments were shown. The only litigated questions upon this point were, whether instructions had been given as claimed, and whether the officer had notice of the assignments, and that appellant was the owner of the execution prior to the levy or the sale of the horses.

The only evidence tending to show either notice of the assignment to or ownership by appellant of the judgments, or that either the levy or sale was forbidden by him, was his written notice to the Deputy of December 18,1884, the day after the levy was indorsed, and his statement as to what was said between him and the Deputy at the time of such indorsement. His statement in regard to the conversation with the Deputy was,, that he told Keefer the horses were his and he did not want him to take them — did not want him to have anything to do with them; that they were talking about the execution, and Keefer said he had the execution against his father and Schwertferger, and Schwertferger had given a bond indemnifying him in seizing the horses, ánd that he came out to make a levy, and was going to levy on some horses. That thereupon he said to Keefer, “ I don’t want you td levy on my horses, they belong lo me;” and Keefer replied that he couldn’t help it. That he then told Keefer he would rather he would return the execution than to make the levy, and that if there was any tender necessary in order to make the execution returnable, he would make a tender; and that Keefer answered that no tender was necessary, but that he was going to make the levy anyway. The language of the written notice was: “ Yon are hereby notified that the five horses (describing them) which you have levied upon with an execution in favor of Frances Bressler, and against Peter Bressler and .August Schwertferger, belong to me, and I hereby forbid you from taking or in' any way meddling with said property.” If anything in tlie conversation even hinted at the fact of appellant’s ownership of the judgments, it was couched in language so ambiguous and uncertain that it can hardly be held to have been reasonably sufficient to put the Deputy upon inquiry. And the written notice, given before the horses were taken from the premises, seems by its very terms to exclude the idea that appellant had any proprietary interest in the judgments and executions, and the demand made in it was predicated solely upon a claim of ownership of the horses. It may also be stated, that there was nothing appearing upon the executions, by way of indorsement or otherwise, showing or intimating that he had any interest in them.

In the instructions given by the court the jury was told that if the officer knew, or was informed by appellant, or had reasonable grounds to suppose appellant was the owner of the judgments and executions, and if appellant gave instructions not to levy on the property, which were disregarded, then appellees could not justify under the executions, and that in . such case it was immaterial, so far as the appellant’s right of recovery was concerned, whether the sale of the property by Peter Bressler to him was fraudulent as to creditors or not.

It is evident from the instructions and the verdict that the jury must have passed upon the question of notice to appellees of the ownership of appellant of the judgments and executions, and must have found from the evidence that the officer ’ making the levy and sale neither knew nor was informed of the assignment of the judgments, or had reasonable grounds to suppose that appellant was the owner of them. We are not prepared to say such finding was improper. From all that appeared upon the executions appellant was a stranger to them ;' and he should have notified the officer of his interest therein, or at least have made such statements and claim as would be reasonably calculated to put the officer upon inquiry. A Sheriff engaged in the service of process is not bound to regard the directions of one whose interest in it is in no way indicated by or upon such process, or otherwise brought to his attention. The instructions of the court in this case were not altogether harmonious or accurate, but when considered together were substantially correct. The defects in those given for appellees were fully cured by other instructions given at the instance of appellant. As a whole, they were more favorable to appellant than the circumstances of the case justified. We think that substantial justice has been done by the verdict of the jury and judgment of the court.

The judgment is affirmed.

Affirmed..


author: Per Curiam.

text:
    Guy Turner and Harry A. Turner, by their next friend, v. Arthur L. Turner and Benjamin F. Turner.

      Administration — Bill to Recover Amount ■of Claim Allowed through Fraud and Collusion — Advancement—Statute cf Limitations.

    Upon a bill filed to recover the amount of a claim allowed in the County Court against an estate, it is held: That the claim presented by the father of the deceased was for money advanced to his son as a gift; that it was barred by the Statute of Limitations, and that it was allowed through fraud and collusion between the claimant and the administrator.
    [Opinion filed June 14, 1886.]
    In error to the Circuit Court of Livingston County.
    Immediately following this case appears a report of the opinion of this court herein on a petition for a rehearing.
    Messrs. A. E. Harding and O. Chubbuck, for plaintiffs in error.
    Messrs. John H. Jackson and J. T. Terry, for defendants in error.
   Per Curiam.

The appellants filed their bill in. equity against defendants in error to recover the amount of a claim allowed in the County Court against the estate of William E. Turner, the father of plaintiffs in error, in favor of the father of said deceased and the grandfather of plaintiffs in error, Benj. F. Turner, of $1,080. Another son of Benj. F. Turner and brother of Wm. E., Arthur L. Turner, was the administrator of the estate and is one of the defendants in error. The estate had been settled up and the administrator discharged. The charge is that by fraud and collusion between the claimant and the administrator this claim was allowed and paid.

The bill was, on final hearing by the court below, dismissed. The only question in the case is whether the evidence sufficiently shows .fraud and collusion between the administrator and the claimant. There is no positive proof of such collusion and if it existed it must be established by the circumstances and the surroundings, but if established by such circumstances it is sufficient.

It appears from the evidence that Wm. E. Turner died some time in December, 1881, leaving his wife Nellie J., now by marriage, Baub, and his two infant children, who are the complainants and plaintiffs in error. The defendant in error, Arthur L. Turner, was by his own request appointed adminis- , trator of the estate consisting of personalty amounting to over $3,000. The administrator was appointed about December 27, 1881.

On the 4th of March, 1882, the said Benj. F. Turner filed an account against the estate in the County Court for the amount of $50, claimed to have been loaned to Wm. E. Turner, deceased, in his lifetime, on August 26, 1879,which claim with the interest, $8.25, was duly allowed by the court and was afterward paid by the administrator. About one year before his discharge, which took place in January, 1884, the administrator had one or more conversations with Mrs. Baub, the mother of the plaintiffs in error, in which he told her that all the claims had been allowed against the estate that he knew anything about, and that there would be about $1,000, after paying the debts and costs, to distribute. After this he had a conversation with her in regard to the appointment of a guardian for the children, desiring to he appointed himself. But Mrs. Raub refused and wanted her father, A. B. Moore, appointed, when he replied in substance that his father was much opposed to that, and said he would disinherit the children if it was done. Shortly after this conversation Behj. F. Turner, October 26, 1883, made out another account against the estate for money paid to the use of deceased, and swore to it before John H. Jackson, a notary public. It is shown by the testimony of the County Judge, Wallace, before whom the claim was allowed, that the administrator presented the claim for allowance himself, when the Judge told him there must be an affidavit which the administrator filed December 4, 1833, with the claim, and the claim was allowed June 3, 1884. Mo testimony was required by the administrator, but he vouched for the correctness of the claim himself, which was then allowed without proof. It further appears from the evidence that this money was advanced by the father to his son,Wm. E., deceased, sometime prior to 1877, and as we think the evidence shows was a gift, as was also another 81,000 to another son about the same time, no note ever being taken for the amount. To say the least, the Statute of Limitations had run against the claim and the proof fails to show that it had ever been revived.

The evidence tending to show a gift to the deceased son, coupled with the peculiar manner in which this claim was presented, so long after the first claim of the father was filed, and the administrator being the active agent in having it allowed without requiring proof, and his previous statement, we regard as strong evidence of collusion, and in connection with the other circumstances, sufficient to establish the fact that the claim was not a valid one; that the money advanced to the deceased was a gift, and never intended by the father to be claimed against the son or his estate.

The evidence also shows that the Statute of Limitations had ran against the claim. The evidence also, we think, establishes the fact that the administrator well knew it, and that he procured his father to present the claim for allowance in which he was the active agent in procuring its allowance with the fraudulent intent of absorbing the balance of the estate and depriving the complainants of it. If the least defense had been interposed to the allowance of the claim it never could have been allowed, which the administrator-must have known.

We are fully satisfied that the infant complainants have been defrauded out of this large sum of money by this trumped-up ” claim which the administrator actively assisted in getting allowed. This is sufficient to give a court of equity jurisdiction, and the bill should not have been dismissed, but the finding and decree should have been in favor of the complainants, for the amount out of which they were defrauded by the allowance of this unjust claim. The decree of the court below is therefore reversed, and the cause remanded to the court below.

Decree reversed cmd cause remanded.


text:
    Guy F. Turner and Harry A. Turner, by their next friend, v. Arthur L. Turner and Benjamin F. Turner.

      Chancery Practice — Record—Evidence—Administration—Rehearing.
    1. Upon a petition for rehearing this court adheres to its former conclusions.
    2. A decree in chancery dismissing a bill will be reversed if, by the proofs appearing in the record, it is not justified, although it is not certified that the transcript contains all of the evidence.
    The case of Morgan v. Corless, 81 Ill. 75, distinguished.
    [Opinion filed December 18, 1886.]
    In error to the1 Circuit Court of Livingston County,' the Hon. , Judge, presiding.
    For a statement of the case and the conclusions of this court on the merits, see the preceding report of the opinion heretofore filed herein.

      Messrs. A. E. Harding and O. Chubbuck, for plaintiffs in error.
    Messrs. John H. Jackson and J. B. Rice, for defendants in error.
   Per Curiam.

A petition for a rehearing has been filed in this cause. Upon re-examination we adhere to our conclusions, as stated in the opinion heretofore filed herein.

In the petition for a rehearing, it is suggested for the first time that there is no certificate of the evidence in the record; that the paper copied into the transcript and having the name of the Circuit Judge signed thereto, does not purport to be a certificate, and does not state that it contains all the evidence submitted upon the hearing.

It is claimed that if the plaintiff in error desired to question the sufficiency of the evidence to sustain the decree, it was their duty to have preserved the whole evidence in the record; and that the record must so show; and Morgan v. Corless, 81 Ill. 75, is cited as authority for such claim. That authority is not in point in the case before us. The rule there announced is applicable to chancery causes, where the decree is justified by the pleadings and the facts recited in the decree to have been found by the court, on hearing. But, in this case, the facts found by the court are not recited in the decree, and the only finding therein is, “ that the evidence is not sufficient to sustain the allegations of complainants’ bill,” and, for that reason, the bill was dismissed at the cost of the complainants. The rule applicable to this case is that laid down in Smith v. Smith, 85 Ill. 189, where there was no certificate that the record contained all the evidence, and it was urged in support of the decree it should be presumed there was other sufficient evidence to warrant it. The court there said: Such is not the rule

in chancery practices. A decree in chancery dismissing a bill will be reversed if, by the proofs appearing in the record, it is not justified.” In Morgan v. Corless, the facts to support the decree appeared in the decree itself; in Smith v. Smith et al. they did not.

The petition for a rehearing is refused.


author: Welch, J.

text:
    Irving French v. Eldon H. Baker et al.

      Bill to Enjoin Enforcement of Judgment in Attachment — Presumption in Favor of Its Validity — Ex parte Evidence, Presumed.Sufficient under Common Counts — Collateral Attach — Fraud—Return of Worthless Note.

    Upon a bill to enjoin the enforcement of a judgment rendered by default in attachment proceedings, it is held: That if the special count in the declaration filed in such proceedings was bad, it will be presumed that the evidence heard ex parte therein justified the judgment under the common counts; that such judgment can not bo attacked collaterally, even if errors and irregularities in the course of the trial were conceded; that it can not be presumed that the judgment was obtained by fraud, and that it was unnecessary in the attachment proceedings for the plaintiffs to return a worthless note, the names of the securities to which were forged, which they had previously accepted in settlement of the indebtedness.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Winnebago County.
    Statement of the case by Welch, J. This was a bill filed by the appellant to enjoin the enforcement of a judgment rendered in favor of Eldon H. Baker and Edward A. Baker against Michael Fox, in attachment proceedings against said Fox, and to perpetually enjoin the appellees from selling certain lands and premises in said bill described. The bill alleges the recovery of three judgments in favor of the appellant against said Fox, on the 1st day of October, 1883; that the judgments are in full force ; that Fox was insolvent and had fled the country, and that the only property out of which satisfaction for his judgment could be had was the land levied on under the attachment proceeding of said Baker against Fox, on which the judgment sought to be enjoined was rendered. Alleges that the judgment in favor of the Bakers was without consideration and void. Temporary injunction was granted on bill. The answers admit the judgments in favor of appellant, the insolvency of Fox and his flight from the country, but denies that the judgment in favor of Bakers was without consideration or void. Replication filed; cause heard on this stipulation:
    It is hereby stipulated and agreed by and between the above named complainants and defendants that this cause shall be heard upon the bill, answer and replications filed herein, and upon the following agreed statement of facts:
    That the defendants Baker, on the third day of September, 1883, commenced in this court their certain action of attachment, returnable to this October, 1883, term thereof, against said Michael Fox; that a copy of the affidavit upon which the same was based is marked “ Exhibit A,” and is attached to the bill filed herein; that on the lOtli day of September, 1&S3, the plaintiffs and defendant in said attachment suit agreed up. on a settlement of the subject-matter of the same, by the delivery, by the defendant Fox, to the plaintiffs, of certain articles of personal property, and the execution and delivery by the said Fox to said Bakers of a certain promissory note as hereinafter stated, of which the following is a true copy: §530. Rockford, Ill., September 10, 1883.
    Six months after date I promise to pay to the order of E. II. Baker and E. A. Baker five hundred and thirty dollars, with interest on said sum at seven per cent, per annum, ¡cay-able at Durand, value received.
    (Signed) Michael Fox,
    Thomas Fox,
    Ann Fekloxt.
    That the said articles of personal property and the said notes are now held and possessed by the said Bakers; that the said Thomas Fox and Ann Fenlon will both testify that the said note is a forgery; that the first day of said October term, 1883) of said court, occurred on the first day of October, 1883; that on the first day of October, 1883, the complainant recovered three cognovit judgments against the said Michael Fox for the aggregate amount of §2,853.28, and costs of suits, and that executions on the same day were duly issued and delivered to the Sheriff of said county to execute and that said judgments at the time of the'filing of the" bill hérein were wholly unsatisfied. That on the 9th day of October, 1883, a declaration was filed in said attachment cause, a true copy of which is attached to said bill marked “ Exhibit B”; that on the 15th day of October, 1883, evidence was heard ex parte, and judgment was rendered in said attachment proceeding by default of said Fox for the sum of $570, and that special execution was awarded to sell the lands and premises upon which the said attachment levy was made, and that the same were advertised for sale as set forth in said bill; that in August, 1883, the defendants, Bakers, were the owners of certain real estate, and then and there agreed to trade such real estate to said Michael Fox* subject to the incumbrances, for the equity of redemption in lands in the village of Durand, and the Bakers to assume a mortgage thereon of $1,000 and interest, and gave Bakers a warranty deed subject to said $1,000 mortgage, and fraudulently represented to" them'that that was the only incumbrance. Soon after the deeds were exchanged the Bakers learned that the land in Durand was also incumbered by a $500 mortgage held by and given to I. French, and not due until December, 1883, and this was a breach of the warranty deed given in trade by M. Fox, as alleged in the answer; and said Fox knew it at the time it was given; and that before the attachment suit was begun, the Bakers saw Fox and settled, and that said Bakers will testify that it was mutually agreed to settle the same, and Fox then agreed with them and promised Bakers that he would that day fix the matter up and pay them; that he failed so to do and the attachment writ was then sued out, and after that the attachment suit was settled on condition that said Fox would give them said note for $530, signed by Ann Fenlon and Thomas Fox as surety; that he did bring what purported to be such a note, which said Ann Fenlon and, Thomas Fox will testify is a forgery; that on the trial of said attachment suit evidence was heard in open court, and that immediately after giving said note said Fox absconded and has not since been heard of; that he not only obtained said laud in such trade but also sold certain personalty that was also mortgaged, and that in the settlement all such chattel mortgaged property was settled for, and the note was given . for amount due on said 8500 incumbrance. That at the time of the commencement of said attachment proceedings and the recovery of the said judgment by the said Bakers, no part of the said mortgage indebtedness of 8500 dated on or about April 23, 1883, due December 27,1883, and interest at seven per cent., and given by said Fox to said French, and described in said declaration, was not paid in whole or in part by said Bakers or by any other person at the time of the rendition of said attachment judgment, nor until the 31st day of December, 1883 ; that the same became due on the 27th day of December) 1883, and that the same was paid on the 31st day of December, 1883, by said Bakers, and discharged of record on that day. *
    Exhibit B.
    E. A. Baker and E. H. Baker, partners, etc., plaintiffs, by J. C. Garver, their attorney, complain of Michael Fox, defendant, of a' plea of trespass on the case upon promises. For that whereas, heretofore, to wit: on the 27th day of August, 1883, in said county, the defendant, by his deed bearing date of that day, and now to the court here shown for the consideration therein mentioned, did grant, bargain and sell to the plaintiff, his heirs and assigns, a certain parcel of land in the said deed particularly described, situated in the village of Durand, in the county of Winnebago and State of Illinois, to have and to hold the same to the plaintiff, his heirs and assigns, forever; and the defendant did by the said deed covenant with the said plaintiff, his heirs and assigns, amongst other things, that at the time of the ensealing and delivery of the said deed, the said parcel of land was free and clear from all former or other grants, bargains, sales, liens, taxes, assessments and incumbrances of what kind or nature soever. Yet the plaintiff avers the said parcel of land was not, at the time of the ensealing and delivery of said deed, free and clear from all former or other grants, bargains, sales, liens, taxes, assessments and incumbrances, of what kind or nature soever, but on the contrary thereof, the defendant, before that time, to wit: on or about June, 1883, by his deed on that date, had mortgaged the said parcel of land to one Irvin French, to secure the payment of §500, with interest thereon at the rate of seven per cent., to the said Irvin French, in one year from the date thereof; which said sum of money, with interest as aforesaid, is still unpaid, and the said parcel of land is still chargeable with the payment thereof. And plaintiffs aver that they took said land subject to one incumbrance mentioned in said deed, but defendant then' had the land incumbered for another stun, and falsely represented, with intent to cheat and defraud plaintiffs, that the one incumbrance of §1,000 was the sole lien against said premises brought, whereas then and there was said sum of §500 and interest at seven per cent, and the taxes of 1883, all of which plaintiffs must pay to get a clear title to the same, at, to wit: the county aforesaid, which defendant afterward, and before the commencement of this suit, promised to pay to plaintiffs.
    Then follow the ordinary common counts, and concludes with the usual breach.
    The injunction was dissolved and bill dismissed, from which order dissolving the injunction and dismissing the bill this appeal is taken.
    Hr. G. O. Williams, for appellant.
    Hr. J. C. Garver, for appellee.
   Welch, J.

The judgment sought to be enjoined was recovered by the appellees, Bakers, against Fox, on personal service and default. The declaration contained a special count and the common counts. It is insisted by counsel for appellant that the special count stated no course of action on which a recovery could.be maintained and that therefore the judgment is void. If it be conceded that the special count did notshow that there was a Iona ficle indebtedness existing between Fox and Bakers at; the time of the commencement of the attachment proceedings, yet, as held in the case of Hopkins Rowell v. George Chandler, 83 Ill. 288, when the declaration contains the common counts and judgment is rendered by default, it will be presumed, in the absence of a bill of exceptions to the contrary, that the court heard evidence to justify the judgment under the common counts. The stipulation in this case states that on the 15th day of October, 1883, evidence was heard ex parte and judgment was rendered in said attachment proceeding by default of said Fox for the sum of $570.

In this case there is no necessity of a presumption that evidence was heard. It is expressly stipulated that evidence was heard. The court had jurisdiction of the person and subject-matter, and the judgment can not be attacked collaterally, even though it was conceded that there were errors and irregularities committed during the progress of the proceeding. Buckmaster v. Carlin, 3 Scam. 104; Mulvey v. Gibbins, 87 Ill. 367; Martin v. Judd, 60 Ill. 79 ; Town of Lyons v. Cooledge, 89 Ill. 534; Frydendale v. Baldwin, 103 Ill. 325. It is further insisted by counsel for appellant that Babers having accepted the note of Fox set out in the stipulation, supra, on settlement, that no recovery could be had on the enjoined indebtedness without the return or offer to return the note. And we are referred to the case of Brooks v. Gates, 8 Ill. App. 435, as sustaining that view. That case is not analogous to the one at bar. In that case the party was seeking to recover what he had paid on a contract, without returning or offering to return what he had received on it. The principle announced in that case is elementary. In the case at bar, nothing was received on the note. It was taken for a present indebtedness. The names of securities thereto are admitted to be forged, the principal was insolvent and had fled the country. The note was worthless. The delivery of the forged note to Bakers did not change the character of the liability to them, nor did it affect them or require of them the return of the worthless paper to entitle them to prosecute this suit against Fox. In the view we take of the law, every presumption must be indulged in favor of the validity of the judgment. That it was obtained by fraud can not be presumed. Fraud must be alleged and proved. Applying to this ease the rule announced supra, we find no error in the decree dissolving the injunction and in dismissing the bill.

Decree affirmed.


author: Lacey, J.

text:
    Michael Martin v. The Town of La Salle.

      Commissioners of Hightoays — Compensation for Services — Act of 1879 —Employment, not Limited to Attendance at Board Meetings — Evidence.
    In an action by a Commissioner of Highways to recover for services growing out of his official duties, it is held: That under Sec. 117 of the Act of 1879, a Commissioner of Highways is entitled to recover $1.50 per day for each day necessarily employed in the discharge of bis official duties; that such employment is not limited to attendance upon official meetings of the Board, and that a general offer to prove that the plaintiff rendered services upon the highways, covering an extraordinary number of days, was too general, and did not tend to prove any item for which he was entitled to recover.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.
    Statement of the case by Lacey, J. The .appellant was elected one of the Bo ad Commissioners of the Town of La Salle, on the 7th of April, 1880, and held the office till April, 1883, when his successor was elected. During the first year James Kinder and Edward McGuire were his associates; the second year Charles Degan and James Kinder, and the third year Charles Degan and "Richard O’Halleran.
    This action was commenced in the Circuit Court in action of assumpsit. The action was for some kind of services growing out of his official duties as Commissioner of Highway's of the said town during his term of office. Verdict and judgment for the appellant in the sum of $46.50 ; considering the amount not enough he has prosecuted this appeal to this court.
    Messrs. Maloney & Stead, for appellant.
    Messrs. Bull, Strawn & Ruger, for appellee.
   Lacey, J.

If we can fairly understand from the record in this case the nature of appellant’s claim, the most of the evidence having been excluded by the court, it is as stated by his counsel, compensation for attending to discharging the duty of superintending and taking charge of the roads and .bridges in the town. The claim offered to be proven was for 273 days from April* 1880, to April, 1881, at $1.50 per day for services rendered on the highways of the said Township of La Salle in pursuance to appointment by the Board of Commissioners, and by virtue of his being Commissioner of Highways, and some 400 days labor performed on like account, to the end of his office. It is disclaimed that the compensation for this service can be collected out of the fund raised by taxation in Secs. 16 and 119, of the Act of 1879, nor is it indebtedness arising out. of a contract with two Commissioners as such, for work and labor on the roads and bridges. It is an indebtedness created by law as a necessary incident to the discharge of the duties of the Commissioners when such services are necessary and proper to be rendered in discharge of the duties imposed on them, and for which they are not compelled to contract with themselves or the Town Board, and must be paid for out of the town fund. It is claimed that such compensation comes out of the payment of the general town fund as provided for in Sec. 117 of the Act. It is admitted that the duties performed by appellant might be performed by the overseer, but it is claimed that makes no difference.

The questions arising in this case arise on the rejection of evidence offered by appellant to establish his case. After introducing several records of the Commissioners of Highways, by one of which records it appears that the appellant -was “to attend to district Ho. 1, gravel road,” and at meeting May 3d, “ to have the bridge repaired,” then this question was propounded to the appellant: “How I desire to ask you whether, in pursuance to the appointment referred to in the record just read, to attend to district Ho. 1, gravel road, yon did any work or labor on the highways of the Township of La Salle.” The question was objected to and the court sustained the objection and ruled it out.

The plaintiff by his counsel then made the following offer of proof: “We offer to prove by this witness that in pursuance to those appointments referred to in the record just read from exhibit “A,” and by virtue of being Commissioner of Highways and for the time expended in making up the records, that he rendered services on the highways in said Township of La Salle from April, 1880, to April, 1881, 273 days.” This, on like objection, was ruled out by the court. Alike question in regard to over 400 days for the next two years was ruled out. Appellant’s offer to show that the claims were properly presented to the town auditors for allowance and that they rejected them was likewise ruled out by the court. This brings up the question as for what kind of services the Commissioners of Highways under the Act of 1879 may properly be allowed. This is a question not easy to determine in all cases, or to adopt a general rule in advance that would be a sure guide under all circumstances that may arise under the varied requirements of the act, and we will not undertake to do so. It will be enough that we pass correctly on the case .before us. It should be the object of the court to so hold in regard to what are the official duties of the Commissioners and manner of their performance as to give the law that force and efficacy contemplated by the statute, and at the same time prevent the Commissioners from overstepping the powers delegated to them by the statute. The office is a very important one, and the interest of the public is very much bound up in its proper and efficient exercise. The statute in regard to the compensation of the Commissioners of Highways is as follows — Sec. 117, Act of 1879: “The Commissioners of Highways shall receive for their services the sum of one dollar and fifty cents per day for each day necessarily employed in the performance of their duties, the same to be audited by • the town auditors and paid out of the town funds.” It follows as a matter of course that whatever it is proper for a Commissioner of Highways to do, or whatever he may do properly in the discharge of his official duties, he should be paid for, at the rate specified in the act for the number of days necessarily engaged.

It is contended on the part of appellee that the Commissioners of Highways is a quasi corporation, and can only act in its corporate capacity, and that must be at a regularly called meeting of the board at which all are present, or of which all had notice and might have been present. The authority can not be delegated to a single member. The law requires they must act in a body, and that none of their acts are binding unless two of their members acquiesce therein. One member can not be delegated to take charge of a particular job or piece of work. They might employ an overseer but- could not do it themselves. It is claimed that the only evidence of the time of performance of official duties is the record of the annual and special meetings of the board, under the requirements of the 12th section of the act, at which times “ a correct record of the proceedings of the meeting” is to be kept. This proposition assumes that no other official duties of the Commissioners are required or allowed except the attendance on these meetings, and that the record shows the number of days occupied. The court below excluded all other offered evidence except the record, to show the days employed in the discharge of appellant’s duties, and then instructed the jury that there was no other evidence before them thán those records tending to show appellant’s right of recovery, and that he was only entitled to recover for the time those records show 1 the appellant was engaged in the discharge of his duty as Highway Commissioner.

We are inclined to think that the theory in this respect insisted on by aj^pellee’s attorney is erroneous; but whether the appellant, in his rejected offers of evidence, proposed to show facts that would entitle him to recover for anything more than he has recovered for, is a question we will consider hereafter. In Commissioners v. Baumgarten, 41 Ill. 254, two of the three Commissioners of Highways of the Town of Lancaster signed a contract with the City of Freeport to stand the town’s share under the law to build a certain bridge. It was held a good execution of the contract, the court saying that such quasi corporation act by a vote of the majority, unless some provision is in the law to the contrary. If they were not a corporation, then the act being silent as to how many shall constitute a quorum, a majority may act.

So where a number of parsons are intrusted with powers in matters of public concern, all of them being assembled and consenting, the .majority may act and determine, and where a report is signed by only two viewers of a road, it will be presumed a third was present and consulting until the contrary is shown. In Branns v. The Town of Peoria, it was held that two Boad Commissioners, without consultation of the third, could not employ themselves or do work not allowed by law, or where there was no money raised or assessed for that-year to pay for it, it was not decided what effect the consent of the third Commissioner would have on the contract. This was said with reference to payment of the road and bridge taxes. In Hizer v. Town of Rockford, 86 Ill. 325, under the following circumstances, it was held that the overseer of highways was criminal in not obeying the order of the Commissioners. The facts were that in March the three Commissioners passed over a road and found it needed repairs. In June following two of the three being together visited another and different road and found the overseer at work with his men and teams, and ordered him to desist and to repair the first road mentioned, which he refused to do.

The court say : “ It will be observed that the Commissioners of Highways are given, by the terms of the law, the care and superintendence of bridges and highways in their towns. * * * The Commissioners have a higher power over roads than the overseer as his duty is ‘ to repair and keep in order.’ The former has the general power and direction, while the latter acts in a subordinate capacity.”

Sec. 10 of the Act of 1879 is nearly the same as the above referred to and "must have the same construction. It is plain to be seen that no record of the action of the Commissioners was preserved of the time the Commissioners were engaged in the official duty, nor was there any necessity for any formal meeting of the Board, yet they would be entitled to pay for the care and superintendence of. the road. Some of the duties of the Commissioners appear to. be of a nature that requires management and decision, such as determining the propriety of building bridges, entering into contracts andlaying out roads, and other things that require deliberation and consideration for the determination of such questions. Doubtless a formal meeting of the Board would be necessary, but there are duties, such as giving directions for the repairing of roads of one determined by the Board to take possession, and keep scrapers and other tools belonging to the town wherever the same may be found, etc.; preventing thistles, burdock, cockleburs, Indian mallows and other noxious weeds from seeding in the public highway, and destroying cockleburs and weeds growing in the highway before coming to maturity. Such acts would not seem to require much deliberation, and is a matter that the statute directs to be done. The failure of the Commissioners to comply with the law in regard to destroying cockleburs, subjects them to a penalty of not less than $5 and not more than $25. Session Laws, 1879, page 264. Many duties are more in the nature of ministerial acts, and are required to be done by law. The consent of less than two would be sufficient, and even might be presumed to make the act legal. If one Commissioner should spend a day in gathering up road scrapers and other tools, and preserving them under the law, this act would no doubt be approved, although no express consent of the other-two was obtained, and the Commissioner would be entitled to pay under the statute. But generally, the duties of the Commissioners are those of management and general direction, and it is no part of their general duties to do the manual labor on roads and bridges by virtue of their office of Commissioners of Highways. There is an express fund provided for, for that. Section 119 raises a fund for building and repairing bridges * *' and to pay the Overseer of Highways, and this tax is to be assessed annually. The Commissioners would not be authorized under this act to perform the duties of the commission and 'charge for it out of the town fund, where there is no special fund provided to pay the overseer, whose duty it is to do the work.

The remaining question is, did the offer of the proqf by appellant, which was rejected by the court, necessarily tend to prove any item that the appellant had a legal right to recover for. The first question, did appellant do any work or labor on the highways of the township under the order to attend district No. 1 gravel road.

The order was that M. Martin attend to gravel road in No. 1 district.” This order did not authorize appellant to do work and labor on the highways of the town generally, or to perform work and. labor at all. The next question was the offer to prove that appellant rendered services on the highways of said township of La Salle from April, 1880, to April} 1881, 273 days, and that by virtue of his office ’and under' the authority of the appointment in the record in evidence. According to the record of the Board of Commissioners relied on, appellant was given the gravel road in district No. 1 to attend to, and the other record that appellant have the bridge repaired. The term services on the highway in the township ” was too general. The court could not see that the offer was proper. It should have been specific. There seemed to be an effort by the doubtful meaning of the question, to keep in the background what the real nature of these services were. Appellant did not even propose to prove that the services were performed in district No. 1, or on the bridge. Then the extraordinary number of days charged for what the law requires of a Commissioner, was enough to attract the attention of the court to the guarded way in which the proposition to produce proof was made. The court could not see the relevancy of such evidence. In regard to the services in making up the records it will be seen the proof already in, showed that the records were in evidence and the recovery no doubt covered that. If it had been different services, then the records themselves showed it should have been so stated, or if the records did not show sufficiently the number of days. Seeing no error in the record the Judgment is affirmed.

Judgment affirmed.


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    T. Lyle Dickey v. The Town of Bruce.

      Practice — Bill of Exceptions — Time to File — Extension of — Want of Jurisdiction — Notice.
    1. When a Judge by an order, has fixed the time within which to prepare. tender and file a bill of exceptions, and the term at which it was fixed having expired and no motion for an extension of time having been made, either in vacation or at a subsequent term prior to the expiration of the time po fixed, he is without jurisdiction further to extend the time.
    2. In the case presented, it is held: That a notice of an application for an extension of time within which lo file a bill of exceptions, if given as claimed, was insufficient, no time and place for making the application having been fixed, and the notice not having been in writing.
    [Opinion filed December 11, 1886.]
    In error to the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.
    Mr. T. Lyle Dickey, in person, for plaintiff in error.
    The term at which the judgment in case Ho. 728 was rendered having ended, and the fifty days given in which to prepare and file the bill of exceptions having expired, the orders of February 12 and 17, 1885, being made ex parte on the application of defendant’s counsel, and without the knowledge or consent of the plaintiff, were void, the court having no jurisdiction of the matter.
    If the court could take jurisdiction at a subsequent term it erred in entering the orders extending the time for preparing and filing the bill of exceptions, without notice to the plaintiff or his attorneys of tlie time and place when the application for such extension would be made, and without the knowledge or consent of either. Hall v. Mills, 5 Ill. App. 495; Saltonstall v. Canal Commissioners, 13 Ill. 705; People v. Blades, 10 Ill. App. 17.
    Messrs. Mayo & Widmer, for defendant in error.

      If the opposite party had notice of the application, the Circuit Court had jurisdiction at the January term, 1885, to extend the time granted at the December term, 1884, to the defendant, in which to prepare, tender and file a bill of exceptions.
    In Wallahan v. People, 40 Ill. 102, an amended record, purporting to be an additional bill of exceptions, signed in vacation more than a year and a half after the trial of the cause, and without notice to the opposite counsel, was filed by the appellee in the Supreme Court, at the April term, 1867, and, on motion of the appellants, was stricken from the files. The court suggested that when an amendment of that kind was desired, it should be made to appear from an order entered in open court in term time, on proper notice.
    At the September term, 1867, in the same case — 40 Ill. 102 —an additional transcript was filed containing evidence not in the original bill of exceptions, the bill' of exceptions therein certified being signed two years and four months after the trial of the cause. Appellants moved to strike the additional transcript from the files, but the court overruled the motion. See, also, Bergen v. Biggs, 40 Ill. 61; Brooks v. Bruyn, 40 Ill. 64; Myers v. Phillips, 68 Ill. 269.
   Welch, J.

This cause was before this court at the May term, 1885, and was taken, but not having been decided, and judgment entered, when the plaintiff in error died, the order taking the case was set aside. The executrix having entered her appearance, the case was retaken at this term. The bill of exceptions here in controversy was a part of the record in the original cause appealed to the Supreme Court, and it would seem that court was the proper tribunal to determine whether said bill of exceptions was passed on in apt time, and properly became a part of the record. We would feel inclined to refuse to take jurisdiction of the matter were it not for the judgment of costs against plaintiff in error. As it is, • we do not see how we can well avoid so doing.

On the 23d day of December, 1884, that being one of the days of the October term of the LaSalle Circuit Court, plaintiff in error, T. Lyle Dickey, recovered a judgment against the defendant in error for the sum of §2,000 and costs. On that day the defendant in error prayed an appeal to the Supreme Court, which was allowed, and fifty days given in which to prepare, tender and file a bill-of exceptions. On the 12th day of February, being one of the days of the January term of said court, and fifty-one days after the entry of the order giving fifty days in which to prepare, tender and file the bill of exceptions, the following order was made: “ On this day comes the defendant, by Mayo & Widmer, its attorneys, and on its motion it is ordered by the court that the time heretofore allowed wherein to prepare, tender and file a bill of exceptions in this case, be and the same is hereby extended ten days.” And on the 17th day of February, one of-the days of the January term of said court, a similar motion for extension was made, and ten days given. On the 25tli of February, one of the days of the said January term, T. Lyle Dickey came into court and entered a motion, and caused the same to be docketed as an independent case against the Town of Bruce, and moved the court to set aside the said orders of February 12 and 17, 1885, on the ground that there was no suit at the time said orders were made pending in said Circuit Court, in which he was plaintiff and the Town of Bruce defendant. To this motion the Town of Bruce, by its attorneys, entered its appearance. On March 3, 1885, one of the days of the said January term, the motion was heard and denied, and judgment rendered against-the plaintiff, T. Lyle Dickey, for costs. To reverse this judgment this writ is prosecuted. All exceptions shall be taken and signed at the term they are taken, or the Judge may in an order give time in which it may be done. When the Judge by his order has fixed the time, and the term at which it was fixed having expired, and no motion having been made either in vacation or at a subsequent term prior to the expiration of the time fixed in the original order for extension of time, the Judge has no jurisdiction of the matter, the case having passed from his jurisdiction. It is, however, insisted by counsel for defendant in error that he informed Mr. Richolson, who it is claimed was the attorney for plaintiff in error, some two or three days prior to the application-on the 12th of February, that an application would be made for an extension of time in which to file bill of exceptions ; that no time was named when and where the application would be made; that the attorney to whom the notice was given was present in court when the application was made; that this gave to the court jurisdiction. As to whether notice was given as claimed, there was a direct conflict, Richolson and his partner denying the same, and Mayo, attorney for defendant in error, asserting the giving of the notice; ¡Richolson also denied that he was the attorney of plaintiff in error. We are not, in the view we take of this case, called upon to determine the question as to which of these parties credence is to be given.

Conceding the notice was given as claimed, we hold it was insufficient. ¡No notice in writing; no time when and where the application would be made is claimed. The order as made negatives any notice to or appearance of the plaintiff in error. On this day comes the defendant by Mayo & Widmer, its attorneys, and on its motion, it is ordered by the court, that the time heretofore allowed wherein to prepare, tender and file bill of exceptions, in this case be, and the same is hereby extended ten days,” and on the 17th a similar order is made. The motion of plaintiff in error should have been allowed. Evans v. Fisher, 5 Gil. 453; Hall v. Mills, 5 Ill. App. 495; Warner v. Kelley, 5 Ill. App. 559.

For the errors herein indicated, judgment is reversed and ■cause remanded.

Reversed <md remanded.


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    John W. Seymour et al. v. Duncan Mackay et al.

      Trust Deed — Release of — Cross-Bill to Restore — Fraud—Acceptance of New Note as Ratification — Review of Evidence.

    Upon a writ of error to review a decree dismissing a cross-bill, filed to determine the priority and extent of the liens claimed by the cross-complainant in certain lands, and to have the cancellation of a certain trust deed declared void and the trusts therein established, it is held: That the record does not present sufficient evidence to sustain the charge of fraud in procuring the release of said trust deed; and that the subsequent acceptance by the cross-complainant of a new note for the indebtedness covered by said trust deed, with full knowledge of said release, was a ratification thereof.
    [Opinion filed December 11, 1886.]
    In error to the Circuit Court of Carroll County; the Hon. John V. Eustace, Judge, presiding.
    Messrs. W. & W. D. Barge, for plaintiffs in error.
    Messrs. E. P. Barton and J. M. Hunter, for defendants in error.
   Welch, J.

In the view we take of this case, we do not deem it necessary to consider the question presented by the original bill in the case, any further than may be necessary to the proper determination of the questions arising on the cross-bill. The complainant in the original bill does not appear by himself or counsel in this court, his name being used by Seymour, the complainant in the cross-bill, for the purpose of enabling him to prosecute this writ of error. His right to use the name is given by Sec. 71 of Practice Act. The original bill filed by Belding was on hearing dismissed by the Circuit Court, and also the cross-bill filed by Seymour was dismissed. The only party before the court complaining is the complainant in the cross-bill. The cross-bill charges that the plaintiff in error, John W. Seymour, loaned David Belding $3,700 on the 13th day of December, 1867, for five years from the first day of January, 1868, at ten per cent, interest^ for which Belding gave his promissory note, payable to Helen M. Seymour, the wife of John W. Seymour, and secured the same by trust deed to her, on the southwest quarter of section 30, in township 21, range 6, east of the 4th P. M., and the northwest quarter of section 31, in same township and range, in Carroll County, Illinois, which trust deed was recorded on the thirtieth of August, 1871. The cross-bill further charges that the money was the money of said John W. Seymour, and that the note and trust deed were made to his wife in order to place the matter in her hands in the event he should lose his life in the dangerous occupation in which he was engaged, of running trains on the railroad. That no portion of the money belonged to. her and-no part had been paid to her or him. That on the 10th day of October, 1871, Helen M. Seymour, at the request of her father, released said trust deed. That on the 6th day of February, 1870, Belding and wife executed to the defendant in error, Maekay, a conveyance in fee simple to said lands, together with other lands, for the consideration of the sum of $4,000. It is charged that Maekay paid the same by assuming payment of a mortgage to Jennings and mortgage to Lyman, and giving to Belding the balance in cash; that Maekay executed to Belding at the same time an agreement to reconvey on his being paid his $4,000, and interest at ten per cent. The cross-bill further alleges that about the first day of October, 1871, Belding, with the aid of Maekay, made an application to the Horthwestern Life Insurance Company of Milwaukee, for the money sufficient to pay off all claims on the land, and that Maekay signed a certificate to the effect that the Belding farm was worth $75 per acre. And that Helen M. Seymour was then and there informed that it would be necessary to cancel the record of said trust deed, which she held, and believing that said Maekay was acting in good faith in making his statements as aforesaid as to the condition and value of said land, and that he really intended to aid Belding, her father, in obtaining said money of said insurance company, and that he was going to settle up with said Belding, as he then talked of doing. At the special request of her father, said David Belding, she canceled her trust deed of record. The cross-bill further charges that after the trust deed was canceled Mackay persuaded Belding not to borrow of the insurance company, and there-) by prevented her from obtaining payment of her trust deed. It also charges: Mackay in his attempt to aid Belding did so solely to get your orator’s said trust deed to said Helen removed to pave the way for him to obtain said farm of said Belding without advancing any larger amount of money than what he had already loaned him. It further charges that he had never consented or assented to the release of said trust deed by said Helen. Bill prays that Belding and Mackay shall come to an accounting with each other and with Seymour so far as may be necessary to determine the priority and extent of Seymour’s liens; asks that the Jennings mortgage be declared canceled; that the land in the Helen M. Seymour trust deed be declared subject to the trust therein declared; that the receipt and attempted cancellation of the same be declared void, and the trusts therein be established by decree, and for a decree for the sale of the land for the purpose of satisfying the amount due on the said note and trust deed. - The answer of Mackay to those charges are, that until the filing of the Seymour cross-bill he never had any information of the existence of the Helen M. Seymour trust deed, or that either Seymour or his wife ever claimed any lien on any part of the land. Denies that he in any way hindered Belding from borrowing money of the life insurance company. Denies that he ever made any certificate that the land was worth $75 per acre. He denies that the Jennings mortgage constituted any part of the consideration of the $4,000 loaned by him to Belding. The court dismissed the cross-bill on hearing, and to reverse that decree Seymour has brought the case to this court by writ of error. Hnder chapter 67, title Mo;tgages, Sec. 8, it is provided that the mortgagee “shall, at the request of the mortgagor, enter satisfaction upon the margin of the record of such mortgage in the recorder’s office, which shall forever thereafter discharge and release the same and shall bar all actions or suits brought thereupon.” It is insisted by the counsel for plaintiff in error that the entry of satisfaction was procured by fraud. The bill alleges that Helen M. Seymour was then and there informed by said Belding and said Mackay that it would be necessary to cancel the record of said trust deed, and believing that said Mackay was acting in good faith in making his statements as aforesaid, as to the condition and value of said land, and that he really intended to aid said Belding in obtaining said money, she executed the release. The court found there was not sufficient evidence to sustain the charge of fraud. We find no reason to differ with the trial court on its finding. There is no fraud charged or attempted to be proven against Belding respecting the satisfaction of the trust deed. So far as the proof shows, Belding undoubtedly expected to borrow money and to enter into a cattle speculation with Seymour but was unable to do po to the extent and in the manner contemplated. The evidence as to any fraudulent participation of Mackay in the cancellation of said trust deed is wholly insufficient to authorize a decree declaring said cancellation void. The evidence shows that Mackay had no knowledge of the existence of said trust deed; that he had two abstracts of said land, neither of which showed such trust deed. The only action taken by h-im in relation to the borrowing of money by Seymour was a certificate signed by him that he considered the Belding farm worth §75 per acre. Belding testifies that he advised him not to borrow of the life insurance company, that he would loan him what he needed to buy cattle, and that thereupon he gave up the project of borrowing of the life insurance company. That Mackay furnished §1,000 for that purpose and refused to furnish any more. Mackay testifies that he agreed to furnish Belding but §1,200 and that he did furnish that. The release of the trust deed was made with the knowledge and consent of John W. Seymour, who testifies: “I knew of it at the time it was done. It was arranged between Belding and myself that the trust deed should he released for the purpose of allowing him to raise the money to carry out his arrangement with me to purchase cattle, in which cattle I was to have an interest, or partnership, in lieu of the amount secured by the trust deed. But as Belding failed to carry out his arrangement to give me an interest in the cattle, neither my wife nor myself received any consideration whatever for releasing the trust deed.” In 1874 Seymour testified: “I settled up with Belding on open account, which ran through the time I was at his place in the spring of 1870 to the spring of 1872, and as there had been numerous indorsements on the note mentioned in the trust deed it was thought best to figure up the interest and draw a new note covering the entire amount.” In 1876 another note was taken, and the note given in 1874 was given up. This last note has been merged in a judgment and y?, fa. issued and levied on the land embraced in the trust deed. The taking of this note with a full knowledge of the release of the trust deed, and of Belding’s failure to comply with his arrangement with Seymour, as stated supra, was a ratification of said release. The intention as shown by the attending circumstances was that the new note should be a payment of the old note, and this intention should prevail. 2 Jones on Mortgages, Sec. 926, and cases cited in note. We are unable, after a careful consideration of this record, to find proof sufficient to authorize a reversal of the decree in tills case. The decree of the court is fully sustained by the proof.

Decree affirmed.