text:
    Frank M. Bunker, Appellee, v. The City of Woodstock, Appellant, impleaded, etc.
    Gen. No. 5,624.
    1. Appeals and errors—when freehold involved. A freehold is involved on a bill to restrain a city from building a sidewalk on a strip of certain premises alleged to belong to complainant.
    2. Appeals and errors-—jurisdiction, though freehold involved. Though a freehold is involved, the appellate court must take jurisdiction to the extent of determining whether the bill justifies a preliminary injunction on an appeal from an interlocutory order granting an injunction restraining a city from building a sidewalk on a strip of land alleged to belong to the complainant, since by statute, jurisdiction of an appeal from such an order is granted to such court only.
    3. Chancery—when hill does not exclusively rely on estoppel. A bill does not rely exclusively on equitable estoppel, where in addition to alleging exclusive ownership for twenty-eight years,' it alleges that according to the measurements in the recorded plat of the premises, on a strip of which a city is attempting to place a sidewalk, and the deed thereof, the complainant is entitled to the strip in question.
    4. Injunction—when preliminary properly continued. Equity has jurisdiction, and a preliminary injunction is properly retained until the hearing, where the bill avers that complainant is the owner of a strip of land on which defendant is constructing a sidewalk, that he has exclusively possessed it for over twenty-eight years and with his predecessors for over forty years, and that the defendant never possessed it or acquired any right therein, but undertook to seize it without.
    Injunction. Appeal from the Circuit' Court of McHenry county; the Hon. C. H. Donnelly, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed June 27, 1912.
    E. H. Waite, for appellant; David E. Joslyn and Paul J. Donovan, of counsel.
    V. S. Lumley and Barnes & Barnes, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellee filed a hill in equity against the city of Woodstock and' its mayor and a contractor named Johnson to restrain defendants from building a sidewalk upon the south seven feet of certain premises. Notice was given the defendants of an application for a temporary injunction under said bill, and a temporary injunction was granted. Defendants answered and moved to dissolve the injunction. Thereafter the defendants withdrew their answer, and it is not in this record, and the record does not inform us what defense is set up. Defendants then moved to dissolve the injunction for want of equity on the face of the bill. This is an appeal by the city from an order denying that motion. A freehold is involved (Village of Crete v. Hewes, 168 Ill. 330), and we have no jurisdiction, generally, of a case involving a freehold. But an appeal from such an interlocutory order is by statute granted to this court only, and therefore we must take jurisdiction (Craig v. Craig, 246 Ill. 449) to the extent of determining whether the case stated in the bill justified a preliminary injunction.

Appellant assumes that the bill admits that appellee does not own said-south seven feet, and that the same is a part of the street, and that the bill only attempts to set up an equitable estoppel in favor of appellee and against the city on account of long continued possession of the street and certain other facts; and appellant insists that, as the bill does not show that appellee has erected any extensive or costly structure upon said seven feet, therefore no equitable estoppel arises, and equity has no jurisdiction, but that appellee should be left to his remedy, if any, at law. We do not so understand the bill. It allages that Centerville, now the city of Woodstock, was platted on June 4,1844, and the plat was recorded, and that so much of said plat as is material herein is attached to the bill as an exhibit; and the plat shows, among other things, a certain unnumbered lot, bounded on the north by Calhoun street, on the east by Tryon street, on the south by South street, and on the west by Hayward street, having as its dimensions, 300 feet from east to west and 270 feet from north to south; that in 1862, by an assessor’s plat of said real estate, duly recorded, said lot was numbered 77; that in April, 1882, appellee became the owner of said lot 77 and took possession of the same and moved into the dwelling house situated thereon and ever since that, time has been in the open and exclusive possession of said premises; that when he entered upon said premises, there was on the entire south side thereof a high board fence, which had been maintained for a number of years before appellee bought the premises, and he believed that said fence was on the south line of the premises which he then bought, and on the north line of South street, and he thereafter occupied said premises continuously to the line of said fence, and that the city and its officers made no claim that said fence was not on the north line of South street till the year 1910, and that said line upon which said fence stood had been maintained for over forty years as the south line of said lot 77 and the north line of South street, and that from the south line of Calhoun street on lot 77 to the line of said fence was just 270 feet, so that by occupying to said line he held just the quantity of land called for by the plats and his deed, and that he has no means of moving his north line north into Calhoun street, so that, if the city were permitted to take seven feet off from "the south end of his lot, he would lose that amount of land called for by his plat and deed; and that said city had never at any time had possession or claimed any right in said premises till 1910. The bill further alleged that, in the fall of 1910, he returned from a visit to Montana and found that some one, professing to act under authority of the city, had commenced grading and filling for a sidewalk about seven feet north of the south line of said premises and had opened and removed a part of appellee’s fence on said line and had deposited gravel inside the line of said fence and had commenced excavating to construct a sidewalk; that appellee protested and no further work was then done, but that on September 25, 1911, the day before this bill was filed, defendant Johnson, claiming to act under the authority of the city commenced the construction of said walk across appellee’s lot seven feet north of its south line, and had built three or four rods of said walk when appellee gave notice of an application for an injunction and thereupon filed this bill. The bill, therefore, alleges that appellee owns this entire lot to the line of said fence and owns said seven feet in question and had exclusive possession thereof for over twenty-eight years and that his predecessors in title had possession long before that, and that the city never had any possession of it and never asserted any claim till September, 1910. The bill also alleges that the city never condemned this strip for a street or obtained any consent to its use as a street. The plat, so far as it is set forth, does not show the width of the streets and, if the allegation of the bill is true that all of the plat that is material is set out as an exhibit, then the lots have definite measurements and the streets have no width specified. The case made by the bill, therefore, is that appellee is the owner of this strip and has exclusively possessed it for over twenty-eight years and he and his predecessors for over forty years, and that the city has never possessed it and has never acquired any right to it, but has undertaken to seize it by force and without authority of law.

Equitable jurisdiction in cases in many respects similar was exercised in City of Peoria v. Johnston, 56 Ill. 45; Village of Winnetka v. Prouty, 107 Ill. 218; and Village of Vermont v. Miller, 161 Ill. 210. The Johnston case, supra, was a bill to enjoin the city of Peoria from taking a strip of land between appellant’s house and the street and making it a part of the street, upon which strip there were no buildings or expensive improvements. In answer to the argument that this was not a proper matter for the interference of a court of equity, the court said:

“The complainant was seeking, not merely to enjoin a trespass, but to restrain the city, under color of its chartered powers, from taking absolute possession of property to which it had no right, and inflicting a permanent and continuing injury upon the complainant. In such cases, injunction is a proper remedy.”

In City of Joliet v. Werner, 166 Ill. 34, the court quoted as follows from High on Injunctions:

“When a municipal corporation threatens to remove plaintiff’s fences as an alleged encroachment upon a street, plaintiff having for thirty years been in the undisturbed possession of the premises, the city having used no portion thereof for a street, and offering no compensation to plaintiff, and no means of adjusting his compensation for the property to be taken, an appropriate case is presented for relief by injunction.”

To the same effect is Village of Itasca v. Schroeder, 182 Ill. 192. In Lowery v. City of Pekin, 186 Ill. 387, the court said:

“This is a case where a municipality, under claim of right, is unlawfully trying to take the property of a private citizen. It is well settled, that injunction is a proper remedy where cities or public officers, under color of power or claim of right, are illegally attempting to injure, or take the property, or impair the rights, of a citizen.”

It is held in several of the cases cited, as also in Hewes v. Village of Crete, 175 Ill. 348, that, even where by a plat there may seem to be a right to a street, yet if the land upon which that street would lie, if accepted and opened, has been permitted to be enclosed within the fence of abutting owners and treated by them as their private property without interruption by the municipality for over thirty years, the public rights, if any originally existed, are lost by abandonment. The bill stated various other facts relating to the conduct of the municipality towards appellee and the owners of other similar lots on the same street, which it is alleged would make it inequitable for the city to do the acts here complained of. It is unnecessary to consider that aspect of the bill. Enough has been stated to show that a court of equity has jurisdiction and that it was proper to retain the injunction until the merits are tried upon a hearing.

The order is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Dibell

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. John Shook, Plaintiff in Error.
    Gen. No. 5,629.
    1. Dramshops—-when count of information not quashed. A count of an information charging sales of liquor in anti-saloon territory, which alleges sales in a “certain room on the first floor” of certain premises, should not be quashed for lack of sufficient description, where there is nothing in the information to show that there is more than one room on the first floor.
    2. Dramshops—sufficiency of information. A count of an information cannot be quashed on the ground that alleged sales of liquor in anti-saloon territory were made in the defendant’s residence, and that the residence cannot be abated, where the information does not show that the place was his residence.
    3. Dramshops—what places may he abated. It would not seem that abatement of a place, where liquor is sold in violation of the Anti-Saloon Act, is prevented by the fact that such place is the defendant’s residence.
    4. Criminal law—hill of exceptions. A purported bill of exceptions should be disregarded where the words “and bill of exceptions” in the clerk’s certificate to the record are struck out, and the purported bill of exceptions following is not certified as an original or a true copy by the clerk, and where, if it is the original, it is not properly in the record without an agreement by the opposing counsel.
    Prosecution for violation of Anti-Saloon Territory Act. Appeal from the County Court of Warren county; the Hon. L. E. Murphy, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed June 27, 1912.

      C. A. McLaughlin and Oscar Carlstrom, for plaintiff in error.
    George C. Hillyer and J. W. Clendenin, for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

The state’s attorney of Warren county filed in the County Court an information charging John Shook with violations of the act concerning anti-saloon territory. The defendant moved to quash the information and that motion was overruled. He then pleaded not guilty, and was tried and convicted under the first and seventh counts. The first count charged that he unlawfully sold intoxicating liquor in the town of Monmouth, while it was anti-saloon territory; and under that count there was a judgment that he be fined $100 and confined in the county jail twenty days. The seventh count charged that he was the keeper of a place described as “a certain room on the first floor of the premises located at 921 South Main Street” in Monmouth, where intoxicating liquor was unlawfully sold while said town was anti-saloon territory, and that he did unlawfully sell intoxicating liquor there in violation of said act, and did then and there keep a common' nuisance; and under that count there was a judgment that he be fined $100 and be confined in the county jail thirty days after the expiration of the confinement under the first count, and that said place, to-wit, “a certain room on the first floor of the premises located at 921 South Main Street” in the town of Monmouth, be closed by the sheriff of Warren County and be abated until said Shook give bond in the sum of $1,000, conditioned according to law, with security to be approved by the court. There was' a further judgment.that Shook pay the costs of the prosecution and that the People have execution for the fine and costs and that Shook stand committed to the county.jail till fines and costs are paid. Thereupon Shook gave the bond required by said judgment and it was approved and a further order was entered directing the sheriff not to close said place. Shook brings this case here upon a writ of error to review said judgment.

It is contended that the court should have quashed the seventh count for lack of a sufficient description of the place, and that the sheriff could not know from the judgment which room on the first floor -of the building described he should close. There is nothing in the information to show that there is more than one room on the first floor. It is contended that 921 South Main street is the residence of defendant and that it could not be abated under the law. We see no reason why the fact that this was Shook’s residence should prevent the place from being abated if it was kept contrary to the provisions of the anti-saloon act, which authorizes abatement of the place. But the information does not show that this was his residence, and therefore the count could not be quashed on that ground. There was no motion in arrest of judgment.

Plaintiff in error complains of the rulings of the court upon the evidence and the instructions. Defendant in error insists that there is no such transcript and certificate as the law requires and that therefore these matters cannot be considered. The record contains the information, warrant and return, and the record of the proceedings of the court kept by the clerk, including the judgment, to which is attached the certificate of the clerk that “the foregoing” is a complete transcript of the proceedings, pleading, orders and judgment of the court in this case, wherein the People are plaintiff and John Shook is defendant. In the certificate, as prepared, was also included “and bill of exceptions,” and said words are stricken out. Thereafter follows an assignment of error, not signed by any one. After that comes what purports to be a bill of exceptions, containing evidence, exhibits, instructions, a motion for a new trial, points in support thereof, a denial of said motion and an exception thereto, a certificate purporting to be by an official reporter, and a certificate purporting to be by the trial judge. There is no certificate by the clerk of the court that this is a true copy or the original of the bill of exceptions filed in said cause, and, if it is the original, it could not be incorporated in the record without an agreement by counsel for the opposing parties, and there is no such agreement. It is clear that the clerk, by striking out the words “the bill of exceptions” from his prepared certificate, expressly refused to certify to this bill of exceptions. Apparently a record of everything but the bill of exceptions was prepared and certified and errors assigned thereon, and afterwards plaintiff in error caused something to be attached thereto, having the form of a bill of exceptions and upon the contents of which he seeks to reverse these judgments. We regard it as our duty to disregard this supposed bill of exceptions, and it follows that the judgments must be affirmed. We deem it, however, proper to say that the proofs under the first count related to sales of liquor at Shook’s place of business at 111 South First street and that the proofs under the seventh related to sales of liquor at his residence at 921 South Main street, and that the proof showed that these places were in anti-saloon territory, and that shortly prior to the sales shown by the evidence Shook paid a special tax to the United States Gfovernment for each of said places as a retail liquor dealer and had received the internal revenue special tax receipt for each place, made prima facie evidence of guilt by section 17 of the anti-saloon territory act, and that, even if there were some technical errors shown by said bill of exceptions, yet there can be no reasonable doubt under the evidence that he had violated the law at both places. It is not reasonáble to suppose that he acquired and paid for these special licenses merely for the pleasure of their possession.

' The judgment is therefore affirmed.

Affirmed.


text:
    Hugh B. Curry, Appellee, v. City of Aurora et al., Appellants.
    Gen. No. 5,384.
    1. Mandamus—what must he shown to entitle issuance of. Mandamus for the performance of an act will not lie, unless there is a clear legal right to have the act performed and a clear legal duty on the defendant to perform.
    2. Mandamus—issuance of saloon license. A city cannot he compelled to issue a license to keep a dramshop, except under a valid ordinance.
    3. Dbamshops—ordinance requiring hut one-half of liquor license fee in advance. An ordinance which requires the payment of only one-half of a liquor license fee in advance, is invalid as violative of the Dramshop Act.
    4. Dbamshops—provision of ordinance requiring liquor license fee to he paid to cleric. The provisions of an ordinance requiring liquor license fees to be paid to the clerk are invalid as violative of the Dramshop Act which requires the same to be paid into the city treasury.
    5. Dbamshops—conditions of dealer’s hond. An ordinance, relative to the issuance of liquor licenses which does not require the giving of a bond with the conditions specified in section 5 of the Dramshop Act, is void.
    6. Dbamshops—petition for license. Where the petition for a license to keep a saloon describes the location as “at Bishop Hotel Block, River Street and Downer Place,” it is insufficient for want of a definite designation.
    7. Dbamshops—discretion to issue license. Where mayor is given discretion as to the issuing of a license, the court will respect a fair exercise thereof.
    8. Dbamshops—discretion as to issuance of license. Where a mayor has discretion as to the issuance of saloon licenses, a refusal to issue a license, because the applicant is but 22 years old, is a fair exercise of such discretion.
    9. Dbamshops—city has power to limit number of. A city has power to limit the number of saloons, by ordinance.
    10. Dbamshops—permitting renewal of liquor license. An ordinance permitting a renewal of liquor licenses at the end of each year, at the option of the licensee, and making such renewal transferrable, is invalid.
    Mandamus. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Cabnes, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed.
    Opinion filed June 27, 1912.

      Charles F. Clyne, Aldrich & Worcester and Alschuler, Putnam & James, for appellants.
    John M. Raymond, John K. Newhall and Fred B. Shearer, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellee filed a petition in the Circuit Court of Kane county for a mandamus to compel the city of Aurora and its mayor and its clerk to issue to appellee a license to keep a dramshop. He averred the existence of ordinance No. 1244 and that he had, on July 12,1911, made a written application to the mayor and clerk for such license and had paid the clerk $1,000 as a license fee for the term of one year, ending June 30, 1912, pursuant to said ordinance, and had presented a proper bond to the clerk, and that the mayor and clerk refused to issue the license. Appellee averred that a license was refused him because of a certain ordinance No. 954, which undertook to limit the number of licenses which might be issued in said city, and that the mayor and city clerk claimed that the city had already issued as many licenses as were allowed by said ordinance No. 954. Appellee averred that said ordinance 954 was void for various reasons stated in the petition for a mandamus. Appellee averred'that he was a person of good character and 'was entitled to a license. Appellant filed twelve pleas, to each of which appellee filed a rejoinder. Issues of fact were thus joined. The issues were tried without a jury, and the court found said ordinance No. 954 void and awarded a peremptory writ of mandamus, and the defendants appeal therefrom.

It is assigned for error among other things that the court erred in not finding section 3A and section 10 of. ordinance No. 1244 illegal and void. One who seeks to compel the performance of some act by a writ of mandamus must show a clear legal right on his part to have the act performed and a clear legal duty on the part of the defendant to perform that act. Appellee based his right to have this license issued to him upon said ordinance No. 1244, which he alleged was a valid ordinance. A city cannot be compelled to issue a license to keep a dramshop, except under a valid ordinance. Its statutory power to license a dramshop is dormán till a valid ordinance had been enacted: People v. Cregier, 138 Ill. 401; People v. Mount, 186 Ill. 560, Ordinance No. 1244 establishes the license fee for one year and provides for the payment of one-half of that amount in advance and requires the applicant to give a bond that he will pay the other half. The act concerning dramshops makes it unlawful to grant a license except by the payment in advance of the sum fixed as the annual fee for the license. It was so held in People v. Mount, supra. In that respect this ordinance is void. The statute requires the license fee to be paid into the treasury of the city. This ordinance required it to be paid to the clerk. This provision was invalid: Orton v. City of Lincoln, 156 Ill. 499. Section 5 of the dramshop act forbids the authorities of any city to grant a license to keep a dramshop until a bond has been given with the conditions in that section specified. This ordinance does not require a bond with those conditions.

But, if the validity of ordinance No. 1244 were not considered, still appellee was not entitled to a license for several reasons. In his original petition for mandamus, appellee stated that his petition to the mayor and clerk for a license described the place where he desired to sell liquors as Bishop Hotel, Downer Place, in the city of Aurora. By an amendment it was charged that the petition for a license described the location as “at Bishop Hotel Block, Biver Street and Downer Place.” Such also was the description of the place in the bond. The Bishop Hotel block is on Biver street and Downer place and an alley. The Bishop Hotel occupies a part of this block, and several other portions of it are occupied by other parties, all the occupants being tenants. Appellee was not a tenant of any part of the block. The statute defines a dramshop as a “place” where spirituous liquors are sold, etc. The sufficiency of the designation of the place by appellee in his application and bond is raised by the pleadings. A saloon or dramshop is one place or room and not several rooms. A license to keep a dramshop can only authorize it in one place. Malkan v. City of Chicago, 217 Ill. 471. This application and bond did not designate whether this dramshop was to be kept on Eiver street or on Downer place or on the alley, not whether it was to be kept in the basement or on the first floor or on some floor above the first floor, or whether it was to be kept in the premises leased for a hotel or in some other portion of the block. We are of opinion that the city authorities could not be required to issue a license to appellee to keep a dramshop in such part of that block as he might thereafter select. Again, the ordinance gave the mayor a discretion as to the issuing of licenses. The court will respect such a discretion when fairly exercised. Harrison v. People, 222 Ill. 150; Kretzmann v. Dunne, 228 Ill. 31; Block v. City of Chicago, 239 Ill. 251. Appellee was about 22 years old at the time he made this application. The mayor testified that one of the reasons why he refused the license was that he thought if so young a man kept a dramshop, young men would be specially attracted thereto, and that he thought a person of the age of appellee was not likely to have sufficient experience to conduct a saloon. We are unable to say that the mayor abused his dis-^ cretion in refusing a license for that reason. Moreover, appellee did not pay the money into the treasury of the city, as the dramshop act required, but paid it to' the city clerk, and the bond which he tendered did not contain the provisions which the statute required, and these defenses were set up in the pleadings and were sufficient to defeat his application.

So far as ordinance No. 954 limited the number of saloons which might be kept in the city of Aurora by the population, we are of opinion that it was a valid exercise of the power of the city. People v. Cregier, supra; Block v. City of Chicago, supra; People v. Mohr, 252 Ill. 160. This limitation was relied upon in the pleadings, and the proof showed that, prior to the application by appellee for such a license, the city had already issued the number of licenses permitted by the ordinance. As that part of the ordinance was valid which limited the number of saloons and as the number of licenses permitted had already been issued, the mayor and clerk were therefore warranted in refusing the license. Other parts of ordinance No. 954 required the city authorities to renew each license at the end of the year and issue another license, and made the right to such renewal transferable by the licensee and transferable again by his assignee.' These provisions we consider invalid. A license to "keep a dramshop is as much a personal matter, depending upon the fitness and character of the licensee, as is a license to practice law or medicine. The statute only allows a license for one year. This ordinance practically makes the license unlimited in time. An applicant might be considered a fit and proper person when he first obtained a license and his conduct during the license year might demonstrate to the city authorities that he was an unfit person to conduct a dramshop. The statute expressly makes the license not transferable. It was held that such a license was not transferable in Munsell v. Temple, 3 Gilm. 93. See also Alger v. Weston, 14 Johns. 231; Sanderson v. Goodrich, 46 Barb. (N. Y.) 616; Com. v. Bryan, 9 Dana (Ky.) 310; Gilday v. Warren, 69 Conn. 237; Godfrey v. State, 5 Blackf. 151; Strahn v. Hamilton, 38 Ind. 57; Heath v. State, 105 Ind. 342; State v. Bayne, 100 Wis. 35; State v. Lydick, 11 Neb. 366; In re Blumenthal, 125 Pa. St. 412; State v. Prettyman, 3 Harr. (Del.) 570; State v. McNeeley, 1 Winston’s Law (N. C.) 234; State v. County Commissioners, 22 Fla. 1.

We therefore conclude that appellee did not in fact comply with the requirements of the statute, and that his petition and bond did not show a compliance with the statute, and that that portion of ordinance No. 954, which limited the number of saloons, was valid, and that the authorized number of licenses had been issued before appellee made his application, and that for all these reasons appellee was not entitled to a license.

The judgment is therefore reversed.

Reversed.


text:
    John Domm, Appellee, v. George Hollenbeck, Appellant.
    Gen. No. 5,396.
    1. Pleading—withdrawal of plea. A motion for leave to withdraw the general issue, and to demur to the declaration, is tardily made four years after issues are joined.
    2. Animals—duty to restrain. Where the owner of a domestic animal knows that it is ferocious and liable to attack and bite mankind, it is his duty to restrain the animal, without waiting till it had actually attacked some one.
    3. Animals—knowledge of ferocious character. A finding that the owner of a dog knew he was ferocious and liable to bite mankind, is supported by evidence which tends to show that the owner had made remarks admitting the dog to be ferocious, that the dog was kept chained, and that he would bark and jump at people who passed the shop where he was chained at night.
    4. Appeals and errors—when exclusion of evidence harmless. In an action for damages from being bitten by a dog, the exclusion of testimony offered by the owner as to what the dog’s disposition had been in a different locality, if wrongful, is harmless error, where the owner’s uncontradicted testimony covered all points offered to be proven by said witnesses.
    5. Witnesses—withdrawal of attorney after testifying. Where counsel testifies, his failure to withdraw from the case does not affect his competency to testify, but only his credibility.
    Action in case for personal injuries. Appeal from the Circuit Court of La Salle county; the Hon. R. M. Skinner, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed October 15, 1912.
    James J. Conway and C. H. Thompson, for appellant.
    Lee O’Neil Browne, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellee was bitten by a dog owned by appellant, and sued to recover damages therefor. The pleadings and the substance of the evidence for appellee are briefly stated in Domm v. Hollenbeck, 142 Ill. App. 439. Thereafter the cause was tried again and appellee had a verdict and a judgment for $750 from which defendant below appeals.

On the day of the last trial the court denied a motion by appellant for leave to withdraw the general issue and to demur to the declaration. Appellant contends that the court erred in denying that motion. The suit was begun March 30, 1906. Issues were joined June 11, 1906. The remanding order of this court was filed in the court below October 23, 1908. This motion for leave to demur to the declaration was made March 28, 1910. This was a very late date to begin to test the declaration. The motion and its denial and an exception thereto are not contained in the bill of exceptions, and the ruling could not otherwise be questioned. The showing for and against the motion is not contained in the bill of exceptions. We have, however, examined the question which appellant says he desired to present. He argues that the second and third counts do not state a cause of action, and that, as they describe and count upon wounds upon appellee’s right hand and left forearm while the first count only relates to a bite upon one of appellee’s legs, therefore much evidence was introduced as to the injuries which was not admissible under the first count and the damages were thereby enlarged. The second and third counts do not charge that the dog had ever bitten mankind. The second count charges that the dog was of a ferocious, fierce and malicious disposition and was at any and all times liable by reason of said disposition to attack and bite mankind, and that during all the time that appellant owned him appellant knew, or by ordinary care and prudence ought to have known, the disposition of the dog and his liability to attack and bite mankind. The third count charges that appellant negligently and wantonly kept the dog while he well knew that the dog was of a vicious, fierce, ferocious and malicious disposition and liable at any time to attack and bite mankind. The question is, must appellant have known that the dog had actually bitten'some one before it became his duty to restrain the dog, or in other words, is every dog entitled to one bite? In Johnson v. Eckberg, 94 Ill. App. 634, we held that it was not the law that defendant must have been notified of an unjustifiable biting of some person before he could have notice that the dog had a propensity to bite mankind; but, that, if the defendant knew that the dog had made vicious attacks upon persons without biting them, that was sufficient to put him on notice of a vicious propensity of the dog. In Fritsche v. Clemow, 109 Ill. App. 355, we held that it was sufficient if it was shown that the owner of the dog previously had notice of his mischievous propensities. In Hammond v. Melton, 42 Ill. App. 186, we held that, if the animal was disposed to attack mankind and the keeper had notice of that propensity, public safety demanded that he keep the animal secured. In Flansburg v. Basin, 3 Ill. App. 531, we held that, if the owner has reasonable grounds to suppose that there is a probability that his dog may bite mankind, he must restrain him. It was held in Kolb v. Klages, 27 Ill. App. 531, that it was not necessary to show that the dog had bitten any other person, but it was sufficient if the evidence showed that the keeper knew that the dog had shown a disposition to bite or attack others. In Knowles v. Mulder, 74 Mich. 202, the ground of liability was put upon the propensity of the animal to do mischief. In Robinson v. Marino, 3 Wash. 434, it was held that, though the evidence did not show that the owner knew that the dog had ever attacked or bitten any person, yet if he knew that the disposition of the dog was such as to make it highly probable that it would bite some one if allowed at large, the owner is liable to one whom the dog thereafter bites. We therefore hold that, if the owner of a domestic animal knows that it is ferocious and liable to attack and bite mankind, it is his duty to restrain the animal without waiting till it has made an actual attack upon and has bitten a human being. Therefore the second and third counts stated a good cause of action, and a demurrer interposed to them in proper time could not have been sustained.

Appellant lived in the village of Dwight and had owned this dog about sis weeks when he brought him to Seneca a few days before the attack upon appellee. The dog wore a combination harness and collar. The harness passed around the legs and chest of the dog and there was a ring in the collar. When appellant reached Seneca with the dog he caused him to be tied up in the barn of a. friend, by a chain which appellant brought to Seneca for that use. Afterwards he took the dog to. the butcher shop of another friend and there tied him by said chain to the leg of a heavy table. There was proof, contradicted by appellant, that appellant told witnesses that he tied the dog up in Seneca so that he could not get out and hurt or bite anybody, and that he told another witness afterwards, and after the dog was dead, that he was glad of it for he was afraid of the dog himself, and testimony by another witness that, as he passed the butcher shop before it was opened, the dog barked and growled and jumped at him and he feared that he would get through the window; and testimony by another witness that the dog showed his teeth at him and frightened him in the presence of appellant, and that the witness immediately left, saying. to appellant as he went that that dog would hite somebody yet, though he was not sure that appellant heard. In C. & A. R. R. Co. v. Kuckkuck, 98 Ill. App. 252, we held that the scienter could be established by attendant circumstances without the necessity in all cases of proving prior cases of injury, and cited Jones v. Perry, 2 Esp. 482, as holding that where the owner keeps his dog tied and does not permit him to run at large, it must be presumed that the dog is vicious, unruly and not safe to be permitted to go abroad. In Godeau v. Blood, 52 Vt. 52, it was held that the savage, nature of the dog and the fact that his keeper kept him chained and muzzled was strong evidence that he was, and was known to be, vicious, and that the safety of the public required his restraint. In Buckley v. Leonard, 4 Denio 500, it was held that the fact that the owner usually kept his dog confined in the daytime and kept him in his store at night was strong evidence that he knew that the safety of his neighbors would be endangered by allowing the dog to be at large. The questions whether appellant’s dog was ferocious and liable to attack and bite mankind and whether appellant knew that before the attack upon appellee were matters of fact, upon which the evidence is such that we would not be justified in disturbing the verdict of the jury, approved by the trial judge.

Appellant contends that appellee kicked or pushed the dog before the dog bit him and that therefore appellee and not appellant is responsible. The apparent preponderance of the evidence is that appellee did not first kick or push the dog, and the instructions of the court upon that subject were such that the verdict determines this question for appellee.

Appellant sought to prove by several witnesses the character of the dog when he was kept in Dwight and that little children played with him without harm and that those witnesses did not know of his ever attacking a person. The court refused to admit this testimony. In Johnson v. Eckberg, supra, we held that the court properly refused to admit proof offered by the owner of the peaceable character of the dog, and based that ruling upon Buckley v. Leonard supra. What is there said needs to be considered in connection with the facts before the court. We have examined the record in Johnson v. Eckberg and find that plaintiff had produced proof of seven distinct and prior attacks upon mankind by the dog, and had proved that defendant saw one of them and that a member of his family saw another of them and reported it to other members of the family, and it was apparent that defendant knew that his dog had attacked and bitten mankind and was liable to do so. In Buckley v. Leonard it was clear that the dog had been accustomed to bite others before he bit the plaintiff, and that the owner knew this. Those cases therefore really hold only that, where the, owner knows that his dog is accustomed or liable to attack and bite mankind, it is no defense to a suit for an attack by his dog upon some person to prove that to many other persons he had been mild and harmless,; and those cases, when examined in connection with the facts, do not hold that the prior history of the dog may never at any time be competent evidence. In this case there was no proof that the dog had ever before bitten mankind ; and appellant denied the statements attributed to him by the witnesses tending to show that he knew or was afraid that the dog would bite some one. Appellant contends that in this state of the proof, the court erred in sustaining objections to questions put to witnesses whom he brought from Dwight to show that the reputation of the dog was peaceable in that county, and that those witnesses did not know of his attacking or biting any one. Without determining whether the court might properly have admitted that testimony, we conclude that appellant was not harmed by the course pursued. Appellant was permitted to testify fully as to his knowledge of the dog, both before and after he bought him. Appellant testified that this was a nice, quiet, sensible, good natured dog; that anybody could do anything in the world with him; that he never offered to attack anybody in any shape or manner, so far as appellant knew; that he appeared to be a well bred dog; that he had never been used for fighting purposes and never had a fight and had no marks to show that he ever was in a fight; that during the time he had known the dog, the latter had never shown any tendency or disposition to be cross towards man or beast; that till he went to Seneca appellant had never seen or heard of the dog doing anything in the way of attacking or biting a human being or an animal; that in Dwight he made inquiries in regard to the disposition of the dog and never learned from any one that the dog had a ferocious disposition or had a tendency or was liable to attack or bite mankind; that he knew of his own knowledge that this dog was not accustomed to attack and bite mankind and did not have a ferocious or vicious disposition; that while he kept the dog his family consisted of himself and wife and a little girl and that it was not necessary to use any precautions to prevent his attacking or hurting the little girl; that he tied up the dog at Seneca for fear some one would steal him or he would try to run away because it was a strange town to him, and not because -he was afraid he was liable to attack or bite anybody. Appellee offered no proof to contradict this account of the previous life and conduct of the dog. The case against appellant was made to rest entirely upon what occurred and appeared at Seneca, and what appellant had afterwards said. The instructions required that the scienter must be established or appellant would not be liable. As this testimony by appellant as to the history of the dog before he reached Seneca covered all that appellant sought to. prove by the witnesses he brought from Dwight, and as it was entirely uncontradicted, we conclude that appellant was not harmed by the exclusion of the testimony referred to.

The conduct of counsel for appellee in testifying for him without withdrawing from the case subjects them to criticism, as laid down in Nix v. Thackaberry, 240 Ill. 352, and in cases there cited, but yet the rule stated in Glanz v. Ziabek, 233 Ill. 22, that the failure of the attorney to withdraw from the case affects his credibility only and not his competency is still in force in this state, and appellee was entitled to have their testimony admitted and to the benefit of whatever credence .the jury gave it. We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


text:
    Portius R. Wheeler, Appellee, v. Acme Harvesting Machine Company, Appellant.
    Gen. No. 5,512.
    1. Compbomise and settlement—evidence. A decree enforcing a supposed agreement between a creditor and a creditors’ committee of a corporation, to accept stock to par value of the claim, or fifty per cent, in cash, is not supported by the proof where such creditor did not accept the terms offered to the corporation’s creditors by the creditors’ committee, to turn over his claim and to accept cash or stock therefor, but proposed a reservation therein which was not accepted.
    2. Infants—creditor’s suit. On a creditor’s suit to pursue assets of a debtor corporation into the hands of a transferee corporation, complainant is not entitled to any greater rights on the theory that he was a minor at the time of the creation of the debt, and that his guardians made the loan and were not authorized to consent to any settlement thereof, where the bill does not set up such facts or claim any relief on that ground, and the facts tend to show that the guardians are the real parties complainant, though the suit is in the ward’s name.
    3. Cbeditob’s suits—when charges of fraud in transfer of corporation’s assets not supported. Charges in a creditor’s bill that the assets of one corporation were transferred to another, to hinder, delay and defraud creditors, are not supported where it appears that the creditors, and not the officers, planned the transfer to pay debts, the transfer was solely for the equal benefit of all creditors, nothing was reserved for the stockholders or officers, the corporation was to receive nothing but the liquidation of its debts, and the creditors were to receive for their claims either stock of the new corporation to their full amount or fifty per cent, in cash at their election.
    4. Corporations—what transaction not reorganization of. Where the officers and stockholders of a corporation turn over its assets to a creditors’ committee, in liquidation of its debts, and the committee with the consent of all the creditors, except one, turn over the assets to a new corporation, under an agreement whereby the creditors are to receive capital stock equal to the amount of their claims, or fifty per cent, in cash at their election, the transaction' is not the reorganization of the old corporation, but is the organization of an independent corporation which is not liable for the debts of the old, except as expressly provided for.
    5. Corporations—when transfer of assets not constructively fraudulent. A transaction whereby the officers and stockholders of a corporation transferred all of its assets to a creditor’s committee, and such committee with the consent of all except one of the creditors transferred such assets to a new corporation, in return for capital stock or a certain per cent, of each creditor’s claim in cash, is not constructively fraudulent, because the book value of the corporation’s assets exceeded its liabilities, where it is evident that the real value thereof was much less.
    6. Corporations—creditor's suit. Where a creditors’ agreement, to transfer the assets of a debtor corporation to a new corporation and take the stock thereof in settlement of their claims, has been carried out except as to one creditor who refuses to agree, and the stock to which he is entitled under the agreement has been issued in his name and delivered to a trustee to be transferred to the creditor when it is received in full payment, the stock so held is the property of the debtor corporation, and a creditor’s suit is properly brought by the assignee of a judgment obtained by the nonconsenting creditor to subject it to execution thereon.
    7. Costs—who liable therefor. On creditors’ bill against a corporation, against which judgment was recovered, and a corporation to which its assets were transferred, and against officers and stockholders, only the corporation against which the judgment was recovered should be held liable for costs, where the transaction was not fraudulent, and the new corporation has no assets belonging to the old corporation, but where stock of the new corporation in the hands of a trustee belongs to the old corporation and is subjected.
    8. Appeals and errors—Appellate Court Rule 16 construed. Appellate Court Rule 16 requiring the index to an abstract to describe each document by its character, parties, date, etc., is violated where the index gives only the number of each exhibit and its page in the abstract.

      Creditors’ suit. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the April term, 1911.
    Reversed and remanded with directions.
    Opinion filed October 15, 1912.
    Page, Wead, Hunter & Scully and Newman, North-up, Levinson & Becker, for appellant; Salmon 0. Levinson and Chester E. Cleveland, of counsel.
    Winslow Evans, Dan R. Sheen and Prank T. Miller, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

The Acme Harvester Company, hereinafter called the Illinois Company, was an Illinois corporation engaged in manufacturing harvesters and harvesting implements in Peoria County. In 1903 it became financially embarrassed, having assets of great book value and a large indebtedness. Conferences were held between its officers and its stockholders and its creditors. An arrangement was made by which a creditors ’ committee was appointed with authority to take charge of the business when that arrangement was assented to by a certain large majority of the creditors. More than the requisite number of creditors signed the agreement almost immediately. C. R. and M. C. W. Wheeler held a note against the Illinois company for $3,000 dated December 1, 1902, with interest unpaid thereon at six per cent, per annum from May 30, 1903. Printed copies of the agreement were sent to each of the creditors to sign, and the one sent to the Wheelers was signed by them with a reservation written therein by them. The agreement required the stockholders to deposit their capital stock with the committee and to give the committee a power of attorney to vote thereon, which should be irrevocable till the debts of the signing creditors were paid in full, and the signing creditors therein agreed to deposit with the committee all their notes and claims assigned in blank and not to sue thereon while the ag’reement remained in force. The committee took charge of the business, and was permitted to conduct the business notwithstanding a pending bankruptcy proceeding against the Illinois Company. In 1905 the committee proposed that a new corporation be organized to take the assets and conduct the business, and that the creditors take stock in such new corporation in settlement of their claims against the Illinois Company at their par value or fifty cents on the dollar in cash. In the proposition the creditors’ committee called this a re-organization of the Acme Harvester Company. This proposition seems to have been accepted by every creditor except the Wheelers, and they accepted it with a reservation. Thereupon the Acme Harvesting Machine Company of New Jersey, hereinafter called the New Jersey Company, was organized and the Illinois company transferred all the assets of the Illinois company to the New Jersey Company. The stock of the latter was subscribed by the creditors of the Illinois company, and was paid for by a surrender of their demands against the Illinois company at one hundred cents on the dollar. Thirty shares of the capital stock of the New Jersey Company of the par value of $3,000 was tendered to the Wheelers in payment of their claim against the Illinois Company, but they refused to accept it, except with the same reservation. Thereafter a certificate for said shares of stock was placed in the hands of George T. Page, an officer of the Illinois company, for the purpose hereinafter stated. C. B. Wheeler was the uncle and M. C. W. Wheeler was the half brother of Portius B. Wheeler and they had been his guardians when he was a minor, and it was the money of Portius B. Wheeler which his guardians had loaned to the Illinois Company without disclosing, so far as appears, that it was held by them as guardian, which loan was evidenced by said $3,000 note of the Illinois Compay. Portius B. Wheeler came of age and his guardians at some later date assigned this note to him, and he brought suit thereon against the Illinois Company and had a judgment on November 27, 1907, for $3,770.40 and costs and had an execution issued thereon, which was returned “No property found,” and had an alias execution issued, which was in the hands of the sheriff when this suit was begun. Thereupon Portius R. Wheeler filed this bill against the Illinois Company, the New Jersey Company, various officers of said Illinois Company, the creditors’ committee and others. The general object of the bill was to have the transfer of the assets of the Illinois Company to the New Jersey Company declared fraudulent and to have the assets of the latter subjected to the payment of this debt, and for other relief. The cause was referred to a master who reported the proofs and his conclusions. On exceptions to said report the decision was in favor of the defendants, except that by its decree the court found that at the time of the transfer of said assets it was agreed between the two companies and the Wheelers that they should either accept fifty per cent, in cash or the par value of said claim in stock, and that this agreement was binding on Portius R. Wheeler, and that there was no limit of time when the Wheelers were required to exercise said option ; and the decree gave Portius R. Wheeler an unlimited time within which to exercise said option, and decreed that when he did elect, the New Jersey Company should pay him $1,500 or deliver to him thirty shares of its capital stock, as he should elect, and that he should have an equitable lien upon the assets of the New Jersey Company to secure the performance by it whenever he made his election. The New Jersey Company appeals from that decree and urges that the bill should have been dismissed for want of equity, and Portius R. Wheeler assigns cross errors, wherein he claims that the sale of the assets should have been found fraudulent and the New Jersey corporation should have been required to pay him.

Both sides claim that .there was an agreement between the Wheelers and the two companies, but they disagree as to what that agreement was. Appellant contends that the Wheelers agreed to accept either thirty shares of stock or fifty per cent, in cash of the par value of the face of the claim in satisfaction thereof. Portius R. Wheeler claims that he was to have that option and also retain the possession of the note and his right of action against the persons whose names were written on the back thereof. Upon a consideration of all the writings we are of opinion that there never was an agreement between the committee and the Wheelers. The proposition made to the creditors in print required them to surrender their notes. In signing the copy sent to them, the Wheelers added a proviso, written in by them, reserving possession of the note and their right of action against the endorsers. They were thereafter written to and urged to accept the proposition offered them, and they wrote letters professing to accept, but in each case writing in the limitation that they reserved their right of action against the endorsers. The committee never accepted their reservation and the Wheelers never accepted the proposition as it was made to them. The fact is that the endorsers were also endorsers on most of the paper of the Ulinois Company and were the owners of most of the capital stock of the Illinois Company, and in practically sacrificing' everything they had invested they insisted that they be released from those personal debts, and such was the meaning and effect of the written proposition submitted by the- creditors’ committee. It makes no difference here whether this requirement of the proposition was fair or unfair. It never was accepted by the Wheelers, though accepted by every other creditor. The Wheelers could not be compelled to accept the terms offered, but as they did not accept the terms offered and as the committee never assented to the reservation proposed by the Wheelers, the minds of the parties never met and there was no contract. Therefore, so far as the decree was in favor of Portius R. Wheeler, and enforced a supposed agreement to permit him to exercise an option to accept $1,500 or thirty shares of the capital stock of the New Jersey Company, it is not supported by the proof and is erroneous.

In the assignments of error it is insisted that the money for which this note was given by the Illinois Company to C. R. and M. C. W. Wheeler was the money of Portius R. Wheeler, a minor, and that C. R. and M. C. W. Wheeler were his guardians and had no power to act at all upon the proposition submitted by the creditors’ committee; and it seems to be claimed that some advantage accrues to Portius R. Wheeler because of these facts. We find no such advantage accruing to Portius R. Wheeler upon this record. His bill of complaint, as abstracted, does not set up his minority, the guardianship and that the guardians acted without authority, nor does it claim any advantage or relief on account thereof. The bill does not charge nor does the proof show that the defendant had notice or knowledge of said minority or guardianship or that this debt equitably belonged to a minor. During the proceedings here assailed the note was held by C. R. and M. C. W. Wheeler in their own names. Portius R. Wheeler became of age on July 23, 1903. The creditors agreement was signed by C. R. and M. C. W. Wheeler after October 19,1903, and they then set out this claim as owned by them. In the fall of 1904, more than a year and a quarter after their ward became of age, they obtained a judgment upon this note in their own names against one of the endorsers or guarantors of the note. That was before they turned the note over to their ward. On March 24, and on April 5, 1905, they wrote letters to the creditors’ committee, in which they discussed the note in question as owned by them. This was more than a year and eight months after their authority as guardians had ceased by their ward attaining his majority. M. C. W. Wheeler testified that he thought they assigned the note to Portius R. Wheeler in the latter part of 1904, after they obtained the judgment against one of the endorsers, or else in January, 1905, but that C. R. and M. C. W. Wheeler still represented the indebtedness, at the time the proofs were taken in this case, and that Portius R. Wheeler knew nothing about the matter except what they told him. He was not a witness. There is other proof strongly tending to show that C. R. and M. C. W. Wheeler are the real parties complainant here, though in the name of Portius R. Wheeler.

This was a creditor’s bill. It charged that the transfer of the assets from the Illinois Company to the New Jersey Company was colorable only, and was made to hinder, delay and defraud the creditors of the Illinois Company, including Portius R. Wheeler. These allegations are not sustained by the proofs. It was the creditors of the Illinois Company who planned this transfer, and not the officers of the Illinois Company. The transfer was made solely for the equal benefit of every creditor. It was made to pay the debts of the Illinois Company. Nothing was reserved for the benefit of the stockholders or officers of the Illinois Company. They parted with all the corporate property and put it in the hands of the creditors of the Illinois Company wherewith to pay their demands.

By the subsequent agreement the debts which the creditors ’ committee had created while operating the business were to be paid in full, and the debts which existed at the time when the creditors’ committee took control of the property were to be paid either in capital stock in the New Jersey Company at one hundred per cent, or in cash at fifty per cent, at the election of each creditor. Out of an indebtedness of some $2,000,000 every creditor accepted this offer except Portius R. Wheeler. The Illinois Company has received nothing but the liquidation of its debts. This was not a reorganization of the Acme Harvester Company, but it was the organization of a new and totally independent corporation, and it is not liable for the debts of the old company except so far as it expressly agreed to pay them. Bruffett v. Great Western R. R. Co., 25 Ill. 353 (2nd Ed., p. 310); Morgan County v. Thomas, 76 Ill. 120; Beardstown Pearl Button Co. v. Oswald, 130 Ill. App. 290. It is obvious that this transaction is not fraudulent in fact. We conclude it cannot be held to be constructively fraudulent. Kingman v. Mowry, 182 Ill. 256. The book value of the assets largely exceeded the debts, but it is evident that their real value was much less than the debts.

The bill and an amendment thereto, set up the matter of the thirty shares of stock of the New Jersey Company in the hands of Page, and alleged that Page refused to turn said stock over to the sheriff upon demand by the sheriff under said execution upon the said judgment in favor of appellant, except in full settlement of appellant’s demand and the bills sought to compel Page to deliver said shares to the sheriff for levy under said execution by a decree holding Page personally liable to appellant in the sum of $3,000 unless he delivered said stock to the sheriff under said execution. The prayer of the bill among other things, was that each defendant disclose whether he or it held any property or capital stock of the New Jersey company, in trust or otherwise, and whether any defendant had put out of his or its hands any property of any kind, and also whether there had been transferred or delivered to any defendant “by the principal defendants” (meaning, apparently, by the Illinois Company and the New Jersey Company) any property or capital stock, etc., in which said principal defendants might claim any trust or equity, and that any property so discovered might be applied to satisfy the amount due on appellant’s judgment; that the real interests of the parties in the property or estate of the principal defendants might be ascertained and determined, etc., and the bill prayed for such other relief as may be equitable. The answer of all the defendants stated that the Illinois Company caused the New Jersey Company to deliver to Page a certificate for thirty shares of the capital stock of the New Jersey Company, of the par value of $3,000 in the names of C. E. and M. C. W. Wheeler, at a time when they owned this claim, and authorized Page to deliver such certificate to C. E. and M. C. W. Wheeler in full payment and satisfaction of their claim against the Illinois Company; and that Page had frequently tendered said certificate to the Wheelers, and that Page now holds said stock for the purpose for which it was delivered to him. It is clear that these thirty shares of stock are part of the consideration which the New Jersey Company agreed to pay for the assets of the Illinois Company, and that it agreed with the Illinois Company to deliver this stock to the Wheelers as creditors of the Illinois Company, if they would accept it in full. The Wheelers, and appellant the assignee of the claim, refuse to receive it in full satisfaction of the debt. Who now owns this stock, after the Wheelers have refused to take it on the terms offered! We think it clear that these shares are the property of the Illinois Company. They are a part of what the New Jersey Company agreed to pay for the assets of the Illinois Company and if the creditors to whom this particular stock was set apart will not receive it, it belongs to the Illinois Company. It is said it is unfair to the other creditors of the Illinois Company to permit appellant to levy on this stock. But the other creditors have been paid that which they have accepted in full satisfaction of their claims, and the Illinois Company, according to the proofs, now has no creditors, except appellant; and said persons who were creditors are not parties to this suit, and are not asking any protection of the court. Of course, the capital stock of the Illinois company is in a certain sense a debt of that company, but that debt is subordinate to the lawful demands of all who are creditors of the Illinois company in the ordinary meaning of the word “creditor,” and therefore is subordinate to the judgment recovered by Portius E. Wheeler against the Illinois company, and to executions upon said judgment; and said stockholders are not parties to this suit; and we do not here use the term ‘ ‘creditor” in a sense which includes the holders of said capital stock. As these shares are the property of the Illinois Company, they are subject to levy by any creditor of the Illinois Company. But they cannot be reached by appellant with his execution without the aid of a court of equity, because the certificate is in the names of C. R. and M. C. W. Wheeler, and is in the possession of Page, who manifestly cannot surrender it for sale under said execution, except upon compulsion. The New Jersey Company cannot withdraw this certificate and issue another to the Illinois Company, upon which the sheriff may levy, unless the Illinois Company asks it. Appellant must have the aid of a court of equity to reach these shares with his execution, and to relieve the New Jersey Company and Page of the trust which the Illinois Company has imposed upon these shares of stock. In the view we have taken none of the appellees, except the Acme Harvester Company of Illinois, should be held liable to costs here or in the court below, nor should the New Jersey Company be held liable therefor.

The proof shows that long after this bill was filed the Acme Harvesting Machine Company of West Virginia was organized, and assets of the New Jersey Company were conveyed to it under the same agreement, but the West Virginia Company is not a party to this suit, and the pleadings raise no question concerning it, though some of the witnesses seem to have confused some of its affairs with those of the New Jersey Company.

The index to the abstract gives only the number of each exhibit and its page in the abstract. This violates our rule 16 (137 Ill. App. 626) which requires that the index shall also describe each document by its character, parties, date, etc., so as to distinguish it from every other document in the record. This defect forces us to look at all the exhibits to find any particular document, and greatly decreases the value of the index to the court in a case largely depending upon documentary proof. We call attention to this defect in an effort to secure compliance with the rule.

The decree of the court below is reversed, at the costs of the Acme Harvester Company and Portius R. Wheeler, and the cause is remanded with directions to the court below to enter a decree directing such action by the Acme Harvester Company, the Acme Harvesting Machine Company and George T. Page as will subject said thirty shares of the capital stock of the Acme Harvesting Machine Company to levy and sale under the execution hereinbefore described in favor of Portius R. Wheeler against the Acme Harvesting Company, outstanding when the bill of complaint in this case was filed, and under any subsequent execution in said cause; and in all other respects dismissing the bill of complaint of Portius R. Wheeler for want of equity; and adjudging the costs of that court against the Acme Harvester Company and Portius R. Wheeler. ■

Reversed and remanded with directions.


text:
    The People of the State of Illinois, Defendant in Error, v. Henry Gardt, Plaintiff in Error.
    Gen. No. 5,618.
    1. Dkamshops—evidence. Findings of violations of the Dramshop Act and the Anti-Saloon Act by a club, its officers, agents and servants, are warranted where the evidence tends to show direct sales of liquor in anti-saloon territory, and that though the club purported to be organized for social purposes, it possessed none of the attributes thereof, but that any one, by paying a small fee for locker keys, and a preliminary order of liquor, could become a member, and that the steward would exchange bottles which the members took from their lockers for bottles kept on ice, and that the members drank the liquor on the premises.
    2. Instructions—when correctly refused. Refusal of an instruction which seeks to discredit testimony of detectives is correct.
    3. Dramshops—statute construed. The act relating to anti-saloon territory, condemns the taking of orders in anti-saloon territory for the delivery of liquor, whether the one taking the order is. acting for the buyer or for the wholesale house.
    4. Dramshops—instructions. On prosecution for sales of liquor in anti-saloon territory, instructions are correctly refused which seek to make the defendant’s guilt or innocence turn, on whether in taking a certain order, he was the agent of the buyer or of a brewery, where there was sufficient evidence of sales to other persons to authorize a conviction which the instruction ignored.
    5. Criminal law—instructions. Refusal of a general instruction not applied to the evidence is not error.
    6. Criminal law—instructions. Refusal of an argumentative instruction which ignores partly the evidence tending to show guilt, is proper.
    Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Knox county; the Hon. R. Cliff Rice, Judge, presiding.
    Heard in this court at the April term, 1912.
    Affirmed.
    Opinion filed October 15, 1912.
    Forrest F. Cooke, for plaintiff in error.
    A. J. Boutelle, for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On October 5, 1911, Henry Gardt was found guilty in the County Court of Knox county under the first count of an inf ormation which charged him with the unlawful sale of intoxicating liquor in anti-saloon terri-. tory, after having been theretofore convicted of the same offense. A motion for a new trial was denied and he was sentenced to confinement in the county jail for thirty days and to pay a fine of $200 and to stand committed till both fine and costs were paid. Defendant below has sued out this writ of error to review said judgment.

It was proved that plaintiff in error had previously been convicted of selling intoxicating liquor in anti-saloon territory in the city of Galesburg, and that the city of Galesburg, where the acts complained of took place, was still anti-saloon territory on July 6, 1911. It is, however, denied that plaintiff in error was engaged in the sale of intoxicating liquor on the date last named in the city of Galesburg, and it therefore becomes necessary to set out the evidence with some particularity.

On the sixth day of July, 1911, there was located on Prairie street, in the city of Galesburg, an organization known as the Heidelburg Club. The application to the Secretary of State for its incorporation stated its object to be the maintenance of club rooms for social purposes. Plaintiff in error was the treasurer of this club and was also one of the directors. The rooms of the club were on the ground floor of a building owned by the Pabst Brewing Company, which company also owned the fixtures in the club room. In the front part of this building was a cigar store, operated by plaintiff in error and his son, and partitioned off from the club rooms, but connected therewith by a doorway. This so-called club room, in the rear of the cigar store, contained a bar, tables, many numbered lockers and an ice box divided into many compartments and numbered to correspond with the numbers on the lockers. In the operation of the club it appears that any one might apply for membership and, by paying a small sum of money, become a duly constituted member. The money advanced by the new member was for a key to the door leading into the club room from the cigar store, for a key to a locker and for an initial order for whisky or beer, as the member desired. In ordering such liquor the member signed an order for the kind and amount he desired and ostensibly this order was sent by some one of the club managers or servants to a brewer or liquor dealer outside of the city of Galesburg and the order was filled by express in a few days. When the liquor ordered by such member arrived at the club rooms it was placed in his locker. When the member desired to drink some of his liquor, he removed a bottle from his locker and took it to the bar where an employee of the club, termed a steward or a porter, exchanged such bottle for another bottle of the same kind that had been on ice. The warm bottle handed him by the member was then placed by the steward, or porter, in the ice box in the compartment bearing the same number as that on the member’s locker. The next time the member presented a warm bottle of liquor at the bar, the cold bottle was taken out of his particular compartment in the ice box and exchanged with him.

On July 6, 1911, one Morgan, a detective in the employ of a society interested in the enforcement of the liquor laws of this state, called at the Heidelburg Club and inquired for the manager and was told by the plaintiff in error that he was the manager. Thereupon Morgan gave plaintiff in error $5.00, $2.00 of which was for keys as aforesaid and $3.00 for a case of beer, for which Morgan signed an order blank provided by plaintiff in error. Plaintiff in error took the money and the order and told Morgan that the beer would be ready for him the next time he came in. At that time plaintiff in error asked Morgan if he wanted a bottle of beer and Morgan was taken by Gardt into the club rooms and given a bottle of beer. Plaintiff in error told Morgan that the beer he used then ■ would be taken out of the case ordered by him when it arrived. This occurred about half past one in the afternoon. About four o’clock the same day Morgan called again at the club room, received his locker key and found thirty-five bottles of beer in his locker, one having been deducted for that used by him earlier in the afternoon. At that time Morgan exchanged one of the bottles from his locker with a man behind the bar for a cold bottle' and drank it on the premises. There is evidence in the record of numerous transactions of this character, both by members of the club and by outsiders. Plaintiff in error contends that this club was a bona fide social organization and that the furnishing of liquor to the members was merely for the accommodation of the members and not the purpose of the organization. The court has made a careful study of the evidence in the record and is unable to agree with plaintiff in error in his contention.

The Heidelburg Club of Galesburg lacked many of the ordinary features of a social organization and in many aspects of its operation resembled closely a dram-shop. Plaintiff in error testified that he was a trustee, or director, of the club and its treasurer, but there is no evidence in the record to show that the club had any other officers, by-laws, or rules. It does not seem to have been necessary for a person desiring to become a member to sign an application, pay an initiation fee, or be voted upon by the other members. The payment of dues at regular intervals does not seem to have been required of the members. There is no evidence in the record to show that this so-called “club” ever held any meetings as a club, either at regular or irregular intervals, or that any social gatherings were ever conducted under its auspices. In short, the sole purpose of this “club” seems to have been to enable any one to procure a drink of intoxicating liquor if he had the money to pay for it, without any regard to the character of the applicant. The evidence also fails to show any one engaged in running the “club” or in authority over it except Gardt. Plaintiff in error appears to have been the sole person in "charge of this organization and but three employees are mentioned in the evidence. These men are termed “stewards” or “porters” but their duties partook so largely of the nature of those generally performed by bartenders that we can hardly doubt that the latter term would more fittingly describe them. In fact, counsel for plaintiff in error used the term “bartender” in connection with one of »aid employees in his cross-examination of Avery, a detective working with Morgan. Plaintiff in error bad formerly been a wholesale liquor dealer, and this building and the fixtures were owned by a brewery. Apparently any chance passer-by could become a member of this club, whether known to Gardt or not, by merely paying for certain keys and for a certain quantity of liquor in advance. Although Gardt claims that it was the duty of the steward to receive applications for membership and the cash for liquor and forward the money and the order therefor to the brewery, the evidence tends to show that Gardt himself took charge of such matters.

Section 11 of the act relating to anti-saloon territory forbids the sale of intoxicating liquor in any quantity whatever within anti-saloon territory. Section 12 provides penalties for anyone who “shall, by himself, or another, either as principal, clerk or servant, directly or indirectly, sell, barter or exchange any intoxicating liquor in any quantity whatever” within anti-saloon territory.

Section 13 is as follows:

“The giving away or delivery of any intoxicating liquor for the purpose of evading any provision of this act, or the taking of orders or the making of agreements at or within any political subdivision or district while the same is anti-saloon territory, for the sale or delivery of any intoxicating liquor, or other shift or device to evade any provision of this act, shall be held to be an unlawful selling.”

These provisions are as comprehensive as language can well make them. We are of opinion that the proof warranted the jury in finding violations of the Dramshop Act and of the act relating to anti-saloon territory, both by the club and by all its officers, agents and servants, under Rickart v. People, 79 Ill. 85; People v. Law and Order Club, 203 Ill. 127; South Shore Country Club v. People, 228 Ill. 75, and People v. Craig, 155 Ill. App. 73.

The court refused twelve instructions requested by plaintiff in error. Several of these are embodied in instructions given at his request. The 5th sought to cast discredit upon the two detectives who testified for the People, and its refusal is justified by the principles stated in People v. Campbell, 234 Ill. 391. Nos. 10 and 11 sought to make the guilt or innocence of defendant turn upon the question whether in taking the order for Morgan he was the agent of the brewery or of Morgan. We are of opinion that the statute condemns the taking of orders in anti-saloon territory for the delivery of intoxicating liquor whether the person taking the order is acting for the buyer or for some wholesale house. But the evidence tended to show that defendant received all money taken in, and was responsible as the keeper of the place. Other evidence showed sales of bottles of beer for money then paid by persons who did not appear to be members, and whose beer was not taken from any locker, but from behind the bar. There was proof of sales to other persons besides Morgan sufficient to authorize a conviction under the first count. These instructions ignored all sales except to Morgan, and were for that reason properly refused. The 7th was a general proposition, not applied to the evidence, and it was therefore not error to refuse it. Atkinson v. Lester, 1 Scam. 407; Corbin v. Shearer, 8 Ill. (3 Gilm.) 482; Hessing v. McCloskey, 37 Ill. 341; Devlin v. People, 104 Ill. 504; Vallette v. Bilinski, 167 Ill. 564. The 8th was argumentative and ignored a part of the evidence tending to show guilt and was properly refused. The other refused instructions are not discussed by counsel. The judgment is affirmed.

Affirmed.