author: Mr. Presiding Justice McBride

text:
    G. A. Shontz et al., Appellees, v. John U. Metzger et al., Appellants.
    1. Waters and water courses, § 29

      —when evidence sufficient to sustain a decree abating a levee. On bill filed for a mandatory injunction for the removal of a levee constructed to obstruct the flow of flood waters, a decree requiring the defendants to abate the levee held sustained by the evidence, there being evidence to show that complainant’s lands were more or less damaged by reason of the obstruction.
    2. Waters and water courses, § 12

      —right to erect levee against flow of flood waters. The rule that the owner of a servient estate has no right to erect a levee to obstruct the flow of surface waters applies to the flow of flood waters.
    3. Waters and water courses, § 22

      —what not a defense to bill to abate levee. The fact that the abatement of a levee would cause more harm to the persons constructing it than to the parties damaged by the obstruction, held no defense to a bill for a mandatory injunction to require removal of the levee.
    4. Appeal and error, § 1365

      —when refusal of court to permit amendment and hear evidence not an abuse of discretion. Refusal of court to permit an amendment to an answer and to hear additional evidence after the case had been closed, held not an abuse of discretion.
    5. Injunction, § 216

      —laches. On bill for a mandatory injunction to abate a levee, complainants held not estopped by laches.
    Appeal from the Circuit Court of Fayette county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the March term, 1911. Affirmed.
    Opinion filed November 11, 1911.
    Rehearing granted April 3, 1912, and opinion filed November 11, 1911, readopted by a decision rendered in the March term, 1914.
    Brown & Burnside and Albert & Matheny, for appellants.
    Arthur Roe, Noleman & Smith and W. F. Bundy, for appellees.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

This cause was heard by the chancellor upon oral testimony produced in open court at the August term, 1910, of the Circuit Court of Fayette county. A decree was rendered in favor of the complainants requiring the defendants to abate a levee, and from this decree the appellants prosecute this appeal.

The bill alleges that the complainants, Gr. A. Shontz, F. W. Sasse, Clyde B. Dees, Stanley Dees, Omer Perry, James IT. Cooper, M. F. Cox, Albert Perry, C. W. Freeman, are the individual owners of separate lands to the amount of about one thousand acres, except that G-. A. Shontz and F. W. Sasse own a certain tract of land jointly, and Clyde B. Dees and Stanley Dees own certain other tracts jointly (also describes all of said lands). That these lands are all located in the Kaslcaslda Biver bottom and commonly known as overflow lands. That the defendants John U. Metzger and J. D. Mitchell in about the year 1903 constructed a levee about four feet high and about four feet wide along the north line of the northeast quarter of the northeast quarter of section nineteen, owned by defendant Mitchell, and also along the north line of the northeast quarter of the northwest quarter of section twenty, owned by J. U. Metzger. That said defendants have maintained said levee ever since. That said levee is constructed in such manner that it obstructs the natural flow of the water," and that surface water and water coming down the Kaskaskia Biver in time of overflow and floods would naturally flow southward off the lands of complainants across the premises of defendants and through the Wild Cat Drainage District ditches and drains thereof if it were not for said levee. That the town of Kaskaskia, by its Highway Commissioners, after the construction of said levee raised and graded the public highway running along the north line of said sections nineteen and twenty on the north of said levee to a height of about three feet and to the width of the highway, except that in some places the embankment was not so high. That by reason of the retention of such of said waters the lands of the complainants are washed, soured and injured, and that the complainants have often demanded that the defendants remove said levee but they have failed and refused so to do; that the injury occasioned thereby is recurrent, and is an injury to complainants, and each of them, who own the several tracts of land above set forth. That complainants’ said lands have been cleared up and made ready for cultivation; that the soil is very rich and would be highly productive; that the complainants desire to cultivate other lands now cleared up and to clear other portions and reduce them to cultivation, and expect to make large gains and profits out of the cultivation of said lands but that said lands are injured and made less productive, and the crops thereon are destroyed by reason of water being held back by said embankment. That their respective remedies at law are inadequate and any attempt to procure relief at law would result in a multiplicity of suits.

The prayer of the said bill is for a mandatory injunction against the defendants requiring them to take down and remove said embankment.

An amendment was afterwards made to complainants’ bill, alleging that on about the 15th day of July, 1909, the said levee and embankment were broken, washed and severed, and the waters temporarily permitted to escape. That thereafter and on towit, July 25th, the defendants wrongfully reconstructed and repaired said levee and embankment to its former state and condition. That the lands of complainants are being reclaimed from wild lands and being reduced to cultivation. That to the southwest of complainants’ lands in the direction of the natural flow of water, there is a natural water course to which the waters would drain.

The answer of the defendant Commissioners of Highways avers that said highway has been there for more than twenty years; denies that it crosses any natural water course, and avers that said road for a distance of twenty rods has no grade thereon, leaving an ample opening for the overflow waters, and that the road grade does not in any manner cause the lands of complainants to overflow or be otherwise damaged.

The separate answer of John U. Metzger and J. D. Mitchell admits that complainants are the owners of the land as alleged and that each of them have acquired lands by purchase, since the construction of the levee; admit that in the summer of 1902 they constructed the levee along the north line of section nineteen and twenty, and that it has not been changed or raised but has been maintained at its original height; and deny that the levee was washed away in the summer of 1909, or been repaired; and deny that the levee obstructs the natural flow of the water.

The defendants further aver that the said levee passes across a flat tract of land about seventy rods in length, and is of the average height of about two and one-half feet but there is no natural water course or stream of water running through or across said flat body of land, and that the land both north and south of said levee is practically level; and aver that at no time do any of the waters pass off from the complainants’ lands to the point where the levee is constructed, except in the times in which the bottoms of the Kaskaskia River are overflowed by reason of flood waters, and that all of the lands belonging to complainants are overflowed before any water passes on to the lands of these defendants, or would pass there if said levee were not constructed; and the purpose and effect of said levee is to simply withdraw from overflow a portion of the lands belonging to defendants which is flat, and is as high or higher than the lands of complainants; and deny that defendants’ lands have been damaged or injured by the construction or maintenance of said levee.

The answer further avers' that all of the lands of complainants, except about seven acres, lie on the opposite side of the river from the said levee; that two of the complainants, Clyde R. Dees and Stanley Dees, have in like manner protected a portion of their lands by constructing a levee along the north side of the slough.

The answer also denies that the lands were injured, the soil rendered unfit for cultivation or that the injury is recurrent, and denies that the complainants’ remedies at law are inadequate.

The amendment to the answer avers that complainants and their grantors have since the year 1902, known of the existence of said levee and its effects and acquiesced in its construction and maintenance and have been guilty of laches in bringing this suit; and that because of the apparent acquiescence the defendants have expended a large amount of money, to wit, four thousand dollars, in ditches, tiling and the clearing of their lands, and that if said .levee be removed their lands will be rendered worthless by the overflow. That in 1908, a flood of water washed away a portion of said levee and that complainant Shontz requested these defendants to rebuild and repair such washouts in the said levee, and that they did repair and rebuild the same; and that Shontz is estopped from insisting that said defendants destroy said levee; that defendant Metzger owns six hundred acres of said land south of said levee which would be rendered practically worthless if said levee be removed.

The court upon the final hearing found the issues for the defendants Town of Kaskaskia and the Commissioners of Highways of said Town, and dismissed the bill as to such defendants, but finds the issues for the complainants as to the defendants Metzger and Mitchell and requires them to abate and remove said levee so constructed by them.

It appears from the record in this case that about one mile and a half up the stream from this levee the Kaskaskia Biver divides into two branches, forming an island, and uniting again at a distance of about one mile below the levee. The northerly branch is known as the “Biver” and the southerly as the “Island Slough.” At a distance of about three or four hundred feet north of the levee the island slough flows to the west. The bluffs are on the east of the levee and a high point or ridge is at the west end of the levee, and the lands between these two points are flat. That before the erection of said levee, in times of high water, a part of the overflow would pass off between the banks on the east of the levee and the high point on the west down into a stream called Gasser Creek, and from thence it spread over the bottom, and at the distance of about eight miles again reached the river, while the waters that were carried through the island slough to the river had to flow a distance of about twenty-five miles to reach the same point. The levee in question was of the height of two and one-half or three feet and was constructed by the defendants Metzger and Mitchell in about the year 1903, and was from time to time washed out and renewed by them. By the construction of this levee they were able to prevent the overflow waters from passing between the high point at the west end of their levee and the bluffs, and protect their lands from the overflow. The effect of this was to hold the overflow waters on complainants’ lands until it could pass off through the slough to the west. Many witnesses testified that before the levee was constructed that the waters were so strong that it formed a current at the place where the levee was built, and we are satisfied from the reading of the testimony of this record that in times of overflow the lands of the defendants, being low and between the bluffs, and the island slough on the west formed an opening through which the waters naturally flowed on such occasions, and while it may be that the lands of some of the complainants were not as much damaged by the obstruction as the lands of others were, yet there is evidence to the effect that all of the complanaints’ lands are more or less damaged by reason of this obstruction. At all events, the testimony of the witnesses was heard in open court before the chancellor and he has so determined, and we cannot say that the weight of the evidence is contrary to the finding of the chancellor, or that the decree ought to be disturbed on that account.

It was said by the Supreme Court in the case of Pinkstaff v. Steffy, 216 Ill. p. 409: “As this cause was heard by the chancellor in open court we will not feel authorized to disturb the findings and decree unless from a review of the evidence we are satisfied that the decree is so manifestly against and contrary to the weight of the evidence that it ought not to be allowed to stand.” It having been determined by the court that the defendants erected the levee in question and that it obstructed the flow of the flood waters, then under the decisions of our court this created such a nuisance as authorized the courts to intervene and abate it.

It appears from the evidence that the heritage of the defendants is a servient one and that of the complainants a dominant heritage, and this being true, the defendants had no right to erect a levee to obstruct the flow of the water from the dominant to the servient heritage, and it can make no difference that it is flood waters that are obstructed. It is said by our Supreme Court in the case of Chicago P. & St. L. Ry. Co. v. Reuter, 223 Ill. p. 391: “The rights of the servient and dominant proprietors being the same whether the waters are surface or channel waters, there is no reason for attempting any distinction in the discussion of flood waters; and if there were any distinction, except on the question of variance, it could not avail appellant, because if the flood waters are not held to be surface waters they will partake somewhat of the char-actor of the waters of running streams, and the more they partake of that character the more strictly will the rule be applied, under all authorities, that each must use his own so as not to injure his neighbor.”

In the case of Pinkstaff v. Steffy, 216 Ill. p. 412, the court says: “It might with equal force be inquired here what difference it can make, in principle, whether the water that submerges the land of Steffy comes from the hills above the land or comes from the overflow of a stream along the same. We are unable to see either the distinction or the ground for one. Both are natural consequences. Both are burdens cast upon the adjacent lands by the laws of nature, and as applied to such creeks and streams as the one in question we have no doubt that the correct rule is ‘that waters which have overflowed the banks of a stream in times of freshet, in consequence of the insufficiency of the natural channel to hold them and carry them off, are surface waters, within the meaning of the rules of law relative to such waters.’ ” It having now been determined that such waters are governed by the same rule as surface waters, then there is no question about the law in this State as to the rule governing surface waters. It has been decided many times that the servient estate must receive and take care of the waters from the dominant estate. “Under the rule of the civil law which has been adopted in many jurisdictions in the United States, the right to drain surface waters is governed by the law of nature, as between the owners of adjacent lands, and the lower proprietor is bound to receive surface waters which naturally flow from the land above, and cannot do anything to prevent such flow which will cast it back on the land above. 30 Am. & Eng. Encyc. of Law (2d Ed.) 326; and this doctrine is approved of in the cases of Bradbury v. Vandalia Drainage Dist., 236 Ill. 42; Gormley v. Sanford, 52 Ill. 158.

It is contended, however, that the complainants should not have resorted to a court of chancery for relief but were bound to submit their claim for damages to a court of law. It is true, that so far as appears from this record, the damages are not very great, but it also appears that the damages are of frequent occurrence, and that each overflow of the river inflicts upon the complainants the same burdens as the former overflow did, and this will continue as long as the levee is allowed to exist, and for the complainants in each instance to be required to resort to a court of law for relief would certainly result in a great multiplicity of suits, which litigation and expense we do not think they are required to incur in order that they may be relieved from the burdens imposed upon them by this levee. Courts of equity have not hesitated to to take cognizance of questions arising by reason of the obstruction of the natural flow of waters, and thereby giving to the claimants quick and permanent relief from such obstructions, when they in fact existed. It is said: “Where a lower landowner obstructs the natural flow of surface waters from the lands of the upper landowner, the latter may maintain an action for damages, and courts of equity have unhesitatingly granted relief by injunction against further obstruction.” 30 Am. & Eng. Ency. p. 329; and this doctrine has been approved and affirmed in the cases of Espenscheid v. Bauer, 235 Ill. 172; Pinkstaff v. Steffy, supra.

We are satisfied from an examination of the various authorities cited by counsel for complainants and defendants that for the reasons above given a court of chancery had jurisdiction and was a proper tribunal before whom the rights of these defendants to maintain this levee could be determined.

It is again contended by counsel for appellants that appellees by reason of their laches are estopped to claim the interposition of this court by means of a mandatory injunction. This levee was erected in the year 1903. In the year 1908, according to the testimony of the defendants, it was washed out and rebuilt by the defendants, and there is some testimony in the record tending to show that in the year 1909 it again washed out and was rebuilt. The defendants, however, state that it was simply repaired by placing bags of sand in the washout. At the time the levee was first built, Smith, the then owner of the Shontz tract, served a written notice upon the defendants, at about the time the levee was half completed, not to erect it. It is claimed, however, that Shontz, in 1909, requested them to rebuild the levee; this is denied by Shontz, and he claims that the defendants at the time he first purchased the land, and before he knew anything about the flow of the water there, represented to him that it would be a benefit to his land to rebuild it, and that he told them that if it was a benefit to him he wanted it, if not, he did not want it, and that afterwards when he saw how the waters were held back upon his land he told them he did not want it. The defendants even now in their testimony do not deny but what the water from Shontz’s land does naturally flow over their land, and, as we recollect the record, the defendants do not deny having told Shontz that this would be a benefit to his land; but these matters were all before the chancellor and he heard the testimony of the several witnesses with reference to them, and we are of the opinion that his findings with reference to this question ought not to be disturbed. In addition to this it must be borne in mind “that each overflow upon the land of an adjoining owner caused by the negligence or want of skill in a railroad company in its mode of constructing or maintaining an embankment is a fresh nuisance and creates a new cause of action.” Chicago P. & St. L. Ry. Co. v. Reuter, supra; Pinkstaff v. Steffy, supra.

In the latter case a bill in chancery was filed praying for an injunction restraining the rebuilding of a levee that had been originally constructed more than eighteen years before the commencement of the suit, and an injunction was granted and affirmed by the Supreme Court. We do not believe that the appellees are es-topped from this action by reason of their laches.

Counsel for appellants again insist that it appears from the evidence that the damage sustained by these defendants by the removal of the bank of earth is many times that to be sustained by complainants, by the maintenance of it, and will cause more harm than it remedies, and for this reason the court will remit the complainants to a court of law.

It is true, as claimed by counsel, that the removal of this embankment would subject appellants’ lands to overflow upon every occasion in which the banks of the river would overflow, and that to permit the levee to remain there would protect the appellants’ lands from such overflow, but we cannot say how much more appellants’ lands would be benefited than appellees’ lands would be damaged; this does not appear very clear from the record. However, we are unable to say that upon any principle appellants ought to be allowed to reap a benefit at the expense of their neighbors by obstructing the natural flow of the water. To do this, would be to say that one neighbor could by the doing of an unlawful act injure another and then defend himself by saying that he did it in the interests of good husbandry; it might be good husbandry to him but would be destructive husbandry to his neighbor. This doctrine is well settled by our Supreme Court in the case of Pinkstaff v. Steffy, 216 Ill. p. 413, where this exact question was raised, and the Court said: “It is urged by the plaintiff in error that in the interests of good husbandry he is entitled to maintain the levee to protect his crops from inundation by overflow from the watercourse in question; and if he could so protect his crops and lands without injuring others the rule invoked would readily be admitted, but the civil law rule of drainage being founded upon natural right, carries with it also the rule that one must so use his own as not to injure another or to deprive another of that right of natural drainage which the law guarantees to him, and if by the construction of the levee in question, although good husbandry may, on the part of Pinkstaff, dictate and justify the same, yet if by so using his land he injures Steffy by depriving him of the enjoyment of the right of natural drainage, then Pinkstaff cannot avail himself of the plea of good husbandry that benefits himself alone and to the injury of his neighbor.” This doctrine seems to us to be of the highest importance to all persons engaged in agricultural pursuits. That where a man purchases lower lands, perhaps because they are cheaper, that he should have no right to better his lands, increase them in value and cause them to be more productive at the expense of his neighbor who owns a dominant heritage.

Again, it is contended by counsel for appellants that the proof does not warrant a decree in favor of any of complainants, except Shontz and Sasse; this, however, has been disposed of in a former part of the opinion.

The -fifth and last objection urged by counsel is that the court erred in refusing to permit an amendment to the answer, and to hear additional evidence after the case had been closed. This was a matter purely within the discretion of the court, and we cannot say from anything that appears in this record that this discretion was abused or that the court erred in refusing the amendment.

After a careful examination of the record and the authorities referred to by counsel for appellants and appellees, we cannot say that the Circuit Court erred in rendering a decree for the complainants, and the decree of the Circuit Court is affirmed.

Decree affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Thomas Cannon, Plaintiff in Error.
    1. Mines and minerals, § 47

      —when complaint charging obstruction of escapement shaft insufficient. A complaint based upon a violation of clause “a” of section 9, ch. 93, R. S. 1911, J. &. A. ¶ 7483, charging that defendant then being top boss of a certain coal company did wilfully cause the escapement shaft at the mine to be locked up and obstructed so that there was no place of egress at said mine except the main shaft, held insufficient to sustain a conviction for the reason that it nowhere charges that the mine was in operation or that the shaft was so constructed that there was not a place of egress to all persons employed in such mine.
    2. Mines and minerals, § 47

      —who may be- prosecuted for violation of duty in maintaining escapement shaft. Clause “a” of section 9, ch. 93, R. S. 1911, J. & A. ¶ 7483, held not to impose a duty upon an employe in a mine of maintaining an escapement shaft so that he may be prosecuted for a violation of the statute.
    Error to the County Court of Saline county; the Hon. Kenneth C. Ronalds, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed.
    Opinion filed May 1, 1914.
    M. S. Whitley, for plaintiff in error.
    P. J. Lucey and Sam Thompson, for defendant in error.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The plaintiff in error was convicted in the County Court of Saline and fined in the sum of two hundred dollars, to reverse which judgment he prosecutes this writ of error. The suit was instituted by the filing of a complaint by the State’s-Attorney of Saline county, which complaint contained two counts or charges. The first count, omitting the formal parts, charges: “That Thomas Cannon on the 30th day of April in the year of our Lord one thousand nine hundred twelve, and on divers dates prior thereto at and within said County of Saline, in the State of Illinois aforesaid, then and there being top boss for the Wasson Coal Company at Wasson, Illinois, did then and there wilfully cause the escapement shaft at said mine to be locked up and completely obstructed so that there was not then and there any place of egress at said mine, except the main shaft, contrary to the statute in such case made and provided, and against the peace and dignity of the said People of the State of Illinois.”

The second count is the same as the first except that the offense is stated in the following language: “Did then and there unlawfully and wilfully obstruct the escapement shaft to said mine by then and there locking securely the door to said escapement shaft upon the outside and wilfully then and there failed and neglected to remove said obstruction to the egress of persons to said mine. ”'

The complaint is based upon division “A” of section 9, ch. 93, of the Devised Statutes of Illinois 1911 (J. & A. ¶ 7483), which is as follows: “For every coal mine in this State, whether worked by shaft, slope or drift, there shall be provided and maintained in addition to the hoisting shaft, or other place of delivery, an escapement shaft or opening to the surface or an underground communicating passageway with a contiguous mine, so that there shall be at least two distinct and available means of egress to all persons employed in such coal mine.”

The plaintiff in error entered a motion to quash the said information, which motion was overruled and excepted to, and thereupon a trial was had and plaintiff in error was convicted and fined.

The principal errors assigned and argued by the plaintiff in error are: First, that the court erred in overruling his motion to quash the complaint. The complaint nowhere charges that the mine was in operation or that the shaft was so obstructed that there was not then and there any place of egress “To all persons employed in such coal mine.” The maintaining of the escapement shaft as we read this section is for the express purpose of furnishing available means of egress to all persons employed in such coal mines. The same certainty of allegation is required in an information as in an indictment. People v. Weinstein, 255 Ill. 531. “It is a fundamental rule of criminal pleading that an indictment must allege all of the facts necessary to constitute the crime with which the defendant is charged, and an indictment which does not set forth such facts with sufficient certainty will not support a conviction.” People v. Trumbley, 252 Ill. 31.

The egress for which the shaft is provided by this section to be maintained is confined to persons employed in such coal mine, and unless it is limited to this class of persons we are unable to see how such obstruction would be a violation of this statute. It is true the second count charges that said obstruction was to the egress of persons from said mine. This however, is entirely too general and does not necessarily violate this section of the statute, as it is limited to the particular class. “No indictment is sufficient if it does not accurately and clearly allege all the ingredients of which the offense is composed. (United States v. Cook, 17 Wall. 168.) This is so even as to an exception or proviso so incorporated in the statute as to constitute a part of the definition or description of the offense.” People v. Trumbley, supra. If the statute is enacted for the purpose of protecting a particular class of persons, then a complaint or indictment should be sufficiently definite to show that the persons referred to in the complaint were within the class prescribed by the statute. We think that the court erred in overruling the motion and that the complaint should have been quashed.

The second error assigned and argued is that this statute has no application to a case of this character. The evidence shows that the plaintiff in error was top foreman and performed such duties as were required of him by the mine manager, or other officers of the mine. He is not required by statute to perform any particular duties. That he was directed by Evans, the mine manager, to go and close down the door at the escapement shaft, which he did, and at that time it appears from the testimony of some of the witnesses there were several men engaged below in blasting rock and repairing the mine. But is the fact that the plaintiff in error, upon the order of the mine manager, closed the door of this air shaft a violation of this statute? The language of the statute is: “For every coal mine in this State, whether worked by shaft, slope or drift, there shall be provided and maintained in addition to the hoisting shaft, or other place of delivery, an escapement shaft, etc.” Provided and maintained by whom? We do not think that it can be intended to have been provided and maintained by this servant who is simply working for the coal company for wages. Indeed, it is conceded by counsel for defendant in error that: “Although the section does not use the word operator, it is a just and fair inference to so conclude for the reason that the operator is the only person or corporation that would be liable to incur the expense of constructing an escapement shaft. ’ ’ It will be observed that the duty here of providing and maintaining a shaft devolves upon the same person. It is not that the shaft shall be provided by one person and maintained by another. The failure to maintain and the obstructing of the air shaft is treated by the defendant in error as synonymous. Webster in defining what is necessary to maintain says: “To keep, maintain, to hold in hand; to hold, preserve or keep in any particular state or condition; to support; to sustain; not to suffer to fail or decline, as to maintain a certain degree of heat, to maintain the fertility of soil; to maintain present character or reputation;” which indicates that such actions must be performed as will preserve and keep up the thing to be maintained; when we speak of the doing of some act of hindrance we use the word “obstruction.” Indeed, the pleader in this case was compelled to use the word “obstruct,” to describe the act that was done by the plaintiff in error. There is no specific penalty prescribed for obstructing an air shaft, and the penalty imposed is in general terms for violating any of the provisions of the act and is set forth in section 29 of chapter 93. (J. & A. ¶ 7503). We do not believe that this section is intended to apply to a mere temporary obstruction, such as the one shown to exist; besides it is provided by division “L”, sec. 10, ch. 93 (J. & A. ¶ 7484) for the removal of obstructions from escapement shafts in the manner in which these obstructions shall be discovered and removed. And by whom? We do not believe that it was intended by the legislature to impose upon men who were working for wages at the coal mine the duty of maintaining an escapement shaft. That duty certainly devolves upon the operator, and if he fails to maintain it or remove any obstructions to it the punishment should be upon him.

We are of the opinion that the statute in question has no application to cases of this character and that the court erred in rendering judgment against the plaintiff in error, and for the reasons indicated the judgment of the lower court is reversed.

Judgment reversed.


text:
    The People of the State of Illinois, Defendant in Error, v. Dillie Carter, Plaintiff in Error.
    1. Mines and minerals, § 47

      —when evidence sufficient to sustain conviction of mine examiner. Conviction of a mine examiner for violation of the statute in failing to mark the mine, held sustained by the evidence.
    2. Mines and minerals, § 47

      —when information need not aver mine examiner was “certificated.” Where an information charges a mine examiner with a violation of the statute in regard to marking the mine and avers that he was a certificated mine examiner, the averment that he was a “certificated” mine examiner is mere surplusage which the people are not required to prove.
    Error to the County Court of Saline county; the Hon. Kenneth C. Ronalds, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    M. S. Whitley, for plaintiff in error.
    P. J. Lucey and Sam Thompson, for defendant in error.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The Eldorado Coal and Mining Company was on and prior to February 19, 1913, engaged in the business of mining coal at or near Eldorado. This coal company had in its employ two mine examiners, John Kay who examined the south part of the mine and Dillie Carter, the defendant, who examined the north part of the mine. At about seven o ’clock of the morning of February 19th, and shortly after some of the men had gone down in the mine to begin their day’s work, an explosion occurred at or near the face of |the third and fourth west entries of the main north, on the north side of the mine. As the result of this explosion four men were killed and much damage done. Shortly after the explosion occurred Frank Rossbottom, State mine inspector, arrived at the place and took charge of the mine and immediately began his investigation to determine the cause of the explosion. He had with him in his examination several other persons and they ascertained by this examination that the first and second west entries off of the north entry, and the third and fourth west entry off of the main north entry, and all rooms and working places of these entries bore no marks of having been visited and examined by the mine examiner on the 18th and 19th of February. The place that was ascertained by the inspector and others that had not been marked was a large section in the vicinity of the explosion and extended over about sixty working places. Marks of February 16th and 17th and some dates prior thereto were found in these working places but nothing on the 18th and 19th. It appears that the places were full of gas and the lights of the men coming down to work on the morning of the 19th came in contact with the gas which caused the explosion. After this examination complaint was filed against Dillie Carter, the defendant, charging him with having failed to mark the several working places above referred to and that in such failure he violated the statute. A trial was had which resulted in his conviction. This prosecution was commenced by an information filed in the County Court of Saline county, which information consisted of two counts, the first of which counts, omitting the formal parts charged: “That Dillie Carter on the nineteenth day of February, the year of our Lord one thousand nine hundred thirteen and on divers days prior thereto at and within the town of Eldorado ip said county of Saline, in said State of Illinois, aforesaid, being then and there a certificated mine examiner, then and there required by law to examine the under-i ground workings of a certain mine commonly called Seagraves Mine of the Eldorado Coal and Mining Company, a corporation, there situate, within twelve hours preceding every day upon which said mine was to be operated, being then and there required to inspect all rooms and working places on the first and second west entries off the main north entry in said mine and all rooms and working places on the third and fourth west entries off the main north entry in said mine and being then and there required as evidence of his said examination of said rooms and working places to inscribe in some suitable place on the walls of each of said rooms and working places, not on the face of the coal, with chalk the month and day of the month of his visit.” That he then and there wilfully failed to mark said rooms and working places with the month and day of the month of his visit, contrary to the statute.

The second count of the information is substantially the same as the first except that a failure to mark said places at the face is charged.

Several witnesses were examined on behalf of the plaintiff below who testified to an examination of these several places in a very short time after the explosion and were unable to find any marks, and state that no marks existed upon the sides of the rooms, roof or other parts in the said worldng places showing a visit and examination by the mine examiner in said places, or any of them, on the 18th and 19th of February, 1913. There were, however, marks at the several places showing a visit and examination by the mine examiner on the 16th and 17th of February, and other dates prior thereto. The examination appears to have been carefully made by these several witnesses, including the State and county mine inspectors, to ascertain if any such marks had been made and the several witnesses state, with more or less certainty, that no such marks were found. There was no evidence introduced on behalf of the defendant at the trial. It was sought, however, by a searching cross-examination of the plaintiff’s witnesses to throw doubt upon their testimony, but as we read the evidence of the several witnesses we are convinced that the jury were warranted in finding that a thorough examination had been made and that the defendant had failed to mark these several places as required by statute. Counsel for plaintiff in error in his argument in this court does not question the sufficiency of the evidence upon this point but does insist that as they failed to prove that the plaintiff in error was a certificated mine examiner he could not be convicted under the charge contained in this information. The principal error relied upon by counsel for plaintiff in error to reverse this case is that as the information charged that Dillie Carter, “being then and there a certificated mine examiner then and there required by law to examine the underground workings of a certain mine, etc.,” was a material averment and not being proved that the court erred in not directing a verdict for plaintiff in error. We have examined this question with considerable interest and do not believe that the averment of being a certificated, mine examiner is material but that this word is mere surplusage and need not be proved. The statute requires “A certificated mine examiner shall be required at all coal mines.” It then provides that the operator of the mine shall have the underground workings of the mine examined by a certificated mine examiner within twelve hours preceding every day upon which the mine is to be operated. It also provides that certificated mine examiners shall not be required for the examination preceding the night shift except in specified cases, and that the mine manager may, in the absence of the mine examiner, examine the mines, and that under certain conditions other persons may examine. When the statute comes to prescribe the duty of the mine examiner it apparently makes no distinction between a certificated mine examiner or other mine examiner, and is as follows: (b) “It shall be the duty of the mine examiner to examine the underground workings of the mine within twelve hours preceding every day upon which the mine is to be operated;” and then follows several provisions with reference to his duties; among them is one requiring bim as evidence of his examination to inscribe upon the walls with chalk certain marks.

The evidence in this case shows clearly that Carter assumed the office and duties of mine examiner of this mine and undertook to perform these duties and having, “at the time of the acts complained of, assumed to be such officer and was exercising the powers and duties of the office. The People were therefore not bound to allege or prove that he was a de jure officer. ’ ’ People v. McCann, 247 Ill. 145. The word “certificated” was not a necessary description of the person or class of persons who might violate this statute. All that was necessary under the statute to allege was that the mine examiner failed to mark the room as required. “Where the indictment charges all the elements essential to an offense under a statute, other matter unnecessarily added may be rejected as surplusage.” 22 Cyc. 370. In the case of People v. Mackin, 159 Ill. App. 125, the Court says: “The averment "that Mackin was connected with and interested in the management of the place described may therefore be disregarded as surplusage, as it is not descriptive- of the offense charged in the language of the statute that he visited the place and was found therein.” In the case of Sutton v. People, 145 Ill. 285, the indictment charged Sutton with rape and averred: “And the said Frank Sutton, then and there being a male person of the age of fourteen years and upwards, etc.’’ This averment was held to he surplusage and that the People were not bound to prove it, and the Court in commenting upon this says: ‘ This indictment would, therefore, have been good under the first division of the statute above quoted, without the averment as to the age of the plaintiff in error, and hence that averment might have been stricken out as surplusage. Wharton on Criminal Law, vol. 1, sec. 622; Mobley v. State, 46 Miss. 501; Durham v. People, 4 Scam. 172. That averment being surplusage, the People were not hound to prove it.”

As we understand counsel for plaintiff in error, it is conceded that it was not necessary to make the averment of certificated mine examiner but having made it he must prove it, and much reliance is placed upon the case of Sykes v. People, 132 Ill. 32. The case cited was where the defendant was charged with having sought to defraud one corporation and the proof showed an entirely different corporation. We do not regard this case as decisive of the question under consideration. We are of the opinion that it was not necessary to aver or prove that the plaintiff in error was a certificated mine examiner. It appears clearly from the evidence that he was a mine examiner and this is all that the defendant in error was required to allege or prove.

It is further contended that some of the evidence introduced on behalf of the People as to the condition of the walls, with reference to marks having been made several days after, was too remote. There was sufficient evidence, however, as to the condition of the walls immediately after the explosion, and it further appears to some extent that the rooms and places were in the same condition at the time of the remote examination complained of as they were immediately after the explosion, so far as the marks upon the walls Were concerned.

Complaint is made of instruction No. 2 given on behalf of the People in, “That it undertakes to tell the jury that the leading and controlling question in the case is adopting his own theory of the case and leaving all others in the background.” We are unable to understand what counsel means by this criticism unless it is that it should have included as one of the necessary elements to be proved that defendant was a certificated mine examiner. This criticism, as well as the one made upon plaintiff’s third, fourth and fifth and defendant’s second instruction, is based upon the proposition that to constitute a violation of the statute it must appear that defendant was a certificated mine examiner, which has been disposed of adversely to contention of counsel.

The eighth instruction given on behalf of the People is not. very accurately drawn. It would have been better to have advised the jury that “such facts and circumstances” should have been of a character to satisfy their minds of defendant’s guilt beyond a reasonable doubt, but this expression is so often repeated in the instructions that the jury could not have been misled.

The criticism upon instruction No. 9, that it is somewhat in the nature of an argument, is well taken but the instruction does not direct a verdict, and so far as we can see did not prejudice defendant’s interest, and no such prejudice has. been pointed out to us by counsel.

The criticism upon instruction No. 10 is not well taken. This instruction requires the facts and circumstances referred to should establish his guilt beyond a reasonable doubt.

The fourteenth instruction has been substantially approved by the Supreme Court.

The criticism upon the seventeenth instruction is without merit, as the jury certainly knew and appreciated that they were acting each for himself “upon his oath” in all they did.

After a careful review of all the testimony offered in this case we are of the opinion that the jury were warranted in finding that Dillie Carter had failed to perform the duties required of him as mine examiner, and as we find no reversible error in this record we see no reason to disturb the judgment of the lower court, and the judgment is affirmed.

Judgment affirmed.


text:
    James Burnes, Appellee, v. Swift and Company, Appellant.
    1. Master and servant, § 98a

      —when Workmen’s Compensation Act deprives employe of right to sue. Where the employer is a corporation, section 3 of the Compensation Act of 1911, J. & A. ¶ 5451, deprives an employe from suing to recover for injuries under the Act of 1909, providing for the health, safety and comfort of employes, J. & A. ¶¶ 5386 et seq., where the injury was caused by the intentional omission of a person other than an elective officer of the corporation.
    2. Master and servant,- § 98a

      —word “intentional” in Compensation Act construed. The word “intentional” in the proviso of section 3 of the Compensation Act of 1911, J. & A. ¶ 5451, was not intended to be given the broad construction of the word “wilful” is construed in the Miners’ Act.
    3. Master and servant, § 98a

      —Compensation Act as affecting right of employe to sue. Section 3 of the Compensation Act of 1911, J. & A. ¶ 5451, takes away from an employe the right of action, either at common law or under the statute, relating to the safety of employes unless he brings himself within the proviso that excepts him from the operation of that statute.

      Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 1, 1914.
    C. E. Pope, for appellant.
    D. J. Sullivan, for appellee.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The appellee recovered a judgment against appellant in the City Court of East St. Louis, Illinois, for five thousand, five hundred dollars, which appellant seeks by this appeal to reverse.

Appellee was at the time of the injury engaged at work for appellant as a carpenter’s helper and assisting a man by the name of Mochel. The name of the general foreman was Meyers, who had charge of various gangs of carpenters. They were engaged in remodeling a portion of the plant called the sausage room and in the remodeling it became necessary to remove some old girders that were located ten or twelve feet above the floor of the room and replace them with others. They consisted of pine timbers 10 x 10 inches and sixteen feet long and were four in number. Three of these girders had been taken down prior to the time appellee was injured and they were working upon the fourth one and within two feet of and parallel with the main power shaft. These pine girders were being replaced with steel girders. Upon this power shaft and near one end of the fourth girder there was a collar fastened with a set screw that extended out one inch or more beyond the collar. This shaft was kept in motion during all the time that the men were engaged in the removing of the girders. It is claimed by appellant that the general foreman directed Mochel to shut down the machinery and stop the shafting from being run at the time they were engaged in the removal of this fourth girder. Appellee insists that the order did not have application to any particular girder but applied to all of the machinery and that the machinery continued to operate after this order was given and to the knowledge of the foreman. On account of the inability of Mochel to find the oiler or millwright to stop the machinery when ready to take down the fourth girder, Mochel undertook to stop it himself but was unable to do so, and he decided to go on and take down the girder without the machinery being stopped, and while engaged in taking down the last of the girders appellee stepped back a few inches to allow the girder to be swung so that it could be let down, when the leg of his overalls came in contact with the set screw on the power shaft and his clothing was immediately wound around the shaft, carrying appellee around it a number of times, until his clothing was all torn from his body, except his shoes and socks, and he was badly injured. The evidence tends to show that the injury received is a permanent one. It is claimed by appellee that the foreman was present a number of times during the day while appellee and those assisting him were taking-down these girders and knew that the machinery had not been stopped but said nothing further about it. It also appears from the evidence that the direction to stop the machinery was given to Mochel, and appellant claims that appellee was present at the time and heard the order given. This, however, is denied by the appellee.

The declaration consists of one count and alleges that appellant was engaged in the business of preparing and preserving- meat products, and was possessed of and using as a part of the equipment of its said plant a certain shaft used in communicating-power to certain machinery used in its business. That upon said shaft was an iron or steel collar from which projected an unguarded set screw, that said shaft collar and said set screw revolved at a high rate of speed and was located near the place where certain of defendant’s servants in the line of their duty were required to work and that it was practical to guard or fence the same, hut the defendant wilfully and intentionally failed to fence, guard or otherwise protect the said set screw; that upon the 3rd day of August, 1912, appellee while employed as a carpenter’s helper for appellant, and in the line of his duty, and while assisting in removing a girder, his clothing was caught by said set screw and he was whirled around the said shaft and seriously injured.

Appellant has assigned several errors herein but they all relate to the same proposition, namely, that the relief for the injuries to appellee accrues to him under an act entitled, “An act to promote the general welfare of the People of this State by providing compensation for accidental injuries or death suffered in the course of employment.” Approved June 10, 1911, and in force May 1, 1912, and commonly known as “The Compensation Act.” (J. & A. ¶¶ 5449 et seq.)

It will be observed that the declaration in this case charges that the defendant wilfully and intentionally failed to fence, guard or otherwise protect a set screw that projected from the iron or steel collar upon the power shaft, and claims that the liability of appellant is not under the Compensation Act but is under the act entitled, “An act to provide for the health, safety and comfort of employes in factories, etc. ’ ’ Approved June 4, 1909, in force January 1, 1910. (J. & A. ¶¶ 5386 et seq.)

As we read this record, a decision of this case depends entirely up op the construction given to these statutes under the undisputed evidence herein.

It appears from the evidence, and is in fact conceded by both parties, that at the time of the injury the appellant and appellee had both accepted and were working under the terms and provisions of the Compensation Act, except that appellee insists that he does not come within the proviso of section 3 of said act. (J. & A. ¶ 5453.) The provision of the- act with reference to the health, safety and comfort of employes, under which this declaration is filed, provides that all power driven machinery, including all saws, planes, wood shapers, jointers, sandpaper machines, iron mangles, emery wheels, ovens, furnaces, forges and rollers of metal, all projecting set screws on moving parts, shall be so located wherever possible as not to be dangerous to employes, or shall be properly in-closed, fenced or otherwise protected.

The act providing compensation for accidental injuries and death, after reciting the duties and liabilities of the employer and employe thereunder, provides by section 3 (J. & A. ¶ 5453) as follows: “No common law or statutory right to recover damages for injury or death sustained by any employe while engaged in the line of his duty as such employe other than the compensation herein provided shall be available to any employe who has accepted the provisions of this act or to any one wholly or partially dependent upon him or legally responsible for his estate: Provided, that when the injury to the employe was caused by the intentional omission of the employer, to comply with the statutory safety regulations, nothing in this act shall affect the civil liabilities of the employer. If the employer is a partnership, such omission must be that of one of the partners thereof, and if a corporation, that of any elective officer thereof.” There is no evidence in this record showing who any of the elective officers of the appellant corporation are; no evidence that any elective officer of the Company had any knowledge that the set screw which injured appellee was upon the shaft, or that any elective officer of said Company had intentionally omitted to comply with the statutory regulations, except the general evidence that the set screw was there, that it was not guarded and that the foreman of appellant was familiar with the place where the shafting, to which this set screw was attached, was being operated and had the opportunity to know its condition. It is insisted by counsel for appellee that: “The master being a corporation was required to see that this act was complied with through its officers who were authorized to carry out its corporate power. It was the duty of its board of directors, who were elective officers under said section 6 of the Corporation Act, to see that its servant to whom it had committed the management of its business, fenced or guarded the set screw. It was the duty of the defendant through its board of directors, who were elective officers, who were charged by the law with the carrying out of its corporate powers, as soon as this law took effect to take steps to comply with the duty imposed and to provide for the fencing or otherwise guarding of this set screw.” He then argues that the word “intentional” in said section 3 of the Compensation Act should be construed just as the word “wilful” is construed in the Mining Act, and makes reference to several decisions of the Supreme Court holding, in effect, that the neglect of any mining company through its manager, agent or vice-principal is held to be a wilful neglect under the mining statute and that the defendant is liable for such neglect, which we recognize as being clearly the rule adopted by our Supreme Court in the construction of that act.

It will be observed that at the time of the adoption of the Compensation Act, including section 3 thereof, that the construction given by the Supreme Court had been often passed upon and was the recognized rule with reference to the construction of that statute. That in order to create a liability it was only necessary to show a wilful violation by the manager or other vice-principal, and with this construction by the Supreme Court the legislature in passing section 3 of the Compensation Act used language which indicates to our minds a clear intention of the legislature to get away from the broad construction given to the wilful violation under the Miners’ Act. Note—It says: “Provided, that when the injury to the employe was caused by the intentional omission of the employer, to comply with the statutory safety regulations, nothing in this act shall affect the civil liability of the employer. If the employer is a partnership, such omission must be that of one of the partners thereof, and if a corporation, that of any elective officer thereof.” Assuming, as contended by appellee, that “wilful” and “intentional” are used synonymously, this, as we view it, does not assist appellee in his contention as to the construction of this statute. This statute confines the intentional omission to a particular person, to wit, an elective officer of the corporation. It must be borne in mind that the Compensation Act takes away from appellee entirely the right of action, either at common law or under the statute, unless he brings himself within the proviso that excepts him from the operation of that statute.

It is argued by counsel for appellee, with much force and plausibility, that it would be almost impossible to bring notice to an elective officer, and that for a party injured to be required to do so would practically render the Safety Appliance Act nugatory. We agree with counsel that such construction places a great burden upon appellee, but it should be borne in mind that the object of the legislature in passing the Compensation Act was to bring every person within its provision that it was at all practical to do. It was for the legislature and not the courts to determine under what circumstances and conditions and for what injuries the Compensation Act should be adopted and for what ones the Safety Act should prevail. It is insisted that to bring the notice to an elective officer would require direct personal notice." We are not prepared to adopt this theory as circumstances surrounding a transaction might be of such a character as to warrant a jury in finding an intentional omission, but that question is not now before us. It seems to us from a reading of section 3 of said statute that its language is of that character that it can have but one meaning, and that is that the intentional omission must be that of some elective officer of such company. We think the case of Breitung v. Lindauer, 37 Mich. 217, cited by counsel upon the question of intentional neglect, is in point in this case, and is as follows: “We are also of opinion that from the facts found the conclusion arrived at ‘that under the statute the neglect or refusal was an intentional one’ was erroneous. This provision of the statute making directors of a corporation liable where they intentionally neglect to make and file a certain report, cannot be construed as though the word ‘intentional’ was omitted, and yet such in effect was the construction given it by the court below in the conclusion arrived at * * * In this case we are not at liberty to draw any inference, as to the intention of the directors, from the fact that no report was made. The court does not leave this question to be determined upon presumptions arising from the omission to report, but finds the facts to be that the directors had no active intention to violate the law; that they did not think of it; that the subject of filing these reports did not occur to them or to a majority of them, including this defendant. It may be that difficulty will be encountered in showing an intentional neglect, where the directors deny any such intention. Their denial would not be conclusive and the court or jury might be warranted in finding, from the surrounding circumstances, the neglect to have been intentional, even though denied by the directors. The difficulty in this direction, however, more properly pertained to the legislative department.” We have carefully considered the question here involved and feel that there is no uncertainty in the language of this statute and that we are bound to give it the meaning apparently intended by the legislature, and unless there is evidence showing an intentional omission of some elective officer of this Company to comply with the statutory safety regulations then appellee’s remedy must be that provided for in the Compensation Act.

For reasons above suggested the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.


text:
    Pabst Brewing Company, Appellant, v. Stephen T. LePage and A. J. Cummings, Appellees.
    1. Guaranty, § 7

      —when finding as to defense of want of consideration sustained By the evidence. In an action on a contract of guaranty written on a lease and recited to be executed in consideration of the execution of the lease, the lease purported to be executed before the guaranty was made. Defendant claimed as a defense there was no consideration for the reason that the lease was executed before the guaranty, and plaintiff claimed that the lease was not in fact executed before the execution of the guaranty. Held that a verdict in favor of defendant’s contention was sustained by the evidence.
    2. Guaranty, § 7

      —when recited consideration of one dollar insufficient. A recited consideration of one dollar in a contract of guaranty, without containing a recital that it. was paid, held insufficient to support the contract where the evidence showed it was not paid and there was no recital sufficient to create a legal obligation to pay the same.
    Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.

      C. E. Pope, for appellant.
    Dan McGlynn and T. M. Webb, for appellees.

      See Ulinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

This is an appeal from the City Court of East St. Louis, Illinois, from a judgment rendered against appellant for costs. This action was brought upon the following guaranty: “For and in consideration of One Dollar and the making of the within lease by said lessor, we hereby guarantee the payment of the rent and the performance of the covenants by the lessee in the within lease covenanted and agreed in manner and form as in said lease provided.

Witness our hands and seals this 28th day of June, 1911.

Stephen LePage, (Seal)
A. J. Cummings. (Seal) ”

The foregoing guaranty was written upon a lease executed by appellant to Joseph A. Fansler, bearing date of June 6, 1911.

The declaration is in the usual form and sets forth the substance of the lease and avers that the lease was executed on the 3rd day of July, 1911, and not on the day it bears date. It then alleges that the lessee took possession of the property and failed and neglected to pay the rent, as agreed upon in said lease; and then avers that on the 28th of June, in consideration of making of said lease and one dollar, defendant guarantied to the plaintiff the payment of the rent, etc. Then avers that plaintiff kept and performed all things required of it to be performed in said lease but that the lessee has failed in the payment of nine months’ rent at forty dollars per month, and refuses to pay the same and therefore a right of action accrued to plaintiff against the defendants upon the said guaranty. To this declaration two pleas were filed, one of which avers that the guaranty was executed twenty-two days after the making and delivery of said lease, and after the taking possession of said property by the said lessee, and that no new or additional consideration was paid or given for the execution of the alleged guaranty; and then avers that said guaranty was executed without any actual or lawful consideration. The second plea is one of partial failure of consideration?

The evidence in this case is quite conflicting. That introduced in behalf of appellant tends to show that the lease was not in fact executed or delivered until June 28, 1911, and that the guaranty set forth was entered into by the appellant before the final execution and delivery of the lease. The testimony of appellees tends to show that the lease was executed and delivered on about the 6th day of June and that lessee then entered into the possession of the premises in question, and that the guaranty was not executed until June 28, 1911, and about twenty-two days after the execution of the lease and taking possession of the premises by the tenant Fansler. It further appears from the evidence, and is not disputed, that the one dollar set forth in said guaranty had never been paid.

While several errors have been assigned, we think the whole of them are included in the claims of appellant : First. That it appears from the evidence that the guaranty was executed prior to the final execution and completion of the lease by appellants, and that the making of the lease was a sufficient consideration to support the guaranty. Second. That even if the evidence failed to disclose the execution of the guaranty, prior to the completion and delivery of the lease, that the recited consideration of one dollar contained in the guaranty was valid and sufficient to support the contract.

The case was tried by appellant upon the theory that the guaranty was made before the final delivery of the lease, and the one dollar consideration was sufficient to support the contract. Appellees proceeded upon the theory that the guaranty was executed some time after the making of the lease and that its execution did not constitute a consideration for the lease, and that the one dollar was never paid or agreed by-appellant to be paid, and constituted no consideration. So far as we can see, the rulings of the court, the instructions given and refused were along the respective lines of contention made by the parties so that in the decision of this case, and the several errors assigned, it will only be necessary to determine the foregoing proposition, without taking up and discussing each error, or the instructions given and refused, separately.

The first proposition presented, to wit, as to whether or not the guaranty was made before or after the final completion, execution and delivery of the lease, was one of fact. It is contended by counsel for appellant that in reaching the conclusion it did, the jury necessarily determined that the guaranty was made after the execution and delivery of the lease, but he contends that the verdict was manifestly against the weight of the evidence. It is true that the testimony of appellant alone shows that the lease was prepared at the Milwaukee office of appellant on June 6, 1911, mailed to Mr. G-rehl, its agent, at East St. Louis on the 5th of June, and that thereupon Mr. Grehl gave it to Jack Lodge, an employe, to procure the signatures of the lessee and the sureties, and that on June 28th the appellees executed the guaranty and the lessee, Fansler, then took the lease to Mr. Grehl where Fansler also executed it, and that the lease was then returned to the Milwaukee office for the signature of the vice-president, who signed it on the 3rd or 5th of July; that the lessee was then advised of the execution of the lease. Upon the other hand, the testimony of appellees tends to show that the lessee, Fansler, signed the lease on June 6th and took possession of the premises ; that afterwards and on June 28th the lease was returned to the lessee to procure some sureties and that the lease was signed by the guarantors on the 28th day of June, 1911, many days after the lessee had taken possession, and after the execution and delivery of the léase, and that at the time the guarantors signed the lease the name of Henning, vice-president, Stark, secretary, and Fansler were on the lease, and appellees deny that Jack Lodge presented it to them, but say it was presented to them by one Leon Smith and they signed it at the request of Fansler. If the testimony of the witnesses of appellant had been believed by the jury, it was sufficient to warrant a finding that the guaranty was made before the lease was finally executed, but if the testimony of the witnesses for appellees was held by the jury to be more credible, then it was equally warranted in finding that the guaranty was made after the lease had been executed and after the lessee had entered into possession of the premises. The evidence is very conflicting. The jury gave credit to the testimony of the witnesses for appellees, which was sustained by the trial judge in overruling appellant’s motion for a new trial. The judge and jury saw the witnesses upon the stand, heard their testimony, observed their conduct and we can see no good reason why the finding of the jury should be disturbed.

It is next insisted by appellant that the one dollar consideration expressed is sufficient to sustain the guaranty. It will be observed that the guaranty does not recite that the consideration had been paid, and the evidence shows that it was not in fact paid. It further appears that the guaranty was signed at the request of lessee, and not appellant, and that neither the appellant nor any of its representatives were present at the time of the signing of the guaranty. It is said that even if not paid it was an obligation of appellant to pay it and that, “The legal effect of the words, ‘for and in consideration of one dollar’ is a promise on the part of the lessor in case it is not paid at the time of the execution of the guarantee to pay it.” We are not able to see upon what principle the appellant could ever be made liable to appellees for the one dollar. The guaranty, upon its face, does not purport to show that the one dollar was ever received by appellees, and the evidence shows that it was not in fact paid to them, and the guaranty does not in any manner purport to be a promise upon the part of appellant to pay the appellees the one dollar. Suppose that the lessee had paid the rent in full and that the appellees had thereafter demanded payment of the one dollar from appellant, could it be said that appellant would be liable to pay them the one dollar? There is no promise anywhere upon the part of appellant to pay the amount, and the evidence discloses that the appellees signed the guaranty upon the request of the lessee. So we say that there was neither an expressed or implied agreement upon the part of appellant to pay the appellees the one dollar referred to in the guaranty. Counsel for appellant has cited many authorities to show that the consideration of one dollar was sufficient to support a guaranty, notably the case of Sears v. Swift & Co., 66 Ill. App. 496, and cases therein cited, but it will be observed that in the case cited, and the most if not all of the cases referred to by counsel, are cases wherein it is expressed upon the face of the guaranty or instrument that the one dollar consideration had been received or that some other consideration had entered into the contract, in addition to the one dollar recited. If the guaranty had recited the payment of the one dollar, then the appellees would have been estopped from denying its payment, and of impairing the legal effect of its obligation by denying payment. Stannard v. Aurora, E. & C. Ry. Co., 220 Ill. 469. The contract of guaranty relied upon by appellant having been determined by the jury to have been made after the execution and delivery of the lease, and the entering into possession of the premises by the lessee, then before appellees could be made liable it was necessary to first show that some independent consideration other than the lease entered into and formed the basis of the contract. Bullen v. Morrison, 98 Ill. App. 669. As it does not appear from the evidence in this case that any independent consideration was promised or paid, the contract relied upon was wholly without consideration and insufficient to create liability.

We are of the opinion that no reversible error was made in the trial of this case and the judgment of the lower court is affirmed.

Judgment affirmed.


text:
    M. J. Cletcher, Appellant, v. Estate of James L. Alsup, Deceased, Appellee.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Pope county; the Hon. William N. Butleb, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Action by M. J. Cletcher against the estate of James L. Alsup to recover on a promissory note. The trial court found in favor of the Estate and rendered judgment against plaintiff for costs. To reverse the judgment, plaintiff appeals; z
    J. W. Browning and Charles Durfee, for appellant ; W. A. Spann, of counsel.
    James C. Courtney and H. A. Evans, for appellee.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

Abstract of the Decision.

Bills and notes, § 78 —when erasures and alterations on note defeats recovery thereon. In an action against an estate to recover on a promissory note containing erasures and alterations which plaintiff claimed were made before the note was signed by the deceased, held that a judgment for defendant was sustained by the evidence, it appearing that the amount of the note, the payee and also the date had been changed and there was no explanation given as to why a new note was not prepared.


author: Me. Presiding Justice McBride

text:
    Frank Sherrell and Charles Leeper, Appellees, v. George Huber, Appellant.
    1. Process, % 35

      —when service of summons insufficient. Under section 2, ch. 110 of Hurd’s R. S., J & A. ¶ 8539, service of a summons by leaving a copy with defendant’s wife instead of with the defendant in person does not give the court jurisdiction. Statute does not permit of service of summons by leaving copy with member of family as in chancery cases.
    2. Judgment, § 155

      —when application to set aside default judgment does not give jurisdiction. The making of an application to set aside a default judgment entered without jurisdiction of defendant does not give the court jurisdiction to enter the judgment.
    3. Judgment, § 155

      —when application to set aside default should not be denied. Upon application to set aside a default judgment upon the ground of defendant’s ability to reach the court in time to defend on account of high waters and lack of attention of his counsel, held that the court erred 'in denying the motion under the condition of the record and owing to the fact that it was without jurisdiction to enter the default and judgment.
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 1, 1914.

      J. B. Lewis, for appellant.
    Thompson & Thompson, for appellees.

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

   Me. Presiding Justice McBride

delivered the opinion of the court.

The appellant obtained judgment against the appellee at the April term of the Circuit Court of Saline county by default for $1,105.50.

It appears from the record in this case that on March 14, 1913, a praecipe for summons was filed herein by the appellant and on the same day summons issued, which was thereafter delivered to the sheriff of said county to serve. The sheriff made, upon said summons, the following return:

‘ ‘ State of Illinois, Saline County. ss.
I have duly served the within upon the within named George Huber, by leaving a true copy thereof for bim at his usual place of abode with his wife, a person of the. age of ten years and upward, and a member of the family of the within named defendant, and at the same time making- known to her the contents thereof, this 20th day of March, 1913, as I am therein commanded.
Joel Mooneyham, Sheriff.”

Thereafter, on March 14, 1913, the plaintiffs filed a declaration in assumpsit in said suit, alleging that the defendant, George Huber, on June 13, 1912, executed a note to the plaintiffs for the amount of $1,000, and included therein a stipulation for an attorney’s fee of ten per cent. The note was without interest. On April 7th the plaintiffs entered a motion for default, which was thereafter renewed, and on April 12th a default and judgment was entered against the defendant, George Huber, for $1,105.50. On May 31, 1913, the defendant, George Huber, entered a motion to set aside the default entered herein and to permit him to plead, which motion was denied, and this record is brought to this court for the purpose of setting aside the default and judgment entered in said suit, and among errors assigned are the following: That the court erred in entering default against defendant; that the court erred in entering judgment against appellant; and that the court erred in overruling the motion of appellant to vacate said judgment and set said forfeiture aside.

It is contended by counsel that the defendant, Gfeorge Huber, was not served with process as required by section 2 of chapter 110 of Hurd’s statute (J. & A. ¶ 8539), ten days prior to the April term of said court. This section provides: ‘ That service of summons, except when otherwise expressly provided by statute, shall be made by leaving a copy thereof with the defendant in person.” The summons herein was served by leaving a copy with the defendant’s wife, as shown by the sheriff’s return. It is insisted by counsel for appellees that the legislature intended to give the same right in law cases as in chancery, to have the summons served by leaving a copy thereof with any member of the family. We do not think that this statute is susceptible of that construction but think that it clearly means that, unless otherwise provided, it must be served by leaving a copy thereof with the defendant in person. Unless the summons is served in the mannner provided by the statute the court does not acquire jurisdiction to render judgment. “The statutory requirements for service of process must be strictly complied with, and the return of the officer should show such compliance; otherwise the court will not obtain jurisdiction of the person.” Greenwood v. Murphy, 131 Ill. 807. The judgment entered by the Circuit Court upon the service herein shown to have been made was a nullity. It appears from the record that on May 31, 1913, George Huber presented an application to the Circuit Court to set aside such default and judgment upon the ground of his inability to reach court in time to defend, on account of high water and the lack of attention of his counsel. This motion was denied by the Circuit Court and this is also assigned for error. Under the condition of the record in this case and owing to the fact that the court was without jurisdiction to enter the default and judgment, we think the court should have set the judgment aside. It is contended by counsel for appellees that the making of the application to set the judgment aside gave the court jurisdiction to enter the judgment. This position is untenable as the judgment was rendered and the proceedings therein closed before such application was made, and we do not understand that simply making application to get rid of an unlawful judgment, after it had been entered, would in any manner be considered as giving the court original jurisdiction to enter the judgment; to do so would deprive the defendant in such suit, without his consent, of trial by jury.

The record in this case clearly shows that the court was without jurisdiction to render judgment against appellant, and that the entering of such judgment was error and that the judgment of the court below will be reversed.

Judgment reversed and cause remanded.