author: Mr. Presiding Justice O’Connor

text:
    Maurice Riordan, Appellee, v. Thompson-Starrett Company, Appellant.
    Gen. No. 21,837.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment, § 216

      —when allegations in declaration in action for negligence sufficient on motion for arrest of. In an action to recover damages by an employee of a subcontractor against a contractor for personal injuries sustained by falling from a stairway in an uncompleted building, an allegation in the declaration that at the time of the accident the plaintiff was necessarily using the stairway in the discharge of his duty as such employee, held not to be a conclusion but a sufficient allegation of fact, on a motion in arrest of judgment, notwithstanding the declaration may have been demurrable.
    2. Judgment, § 216*—when allegations os to duty of contractor towards employee of subcontractor sufficient’ on motion for arrest

      of. In an action by an employee of a subcontractor against a contractor to recover damages for personal "injuries sustained by falling from a stairway in an uncompleted building, an allegation that the defendant undertook to provide and did provide stairways for the use of the men and to see that they were properly lighted, but that he failed in this respect, held to be a sufficient allegation of a duty owing from the defendant to the plaintiff, on a motion in arrest of judgment, notwithstanding the declaration may have been demurrable.

      Appeal from the Superior Court of Cook county; the Hon. Mazzini Slits ser, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 28, 1917.
    Statement of the Case.
    Action "by Maurice Riordan, plaintiff, against Thompson-Starrett Company, defendant, to recover damages for personal injuries sustained by plaintiff falling from a stairway while employed in a building being constructed by defendant .as contractor. From a judgment for plaintiff for $4,000, defendant appeals.
    Brundage, Landon & Holt, for appellant.
    James E. MoShane, for appellee.

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

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

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

3. Negligence, § 198 —when contributory negligence of employee of subcontractor using defective stairway is question for jury. In an action by an employee of a subcontractor against a contractor to recover damages for personal injuries sustained by plaintiff falling from a stairway in an uncompleted building, where the stairway was completed except for a handrailing which could not be built until other work was completed, and was used generally by the workmen, several hundred of whom passed up and down it daily, and plaintiff had used it twice before on the day of the accident, and the accident occurred in the evening when the stairway was dark, so that some of the men coming down were striking matches in order to see, held that the question whether plaintiff was at the time of the accident in the exercise of ordinary care for his own safety was one of fact for the jury.

4. Negligence, § 88*—when doctrine of assumed risk not applicable. The doctrine of assumed risk is only applicable to a case where the relationship of master and servant exists, and is not applicable to the case of an employee of a subcontractor as against the contractor for the construction of a building, in an action by such employee against such contractor to recover damages for injuries sustained by plaintiff falling from a stairway having no railing, in the dark, while he was” employed in such building.

5. Negligence, § 33*—when rule as to safe place where conditions are changeable inapplicable. In an action by an employee of a subcontractor against a contractor to recover damages for personal injuries sustained by plaintiff falling from a stairway in an uncompleted building while he-was employed therein, held that the rule that an employer must furnish an employee a reasonably safe place in which to work does not apply where the condition was changing from time to time in the prosecution of the work was not applicable, as the evidence was conflicting as to the stairway in question being completed and the question was for the jury.

6. Negligence, § 191*—when question whether stairway is under control of independent contractor is for jury. In an action against a contractor to recover damages for injuries sustained by an employee of a subcontractor by falling from a stairway under construction, the question whether the stairway was at the time of the accident under the control of an independent contractor held to be for the jury.

7. Negligence, § 133 —when no variance between declaration and proof in action by employee of subcontractor against com tractor. In an action by an employee of a subcontractor against a contractor to recover damages for personal injuries sustained by plaintiff falling from a stairway, where the declaration alleged that the defendant had provided such stairway for the use of the workmen in the construction of the building but that it was not properly guarded by a handrailing, and the evidence tended to establish such allegation, held that it was not open to the objection of variance, notwithstanding the evidence failed to sustain the further allegation in the declaration that the defendant had constructed the stairway.

8. Appeal and error, § 438*—when objection of variance may not be raised. Where an objection of variance between the declaration and the proof in a negligence action is not raised in the trial court it cannot be urged on appeal.

9. Negligence, § 162*—when evidence of custom is immaterial. In an action by the employee of a subcontractor against a contractor to recover damages for personal injuries sustained by falling from a stairway in an uncompleted building being constructed by the subcontractor, evidence of a custom that the general contractor and not the subcontractor erected railings on temporary and permanent stairways erected by subcontractors and used by employees held to be immaterial, in view of the defendant’s testimony that the stairway in question had been so far completed by the subcontractor as to have been turned over to the defendant prior to the accident to plaintiff.


source: Caselaw Access Project

license: Public Domain

text:
    Eugenie J. Crisler, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 21,889.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1639

      —when instruction on preponderance of evidence is not reversibly erroneous. In an action to recover damages for personal injuries, an instruction as to preponderance of evidence which enumerated various matters to be considered by the jury but omitted any reference to the number of witnesses téstifying pro and con, and concluded that from all these circumstances the jury should determine the preponderance of the evidence, held to be -misleading but not reversibly erroneous, having been cured by other instructions.
    2. Negligence, § 213*—when instruction enumerating facts constituting is misleading. In an action to recover damages for personal injuries, an instruction attempting to enumerate facts which, if proven, would constitute negligence as a matter of law, held not to be good practice and to be misleading, as the jury should determine whether the facts constitute negligence.

      Appeal from the Superior Court Of Cook county; the Hon. Theodore Brbntano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 28, 1917.
    Statement of the Case.
    Action by Eugenie J. Crisler, plaintiff, against the Chicago City Railway Company, defendant, to recover damages for personal injuries sustained by plaintiff while alighting from defendant’s street car. From a judgment for plaintiff for $2,600, defendant appeals.
    Warner H. Robinson and Charles Le Rot Brown, for appellant; John R. Guilliams, of counsel,
    Robert W. Dunn, for appellee.

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

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

3. Carriers, § 487 —when instmction on liability of street railroad for injuries to passenger alighting from car is erroneous. In an action to recover damages for personal injuries sustained while plaintiff was alighting from defendant’s street car, an instruction that defendant was not an insurer of the safety of its passengers, held to be inapplicable to the evidence and to tend to obscure the issue.

4. Carriers, § 482*-—when instruction on amount of proof in action for‘ personal injuries is erroneous. In an action to recover damages for personal injuries sustained by a passenger while alighting from a street car, an instruction that plaintiff was only required to make out her case by a preponderance of the evidence and that any evidence, circumstantial or positive and direct, which tended to produce belief in the minds of the jury was proper to be considered by them in determining whether the defendant was guilty, held to be of no assistance to the jury in determining whether plaintiff was given sufficient time after the car had stopped to alight therefrom or whether she attempted to alight before it had stopped, which were the only questions involved, and to be confusing.

5. Instructions, § 6*—when accuracy essential. Where the right to recovery in a case is doubtful, it is essential that instructions accurately state the law.»


author: Mr. Presiding Justice O’Connor Mr. Justice Goodwin

text:
    Peter A. Rabig, Administrator, Appellant, v. Cleveland, Cincinnati, Chicago & St. Louis Railroad Company, Appellee.
    Gen. No. 21,913.
    Death, § 30

      —when statute as to bringing action for after non-suit inapplicable. Paragraph 25 of the Limitations Act (J. & A. 1[ 7220), relating to the commencement of an action within one year after nonsuit, by the plaintiff or his personal representatives, does not apply to actions under Rev. St. ch. 70 (J. & A. If 6184 et seq.), as to death from wrongful act, neglect or default where such act, neglect or default would, if death had not ensued, have entitled the party injured to maintain an action to recover damages.
    Goodwin, X, dissenting.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed March 28, 1917.
    Litzinger, McGurn & Reid, for appellant.
    Glennon, Cart, Walker & Howe, for appellee.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Appellant brought this suit July 27, 1912, against the appellee, to recover damages for the death of appellant’s intestate, Genevieve M. Rabig, alleged to have been caused by the “wrongful act, neglect or default of appellee. ’ ’ The declaration alleged that the deceased came to her death by reason of the wrongful act or negligence of the appellee, August 23, 1909; that on December 6, 1909, the administrator brought suit to recover damages in the Circuit Court of Kankakee county, Illinois, which was subsequently transferred to the Circuit Court of the United States for the Eastern District of Illinois; that on September 5, 1911, the administrator not being prepared to proceed, the suit was dismissed for want of prosecution; that on July 27, 1912, and within one year from such dismissal, this suit was commenced in the Circuit Court of Cook county. This action is brought under chapter 70, Bevised Statutes (J. & A. 6184 et seq.). Appellee filed a plea of not guilty, and a special plea of the statute of limitations, setting up that the cause of action did not accrue within one year prior to the commencement of the suit. To this plea, appellant filed a replication setting forth the bringing of the suit in the Circuit Court of Kankakee county and the dismissal thereof as above set forth, and alleged that this suit was brought within one year after such dismissal. Appellee demurred to the replication. The demurrer was sustained and the suit dismissed.

Both parties concede that the sole, question involved in this appeal is whether the right of action for wrongful death, arising under chapter 70 (J. & A. |f 6184 et seq.), is covered by paragraph 25 of the Statute of Limitations (J. & A. j[ 7220).

Chapter 70 provides, in substance, that whenever the death of a person shall be caused “by wrongful act, neglect or default” and the wrongful act, neglect or default is such as would, if death had not ensued, have entitled the party' injured to maintain an action to recover damages, then in such case the person or the corporation which would have been liable if death had not ensued shall be liable, notwithstanding the death of such person; that every such action shall be brought by the personal representative of the deceased person, and the amount recovered, not exceeding $10,000, shall be for the exclusive benefit of the widow and next of kin of such deceased, and “that every such action shall be commenced within one year from the death of such person.”

Chapter 83, Revised Statutes (J. & A. If 7196 et seq.), is “An Act in Regard to Limitations” and specifies the time within which certain actions must be brought. Section 12 of the Act (J. & A. 7207) provides: “The following actions can only be commenced within the periods hereinafter prescribed, except when a different limitation is prescribed by statute.” This chapter was amended in 1873. Section 2 of the amendment, (paragraph 25, J. & A. j[ 7220) provides: “In any of the actions specified in any of the sections of said Act, * * * if the plaintiff shall be non-suited, then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff, * * * may commence a new action within one year after such judgment * * * against the plaintiff, and not after.”

It will be noted that paragraph 25 covers only actions mentioned in the statute of limitations and nowhere is any mention made of the right of action created by chapter 70. We are therefore of the opinion that the cause of action provided for in chapter 70 is not covered by chapter 83, but is expressly excluded therefrom by section 12 above quoted. Chapter 83, as is shown by its title and the entire act, is a statute of limitations, and section 12, expressly excepts from chapter 83 all actions where a different limitation is prescribed by statute. And it is provided in section 2 of chapter 70 (J. & A. 7220) that the right of action mentioned therein shall be brought within one year after the death of the person. It therefore follows that the case at bar does not fall within the provisions of paragraph 25, and the demurrer to appellant’s replication was therefore properly sustained. The same conclusion was reached by the Appellate Court in the cases of Lake Shore & M. S. Ry. Co. v. Dylinski, 67 Ill. App. 114, and Heimberger v. Elliott Frog & Switch Co., 151 Ill. App. 318.

The judgment of the Superior Court of Cook county is affirmed.

Affirmed.

Mr. Justice Goodwin

dissenting.

I find myself unable to concur in the conclusions of the court, and as the case involves a question of statutory construction of some importance, I feel constrained to give the reasons for my dissent.

The action is brought under the act requiring compensation for causing death by wrongful act, neglect or default, in force February 12, 1853, and amended by an Act approved May 13, 1903. The act originally required that the action should be brought within two years from the time it accrued, and by the amendment it is now required to be commenced within one year after the death. The pleadings disclose that an action for the wrongful death was properly begun within one year after the action accrued, that an involuntary nonsuit was suffered, and that the present action was brought within one year thereafter. Section 2 of an Act passed in 1873, amending the limitations statute (commonly referred to as paragraph 25 of chapter 83 of the Revised Statutes, J. & A. j[ 7220), provided that: “In any of the actions specified in any of the sections of said act, if judgment shall be given for the plaintiff, * * * or, if the plaintiff be nonsuited, then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff, his or her heirs, executors, or administrators, as the case shall require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after.”

The question presented is as to whether this provision permitting a new action within one year after nonsuit applies in the case at bar. This question is not, of course, to be determined by the exact phraseology of the act. Upon this question our Supreme Court has said, in Uphoff v. Industrial Board of Illinois, 271 Ill. 312 [13 N. C. C. A. 90], at page 315:

“The intention of the lawmakers is the law. This intention is to be gathered from the necessity or reason of the enactment and the meaning of the words, enlarged or restricted according to their real intent. In construing a statute the courts are not confined to the literal meaning of the words.. A thing within the intention is regarded within the statute though not within the letter. A thing within the letter is not within the statute if not also within the intention.”

In determining the intention, the court had said, in People v. Wabash, St. L. & P. Ry. Co., 104 Ill. 476, at page 485:

“Again, in arriving at a proper construction to be placed upon an act of the Legislature, it is a legitimate inquiry to ascertain the purpose and object of the law, the evil to be remedied, and the wrong to be righted by the passage of the law.”

The provision permitting a new action to be begun within one year from the entry of an involuntary non-suit cannot be read without a conviction that the purpose of the Legislature was to relieve litigants from the hardships resulting from the dismissal of their actions for reasons for which often they were not responsible, and that actions of the character of the one at bar are as much within the reason of the statute as any that can be imagined. It could hardly be imagined that the Legislature intended to save the right of action in every conceivable case except one brought to obtain compensation for families of those injured by the wrongful death of a supporting member. To give such a right in case of injury and to deny it in case of death shocks one’s sense of justice, and such an inhumane intention ought not to be attributed to the Legislature unless compelled by established canons of statutory construction. In discussing these canons, our Supreme Court said, in Zarresseller v. People, 17 Ill. 101, at page 104:

“The grand object in construing statutes is to ascertain the will of the Legislature; and to accomplish this, courts not only will look to the provisions and language of the whole act, but to the law as it was at the time of the passage of such act, to the cause and motive of the act, and the mischief to be remedied or avoided thereby. ”

Looking into the history of the legislation on this subject, we find that chapter 66 of the Revised Statutes of 1845 provides, among other things, as follows:

“Section 1. All actions of trespass guare clausum fregit, all actions of trespass, detinue, trover and replevin, for taking away goods and chattels, all actions for arrearages of rent, due on a parol demise, and all actions of account, and upon the case, except actions for slander, and except also, actions for malicious prosecution, and such actions as concern the trade of merchandise, between merchant and merchant, their factors or agents, shall be commenced within five years next after the cause of such actions shall have accrued, and not after.”

The statute, after providing for limitations in other cases, proceeds as follows:

‘ ‘ Section 12. If, in any of the said actions specified in any of the preceding sections of this chapter, judgment be given for the plaintiff, and the same be reversed by writ of error or upon appeal, or if a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff; or if the plaintiff be non-suited, then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff, his or her heirs, executors or administrators, as the case may require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after.”

These provisions of section 12 are identical with those of paragraph 25, now under consideration. It will be noted that the Act of 1845 specified all actions “upon the case” except slander, etc., and that, in consequence, all such actions were covered by section 12. It cannot be doubted that an action of the character of the one at bar is an action upon the case within the meaning of the Act of 1845, and was, therefore, covered by its terms. It is true, of course, that the statute authorizing actions for wrongful death was not in existence in 1845, but this is immaterial, because the term “actions upon the case” included not only actions of a character in existence at that time, but included as well all actions falling within the designation which might thereafter be created. In other words, the cause of action provided for by the Act of 1853, fell within the general terms of the act which provided for all actions upon the case, and therefore came within section 12, which extended the right of action for a year after a nonsuit “in any of the said actions specified in any of the preceding sections of this chapter.” It is quite immaterial that the Act of 1853 provided for a shorter period of limitation than that named in the limitations act. Actions for causing death obviously fell within the general designation of “all actions upon the case,” and in the absence of special provisions would have been governed by the terms of the limitation act. The fact that a special and subsequent act prevented the general limitation from applying did not, of course, make it any the less true that they continued to be embraced by the general term ‘ ‘ all actions upon the case.” The situation is exactly the same as though the Legislature had, by a special act, required that all actions in trover should be begun within one year. In that case, actions of trover would still have continued to be among the actions specified in the act, although the general limitation would have ceased to be operative. It therefore follows that as actions in death cases fell within the general designation of “actions upon the case,” as provided for in section 1 of the Act of 1845, and as a right was given to bring an action within a year- after nonsuit in all such cases, prior to the revision of 1872, an action similar to the one at bar could have been recommenced within one year after involuntary nonsuit.

By the revision of 1872, the form of the limitations act and its phraseology were changed, but the substance of the la,w itself remained the same. It is now contended, and the majority of the court holds, that when the phraseology of the present act is examined, an action brought for a wrongful death must be excluded from the benefit of the saving claüse of paragraph 25, which permits new actions to be brought within one year after involuntary nonsuit. In this, conclusion I am unable to concur. It will be seen that section 25 of the present Limitations Act is identical with section 12 of the Act of 1845, with the single exception of the transposition of the word “if.” As indicated above, it seems clear to me that actions for wrongful death fell within the terms of section 12 up to the time of the revision of 1872, and that by the terms of the former act the right to begin a new action within a year after an involuntary nonsuit had been given in every conceivable form of action, and that this had been the established public policy of the State for a period of some twenty years at least. It would, therefore, seem that when they re-enacted the identical language of section 12 they intended that it should have as broad a scope as it formerly had had. If the meaning of the words of the present statute, then, are to be enlarged or restricted according to the real intent, and we are not confined to the literal meaning of the words, we must conclude that as actions of the character of the one before us are within the intention of paragraph 25, they must be regarded as within the statute, even though it were conceded that they were not within its letter.

I am, therefore, of the opinion that the words, “in any of the said actions specified in any of the preceding sections,” when properly construed, include actions of the kind- in question here, and that appellant had the right to recommence his action within one year after the involuntary nonsuit.


text:
    The People of the State of Illinois, by Rufus M. Potts, Appellee, v. Continental Beneficial Association et al., Appellants.
    Gen No. 23,043.
    1. Attorney General, § 1

      —what is nature of office and power of Attorney General. The Attorney General, hy virtue of the common law and statutory powers of his office, is the legal representative of the State and may institute proceedings in behalf of the State in any case where it has a substantial interest.
    2. Insurance—who may institute suit on behalf of State. Since the creation of the State insurance department in 1893, suits on behalf of the State in reference to insurance are instituted by the superintendent of insurance instead of by the Attorney General.
    3. Insurance, § 1*—what is nature of business of. The business of insurance is impressed with a public interest, and is subject to proper regulation under the police power.
    4. Receivers, § 56*-—when receiver-may be appointed for foreign corporation. The courts of one State may appoint a receiver in a proper case for property located in such State belonging to a foreign beneficial fraternal association, although a receiver for the association has been appointed by the courts of the State of its origin, such appointment being to preserve such property and effects for the benefit of the parties entitled thereto.
    5. Insurance—when State superintendent of insurance may file information in equity. The State superintendent of insurance is authorized to file an information in equity to enjoin a foreign beneficial fraternal association from removing its assets from the State and for the appointment of a receiver for such assets where the association has become insolvent, has ceased to do business in the State, and is removing its assets therefrom.

      6. Equity, § 355

      —what motion to dismiss hill treated as demurrer. Where the defendant filed appearance after entry of an order appointing a receiver and issuing an injunction on an information in equity against a foreign fraternal benefit association, and moved to dismiss the injunction on the face of the bill, held that such motion would be equivalent to a demurrer to the bill and would waive any error or irregularity in failing to give notice of the appointment of a receiver as required by section 12 of the Fraternal Insurance Act (J. & A. 6659).
    Taylor, J., dissenting.
    Interlocutory appeal from the Superior. Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court.
    Affirmed.
    Opinion filed March 28, 1917.
    David K. Tone, for appellants.
    Edward J. Brundage, Church, Shepard & Day and Ryan, Condon & Livingston, for appellee; Clyde L. Day and Bernard W. Vinissky, of counsel.

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

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

This is an appeal from an interlocutory order for a writ of injunction to restrain the defendants from removing, carrying away, or disposing of its property located in this State until the further order of court, and appointing a receiver to take charge' of the same.

An information in equity was filed by the People on behalf of Rufus M. Potts, insurance superintendent of Illinois. The matter came on for hearing on the face of the information and affidavits in support thereof. The defendants make no point in their argument as to the sufficiency of the allegations of the information, but contend that in no case can a receiver of the property of foreign fraternal association be appointed at the suit of the insurance superintendent. It appears that the Continental Beneficial Association is a beneficial fraternal association, incorporated under the laws of Pennsylvania, for the purpose of effecting life and accident insurance, and was licensed to do business in this State in 1912; that thereupon it immediately began to transact business in this State and continued to do so until shortly before the filing of the information; that it had a membership of about 12,000, many of whom were residents of this State; that at the time it was licensed to do business in Illinois its assets exceeded its liabilities by more than $75,000; that since that time, because of mismanagement and waste, it became and is absolutely insolvent; that the insurance department of this State had received a large number of complaints from insurance superintendents and insurance commissioners of other States and from claimants under policies, and others, concerning the method pursued by it in the conduct of its business; that the insurance superintendent of this State informed the association that unless it changed the manner in which it made settlements, he would be compelled to cancel its license, and thereupon he was informed by the association that it had passed a resolution withdrawing from business in this State; that because of such action of the association in proceeding to withdraw from this State the insurance superintendent was refused permission to examine into its records; that thereupon, under the express directions from the insurance superintendent of Pennsylvania, the insurance superintendent of this State was authorized to act with and for the Pennsylvania examiners in looking into the affairs of the association; that such examination was made and a report submitted to the insiirance department of this State; that immediately thereafter the association proceeded to spirit away most of its tangible assets located in this State, and thereupon the information was filed to enjoin the removal of its property and for the appointment of a receiver to take charge of the same until the matter could be investigated.

The only complaint made is that the court had no jurisdiction to appoint a receiver. The question, therefore, to be decided is whether a receiver may be appointed at the suit of the People on the relation of the insurance superintendent, of property located in this State, and belonging .to a foreign fraternal benefit association. Counsel for both parties have argued as though this case were brought under the provisions of section 12 of the' Act concerning fraternal insurance societies (Rev. St. 1913, p. 1461, J. & A. ¶ 6659), which provides, among other things, that a fraternal insurance society doing business in this State in violation of law may be enjoined from further conducting its business.

The defendants contend that, while this section authorized the issuance of an injunction prohibiting a foreign fraternal insurance society from continuing to do business in this State, yet it does not authorize the appointment of a receiver; that in the body of said section no authority is given for the appointment of a receiver, but that the only mention of a receiver is made in a proviso to the section; that under an elementary rule of construction, the function of a proviso is not to enlarge the authority granted in the body of the section, but is to qualify and limit such authority. There can be no question but this is the correct rule of construction. Section 12 authorizes an injunction to restrain an insurance society from doing business at the suit of the insurance superintendent when the business is conducted contrary to law, and contains the following proviso: “Provided, however, that no injunction against any society within this State, or application for or appointment of a receiver, or action to prevent any such society from carrying on business in this State shall be made or granted by any court, except on the application of the insurance superintendent or of a judgment creditor,” upon proper notice. It is insisted that this proviso does not authorize the appointment of a receiver; that there is no statute which authorizes such appointment, and that there is no inherent power in a court of equity, at the suit of the Attorney General or insurance superintendent, to make such appointment, and therefore the appointment of a receiver in this case is without authority and void.

The Attorney General, by virtue of the common law and statutory powers of his office, is the legal representative of the State, and may institute proceedings in behalf of the State in any case where it has a substantial interest. In 1893, the Legislature created the insurance department of the State of Illinois, and the office of insurance superintendent, and suits on behalf of the State in reference to insurance, which theretofore were brought by the Attorney General, are now instituted by the insurance superintendent. North American Ins. Co. v. Yates, 214 Ill. 272. The question then is, is there such a public interest in this case as would authorize the insurance superintendent to file the information?

In Attorney General v. Chicago & N. W. Ry. Co., 35 Wis. 425, the right of the Attorney General to file an information in chancery enjoining the collection of excessive railroad rates was upheld. In discussing the question now under consideration the court said, p. 533: “In such cases, public wrong may be considered only as an aggregation of private wrongs. And, the jurisdiction once established to enjoin private wrong, in each case, at the suit of the person wronged, it is almost a logical necessity to admit the other branch of the jurisdiction, to.enjoin, at the suit of the State, such a general wrong, common to the whole public, as interests the State, and could be remedied by private persons by a vast multitude of suits only, burthensome to each and impracticable for every numher; more conveniently, effectively and properly represented by the Attorney General as parens patries.”

In the Yates case, supra, it was held that the business of insurance is a public necessity, stamped with a public interest and subject to proper regulations under the police power. The court there said, p. 275: “The business of insurance is the outgrowth of time and the demands and necessities of the public. It extends into and covers almost every branch of business and all the .relations of life, and is applied to all the hazards of business in life where a basis of risk and compensation can be estimated. In all the stages of life, from the cradle to the grave, it asserts an interest and offers succor and aid. In the business enterprises, whether by land or sea; in the possessions of men, from a pane of glass to the mansion or the factory; in his undertakings involving every chance, misfortune, moral turpitude or the act of God, it demands admission and promises indemnity, reward or gain. It poses as the faithful and zealous trustees of his earnings and savings, and promises to the widow and orphan a guaranty against misery and want. It intercedes between principal. and agent, master and servant, contractor and owner, and insures against loss from almost any and every cause. It is a public necessity that deals in its own credit for a cash consideration from the assured, and is stamped with public interest, and must yield obedience to necessary and proper regulations by the State in the exercise of its police power.”

Prom the foregoing it clearly appears that the business of insurance is impressed with a public interest, and therefore suits for the regulation of such business are now properly prosecuted by the insurance superintendent.

It has been firmly established that the courts of one State may appoint a receiver in a proper case for property located in such State, but belonging to a foreign corporation, this too, although a receiver of the corporation had been appointed by the courts of the State of its origin; that the object of appointing a receiver of a foreign corporation is to preserve its property and effects for the benefit of parties entitled thereto. Holbrook v. Ford, 153 Ill. 633.

In Blake v. McClung, 172 U. S. 239, the court held that a State may take possession of the assets of an insolvent foreign corporation within its limits and distribute them among parties entitled thereto, so that its own citizens might not be unjustly discriminated against by reason of the administration in other States of the assets of the insolvent corporation.

In the case of Popper v. Supreme Gowncil, 61 N. Y. App. Div. 405, 70 N. Y. Supp. 637, the appointment of a receiver of the property of a foreign fraternal beneficial association was upheld. To the same effect are Reusens v. Manufacturing & Selling Co. of America, 99 N. Y. App. Div. 214, 90 N. Y. Supp. 1010; Shinney v. North American Savings, Loan & Building Co., 97 Fed. 9; Security Savings & Loan Ass’n v. Moore, 151 Ind. 174.

In the Shinney case, supra, the court said: “That a general power exists to appoint a receiver of the assets of a foreign corporation within the jurisdiction of the court appointing is well settled."

In the Moore case, supra, where it appeared that the company, a Minnesota corporation, was insolvent and a receiver had there been appointed and that he was removing the assets of the company, which were located in Indiana, the right of the Indiana court to appoint a receiver of the assets within that State was upheld. The court there said: “It is true, there may be a possibility, or even a probability, that the affairs of the insolvent association might be settled to the best interests of all stockholders and creditors by the home receiver alone, rather than by the action of separate receivers in the several States where the association has assets. * * * That, however, is a question to be decided on the mature judgment of the trial court, when all the facts become known. If it is found to be more equitable, in the end, and not against the interests of appellee and other residents of Indiana, that all assets in this State should be placed in the hands of the home receiver, appointed in Minnesota, no doubt that course will be taken. Nevertheless, the mere circumstance that there is a receiver in another State does not make it improper to appoint a receiver here. * * * ‘The principle upon which the decisions rest is, that it is the policy of every government to retain within its control the property of a foreign debtor until all domestic claims have been satisfied.’ ”

In Edwards v. Schillinger, 245 Ill. 231, it was held that the courts of one State had no power to dissolve a foreign corporation, or wind up its affairs, but that where local assets are trust funds for the shareholders and creditors, such funds will be administered by the domestic courts, and that, “It is the duty of a State to keep the local assets for the satisfaction, in the first instance, of local claims.”

In 2 Bacon on Life and Accident Insurance, p. 1614, it is said: “It has been said that a fraternal beneficiary association is in the nature of a trust and a court of equity in the case of insolvency, or where the business is impracticable, may appoint a receiver.”

From the foregoing, we are clearly of the opinion that the business of the defendant was. impressed with such a public interest as to authorize the insurance superintendent to file an information in equity; that the court of this State may appoint a receiver of the assets, located in this State, of a foreign fraternal association; that the funds of such association are in the nature of trust funds, and that as the defendant association was insolvent, had ceased to do business in this State, and was spiriting away its assets, the court was warranted in appointing a receiver over the local assets, and as was said in the Moore case, supra, final disposition of the assets may hereafter be determined by the trial court.

We do not wish to be understood as passing on the sufficiency of the allegations of the information, as that question has not been argued by either party.

Complaint is also made that the order appointing a receiver is invalid, for the reason that it was entered without notice to the defendant, contrary to section 12. After the order was entered, defendant association filed its appearance and moved the court to dissolve the injunction on the face of the bill. Such motion is equivalent to a demurrer to the information, and any error or irregularity in failing to give notice was waived. Grand Opera Souse Co. v. Ripley, 166 Ill. App. 170. Williams v. Chicago Exhibition Co., 188 Ill. 19.

The order appointing a receiver is correct, and it is affirmed.

Affirmed.

Mr. Justice Taylor dissenting.


text:
    The People of the State of Illinois, by Rufus M. Potts, Appellee, v. Continental Beneficial Association, et al., Appellants.
    Gen. No. 23,044.
    (Not to be reported in full.)
    Interlocutory appeal from the Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding. Heard in the Branch Appellate Court.
    Affirmed.
    Opinion filed March 28, 1917.
    Statement of the Case.
    Information by the People of the State of Illinois, by Rufus M. Potts, superintendent of insurance, relator, against Continental Beneficial Association and others, respondents, for appointment of a receiver and for injunction. Prom an order upon petition of the receiver enjoining the prosecution by respondents of a suit commenced by them in the Circuit Court of Cook county for appointment of an ancillary receiver of the property of the respondents, they appeal.
    The decision of this case is governed by the decision in People v. Continental Beneficial Ass’n, ante, p. 501.
    Taylor, J., dissenting.
    David K. Tone, for appellants.
    Edward J. Brundage, Church, Shepard & Day and Ryan, Condon & Livingston, for appellee; Clyde L. Day and Bernard W. Vinissky, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Goodwin

text:
    Norene B. Lay, Appellee, v. Robert D. Lay, Appellant.
    Gen. No. 21,782.
    Divorce, § 110

      —when order allowing increase of alimony is improper. On an application for increase of alimony, where divorce had been granted for the wife’s fault, findings in an order increasing the amount of alimony that the husband’s income had increased since the original allowance of alimony and that the amount originally allowed was insufficient to maintain the applicant according to the station of life in which she had lived prior to the divorce, held to be insufficient to warrant such order increasing the amount of the alimony, as the husband’s means were not a controlling factor in such case, and the insufficiency of the amount allowed to maintain the applicant according to the station in life in which she had lived prior to the divorce was immaterial.
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed March 28, 1917.
    George A. Trude, for appellant; Benjamin B. Kahane, of counsel.
    Boy D. Keehn, for appellee.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

The appellant seeks to reverse an order of the Circuit Court increasing the amount of alimony payable to the appellee from $300 to $350 a month. Appellant obtained a decree of divorce from appellee December 24, 1913, upon the ground of habitual drunkenness, and the allowance of $300.00 a month as alimony was made upon his statement in open court that he was willing to pay that amount. He, at the same time, stated that his income was between $20,000 and $25,000 a year, and that he was worth between $100,000 and $150,000. Appellee filed her petition January 25, 1915, a little over a year after the entry of the decree, in which she set forth these facts, and alleged that his income amounted to at least $40,000 a year, and that prior to the divorce he had allowed her $500 a month in addition to various articles of value. Upon the hearing, appellant stated that his testimony upon the original hearing of the cause was that his income was between $20,000 and $25,000 a year. He further testified that for the year preceding the hearing his income had been nearly $24,000—between $23,000 and $25,000; that for 1912 his income may have been over $30,000; that prior to 1912 it was $18,000; in 1909 it was $12,000; in 1910, $15,000; in 1911, about the same; in 1912, about $28,000 or $29,000; in 1913, between $23,000 and $25,000; that in 1912 it might have been over $30,000; and that in 1914 it was about $25,000—it was less than $26,000. On the hearing, he said, he had testified that he was worth between $100,000 and $150,000. He then made a statement of his various holdings. Appellee’s testimony disclosed the fact that she was not in court -at the time the cause was originally heard, although she was represented in the case by counsel. She knew that the amount intended to be allowed her was -$300 a month, and apparently made no objection, personally or through her counsel, and made no attempt to secure a continuance of the case until such time as she might be able to appear personally in court. The other testimony offered does not appear to be material.

The court at the conclusion of the testimony said:

“The testimony of Mrs. Lay raises a serious question in the mind of the court whether or not any increase in alimony would be of any benefit to her; she does not seem to have any rational notion of living within her income. It may be that $300 a month is not a large income, but considering her former husband’s income and how she lived “it is not such a pittance as she describes it to be. I donbt very much if this court would be warranted in increasing the alimony in any event for this woman unless her expenditures were supervised in some way by some competent party. I do not see that the court would be warranted in granting the prayer of her petition or in increasing the alimony, and I do not think this court has any jurisdiction in finding any lump sum settlement. The court is most anxious to do what is for the best interests of this woman; whether or not she has by her own acts contributed to place herself in her present condition, it is the duty of this court to protect her so far as it can be done, and properly. It is a matter of sincere regret that this case was not tried upon its merits after a full hearing; of course, the court can only deal with the situation as it exists at this time. I will take the matter under advisement for a few days and counsel may come in Saturday morning. In the meantime I would like to ask counsel on both sides if they will be prepared to advise the court, looking into the evidence and all the facts and circumstances, what is to the best interests of this woman.”

The court entered an order April 27, 1913, in which it found that appellant, prior to the entry of the decree, had paid appellee $500 a month for separate maintenance, and that such payments were continued, as provided in the decree, for a period of six months after the entry of the decree; that appellant had prospered in business, and that his net assets had been increased to the extent of at least $10,000 by dividends on stocks owned by him, which dividends had been received by him since the entry of the decree; that the reasonable necessities for Norene B. Lay, according to the station in life in which she lived prior to the decree, are considerably in excess of $300 a month, and therefore the court increased the amount of alimony to $350 a month, and made an allowance of $250 as her reasonable costs and attorney’s fees in the proceeding.

The sole question in the case is as to whether the action of the court in increasing the alimony was justified by the showing made. There is, of course, no doubt as to the power of a court of chancery to modify an allowance of alimony upon a proper showing, and that such an application is always addressed to the judicial discretion of the chancellor. The modification is ordinarily based upon the changed circumstances of the parties, although it may be assumed that an a! - lowance may be altered where the amount is based upon perjured testimony - or a fraudulent misrepresentation in regard to the financial condition of the party ordered to pay the alimony. The order in the present instance is based upon a finding that appellant’s income has substantially increased, and that the amount originally allowed is insufficient to maintain appellee ‘ ‘ according to the station in life in which she lived prior to the divorce.” We have no doubt that these facts would be amply sufficient to justify the court in increasing the amount of alimony allowed in a ease where the wife was the aggrieved party, and the divorce was obtained on account of the fault of the husband, but we are clearly of the opinion that such findings are" insufficient to warrant a chancellor in changing an allowance of alimony in such a case as the one at bar, where the divorce was granted on account of the fault of the wife, and where the allowance of alimony was clearly not based solely upon the financial ability of the husband. It is very clear that the disclosures of the husband made at the hearing prior to the entry of the decree were sufficient to justify a much larger allowance of alimony, and would have been followed by a larger allowance had the divorce been granted on account of improper conduct on the part of appellant. It therefore follows that the husband’s means did not constitute the controlling factor in the fixing of the amount of alimony, and therefore, an increase in his means would not, in itself, be sufficient to justify the court in increasing the allowance. In our opinion, it is equally clear that it is immaterial that the amount allowed is not sufficient to maintain the appellee “according to the station in life in which she lived prior to the divorce.”

In Spitler v. Spitler, 108 Ill. 120, our Supreme Court, in passing upon the question of when alimony may be allowed, where the divorce is granted on account of the wife’s misconduct, said, page 124:

“As the right to permanent alimony, so far as it depends on general law, is founded upon the duty of the husband to support the wife, it therefore legally, as well as logically, follows, that when this duty ceases the right also ceases. Hence it is generally held, in the absence of statutory provisions controlling the' question, when the husband obtains a divorce on account of the misconduct of the wife, the latter will not be entitled to alimony. [2 Bishop on Marriage and Divorce (4th Ed.), secs. 376, 377.] Looking at the question on principle, the rule is certainly in harmony with other general rules governing the marital relation, as, for instance, the common-law duty of the husband to support the wife is not absolute. He is bound to support her at their common home, and not under another’s roof, unless his own improper conduct has forced her to seek shelter elsewhere.”

The court continued, at page 126:

“It was manifestly not the object of the Legislature, in adopting the provisions of the statute above cited, to abrogate the general principles or policy of the law relating to the subject of alimony, but rather to clothe the courts with power to mitigate occasional hardships that would otherwise occur on account of the inflexible rule that the wife is not entitled to alimony where the divorce is granted to the husband on account of her own misconduct. This modification of the general rule on the subject was intended to meet cases of hardship, and afford relief to the erring wife when demanded by mitigating circumstances, or the interest of such of the children as might, for prudential reasons, be committed to her custody for support or education. ’ ’

The court is, therefore, of the opinion that the facts found by the chancellor were not sufficient to justify him in modifying the allowance of alimony made in the decree. The order of the Circuit Court is reversed.

Reversed.


text:
    The People of the State of Illinois ex rel. James O’Brien, Defendant in Error, v. City of Chicago et al., Plaintiffs in Error.
    Gen. No. 21,797.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Writ dismissed.
    Opinion filed March 28, 1917.
    Statement of the Case.
    Mandamus by the People of the State of Illinois on the relation of James O’Brien, relator, against the City of Chicago, Harmon M. Campbell, Elton Lower and John J. Flynn, Civil Service Commissioners of the City of Chicago, Thomas O’Connor, fire marshal, and Michael Zimmer, comptroller of the City of Chicago, respondents, to compel respondents to place relator’s name on the roster of pipemen of the fire department of the City of Chicago. From a judgment for relator, respondents bring error.
    Samuel A. Ettelson, for plaintiffs in error; Boy S. G-askill,. of counsel.
    No appearance for defendant in error.

      Abstract of the Decision.
    Appeal and error, § 1111

      —when case dismissed for failure to file brief. Under Rule 22 of the Appellate Court, on appellant’s failure to file brief of counsel, writ of error will be dismissed when cause is reached in its regular order, notwithstanding appellee has filed no appearance or brief, as appellee is not required to file appearance by any given day, or brief until appellant has filed one.

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

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Louis W. Hill and Watson P. Davidson, Defendants in Error, v. Nathan Aronson, Plaintiff in Error.
    Gen. No. 21,807.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 28, 1917.
    Statement of the Case.
    Judgment by confession by Louis W. Hill and Watson P. Davidson, plaintiffs, against Nathan Aronson, defendant, under a cognovit contained in a lease. From a denial of defendant’s motion to vacate same and for leave to plead, defendant brings error.
    Weinberg & Grollman, for plaintiff in error; Louis L. Kahn, of counsel.
    King, Brower & Hurlbut, for defendants in error.
   Mr. Justice Goodwin

delivered the opinion of the court.

Abstract of the Decision.

Judgment, § 82*—when affidavit in support of motion to vacate ■judgment by confession under cognovit in lease presents good defense. On motion to vacate a judgment by confession taken under a cognovit contained in a lease for rent as due under the lease, defendant’s affidavit in support of such motion setting forth that he had been compelled to abandon the lease by reason of the plaintiffs leasing another portion of the building for saloon purposes, contrary to a provision in defendant’s lease that it was understood that the said lessor should not lease any portion of the building to any one for the purpose of retailing liquors or carrying on a saloon or buffet business, whereby it became impossible for defendant to continue in the saloon business in the building under his lease, held to present a good defense to an action on the lease for rent, so as to warrant opening up the judgment and permitting defendant to plead.


text:
    La Salle, a corporation, Appellee, v. Hamilton National Bank, Appellant.
    Gen. No. 21,813.
    1. Landlord and tenant, § 270

      —what does not constitute eviction. Upon a landlord’s re-entry under the provision of a lease allowing him to do so on the tenant's default without terminating the lease and relet on account of the tenant for such rent and upon such terms as the landlord should approve, the latter may make alterations in the leased premises for the purpose of securing a new tenant, and his action in so doing does not amount to an eviction of the old tenant, so as to discharge him from liability under the lease.
    2. Landlord and tenant, § 325*—when evidence sufficient to show assumption of lease. The evidence held to sustain the finding that plaintiff assumed a certain lease from May 1, 1912, and not from October 1, 1911, when defendant vacated plaintiff’s premises leased by defendant from plaintiff, in an action to recover rent under such lease for such period.

      3. Corporations, § 51

      —what constitutes prima -facie proof of existence. Under a plea of nul tiel corporation, the production of the corporate charter held to make a prima facie case of corporate existence.
    4. Corporations, § 33*—how question of violation of statute as to commencement of business may be raised. The question whether a corporation de jure had violated the provision of the statute that a corporation must proceed to do business within two years after the date of its license can only be raised in a quo warranto proceeding by the State and not in a collateral proceeding.
    5. Corporations, § 21*—when corporation is de jure corporation. Where a corporation was duly organized in compliance with all of the provisions of the statute relating to the organization of such corporations, held that such corporation became a corporation de jure when its articles of incorporation were properly certified by the Secretary of State and recorded in compliance with the statute.
    6. Safe deposit companies'—when may maintain business through lessee. A corporation organized for maintaining, operating and managing a system. of safety vaults may lawfully carry on such business through the instrumentality of a lessee.
    7. Corporations, § 33*—how question of fraud in organization may be raised. The question whether the organization of a corporation was a fraud upon the State, in that its expressed object was to conduct the business of maintaining a system of safety vaults, while its real purpose was to purchase and maintain an office building, cannot be raised collaterally but only in a quo warranto proceeding.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 28, 1917.
    Jones, Addington, Ames & Seibold, for appellant; Keene H. Addington, Albert F. Mecklenburger and Walter Hamilton, of counsel.
    Matz, Fisher & Boyden, for appellee; Rudolph Matz and William W. Case, of counsel.

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

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

   Mr. Justice Goodwin

delivered the opinion of the court.

The appellant seeks to reverse a judgment entered in the Municipal Court of Chicago against it for $16,720.46, in an action for rent on an alleged lease. Appellant filed its affidavit of merits in the Municipal Court, setting up:

(1) That appellee is nul tiel corporation because it was not legally and duly organized, and capable in law of suing appellant upon the supposed cause of action.

(2) That the alleged corporate existence of appellee constituted a fraud upon the State of Illinois, because it pretends that it is a corporation organized for the purpose of carrying on and conducting a safety deposit vault business, while at the time of its incorporation it did not own or conduct such a business, and never has owned or conducted such a business, and that its only business was holding title in fee simple ' to the land on which the New York Life Building is located:

(3) That appellee’s ownership is illegal, and in violation of the public policy of the State, as declared by statute:

(4) That the pretended lease was in violation of the Statute of Frauds:

(5) That appellee, for a valuable consideration, accepted a surrender of the premises:

(6) That appellee, for a valuable consideration, agreed to accept, and did accept, Finley Barrell & Company as tenants, and did satisfy and discharge said pretended lease, and appellant thereupon vacated the premises September 30, 1911, and surrendered the ■ same to appellee, who took possession of the same:

(7) That after appellant vacated the premises, appellee entered and divided the space in such a manner as to make it untenantable.

By way of set-off, appellant set up the same allegations in regard to appellee’s acceptance of Finley Barrell & Company as tenants, and its subsequent repudiation of the agreement.

The evidence disclosed that appellee was incorporated November 10, 1893, and that its articles of incorporation recited- that “the object for which it is formed is for the-purpose of maintaining, operating and managing a system of safety vaults and in connection therewith, constructing,' maintaining and operating a building for the same and doing and carrying on a general business in connection therewith or growing out of the same so far as authorized and empowered by the said act.” A lease was executed by appellee as lessor, and appellant as lessee, of the first floor and part of the basement of the New York Life Building, at the corner of Monroe and La Salle streets, Chicago, for a term of five years, expiring April 30, 1912, at a rental of $1,730.20 a month for the first two years, and $2,208.33 a month for the remainder of the term. In this lease it was provided “that in case the lessee shall vacate said premises during the life of this lease, the lessor may, at its option, without terminating this lease, enter into said premises and relet the same for the account of the lessee for such rent and upon such terms as the lessor shall approve; and if a sufficient sum shall not be thus realized monthly (after paying the expenses of such reletting and of collecting the rent accruing from such reletting) to, satisfy the monthly rent above provided to be paid by the lessee, then the lessee will satisfy and pay such deficiency upon demand monthly.”

In February, 1910, appellant went into voluntary liquidation, but left the furniture and fixtures of the bank on the premises until September 30, 1911, and left one Charles B. Pike as liquidator, with an office on the premises, until that day. Up to that time, the rent for the premises was fully paid. Early in 1910, Mr, Pike asked Mr. Layman, the agent for the building, to co-operate with him in finding a tenant, which he agreed to do. Several tenants were suggested, and all rejected, until, in the summer of 1911, Finley Barrell & Company became interested in the property. A lease was apparently negotiated, which in its general terms was satisfactory both to Finley, Barrell & Company and appellee, but a question arose as to whether appellee was to assume the lease of certain space occupied by Finley Barrell & Company in the Monadnock Block from October 1, 1911, or from May 1, 1912. Upon this question there is an absolute and hopeless conflict in the testimony, and we are asked to hold that the judge who tried the case without a jury was in error in failing to find that the appellee agreed to accept Finley Barrell & Company and to assume the burden of its Monadnock lease from October 1, 1911, or November 1, 1911. This we are unable to do unless it appears' that the finding of the trial court was manifestly contrary to the weight of the evidence. Upon this point, appellant contends that as appellee’s agent presumably knew that Finley Barrell & Company intended to move October 1, 1911, and as its own lease expired May 1,1912, he must have understood that the appellee was to assume the lease from October 1, 1911, and that appellant could have had no object in entering into any negotiations which would not relieve it of the necessity of paying rent, since its obligation ceased in any event May 1, 1912. Mr. Pike, agent for appellant, himself testifies that Mr. Layman told him, September 19,. 1911, that he did not see what benefit the bank was to get in the matter, and that he replied that they were going to get- the benefit of the Finley Barrell rent from October 1st, to which Mr. Layman replied: “We are not going to assume the Barrell lease in the Monadnock Block until the first of-May, 1912.”

The real question is, did the minds of the parties meet upon this point, and upon a careful examination of the evidence we are unable to say that the court’s finding that they did not was manifestly contrary to the weight of the evidence. We are, likewise, unable to sustain counsel’s contention that the dividing of the space formerly occupied by appellant amounted to an eviction, and therefore discharged it from liability under the lease. The clause in the lease already quoted authorized the lessor to enter without terminating the lease, and to relet the premises for the account of the lessee for such rent and upon such terms as the lessor should approve. That upon such a re-entry in accordance with the terms of the lease, the lessor may make alterations in the premises for the purpose of securing a new lessee, is sustained by reason and authority. (See Marshall v. John Grosse Clothing Co., 184 Ill. 421.)

It therefore remains for us to consider the questions raised by the appellant as to the legal existence of appellee, and its power to execute the lease in question. Filing a plea of nul tiel corporation cast upon the appellee the burden of showing its corporate existence, and this it did by presenting its articles of incorporation, which had been duly issued by the Secretary of State, and showing the execution of this and a number of other leases. It is the contention of appellant, however, that the evidence shows that appellee did not, at any time, actually carry'on the business for which it was incorporated, and that, in consequence, after the expiration of two years- from the issuing of its charter it ceased utterly to be a corporation. In our opinion, however, the production of its charter made out a prima facie case as to its corporate existence, and if the question of whether it ever entered upon the business for which it was chartered may be inquired into in this proceeding, the burden of establishing that it did not clearly rest upon appellant, and the evidence in this record fails to establish it. We are, however, of the opinion that the question cannot be raised in this proceeding, since the corporation was duly organized as an Illinois corporation, and all of the provisions of the statute relative to the organization of such a corporation were fully complied with. It necessarily follows that when the ■articles of incorporation were properly certified by the Secretary of State, and recorded' in compliance with the statute, appellee became a corporation de jure. We do not think that there is any ground for holding that in a collateral proceeding a question may be raised as to whether such a corporation has violated the provision that it must “proceed to business” within two years after the date of its license, although it would appear that such an inquiry could be pursued by the State in quo warranto proceedings. But there appears to be a further answer to the contention which has not been suggested by counsel for appellee. The object for which the corporation is formed is recited to be “for the purpose of maintaining, operating and managing a system of safety vaults,” etc. It cannot' be contended that the corporation has not continuously maintained a system of safety vaults, and, to that extent at least, carried on the business for which it was incorporated. Appellee further contends that as the business of maintaining, operating and managing a system of safety vaults was the purpose for which it was incorporated, it had, under the laws of the State of Illinois, the right to lease its vaults to ánother, and thus carry out its purposes through the instrumentality of the lessee, and, in support of this contention, cite People v. Walker Opera House Co., 249 Ill. 106. In that case, the object of the incorporation was to purchase or erect and operate a building or buildings for military and other purposes. The replication stated that the defendant had been engaged in the sole business of leasing the building purchased and improved by it, and collecting the rents without authority. The court, in holding the replication bad, said, page 111:

‘ ‘ The charge in the seventh replication was, in substance, that defendant had leased the entire building to another person for opera house or theatrical purposes, and that, even if it had the right to carry on an opera house under its charter, it must do so directly and not through a lessee. If the charter granted defendant in error the right to carry on an opera house, we think it was complying therewith by carrying it on through a lessee.”

That case was notably stronger than the case at bar, since it was a proceeding in the nature of quo warranto brought, by the Attorney G-eneral in the name of the People of the State. Appellant’s contention that the organization of appellee was really for the purpose of purchasing and maintaining an office building, and was therefore a fraud upon the State of Illinois, suggests a question which is one properly arising between appellee and the State of Illinois, and which, under numerous authorities, cannot be raised collaterally. If appellee’s incorporation did constitute a fraud upon the State, that question may be raised by the State in quo warranto proceedings, but not otherwise. In this aspect of the case, it is in all respects similar to the case of Rector v. Hartford Deposit Co., 190 Ill. 380, where, in answer to a suit upon a lease, it was contended that the lease was beyond the scope of the corporate power of the appellee corporation, and for that- reason void. The appellee was incorporated “to erect and operate safety deposit vaults.” It appeared that under this charter it had erected an office building on the southwest comer of Dearborn and Madison streets, Chicago, extending ninety-one feet on Dearborn street and fifty feet on Madison street, consisting of fourteen stories, of a height of one hundred and fifty feet, and producing a gross rental of over $100,000 a year. The only safety deposit vaults were fifty-four boxes in the private office of the company, which- produced a rental not exceeding $100 a year. The court held that the question of the authority of the corporation to erect the building and rent the offices, was one which could only be. raised in a direct proceeding by the State, and even if the corporation had flagrantly abused its general power to acquire real estate and construct a building, it could not be availed of as a defense in an action brought by the corporation to recover rent contracted to be paid for the use of one of the rooms of the building.

We are, therefore, of the opinion that appellee is a de jure corporation existing under the laws of the State of Illinois, and that, in view of the decisions of our Supreme Court, the contention that appellee’s organization constituted a fraud and imposition upon the State of Illinois, and was a flagrant abuse of its charter powers, cannot be set up as a defense in this action. The judgment of the Municipal Court must, therefore, be affirmed.

Affirmed.


author: Mr. Justice Taylor

text:
    Bickett Coal & Coke Company, Plaintiff in Error, v. John W. Keogh & Company, Defendant in Error.
    Gen. No. 21,595.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Raitekty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed March 28, 1917.
    Rehearing denied April 12, 1917.
    Statement of the Case.
    Action by Bickett Coal & Coke Company, a corporation, plaintiff, against John W. Keogh & Company, a corporation, defendant, to recover a balance of $260.22 as part of the selling price of ten carloads of coal shipped to defendant. From a judgment for defendant on its set-off for $702.15, plaintiff brings error.
    Plaintiff claimed for coal furnished at defendant’s request and upon an account stated, which defendant’s affidavit of merits denied, and said affidavit stated also that defendant objected to the quality of the coal delivered ; that it refused to pay therefor and requested its removal, and that it was not the kind ordered, but of an inferior quality. Defendant’s set-off was for money paid for coal and freight, which defendant stated it had to pay before it could get the coal, and defendant stated further it paid immediately thereon to the plaintiff the purchase price of the coal, not then knowing or having means of finding out that it was of an inferior grade and not as ordered and unfit for use; that immediately, upon finding this out, it notified plaintiff it would not accept the coal and requested its removal, and that the amount due defendant from plaintiff for such coal and freight and for unloading of cars was $985.50. Plaintiff’s affidavit of merits alleged such freight charges were part o.f the purchase price of the coal and that all of the coal was of the quality represented at time the order was taken. Five cars of the coal were shipped to defendant’s factory at Soldier’s Grove, Wisconsin, and five cars to its factory at East Dubuque, Illinois.
    Abstract of the Decision.
    1. Sales, § 398

      —when affidavit of merits sufficient in action for balance of purchase price of coal. Defendant’s affidavit of merits held to set forth sufficient facts to apprise plaintiff that defendant would undertake to show that the coal delivered was not of the grade or quality ordered, in an action to recover the balance of purchase price of the coal.
    2. Sales, § 398*—when statement of set-off sufficient in action for purchase price of coal. In an action to recover the balance of the purchase price of coal, defendant’s statement of claim of set-off held to set up a breach of warranty and damages arising therefrom and to sufficiently inform plaintiff of the exact nature of such claim.
    3. Sales, § 401*—when evidence sufficient to show breach of warranty. The evidence held to support a finding that plaintiff sold the coal in question with a warranty and that it broke such warranty.
    4. Sales, § 238*—what constitutes warranty of coal. Where plaintiff’s agent, in obtaining an order from defendant for the purchase by defendant of coal, led the defendant to' believe by promises he made to defendant that the quality of the coal would be as good as a certain specified kind and to rely upon such promises, held that there was a warranty of the quality of the coal.
    Henry J. and Charles Aaron, for plaintiff in error; Douglas C. Gregg, of counsel.
    Alden, Latham & Young, for defendant in error; T. A. Sheehan, of counsel.

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

   Mr. Justice Taylor

delivered the opinion of the court.


text:
    E. I. Du Pont de Nemours Powder Company, Defendant in Error, v. S. R. H. Robinson & Son Contracting Company, Plaintiff in Error.
    Gen. No. 21,680.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —when defendant’s affidavit of merits is sufficient in action to recover for explosives and blasting powder. In an action in the Municipal Court to recover for explosives and blasting supplies sold by plaintiff to defendant, where defendant’s affidavit of merits sets forth as a defense that the defendant never ordered certain dynamite referred to in the account attached to plaintiff’s statement of claim; that defendant ordered dynamite of a different kind and strength, and that plaintiff, in purporting to fill defendant’s order and in delivering what it represented as dynamite, was guilty of fraud and deceit, which were set forth in detail, held that such affidavit was sufficient, taken as a whole, to justify the conclusion, if the statements therein were proven that a fraud had been perpetrated upon defendant by plaintiff and that plaintiff never delivered the merchandise ordered by defendant.

      Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 28, 1917.
    Statement of the Case.
    Action by E. I. Dn Pont de Nemours Powder Company, a corporation, plaintiff, against S. R. H. Robinson & Son Contracting Company, a corporation, defendant, to recover for the balance of an account for explosives and blasting supplies. From a judgment for plaintiff for $2,527.14, upon the striking of defendant’s amended affidavit of merits from the files, defendant standing thereby, defendant brings error.
    J. R. Lindsay and N. E. Utt, for plaintiff in error.
    E. C. Ferguson, for defendant in error.

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

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

   Mr. Justice Taylor

delivered the opinion of the court.

2. Appeal and error, § 1034 —what mil he taken judicial notice of. The Appellate Court will take judicial notice that dynamite is an explosive.

3. Sales, § 282*—what does not constitute admission of conformance of dynamite with contract. Where defendant purchased from the plaintiff a quantity of dynamite, held that an opportunity by defendant to examine the dynamite delivered and its subsequent use by defendant did not constitute an admission by defendant that the quality of the dynamite was satisfactory and that it conformed to the contract, as a mere examination of the boxes and their contents would not necessarily inform the defendant of the quality of the dynamite.

4. Municipal Court of Chicago, § 13*—what is inappropriate allegation in statement of claim for goods sold and delivered. An allegation in a statement of claim to recover for goods sold and delivered that the defendant had pending in another court a suit for the purpose of recovering unliquidated damages for an alleged breach of the contract sued on in such statement of claim, held to be inappropriate in such statement.

5. Municipal Coubt of Chicago, § 5*—what constitutes misuse of rules as to prolixity of pleadings. A great volume of pleadings, as amended and additional statements of claim, in the Municipal Court, held to be a misuse of the rules of that court, as such rules were adopted rather to prevent than to increase the prolixity of pleadings in that court.


text:
    J. S. Hoffman Company, Defendant in Error, v. Sterling Packing Company, Plaintiff in Error.
    Gen. No. 21,713.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court op Chicago, § 13

      —now defense of rescission of contract and alleged custom may be pleaded. Under Rule 22 of the Municipal Court, providing that a statement or affidavit may he stricken from the files and judgment rendered accordingly as may he just when the party appears to be relying upon a cause of action or defense which is unfounded in law, where a defendant undertakes to set up a defense of rescission of the contract sued on, and an alleged custom, it is not necessary for him to set out in detail every fact and element that would be necessary to make a complete defense, nor for the plaintiff to set forth the facts which, if proven, might defeat such defense.

      Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 28, 1917.
    Statement of the Case.
    Action by J. S. Hoffman Company, a corporation, plaintiff, against Sterling Packing Company, a corporation, defendant, to recover $975.25, for goods sold and delivered and upon an account stated. From a judgment for plaintiff, upon striking defendant’s affidavit of merits and statement of set-off from the files, defendant brings error.
    Blum, Wolfsohn & Blum, for plaintiff in error.
    Ringer, Wilhartz, Louer & Concannon, for defendant in error; Grover C. McLaren, of counsel.

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

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

   Mr. Justice Taylor

delivered the opinion of the court.

2. Municipal Court op Chicago, § 13 —when defense of general custom, sufficiently pleaded. Where a defendant in defense to a statement of claim in the Municipal Court relies upon a certain general custom, it is sufficient in his affidavit of merits or statement of set-off to inform the plaintiff he intends to rely upon such custom, the nature of which is expressly set forth.

3. Municipal Court op Chicago, § 13*—necessity of pleading reasonableness or validity of general custom. The reasonableness of a general custom or whether it is against public policy relied upon as a defense to a statement of claim in the Municipal Court, held, to be matter to be gone into only in the course of the trial and not necessary to be pleaded.


text:
    H. & M. Stafford and G. C. & E. M. Stamm, Defendants in Error, v. Frances H. Ward, Plaintiff in Error.
    Gen. No. 21,745.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed March 28, 1917.
    Statement of the Case.
    Judgment by confession taken by H. & M. Stafford and G. C. & E. M. Stamm, plaintiffs, against Frances H. Ward, defendant, upon a cognovit in a written lease for one hundred and thirty dollars and costs. From denial of a motion by defendant to vacate the judgment and for leave to plead, defendant brings error.
    Fulton, Garey & Beutschman, for plaintiff in error.
    Fred J. Crowley, for defendants in error.

      Abstract of the Decision.
    1. Landlord and tenant, § 50

      —when parol evidence inadmissible to vary terms of written lease. On motion to vacate a judgment by confession taken on a cognovit in a lease, where one affidavit in support of such motion set up that the lease was made upon an oral agreement that the lessee should have an additional room, besides those specified in the lease, for a maid in the same building for the same term as that in the lease, two years, and a second affidavit set up that there was a mutual agreement and understanding that the premises leased Were to consist of the rooms specified in the lease and the additional room referred to, what constituted such mutual agreement and understanding, whether the lease or some oral contract, not being stated, held that such defense appeared to be an attempt to vary the terms of a written lease by parol and as such would be inadmissible.
    2. Frauds, Statute op, § 41*—when oral lease within. Where a written lease of specified premises is made for a term of two years and an oral lease of an additional room for a similar period, such latter agreement is within the Statute of Frauds.
    3. Landlord and tenant, § 264*—what does not constitute eviction from leased premises. On motion to vacate a judgment by confession taken on a cognovit in a lease of a certain apartment, where the affidavit in support of such motion set up as a defense to the action an eviction from a certain room claimed to have been included, but not specified in the lease by a collateral oral agreement between the parties, held that such eviction would not be an eviction from the leased premises.

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

   Mr. Justice Taylor

delivered the opinion of the court.


text:
    David Levi, Receiver, Plaintiff in Error, v. Charles R. Beadles, Defendant in Error.
    Gen. No. 21,785.
    1. Appeal and error, § 693

      —when appointment of receiver by trial court improper after appeal. Where, after perfection on May 6, 1915, of an appeal from a decree in a suit in which a receiver had been appointed, the trial court rendering such decree entered an order removing such receiver and appointing another party as receiver, whose bond as such receiver was approved July 14, and filed July 17, 1915, on which date the Appellate Court issued a writ of certiorari for certification of the proceedings as to such order and for a stay of further proceedings, and the appeal and petition for the writ were later dismissed, held, in an action of forcible entry and detainer brought July 3, 1915 by the first receiver against the second receiver for possession of the premises involved in the suit, that such action was brought by the duly authorized receiver entitled to the possession of the premises, as a perfected appeal operates to stay any further proceedings by the court rendering the judgment or decree appealed from.
    2. Appeal and error, § 687*—what is effect-of perfected appeal. A perfected appeal operates to stay any further proceedings by the court rendering the judgment or decree appealéd from.
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and judgment here.
    Opinion filed March 28, 1917.
    Burkhalter & Grossberg, for plaintiff in error.
    H. W. Leman and F. H. Culver, for defendant in error.

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

   Mr. Justice Taylor

delivered the opinion of the court.

This is a writ of error to the Municipal Court of Chicago to review a judgment for the defendant in error against the plaintiff in error (David Levi, receiver) in a suit of forcible.entry and detainer for the possession of certain premises. The evidence in the. case showed that on March 3, 1911, David Levi (plaintiff in error) was appointed by the Circuit Court of Cook county receiver of a twenty-four apartment building, one of which apartments was the premises in question. In a suit in which David Levi was complainant and Charles B. Beadles (defendant in error) was defendant, the apartment building was foreclosed, and on April 3, 1915, a final decree was entered in the Circuit Court.

On May 6, 1915, an appeal was taken to the Appellate Court, First District. On June 5, 1915, the Circuit Court of Cook county entered the following order:

“It is ordered that David Levi be and he is hereby removed as receiver of said cause, upon said Charle.s B. Beadles giving bond in the sum of Twelve Thousand ($12,000) Dollars, with surety to be approved by the court, conditioned to pay all damages to said David Levi which may result to him from the delivery and possession to said Charles B. Beadles of the real estate involved in said cause, and that, upon the filing and approving of said bond said David Levi, Beceiver herein, deliver up possession of said real estate and the buildings thereon to said Charles B. Beadles and cease to collect any rent from said building after delivering possession.”

The defendant in error executed a bond for $12,000 on July 8,1915, which bond was approved by the court on July 14, 1915, and filed on July 17, 1915. On the same day, July 17, 1915, a writ of certiorari issued out of the Appellate Court, which recited that the appeal had been pending since May 6,1915, and, further, required that the record be certified of the proceedings under which the order of the Circuit Court was entered on June 5,1915, and that in the meantime further proeeedings be desisted from. The writ of certiorari was filed in the Circuit Court on July 19, 1915. The records of this court show that on March 20, 1916, the appeal and petition for the writ of certiorari (being that of July 17, 1915) were dismissed.

In the Municipal Court the trial judge denied the right of plaintiff in error to recover the premises in question and entered judgment for the defendant in error.

It is claimed by the plaintiff in error that “if this court holds that from and after May 6, 1913, when the appeal was taken from the decree below, the Circuit Court had no further jurisdiction to enter any orders and hence had no jurisdiction to enter the order of June 5, 1915, removing David Levi as receiver, then it necessarily follows that David Levi was still receiver at the time the suit in forcible detainer was brought for the possession of the premises in question and was entitled to their possession”; that “if, however, this court should hold that the Circuit Court still had jurisdiction of the order removing David Levi as receiver, then the fact still remains that the writ of certiorari suspended that order.”

The critical question in the case is whether on July 3, 1915, when the instant case was instituted i.n the Municipal Court, the plaintiff in error was entitled to sue as receiver. The final decree, in the case in which plaintiff in error was receiver, was entered in the Circuit Court on April 3, 1915. An appeal was taken from that decree to this court on May 6, 1915, and the appeal bond filed in the Circuit Court on May 6, 1915. On June 5, 1915, a month after the appeal was perfected, the Circuit Court entered its order providing for the removal of the receiver upon the approval and filing of a $12,000 bond by the defendant in error. That bond was approved on July 14, 1915, and filed on July 17, 1915. It follows, therefore, that the appeal from the final decree in the Circuit Court to this court had been perfected before the order of the Circuit Court for the removal of the receiver was entered.

It is the law “that a perfected appeal operates to stay any further proceedings by the court rendering the judgment or decree appealed from.” The People v. Pam, 276 Ill. 181; Ex parte Thatcher, 7 Ill. (2 Gilm.) 167; Elzas v. Elzas, 183 Ill. 160; Jenkins v. Jenkins, 91 Ill. 167.

There being, then, on July 3, 1915, the date of the institution of this cause in the Municipal Court, no valid order of dismissal, the plaintiff in error was the duly authorized receiver, and as such had charge of the real estate, the possession of which is in question, and was entitled, as the evidence in the record demonstrates, to prosecute this action of forcible entry and detainer and to obtain judgment. We are of the opinion that the court below erred in finding for the defendant, and the judgment, therefore, is reversed and judgment entered here upon a finding of facts in favor of the plaintiff in error, for possession and the costs.

Reversed and judgment.