author: Mr. Justice Taylor Mr. Presiding Justice Taylor

text:
    William Fenimore Cooper, Appellee, v. Illinois Publishing and Printing Company, Appellant.
    Gen. No. 24,704.
    1. Libel and slander, § 56

      —what comments are permitted. The rule that the defendant in a suit for libel may attempt to prove that the words charged were fair comment and did not in and of themselves constitute libel is not to be construed as permitting defendant to set up as a defense the alleged comment and criticism where they are based upon that which is untrue.
    2. Libel and slander, § 56*—what is extent of constitutional privilege of free speech. The constitutional privilege of free speech should not be construed as allowing the press, under the guise of fair comment, unjustly to assail the integrity of the bench.
    3. Libel and slander, § 64*—what is effect of truth of statement. Although the publication of the truth, without malice, carries with it immunity from prosecution, the law entails liability for the publication of that which is false.
    4. Libel and slander, § 101*—when amendment does not state

      new cause of action. In a suit for libel, an amendment adding to the words charged in the declaration is not objectionable as stating a new causg of action when the text of the words charged still conform, after such amendment, to the article as published; such count of the amended declaration is still based upon the same" article as the amended count; the article as stated in the amendment was published by the same defendant about the same plaintiff, at the same time and in the same newspaper; an analysis of the added words discloses no new and different libelous imputations; judgment on the original count would have been res adjudieata in a suit based upon the amended count.
    5. Libel and slandeb, § 56

      —what are statements of fact raither than comment. In a suit for libel, dogmatic statements that a judge is unfit made in a newspaper article which does not contain the trial record of such judge will be held, as a matter of law, to be statements of fact, even though some of such words, technically considered, are in the nature of comment upon what is implied in other words in the same publication in which the judge’s record is set forth, and though the facts and such comment are so intermingled as that it is difficult to disassociate one from the other, where the impression produced upon the mind of the average reader is that the statements are statements of fact.
    6. Libel and slander, § 56*—when court may determine what are statements of fact. It is for the court and not for the jury to decide whether dogmatic statements made in a newspaper article that a judge is unfit, in which article there is not contained any statement of the judge’s record, are statements of fact or are comments upon his record.
    7. Libel and slander, § 56*—what statements are actionable. A dogmatic statement in a newspaper article that a judge is unfit is, unless proven to be true, actionable.
    8. Libel and slander, § 140*—when evidence is inadmissible. In a suit for libel to recover damages for the statement made in defendant’s newspaper that plaintiff, a judge; was unfit, it is not error to refuse in evidence a document, which defendant’s reporter testified he had received from an Assistant’s State’s Attorney and had checked with the records before the publication, which document purports to be a list of all the six cases appearing on plaintiff’s calendar, during a certain period when he was sitting in the criminal court, together with notations showing their final disposition by him, as such document was in the nature of hearsay, did not tend to prove justification and was not admissible in mitigation of damages.

      9. Libel and slandeb, § 134

      —what may be shown where judge is libeled. In a suit for libel in charging a judge with unfitness by reason of his conduct and rulings in sex cases, defendant may show under a special plea of justification everything which transpired in such cases, any overt acts and rulings, all conduct on plaintiff’s part in the trial of sex cases, and any and all evidence submitted before plaintiff in such cases is competent, including cases not mentioned in the alleged libel.
    10. Libel and slandeb, § 740*—what evidence is admissible in justification. In a suit for libel in charging a judge with unfitness by reason of his conduct and rulings in cases before him involving sex questions, under a special plea of justification defendant may introduce in evidence a certified copy of the record in such a case tried before plaintiff, to be considered by the jury, in connection with the other facts in evidence, upon the question of justification and upon the issue of defendant's good faith and in mitigation of damages.
    11. Appeal and erbob, § 1309*—what may be assumed as to evidence admitted in libel suit. Until the contrary is established by the evidence, it must be assumed, on appeal, that a certified copy of an order appearing in the record in another case which was offered in evidence below speaks the truth as to the .facts recited therein.
    12. Libel and slander, § 142*—what evidence of 'justification may be excluded. In a suit for libel, proffered evidence which is admissible under defendant’s plea of justification does not come within the rule excluding evidence which merely tends to cast suspicion.
    13. Libel and slandeb, § 149*—what is effect of offer of evidence. In offering in evidence, in a suit for libel, an exhibit which is admissible on any other issue, it is not necessary, to render it admissible on the question of defendant’s good faith and want of malice, that the offer be limited to such issue, if the offer includes a reference to the issue of good faith and want of malice.
    14. Libel and slander, § 142*—what evidence is hearsay. In a suit for libel, while a witness may properly be permitted to testify that he talked with other persons in investigating before publishing the article complained of, his evidence as to what such persons said to him is properly excluded as hearsay.
    15. Libel and slander, § 161*—what question may be submitted to jury. In a suit for libel, in charging a judge with unfitness by reason of his conduct and rulings in sex cases in which defendant enters a plea of justification, it is proper to permit the jury to pass upon the fitness or unfitness oí plaintiff as a judge as determined by them from their consideration of the quality of his judicial acts.
    16. Libel and slander, § 140

      —when evidence of reputation is admissible. In a suit for libel, in charging a judge With unfitness by reason of his conduct and rulings in sex cases, evidence as to plaintiff’s reputation in the trial of sex cases prior ¡to the date the alleged libel was published is admissible as tending to mitigate the damages.
    17. Libel and slander, § 140*—when entire article may be shown. Where plaintiff introduces, as an exhibit in a suit for libel, the headlines of an article published in defendant’s newspaper, defendant should be permitted to introduce the subject-matter of the article and of another article to which the headlines relate and which must be and is intended to be read in connection with and explanation of the headlines, notwithstanding the purpose in introducing the headlines was to show malice.
    18. Libel and slander, § 140*—when evidence of intimidation is admissible. In a suit for libel, in. charging a judge with unfitness by reason of his conduct and rulings in sex cases, evidence of a conversation between plaintiff and defendant’s reporter, shown to have been authorized by defendant to interview plaintiff, which tends to support plaintiff’s theory that defendant was seeking to intimidate him and influence him against impaneling a special grand jury, suggesting that the article complained of would be published if he did so, is admissible.
    19. Libel and slander, § 140*—when reiterations are admissible. In a suit for libel, articles and cartoons published after the article complained of reiterating the charge contained in the former article are admissible for the purpose of showing actual malice aggravating the damages recoverable.
    20. Libel and slander, § 56*—when statement is libelous per se. It is libelous per se to charge that a judge is unfit by reason of his rulings and conduct in sex cases.
    21. Libel and slander, § 128*—when defendant has burden of proof. In a suit for libel, where plaintiff has proven the publication of words libelous per se, the burden is on defendant to show that they were true, and defendant is not entitled, at the close of plaintiff’s evidence, to a directed verdict on the ground that plaintiff had not proven that the words were false.
    22. Libel and slander, § 56*—when plea of fair comment is not available. Where the words charged are, in part, statements of tact, and such words are libelous per se, there can be no defense of fair comment and criticism.

      23. Libel and slander, § 152*—when exemplary damages áre recoverable. In a suit for libel, where the words are libelous per se, exemplary and punitive damages are recoverable even though only implied malice is shown.
    24. Appeal and error, § 1256*—when error in instructions cannot be complained of. One cannot complain on appeal of instructions which are more favorable to him than the law warrants.
    On Petition fob Rehearing.
    1. Libel and slander, § 133

      —when offer of evidence is competent. In a suit for libel, in charging that plaintiff is unfit as a judge by reason of his conduct and rulings in sex cases, in which defendant files a special plea of justification, the rule that an offer of evidence as to what transpired at the trial of any sex case tried before plaintiff, is competent, is to be construed as rendering competent any such material evidence at the time it is offered, providing it is counsel’s stated purpose in offering it that at least the substance of what occurred in the course of the particular sex case will eventually be offered and be shown to be material, and if the substance thereof is not eventually offered, such of the matter occurring in the sex case as has been introduced" should be stricken out unless it has, in and of itself, reasonably considered and having in mind the issue, some probative force and tends to support the theory of the defense.
    2. Libel and slander, § 105*—what must be extent of plea of justification. The rule that the plea of justification must be as broad as the charge, and one guilty of publishing the whole of the alleged defamatory matter cannot justify by showing that some of it, though divisible from the rest, was true, is subject to the qualification that where several separate and distinct matters' are charged, the defendant may justify as to one though, he fail as to the others.
    3. Libel and slander, § 146*—what is effect of proving truth of some of charges. In a suit for libel, where the articles complained of make certain charges of judicial misconduct against plaintiff, a judge, in the trial of sex cases, many of which cases are expressly mentioned, if defendant, who pleads justification, proves on the trial that any of such charges are true, it justifies in so far as those charges are involved.
    4. Libel and slander, § 142*—when judicial records are admissible. In a suit for libel where the publication complained of makes charges of judicial misconduct against plaintiff, a judge, in the trial of sex cases and defendant pleads justification, an exhibit, consisting of a certified copy of the record of one of such cases which was particularly pleaded in one of defendant’s special pleas of justification, showing that plaintiff imposed a fine of $5 on one found guilty of assault with intent to commit rape, is admissible, and plaintiff may introduce evidence in rebuttal to show that such record, which imports verity, is, in fact, correct, and such record is also admissible as tending to substantiate a similar statement of plaintiff’s holding in such case which was contained in an article offered in evidence by defendant after plaintiff had introduced in evidence the headlines preceding such article.
    5. Tkiai, § 56

      —when witness may explain evidence received. After an exhibit consisting of the certified record of a case has been admitted in evidence, it is proper to permit a witness to testify that he had examined the record of the case in the court in which it was filed and found it as set forth in the exhibit.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded.
    Opinion filed April 21, 1920.
    Rehearing denied and additional opinion filed July 14, 1920.
    Roy D. Keehn, for appellant; Jacob M.. Dickinson, Edward G-. Woods and Charles Center Case, Jr., of counsel.
    Stein, Mayer & David and John J. Coburn, for appellee ; Sigmund W. David and Oscar Blumenthal, of counsel.

      Seo Illinois Notes Digest, Veis. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols. 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.

      See Illinois Notos 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,

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

   Mr. Justice Taylor

delivered the opinion of the court.

This is a suit for damages for alleged libel. 'It was here once before on a question of pleadings. Cooper v. Lawrence, 204 Ill. App. 261. Since then it Jhas been tried before a jury and a verdict and judgment rendered against the defendant in the sum of $75,000. From that judgment this appeal is taken.

In our former opinion we set forth a fair résumé of the alleged libelous words so that it is not now necessary to reiterate them, at large, here.

In the former decision of this cause, we stated that the alleged libelous words charged (1)—in the first count—“moral and intellectual unfitness”; (2)—in the second count—“wickedness, incapacity and unfitness”; and (3)—in the third count—that in his court “young girls may be attacked with impunity”; and he “will not in such cases apply the law and administer justice.” We further stated that the alleged libelous words set' forth in each count charged the plaintiff with unfitness and tended to degrade him in the eyes of the public.

We also stated as a principle of the law of libel that “the subject of reasonable comment and fair criticism must be a fact and not a libel”; that it must be the truth and not falsehood. And, in discussing certain pleadings, although we intimated that the defendant would be entitled to an endeavor to prove that the words charged were fair comment and did not in and of themselves constitute libel, we only intended by that to announce a general rule and did not mean that, where the alleged comment and criticism is based upon that which is untrue, it may still be put in as defense. Further, we intimated that fair comment might be put in evidence under the general issue, but, it would seem to be proper practice to plead that defense especially.

Seemingly, the instant case is one of first impression in the jurisprudence of English speaking countries, with, possibly, the exception of Robinson v. Treadway, 2 J. J. Marsh. (Ky.) 540, decided in 1829. In many ways it is a case of great import as it affects the constitutional privilege of the right of free speech. The press is the most important single psychological influence in our civilization and determines, at least in part, the conscious thinking and will and conduct of a great multitude of people. Wielding such power and given by the Constitution the right to utter the truth with impunity, still, in the interest of organized society, that authority, under the guise of fair comment, should not be allowed unjustly to assail the integrity of the bench. And, so, it is the law, that, although publishing the truth, without malice, carries with it immunity from prosecution, publication of that which is false entails liability. Recognizing as we do, therefore, the magnitude of the matters involved, we have considered the issues in this cause with the greatest care.

It is the theory of the plaintiff, that, as he, on May 29, 1913,—pursuant to a petition filed by Rinaker, Cunnea and Haight, who had been, together with Maelay Hoyne, candidates at a general election held November 5, 1912, for the position of State’s Attorney—ordered a special venire for special grand jury and allowed the prayer of a petition for the appointment of a special State’s Attorney, and appointed, one John E. Northrup as special State’s Attorney to conduct certain investigations, having special reference to certain alleged frauds and violations of the election law which had been practiced in favor of Maelay Hoyne, the defendant being interested in assisting Maelay Hoyne, wickedly and maliciously published in the newspaper called the Chicago Examiner on June 2, 1913, the defamatory and libelous matter charged in the various counts of the declaration. The theory of the defendant is that the words charged were true and that they were privileged as fair comment and criticism and were published with good motives and for justifiable ends.

■ The cause was tried before a jury. The trial was protracted, and a large volume of evidence introduced. And, considering the exceptional nature of the issue and that the cause is, practically, one of new impression, it is not surprising that it is now contended that at the trial substantial errors were made, especially in ruling upon proffered evidence.

The following contentions—which we shall consider seriatim—are made by the defendant:

(1) That the court erred in permitting- the plaintiff to file the amended declaration, and in sustaining the demurrer to pleas of the statute of limitations to the amended declaration; (2) that the second count of the amended declaration fails to state a cause of action; (3) that the court erred in excluding evidence offered on behalf of the defendant; (4) that the court erred in admitting, over the objection of the defendant, improper testimony on behalf of the plaintiff; (5) that the court erred in instructing the jury.

(1) Did the court err in permitting the plaintiff to file an amended declaration, and in sustaining the demurrer to the pleas of the statute of limitations.to the amended declaration?

At the close of plaintiff’s evidence the defendant moved that the jury be instructed to find the defendant not guilty. The defendant made a similar motion concerning each count of the declaration, basing those motions on an alleged variance between the original declaration and the proof.

Thereupon, counsel for the plaintiff asked leave to file an amended declaration. That was objected to, but allowed by the court, and an amended declaration was filed instanter. Concurrently, leave was given the defendant to plead to the amended declaration and, accordingly, the defendant pleaded—to each of the three counts of the amended declaration—the general issue, the statute of limitations and justification; and, also, in addition, a plea of fair comment to the first and third counts. The plaintiff filed similiters to the pleas of the general issue; replications to the pleas of justification and fair comment; and demurrers to the pleas of the statute of limitations: The demurrers were sustained. We are of the opinion that the court did not err in permitting the amended declaration to be filed.

In the amended declaration there was added, to the words charged in the first count of the original declaration, the following:

“Miss Laura Ebel, probation officer of the Juvenile Protective Association, an observer for many years of court dealings with children, made that statement yesterday and then proceeded to tell why she made it, why her own organization and many other welfare bodies are seeking to protect children against Judge Cooper’s attitude.

“Miss Ebel declared that her own organization had found it necessary to place a private stenographer in Judge Cooper’s court in order that a record might be kept of the many ways in which the court is declared to have favored the defense in such cases.

“Action Held Necessary. The steps taken by the Protective Association in employing a stenographer were without precedent, but it was agreed that they were necessary. Among the prominent men and women who said the stenographer was needed for the sake of a just record were: Mrs. Joseph T. Bowen, Mrs. Charles M. Walker, Mrs. George Dean, Mrs. Harry. Hart, Miss Jane Addams, Professor Allen Hoben, Dean Walter T. Sumner, Father Andrew Spots, Babbi Joseph Stolz, Mrs. Julia C. Lathrop, Judge Harry Olson and Sherman C. Kingsley. All these are executive officials of the Association.”

Counsel for the defendant insist that the words just quoted, which were added to those in the original declaration, are “clearly and distinctly libelous” and “actionable per se unless privileged,” and therefore stated a new cause of action. It will be observed that the first paragraph merely purports to give Miss Ebel as authority for a certain statement and why she and others sought to protect children against Judge Cooper’s attitude. In the second paragraph there is what purports to be a statement by Miss Ebel that a certain organization concluded to place a stenographer in plaintiff’s court in order to keep a record of the cases where he favored the defense. In the last paragraph there is stated the necessity for the employment of a stenographer and that a certain number of people, mentioning them by name, said it was necessary “for the sake of a just record.” Counsel for the defendant have cited and discussed many cases tending, as it is claimed, to show that the addition of the foregoing paragraphs to the first count of the original declaration made out a new cause of action, and as the statute of limitations had run, the demurrer should have been overruled. We are of the opinion, however, that the amended count did not state a new cause of action. When the amendment was made, the text of the words still conformed to the text of the article published. The first count of the amended declaration was still based upon the same article as the original count; it was published by the same defendant about the same plaintiff, and at the same time and in the same newspaper, and an analysis of the additional words discloses that no new and different libelous imputations are set forth. The reading of the words in the first count of the amended declaration would give rise in the mind of the ordinary reader to identically, practically considered, the same ideas and involve the same imputations and charges as the reading of the words set forth in the first count of the amended declaration. Then, too, judgment on the original count would have been res adjudicate/, in a suit based upon the amended count. We are, therefore, of the opinion that the amended first count did not state a new cause of action.

As to the contention that changes and additions were made in the phraseology of the text set forth in the second and third amended counts, we are of the opinion that they are insubstantial and without merit.

(2) Does the second count of the amended declaration fail to state a cause of action1?

It will be observed that facts constituting the trial record of Judge Cooper are not set forth in the partieular text which constitutes the libelous words of the second count; and it follows that any one reading that particular publication would naturally assume that the injurious statements therein made were considered to be sufficiently proven by certain extrinsic facts known to the publisher. It is not as if the article in question had recited what purported to be the trial record of Judge Cooper and had then proceeded, by way of inference and deduction, to make comment thereon, for in such a case the reader of that publication would then be able himself to make inferences and deductions and so determine whether the comment which was actually published was reasonable. In the article in question the reader is merely presented with what, in effect, is a series of dogmatic statements. He is given no opportunity to weigh and balance; he is told bluntly that Judge Cooper is unfit. It may well be said that some of the words and phrases are, technically considered, in the nature of comment upon what is implied in other words in the same publication and that the facts and such comment are so "intermingled that it is difficult to disassociate them- one from the other. In such a case perhaps the best test is to consider what thoughts the reading of those words would naturally give rise to in the mind of the average person.

It is strenuously contended by counsel for the defendant that the trial court should have submitted the article in question to the jury to determine whether it was fair comment and criticism. In Parsons v. Age-Herald Pub. Co., 181 Ala. 439, 61 So. 345, the court said: “Whether the libel complained of may fall within this rule of privilege is a question of law for the court,” etc. Further, in the same opinion, the court said in regard to a certain charge which had been made, “As matter of law, it falls outside of the scope of comment and criticism, as we understand their field of operation,” etc. In Patten v. Harper’s Weekly Corporation, 93 N. Y. Misc. 368, 158 N. Y. S. 70, the court said: “If the charge were true as laid, it would be open to the defense of justification but if asserted to be comment, its appropriateness as such should be dealt with as a question of law.” In Bingham v. Gaynor, 141 N. Y. App. Div. 301, the court said: “Whether the bounds of fair criticism have been exceeded or not is a question of law for the court.”

Applying the foregoing principles, we are of the opinion that the words charged in the second count are, as a matter of law, statements of fact and not comment; and that unless proven to be' true they are actionable; and, further, that the trial court should not have submitted to the jury any part of the article in question to determine whether or not it was fair comment.

(3-4) Did the court err on matters of evidence? That question involves the following: (a) The list of cases identified as defendant’s exhibit 2; (b) What transpired in certain other cases tried before the plaintiff; (c) The rejection of the certified copy of the order in the Morgan case; (d) Sources of information; (e) Evidence rejected tending to prove facts set up in the alleged libels; (f) Evidence of reputation in the trial of sex cases; (g) The proffer of the remainder of the article entitled, Plaintiff’s Exhibit 5-a; (h) The Cooper-Quirk conversation; (i) Subsequent publications.

(a) The defendant complains that the court erred in refusing to admit in evidence a document prepared by one of the Assistant State’s Attorneys and given to the defendant’s reporter prior to the publication complained of. That document purported to be a list of all the sex cases that appeared on Judge Cooper’s call while he sat in the criminal court from September until May, together with notations showing what cases were nolled or stricken off the call, etc., and the final disposition made of them by him. The reporter Griswold testified that he had obtained that list from the Assistant State’s Attorney, and from it checked over the records prior to the publication complained of. That was all the defendant entitled to. The document itself was not admissible for any purpose. It was clearly in the nature of hearsay. It did not tend to prove the plea of justification, nor was it admissible in mitigation of damages. Spolek Denni Hlasatel v. Hoffman, 204 Ill. 532; O’Malley v. Illinois Pub. & Prtg. Co., 194 Ill. App. 544; Stephens v. Commercial-News Co., 164 Ill. App. 6.

(b) The defendant offered to show by the witness, Berger, that there were certain verdicts of guilty and certain new trials granted, and that certain things were done in court at the time certain motions for new trials were discussed. We are of the opinion that the witness should have been allowed to testify as to what transpired in his presence and that of the plaintiff in the court room. Also, as to the Prince and Thompson cases, any and all evidence offered in' regard to what transpired in the trial of those cases was competent as tending to prove justification. It is stated by counsel for the defendant that the trial court apparently excluded such evidence on the ground that these cases were not mentioned in the libels. It is our opinion that in proving justification any overt acts and all conduct on the part of the plaintiff in the trial of sex cases, and any and all evidence submitted before him in such cases was competent.

(c) Exhibit 4 was a certified copy of an order appearing in the record of the Morgan case, wherein the defendant was adjudged guilty of the crime of ^assault with intent to commit rape and sentenced to pay a fine of $5 and no costs. When the defendant offered the certified record in evidence, plaintiff’s objection to it was sustained. In our opinion that was error. The defense of justification may be made out by proof of any facts, whether mentioned or referred to in the publications complained of or not, which go to establish the truth of the statement -alleged to be libelous, the special plea of justification being such as to warrant the admission of the evidence offered.

In the special plea of justification to the second and third counts of the amended declaration, the facts shown- by the record in the Morgan case are specifically pleaded. Until the contrary is established by evidence, we must assume that the facts set forth in that record speak the truth and that they spoke the truth when the defendant’s reporter consulted them. That being the case, the certified copy of the record showing the judgment of the court was admissible under the plea of justification and while it may be said that the facts thus shown would not justify any of the statements complained of, if that were the sole justification offered, it was proper for those facts to be shown, and together with all the other facts in evidence submitted to the jury to determine the issue of justification. Inasmuch as the evidence was admissible on the issue of justification, it does not come within the rule urged by the plaintiff that evidence which does not tend to justify but merely tends to cast suspicion is not admissible in Illinois even in mitigation of damages. (Spolek Denni Hlasatel v. Hoffman, supra.) The exhibit in question was therefore admissible also on the issue of defendant’s good faith and in mitigation of damages. We do not agree with plaintiff’s contention that it was not offered for that purpose. While the witness Griswold was on the stand he was asked by counsel for defendant what he had done, if anything, in reference to the records of the criminal court, after he had received defendant’s exhibit 2 for identification (the list of eases tried before Judge Cooper) and before the publication of June 2. Counsel for plaintiff, in interposing an objection to that question, placed it “on the ground that it is immaterial, irrelevant and incompetent, upon any issue in this case, and that if offered to rebut malice, or in mitigation of damages * * * it is inadmissible on the ground of tending to cast suspicion.” There followed some remarks between' court and counsel on the question thus presented and the court sustained the objection following which counsel for defendant made the offer of proof with reference to the defendant’s exhibit 4 for identification, saying he offered to prove by this witness that prior to the publication of the article of June 2, this witness consulted the records of the criminal court in the case of the People of the State of Illinois v. Thomas Morgan, and- that he found spread of record an order as set forth in defendant’s exhibit 4 for identification, which information he reported to defendant and that it was in the defendant’s possession at the time of the publication of the articles in question. That the offer included reference to the issue of good faith and want of malice on .the defendant’s part, seems to admit of no doubt. It was not necessary that the offer be limited to that issue, as it might have been if it were not admissible on any other issue.

(d) The witness Griswold, for the defendant, testified that before the publication of the article in question he had talked with Mrs. Britton, Miss Ebel, the State’s Attorney and some of his assistants. His testimony to that fact was permitted, but the court refused to allow the witness to testify further as to what any of them told him. That was clearly correct, 'as what was offered was hearsay. The Spolek Denni Hlasatel v. Hoffman, supra; O’Malley v. Illinois Pub. & Prtg. Co., supra. According to these authorities, the conversations themselves were inadmissible upon any theory of the defense. Defendant got all it was entitled to by shoving that the witness had made the investigation before publishing the articles.

(e) As to the evidence which was rejected and which tended to prove the facts set forth in the words charged: In the Smith-0sborne case, two men were prosecuted under an indictment for rape and indecent liberties. They were found guilty of the latter charge. A motion for a new trial'was made, and granted. Witnesses testified that the plaintiff in granting a new trial said that he did so for the reason that the “prosecuting witness’s testimony was not' corroborated.” On the trial of the instant case that testimony was not denied. The defendant offered to prove that a number of witnesses testified in the criminal court case to certain facts which would tend to show corroboration of the prosecuting witness’s testimony. That was properras well as all else'that transpired at the trial.

As to the Loqueroio case, the court sustained objections to questions put to Miss Ebel, relating to the 'substance of the testimony by various witnesses at that trial. The testimony, we are of the opinion, was competent on the ground that it is the evidence of the witness as to what actually transpired.

Counsel for the plaintiff argues that the trial court allowed the defendant to introduce any facts mentioned in any of the libels concerning the Loqueroio case, which was known to Miss Ebel and Mrs. Britton, and that that was all that was competent. We are not of that opinion. As we have said before, the defendant was entitled to be allowed to introduce the testimony of the witness in question concerning anything and everything that transpired in the actual trial of the case. It is our opinion that an offer of any evidence of what transpired in the trial of any sex case was competent. ■

It is claimed by counsel for the plaintiff that in every case where the defendant failed to put in what at least purported to be the substance of all the evidence in any particular sex case the trial judge, on a proper motion, should then exclude all that evidence from consideration by the jury, and contended further that, even all the testimony in any one of such cases, would not be competent. We take it, that is based, in part at least, on the theory that a jury is not entitled to pass upon the fitness or the unfitness of a judge, as a result of their consideration of the quality of his judicial acts in his decision of cases.

And further, it is contended that even where the defendant may have introduced evidence of all of the testimony that was given and all the actual evidence that was admitted in the trial of any one of the sex cases, there yet would be a failure to present to the jury in such a case all that actually transpired at the trial because of the fact that the manner, appearance, accent and all the many effective characteristics of the witnesses were absent. But we are bound to recognize the practical necessities of a trial of this character.

In Robbins v. Treadway, 2 J. J. Marsh. (Ky.) 540, a circuit court judge brought suit for libel. The words complained of charged him with want of capacity; an open abandonment of the common principles of truth and a sale of the appointment of a clerk. The court held that asking witnesses the opinions of persons who were not witnesses, in order to prove incapacity, was error. Also, the court held, on the same subject, that the record of a decision by the plaintiff was not legal evidence. On the subject of abandonment of the common principles of truth and a sale of the appointment of a clerk, the court held that any evidence which would prove, or legally conduce to prove, either of those charges would be admissible.

It may be anomalous that it should ever become necessary, even in a libel suit such as this, to present to a jury of laymen the question of the fitness or unfitness of a judge; but we know of no other method whereby that subject may properly be litigated between the parties. That, then, being the case, we are bound in such a trial as this to apply the ordinary rules of evidence, and at the same time recognize the difficulties which necessarily beset both the plaintiff and the defendant when presenting evidence undertaking to prove the falsity or truth of the alleged libel. If the position of counsel for the plaintiff were correct then a judge might be guilty of flagrant misconduct, violate every law, and yet, if a newspaper published the actual facts and was then sued for libel by that judge, practically, there would be no defense and in such a case thé plaintiff would be entitled to a directed verdict in his favor at the close of his own case. Such, of course, is not the law.

(f) As to the contention of counsel for the defendant that the court erred in refusing to permit the introduction of evidence concerning the reputation of the plaintiff in the trial of sex cases prior to June 2, 1913, the date of the publication of the alleged libelous words: The offer was made to show, by evidence of reputation, as it existed prior to June 2, 1913, that, as a result of the judicial conduct of the plaintiff in the trial of sex cases prior to that time, his reputation as a judge had been impaired. We are of the opinion that the defendant was entitled, in mitigation of damages, to put in evidence tending to show that the reputation of the plaintiff in the trial of sex cases prior to the time in question had been diminished. Such evidence would not be competent on the issue of the truth of the alleged libelous words, but it was competent to show that the publication in question was not the sole cause of the impairment of the reputation of the plaintiff as a judicial officer in the trial of sex cases. If his conduct in the trial of sex cases, prior to the time in question, had injuriously affected his reputation, then it cannot be said that the publication of the alleged libelous words was in any way the cause of that injury. The publication of the" words charged cannot be said to have injured his • reputation as it existed prior to the publication; so that, any evidence of his reputation in sex cases, as it existed prior to June 2, 1913, might tend to mitigate the damages claimed, and should have been admitted. Wigmore on Evidence, vol. 1, see. 73; Earley v. Winn, 129 Wis. 291; Clark v. Brown, 116 Mass. 504. The latter case was an action for slander. The words complained of charged the plaintiff with stealing. It was held that the defendant should have been permitted to introduce evidence that the plaintiff’s general reputation was bad as to thieving. The court said on page 509: “As he is expected to be always ready to defend his general character, so also he should be ready to defend it in reference to that matter wherein he alleges it to have been wrongfully assailed. ’ ’

The evidence was clearly admissible. It is charged in the declaration that “it has gone out, and is supposed, that all criminal defendants who are brought to trial before the plaintiff as judge of the Criminal Court of Cook County, and charged with assaults upon women and children, would stand no chance of conviction” and that the plaintiff “protects the criminal defendants and permits them to go free whenever an assault is committed by them on a woman or a girl,” and that, by reason thereof, he “has fallen into great discredit and disgrace among the citizens of this county * * * and has been brought into notorious and public disgrace in his official acts as such judge,” etc.

(g) The plaintiff introduced exhibit 5a, being the headlines of the article appearing in the left-hand column of the first page of the issue of May 31, 1913, and the defendant offered in evidence the rest of the article, and also offered, in that connection, the box article appearing in the second and third columns on page 4.

Inasmuch as the rest of the article related to the subject-matter of that which was introduced in evidence, being the headlines, it ought to have been admitted. And, as to' the box article, as the words “Hoyne lists prosecutions thwarted by Judge Cooper,” which is part of the headlines, are only explained and evidently intended to be explained by a perusal not only of the article in'the regular text, but of the box article in the next column, it was admissible. The whole of the article was relevant and the box article was made relevant by the meaning of the headlines which the plaintiff put in. That the plaintiff was endeavoring to show malice, when he offered the headlines, does not change the general rule of evidence; that if a part is introduced, the whole becomes competent, providing it deals with the same subject-matter.

(h) As to the Cooper-Quirk conversation; we are of the opinion that it was competent. The conversation took place between Judge Cooper and the Reporter Quirk at the Newbury Hotel where Judge ' Cooper lived. It was clearly admissible, as plaintiff’s version of it tended to support his theory that they were trying to intimidate him and influence him against impaneling a special grand jury, suggesting that, if he did so, they would publish the sex case articles. "We are further of the opinion that the evidence amply justifies the conclusion that Quirk, when he went to interview Judge Cooper, went with authority from the defendant.

(i) The defendant complains of the admission in evidence, over .its objection, of two articles and a cartoon appearing in defendants’ papers published on June 4, 6 and 10, 1913. They were introduced by the plaintiff for the purpose of showing actual malice in the publication of June 2, 1913, which latter is the basis of this suit. An examination of the articles and the cartoon shows that they are, in part at least, a reiteration of the charges made in the articles of June 2, 1913. For the purpose of showing actual malice, aggravating the damages recoverable, they were admissible. Ball v. Evening American Pub. Co., 237 Ill. 592.

As to the objections made to rulings on instructions: It is our opinion that the plaintiff was bound to prove the publication of the words and then, having done that, inasmuch as we are of the opinion that the words are libelous per se, the burden was upon the defendant to introduce evidence to show that they were true, and, that being so, it follows that the defendant was not entitled at the close of the plaintiff ’s evidence to a directed verdict on the ground that the plaintiff had not proven that the words of the libel were false. Inasmuch as the words charged are, in part, statements of fact, and those words are libelous per se, there can be no defense of fair comment and criticism. Since we have held that the defense of fair comment and criticism was not available, it follows that the defendant cannot complain of the giving of instruction 37, as it was more favorable to the defendant than the law warranted. This also applies to the latter part of instruction 27, and, of course, to all other instructions given on the subject of fair comment and criticism. With this exception, we see no substantial objections to instructions numbered 17 and 26, except that each states practically the same principle and one or the other may be considered superfluous. And the same is true of instructions numbered 10 and 16.

The words charged being libelous per se, there is no ground for objection to instruction numbered 48.

Complaint is made as to instruction numbered 35 because it singles out certain words of the first count and tends to unduly emphasize the issue thereon, and, further, that if instruction numbered 35 were given there was error in refusing defendant’s instruction numbered 4.

Instruction numbered 35 which purports to set forth statements of fact which the defendant was bound to prove true in our judgment is not subject to the objection made.

As to instructions numbered 4, 14 and 19, tendered by the defendant and refused by the court, they were obviously improper, for reasons already stated.

As to instruction numbered 13, tendered by the defendant and refused, that instruction is obviously obnoxious, as where the words are libelous per se, exemplary and punitive damages may be allowed even though based only upon implied malice.

For the reasons given the judgment of the circuit court is reversed and the cause remanded for a new trial.

Reversed and remanded.

Mr, Presiding Justice Thomson and Mr. Justice O’Connor concur.

ADDITIONAL OPINION FILED ON PETITION FOR REHEARING.

Mr. Presiding Justice Taylor

delivered the opinion of the court.

The appellee has filed a petition for rehearing in which is argued, inter alia, (1) -the rules applicable as to the admissibility of the evidence, (2) whether the evidence admitted and excluded was sufficient to make out the defense of justification, and (3) the ruling of the trial court upon the admissibility of defendant’s exhibit 4, and the testimony of the witness Griswold.

(1) We have expressed our opinion to the effect that an offer of any evidence of what transpired at the trial of any sex case tried before the plaintiff was competent. By that we mean, of course, that any such material evidence at the time it is offered is competent providing it is the stated purpose of counsel offering it that at least the substance of what transpired in the course of the particular sex ease will be ultimately offered and shown to be material. Of course, the ordinary rule will apply that if the substance of what transpired in the sex case is not, in the end, offered, that, which has already been introduced in that particular case should be stricken out, unless, in and of itself, reasonably considered and having in mind the issue, it has some probative force. The defendant not being able to offer all or the substance of what’ transpired in any sex case all at once, is entitled to offer it in the order which to him seems best. Further, whenever the defendant has concluded the introduction of all or the substance of the evidence in any sex case, and the question arises, upon the motion of counsel for the plaintiff, whether or not that evidence has any tendency whatever to prove the truth of the charges declared upon, it, of course, should be allowed to stand or should be ruled out according to whether or not, in the opinion of the trial judge, it has, considering the issue, any reasonable probative force and at the same time tends to support the theory of the defense.

(2) The plaintiff in his petition for rehearing correctly states that we reversed the judgment in this cause “primarily upon the ground that evidence under the defense of justification was excluded.” And, then he contends that in doing so we failed to consider whether all the evidence, both admitted and excluded, was, together, sufficient to make out that defense;- that even admitting the truth of all the evidence offered and that excluded, it was insufficient to support the defense of justification, and, therefore, the exclusion of certain evidence offered by the defendant on that phase of the case did not injuriously affect it nor constitute material error. In their argument, however, counsel have not pointed out or shown in what particular or in what way that evidence was insufficient to make out a défense. They do argue that it would be no defense, under the plea of justification, that part of the charges made in the libelous article was proved to be true; and that, to be of any avail to the defendant, all the charges must be proved .to be true. When that contention is intelligently considered, however, its unsoundness becomes at once manifest. For example, if a libelous article charged a person with having committed a series of ten crimes, nine of which were serious felonies and the tenth, the commission of a mere misdemeanor, and the publisher of the article was sued, and, under a plea of justification, proved the truth of the nine felonies and was unable to prove the truth of the misdemeanor, in such a case we may readily assume that any damages recoverable would be merely nominal. In support of counsels’ contention they cite the case of Ogren v. Rockford Star Prtg. Co., 288 Ill. 405, in which the court said (p. 412): “The plea of justification must be as broad as the charge and requires certainty of averment. (17 R. C. L. 400.) It should contain no other averments except the matters justified. If one is guilty of publishing the whole of the alleged defamatory matter, he cannot justify by showing that some part of the defamatory matter, though divisible from the rest, was true. (17 R C. L. 4Ó1.) ” When that rule, which, like many similar generalizations, states more than the truth, is not carefully considered it apparently bears out counsels’ contention. It needs, however, the following qualification, that where several separate and distinct matters are charged, the defendant may justify as to one though he fail as to the others. Lampher v. Clark, 149 N. Y. 472. In a note to Rutherford v. Paddock, 180 Mass. 289, appearing in 91 Am. St. Eep. 291, many cases upon this subject are discussed and their result well stated, is as follows: “The general declaration met with so frequently in the decisions, that the justification must be as broad as the charge, tends to mislead by producing the impression that, unless the defendant can prove the truth of all the charges made by him, it is useless, or even dangerous, to prove any. We apprehend that all that is meant by this general declaration, wherever made, is that nothing less than proof of the whole charge made by defendant can entitle him to a verdict. * * * Where, however, the plea is sufficient to warrant the reception of evidence of the partial truth of the charge, it is admissible to mitigate damages.” In the Lampher case, supra, the court said: “The rule of pleading that the justification shall be as broad as the charge does not mean that the answer in justification must be broad enough to embrace every slanderous charge stated in the complaint. When several separate and distinct things are charged, the defendant may justify as to one though he fail as to the others.” In the instant case the libelous articles complained of make certain charges of judicial misconduct against the plaintiff in the trial of sex cases, many of which cases were expressly mentioned. Under these circumstances, if, on the trial, the defendant proves any of the charges to be true, it will have justified, pro tanto, that is, as far as those charges are involved.

(3) Defendant’s exhibit 4 was admissible under the pleas of justification. It referred to the Morgan case, which was particularly pleaded in one of the special pleas of justification. It will not be denied that it would tend to justify defendant’s statements here complained of, if it could be shown, that the plaintiff had imposed a fine of $5 upon a defendant found guilty of the crime of assault with intent to commit rape. If the record of the Morgan case in the office of the clerk of the Criminal Court was to that effect, defendant was entitled to establish that fact and the proper way to do so was by means of a certified copy of the record. Illinois Statutes, ch. 51, see. 13 (J. & A. ft 5530). If, as the plaintiff claims, the existence of this record was due to a mistake of the clerk, which was subsequently corrected to show that the order which the court really did enter was one imposing a fine of $5 upon a finding of simple assault, those facts might properly be shown in rebuttal, but they would not affect the admissibility of defendant’s exhibit 4 at the time it was offered. The records of the court must be presumed to- speak the truth. If this record did speak the truth it was competent and material evidence in support of the pleas of justification. As above stated, if the plaintiff could establish, which he claims he could, that it did not speak the truth, that was a right of which he might avail himself upon rebuttal.

A further reason for the admissibility of this evidence is found in the fact that in support of its' case plaintiff introduced its- exhibit 5a, being the headlines to an article in the Examiner of May 31, 1913. We have held that the balance of that article was admissible in evidence and it was error to exclude it. Within the part of the article which was thus excluded is the following: “A man convicted by a jury of a crime against a woman in Judge Cooper’s court will be found by the record to have been fined $5.00.” It was proper to substantiate that statement by showing what the record was—even though the plaintiff might be able subsequently to show it was erroneous —by means of defendant’s exhibit 4. Furthermore, exhibit 4 having been admitted in evidence, it would be proper for the witness Griswold to testify that he examined the record of this case in the Criminal Court previous to the publications complained of and that he found the record as set forth in the exhibit referred to.

Rehearing denied.


source: Caselaw Access Project

author: Mr. Justice Taylor

license: Public Domain

text:
    Joseph Stein, Plaintiff in Error, v. John E. Traeger, Sheriff, and Edward R. Litzinger, Defendant in Error.
    Gen. No. 24,870.
    1. Dismissal, nonsuit and discontinuance, § 2

      —when court may dismiss. Where there is no issue joined, there is no contest, and all the court can do in the way of a final act is to dismiss the proceedings.
    2. Judsment, § 286*—when judgment will not he set aside. Where an issue is precipitated by the pleadings in a cause, it is ready for actual trial and is reached for trial on the regular call of the calendar and there is no default, the personal absence of plaintiff when the case is reached for trial in its regular course is no ground for setting aside the- judgment rendered therein.
    3. Replevin, § 153*rr-when judgment for damages may he enteredWhén an action of replevin, which is at issue, is reached on the regular call of the calendar and defendant’s plea prays a return of the goods together with his damages, even though plaintiff is personally absent when the case comes to trial, judgment may, under Rev. St. ch. 119, sec. 22 (J. & A. jf 9207), be entered for defendant for the damages to which the evidence shows him entitled by reason of the wrongful taking of the property.
    4. Appeal and errob, § 788*—when hill of exceptions is necessary. Where, in an action of replevin, plaintiff’s affidavit for replevin and his declaration state that a certain defendant wrongfully took and detained the goods and such defendant denies the allegations and alleges ownership of the goods in himself, to which plea plaintiff files a replication concluding to the country, and the case tried by a jury and a verdict is found for defendant and a judgment entered thereon, such judgment will not be disturbed by the Appellate Court in the absence of a bill of exceptions, on the contention that such defendant was not a necessary party and judgment could not be rendered in his favor.
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed April 21, 1920.
    Rehearing denied May 4, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    John A. Bloomingston, for plaintiff in error.
    Litzinger, Healy & Reid, for defendant in error; James J. Finn, 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.

On July 15, 1916, the plaintiff, Joseph Stein, filed an affidavit for replevin in the circuit court claiming that he was the owner of and entitled to the possession of certain metal, machinery and merchandise of the value $3,000. On the same day a writ of replevin was duly issued out of the circuit court and on July 20, 1916, a declaration was filed alleging, among other things, that the defendants, John E. Traeger, as sheriff of Cook county, and Edward R. Litzinger, on July 15, 1916, took and unjustly detained the property in question. On July 24, 1916 (sic), the plaintiff filed a replevin bond in the sum of $6,000. On August 22, 1916, defendant Litzinger pleaded that he did not take the goods in the manner charged; that he did not wrongfully detain them and that they were not the property of the plaintiff but belonged to him. On August 23, 1916, the defendant John E. Traeger pleaded that he did not take the goods mentioned in the manner charged; that he did not wrongfully detain them in the manner charged but took them pursuant to a writ of replevin issued out of the circuit court in the case of Litzinger v. Ellguth et al. On November 8, 1916, the plaintiff, as to the first and second pleas, filed a similiter, and, as to the third plea, set up that the property belonged to him. On May 25, 1918, B. M. Shaffner, the attorney 'of record for the plaintiff, served notice on the plaintiff and the attorneys for the defendant that at 10:00 o’clock May 27, 1918, before Judge Walker, he would withdraw his appearance for the plaintiff. That notice recites that a copy of it was served upon the plaintiff by being mailed to his address on May 24, 1918. On May 27, 1918, an order was entered as follows: “On motion of B. M. Shaffner, Esq., it is ordered that leave be and the same is hereby given him to withdraw his appearance as attorney for the plaintiff. ’ ’

On June 10, 1918, the following order was entered:

“This cause being called for trial ex parte and the plaintiff failing to prosecute his suit in this behalf, it is ordered by the court that this suit be and the same is hereby dismissed as to the defendant, John E. Traeger, without costs.

“Thereupon comes the defendant, Edward B. Litzinger, by his attorney and issues being joined herein, it is ordered that a jury come, whereupon come the jurors * * * who being duly elected, tried and sworn well and truly to try the issues joined herein and a true verdict render according to the evidence, after hearing all the evidence adduced say: We, the jury, find the defendant, Edward B. Litzinger, not guilty and that the right to the possession of the property in question is in the defendant and assess the defendant’s damages for the detention thereof at the sum of $23,000,” etc.

That order further provided that the defendant Litzinger recover from the plaintiff the property replevied and have and recover from the plaintiff damages in the sum of $23,000 for the detention of the property, together with his costs and charges, and that a writ of “retorno habendo (sic) issue for the return of the property.” On June 11, 1918, the attorneys for the defendants were notified through a notice signed by the plaintiff and B. M. Shaffner, attorney for the plaintiff, that at 10:00 o’clock June 12, 1918, before Judge Walker, “I shall move to set aside and vacate the judgment and verdict entered herein on June 10, 1918.” On June 14, 1918, a written motion was filed in the office of the clerk of the court on behalf of the plaintiff by B. M. Shaffner, his attorney. It recited that he again entered his appearance for the plaintiff “and moves the court to set aside and vacate the judgment and verdict rendered herein on June 10, 1918, and for the following reasons:

“1. The court was without jurisdiction in the absence of the plaintiff, to try said cause on the merits.

“2. The court had no right or authority in the absence of the plaintiff to call a jury for the assessment of any damages herein.

“3. Because the court should have dismissed said suit in the absence of the plaintiff and when said cause was called for trial for want of prosecution and order a retorno habendo.

“4. The court had no right or authority in the absence of the plaintiff to dismiss said suit as to the defendant, John E. Traeger, as sheriff, as aforesaid.”

On June 15, 1918, on motion of B. M. Shaffner, it was ordered that leave be given him to enter his appearance as attorney for the plaintiff. On June 19, 1918, an affidavit signed'by the plaintiff was filed. That affidavit recited, among other things, that the plaintiff’s action was a meritorious one; that on June 27, 1916, Ellguth and Yosburgh, officers of the Mutual Electric Company, assigned to Joseph Stein all their interests in the assets of the Mutual Electric Company, in trust, to convert a certain portion of the assets into cash and pay certain obligations and then turn over by assignment all the machinery, etc., remaining to Yosburgh; that the plaintiff acting under the authority of that assignment on July 15, 1916, began the present action of replevin and obtained the property therein replevied; that the market value of that property was not over $2,500; that that property was obtained by replevin from Sheriff Traeger; that at the time of that replevin the sheriff had possession of the property by reason of a certain.other replevin suit brought by Litzinger against Ellguth, Thompson and Vosburgh; that at the time the coroner replevied said property in the present suit the sheriff was in possession by reason of his suit brought by Litzinger in the superior court of Cook county, No. 323,477; that the property described in the affidavit of replevin in the latter suit is identical with that replevied by the coroner.

The affidavit further recites that B. M. Shaffner advised him, the plaintiff, that the present replevin suit upon being reached for trial had better be dismissed and that in the absence of the plaintiff the same would be dismissed; that it could not be tried.in his absence; that, upon the dismissal and an order of retorno habendo, he could either surrender the property or be sued on the replevin bond and that in the latter case the same issues would arise as in the instant case.

On June 19,1918, an affidavit signed by B. M. Shaffner was filed with the clerk of the circuit court. That affidavit recites that, owing to the discovery that Ellguth, a material witness for the plaintiff, would not testify for him, he informed the plaintiff that the replevin suit had better be dismissed and then try out the. same issues in his suit upon the replevin bond, and, further, told the plaintiff that it would be better that the replevin suit be dismissed “and that when said latter suit would be reached for trial the plaintiff would have ample time to procure evidence to prove that said property belonged to said Mutual Electric Company.” -

On June 19,'1918, the following order was entered;

“On motion of B. M. Shaffner, Esquire, it is ordered that leave be and the same is hereby given him to file the affidavits of B. M. Shaffner and Joseph Stein.

“Thereupon this cause coming on to.be heard upon the plaintiff’s motion to set aside and vacate the judgment heretofore entered herein on June 10th' A. ¡D. 1918. After arguments of counsel and due deliberation by the court it is ordered that said motion be overruled and denied and the judgment heretofore rendered herein on June 10th, A. D. 1918, is to stand in full force and effect to which ruling of the Court the plaintiff here and now duly accepts.”

From that order and the judgment of June 10,1918, a writ of error was prosecuted. On January 17, 1919, on motion of the defendant, the affidavits of Stein and Shaffner were stricken from the common-law record, but not from the bill of exceptions. The bill of exceptions was allowed to stand. It remained in toto, and counsel for the plaintiff is in error, in stating that it was in any part stricken.

It is contended (1) that there was no notice to the plaintiff of an inquisition of damages; (2) that the plaintiff having failed to appear, judgment should have been given as in case of nonsuit, and (3) that the defendant Litzinger was not a proper party defendant and on the face of the record not entitled to judgment.

We shall consider the question of the inquisition of damages and whether judgment should have been given as in case of a nonsuit, together. It is admitted in the brief of counsel for the plaintiff that the cause was reached for trial in its regular course, but it is claimed that, as the plaintiff was not present, the cause should have been dismissed for want of prosecution or judgment entered as in case of a nonsuit. Of course, where there is no issue joined there is no contest and all the court can do in the way of a final act is to dismiss the proceedings. People v. Reuter, 88 Ill. App. 588. In the instant case, however, the cause was at issue and was reached for trial on the regular call of the calendar. There was no default. An issue was precipitated by the pleadings and everything was ready for an actual trial. The personal absence of the plaintiff at the time when his case was reached for trial in its regular course; is no ground for setting aside the judgment of the court. Many cases have been cited by counsel for the plaintiff, beginning with Peck v. Hubbard, 4 Ill. App. 566, but it will be found upon examination of them that either the cause was not at issue or was not reached upon- the regular trial call, or both. The Replevin Statute (sec. 22, ch. 119, J. & A. U 9207) provides: “If the plaintiff in his action of replevin fails to prosecute his suit with effect * * * judgment shall be given for a return of the property and damages for the use thereof from the time it was taken until a return thereof shall be made,” etc. In the instant case, the plaintiff was not present when it came up on the regular call of the docket and, of course, no motion for a nonsuit was made and, under the circumstances, having, in the language of the statute, failed to prosecute his suit with effect, and a trial having then taken place, upon issue joined, and an appropriate judgment entered, we are not, under the law, entitled to reverse it. Inasmuch as the cause was at issue, that it came up for a hearing upon the regular call of the docket, that the issues precipitated by the pleadings were tried by a jury, that a verdict was rendered and a judgment duly entered thereon in the regular course of judicial procedure, it must stand. It is argued by counsel for the plaintiff that if a trial actually took place it could only be concerning the issue made by the plaintiff’s declaration and the defendant’s plea and that it was-error to assess damages on a motion of the defendant, to which motion the plaintiff neither answered nor appeared. The plea of the defendant Litzinger, however, contains the following: “And he also prays a return of the said goods and chattels, together with his damages and costs in this behalf, according to the form of the statute in such case made and provided, to be adjudged him, etc.,” and, to that plea, the plaintiff filed a replication, thus putting in issue the question of statutory damages. It follows, therefore, that according to the pleadings and pursuant to the statute, it was entirely proper that the subject of damages should be considered and judgment entered for whatever damages the evidence showed the defendant had suffered by reason of the wrongful taking of the property.

(3) Was the defendant Litzinger a necessary or a proper party and could judgment properly be rendered in his favor? In the plaintiff’s affidavit for replevin and in his declaration it is stated that Litzinger wrongfully took and wrongfully detained the goods and chattels therein described. Those allegations the defendant Litzinger denied but alleged ownership of the property in himself. To Litzinger’s plea the plaintiff filed a replication concluding to the country. ■ That made an issue of fact and having been tried by a' jury and a verdict rendered in favor of Litzinger and judgment entered thereon we are not now entitled to disturb it. The question of ownership having been made an issue and decided in favor of Litzinger, we are not now able to say, in the absence of a bill of exceptions showing the evidence heard at the trial, that any error was committed at the time of the trial. The sheriff had been dismissed out of the suit and therefore made no claim to the property.

. Finding no error in the record the judgment is affirmed.

Affirmed.

Mr. Presiding Justice Thomson and Mr. Justice O’Connor concur.


text:
    Republic Metalware Company, Plaintiff in Error, v. Fred J. Smith, trading as J. Smith & Company, Defendant in Error.
    Gen. No. 24,915.
    1. Payment, § 9

      —when failure to present check constitutes payment. Failure to present a check within a reasonable time which causes loss to the maker constitutes payment pro tanto.

    2. Payment, § 9*—when check is not presented within reasonable time. In an action to recover for goods sold defendant for which defendant had given plaintiff its check, such check having been protested, however, on account of the suspension of the bank on which it was drawn, evidence examined and held to support a finding that the plaintiff failed to present the check for payment in a reasonable time.
    Error to the Municipal Court of Chicago; the Hon. Samuel H. Tbtjde, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed April 21, 1920.
    Bryan, McCormick & Wilber, for plaintiff in error; Howard H. McCormick, of counsel.
    J. H. Perkinson, for defendant in error.

      gee Illinois Notes Digest, Vole, XI to XV, and Cumulativ© Quarterly,, s topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.

The plaintiff brought suit for goods, wares and merchandise sold and delivered to the defendant prior to June 25, 1917, for which the defendant had given it a check for $253.62 drawn on Graham & Sons, bankers, at 659 West Madison street, Chicago. The check had been protested. There was a trial and judgment for the defendant.

It is the claim of the plaintiff that although he used due diligence in presenting the check for payment, it was protested, the bank having suspended. The evidence shows that the defendant bought the merchandise from the plaintiff in Chicago, and on June 25, 1917, made out the check in question, drawn on Graham & Sons, bankers, 659 West Madison street, Chicago, and at half past nine on that day mailed it in Chicago to the plaintiff directed to its office, 532 Wabash avenue, Chicago, Illinois, and that the check, on being received at the Chicago office of the plaintiff, was immediately mailed by it to the head office at Buffalo, New York; that, when received at the head office in Buffalo, it was then promptly deposited in a bank there and sent in the usual course of business to Chicago for collection. Further, that the check was received in the Chicago office on June 27, 1917, and was deposited in the bank in Buffalo on June 28, 1917. Graham & Sons failed in the afternoon of June 29, 1917, and later, on the same day, the check was presented, protested and sent hack to the Buffalo office unpaid.

It is in evidence that the invoice sent to the plaintiff contained the notation, “Please make all remittances to the Republic Metalware Co., Buffalo, N. Y.” On July 14,1917, the defendant, in answer to a letter from the plaintiff, wrote as follows:

“We received word from your office here that our check of 25th June had been stopped. The amount of the check $253.62. The Bank ‘Graham & Sons’ has been closed down and we will not receive any of our money (all of which was deposited at this bank) till Aug. 20, 1917, so you will kindly hold the check as we have no money on hand just now.”

The defendant filed a claim for his account in the bankruptcy proceedings of Graham & Sons Bank, but has been paid nothing. In that claim, he did not include the amount of the check.

On May 4, 1917, he had borrowed $2,500 from the latter hank and given his note therefor, and, also, on May 7, 1917, he had borrowed $1,000 and given his note therefor. After the failure of the bank he was notified by the Continental & Commercial Bank that they owned the two notes, and he then paid them. However, at the time the check was drawn and up to the time the bank failed, the defendant had more than enough on deposit or to his credit to pay the check.

The defendant testified that he had never read the printed matter on the invoice, and that on former occasions he had sent his checks to the Chicago office.

The evidence, also, shows that the plaintiff had a Chicago office at 1522 Wabash avenue; that one Edmunton officed there and had charge of the credits for the Chicago territory; that the Chicago office employs about thirty people; that all Chicago books of account were kept at Buffalo, New York; that the Chicago office does not deposit checks. Edmunton testified that when the bookkeeping department was moved east several years ago he was instructed to send all checks to the home office, and that since then that has always been done. To that evidence the defendant objected but the record shows no ruling thereon. Edmunton further testified that when the check was received at the Chicago office he immediately mailed it to Buffalo; that the plaintiff did keep in Chicago a trustee’s account at the Com Exchange National Bank; that the trustee of that fund used it to pay, every week, the salaries of the employees at. the Chicago office, also, to pay incidentals, such as car fare; that that account amounted to $1,200 and was replenished weekly by a check for that amount from the Buffalo office; that' all cash received from payments at Chicago is deposited in the Chicago account at the Corn Exchange National Bank. One Schaumloeffel, chief accountant of the plaintiff at Buffalo, testified that the “Chicago office” had no authority to indorse or deposit checks. The evidence shows that the defendant on three prior occasions ir year 1917, after purchasing merchandise of the plaintiff, had, in each instance, mailed checks, for the respective amounts, to the Chicago office of the plaintiff, and those checks had then been sent on by the plaintiff’s Chicago office to Buffalo, and by the Buffalo office deposited and collected through the regular banking channels. The plaintiff has but two branch offices, one at Chicago and one at New York City. The evidence is that the Chicago office “is simply a sales office and also a warehouse for supplying of goods.”

The cause was tried without a jury and judgment given for the defendant.

It is the law that a failure to present a check within a reasonable time which causes loss to the maker constitutes payment pro tanto. Brown v. Schintz, 202 Ill. 509. Here, the purchase of the merchandise was made by the defendant from the plaintiff in Chicago, and there is no evidence that at the time of the contract of purchase anything was said as to where payment should be made. Plaintiff had an office in Chicago at 1522 Wabash avenue. At that office one Edmunton had charge of the correspondence of the Chicago territory. In that office were employed about thirty people. Further, the plaintiff kept in Chicago a trustees’ account in the Com Exchange National Bank and out of that account paid each week the salaries of the employees of the Chicago office and also incidental expenses such as car fare. That account amounted to $1,200 a week and was replenished from time to time from the Buffalo office. In that account all cash received in Chicago was deposited. The question arises whether under these circumstances it was reasonable for the plaintiff after receiving the check from the defendant to send it to the Buffalo office and put it through the clearing house there and have it returned to Chicago for collection, taking in-all four days, to do that which the defendant knew might be done in one or two days at most? Under the circumstances we are of the opinion that the check was not presented for payment within a reasonable time. The instant case is distinguishable from Balkwill v. Bridgeport Wood Finishing Co., 62 Ill. App. 663. In the latter, the court intimated that the drawer of the check knew he was dealing with a foreign corporation “and about what time would be needed to get the checks to the bank.” And, further, that he could not charge the recipient of the check “with negligence in pursuing a course of business to which, under the evidence, it must be presumed that they (meaning the drawer) assented.” That situation does not exist here. The evidence in the instant case shows that the defendant on three prior occasions in the same year had paid for purchases of merchandise by mailing checks to the Chicago office of the plaintiff. It is true that these checks had in every instance been sent by the plaintiff to the Buffalo office but there is no evidence that the defendant was cognizant of that fact. We are of the opinion that as the failure of the plaintiff to present the check for payment within a reasonable time resulted in a loss to the maker of the check, it constituted a payment of the debt for which the check was drawn. As no argument is made concerning the letter of July 14, 1917, we refrain from discussing the point therein involved.

Finding no error in the record the judgment is affirmed.

Affirmed.

Mr. Presiding Justice Thomson and Mr. Justice O’Connor concur. .


text:
    J. M. Sloss, Appellant, v. Fred J. Lobell, Appellee.
    Gen. No. 24,949.
    1. Limitation of actions, § 91

      —when payment by wife does not toll statute. A payment by a wife on an account owing by the husband does not stop the running of the statute of limitations.
    2. Limitation of actions, § 79*—what is effect of demands for payment. The fact that a creditor mails statements of his account to the debtor with his address on them so that they will be returned to him if not delivered to the debtor does not affect the running of the statute of limitations.
    Appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed April 21, 1920.
    Isadore S. Blumehthal, for appellant.
    No appearance for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

On June 14, 1918, the plaintiff brought suit against the defendant for $161.89 for groceries and meats sold arid delivered to the defendant, and upon an account stated between the above parties as of to-wit: “January 1st, 1918, amounting to $161.89.” Summons was duly issued against the defendant and on the 17th day of June, 1918, returned “Not found.” On July 29, 1918, plaintiff filed an affidavit for attachment in aid and on July 29, filed an attachment bond in the sum of $350.00. On the same day a writ of attachment in aid was issued against the Kenwood Trust & Savings Bank and the State Bank of Chicago, both of whom were subsequently served. The answer of the State Bank of Chicago was to the effect that at the time of service it had $491.43 credited to the defendant’s account. The Kenwood Trust & Savings Bank answered that at the time of the service of the writ it had in its possession due the defendant $161.89.” On August 23, 1918, the defendant entered his appearance and on September 9, 1918, filed an affidavit of merits “that said amount, is more than five years old and is therefore barred by the statute of limitations.”

The evidence of the plaintiff is to the effect that H. Regensburg & Company assigned the account to him for a valuable consideration; that he went to the residence and also to the office of the defendant and was unable to find him; that he was told the defendant had a residence at White Lake, Michigan; that he wrote him a great many letters requesting payment; that he also mailed him statements of the account; that he sent him by mail return envelopes with proper postage thereon and inclosed a duplicate statement of the account; that although the return address of the plaintiff was on the outside of the envelope none of' the original letters was returned to him.

The evidence of the witness Blumenthal is to the effect that he wrote several letters to the defendant to his Chicago address. Further, the plaintiff testified that “In April or May of 1915,1 received twenty-five dollars ($25.00) from, Mrs. Lobell when I called at her home”; that that amount was credited on the statement of Mr. Lobell; that the balance, due after allowing the last credit was $161.89.

The trial judge, being of the opinion that a payment by Mrs. Lobell did not revive the account, entered judgment for the defendant.

The only substantial question in the case is whether the debt was barred by the statute of limitations. Of course, the efforts on the part of the plaintiff in sending statements of the account with his address on them so they would be returned to him if not delivered to the defendant is of no legal importance and in no way tolls the statute.

Did the payment of $25 on account by Mrs. Lobell in April or May, 1915, stop the running of the statute? The suit is only against the hnsband and the only claim is that he is the debtor. Certainly, it would be anomalous if this act of a third person, even though his wife, and done without his knowledge or sanction, could in any way affect the running of the statute of limitations.

It seems to be the settled law in this State that a payment of part of a debt by a joint debtor, after the running of the statute of limitations, will not revive the' debt as to the other. Kallenbach v. Dickinson, 100 Ill. 427. In this State husband and wife have been made as near as possible independent of each other as regards all property rights. Section 5, ch. 68, Hurd’s Statutes (J. & A. 6142). In Lewis v. Lynch, 61 Ill. App. 476, which was a suit against a wife for goods bought and which by virtue of the statute were a family expense, the court said: “We think that under the laws of this State a debt like the one -in question could not be revived after the running of the statute of limitations by either party, without the consent of the other. * * * After the debt is contracted, in our opinion the agency of either the husband or wife ceases to make any contract concerning the debt to bind the other. It is like any other joint liability of a joint debtor.” Kallenbach v. Dickinson, 100 Ill. 427; Staver Carriage Co. v. Beaudry, 138 Ill. App. 147.

Finding no error in the record the judgment is affirmed.

Affirmed.

Mr. Presiding Justice; Thomson and Mr, Justicb O’Connor concur.


text:
    John B. Dandridge, for use of Albert J. W. Appell, Appellee, v. Northern Trust Company, Appellant.
    Gen. No. 25,068.
    1. Appeal and error, § 828

      —what need not be included in bill of exceptions. Where it appears thai the garnishment proceedings are a part of the cause as that in which the original judgment was entered and the trial court takes judicial notice of all that transpired in the cause, it is unnecessary to have the judgment and execution and return offered in evidence, and thereafter, on appeal or writ of error, made a part of the bill of exceptions, but it is sufficient if they appear in the common-law record.
    2. Evidence, § 4*—when court will take judicial notice of garnishment proceedings. On garnishment proceedings which are a part of the same cause as that in which the original, judgment was obtained, the trial court should take judicial notice of all that transpired in the cause.
    3. Garnishment, § 126*—what evidence as to ownership is admissible. On garnishment proceedings, evidence of the debtor, the nominal plaintiff, on behalf of the garnishee to show that the fund which it is sought to reach does not belong to him personally but as attorney, should be admitted.
    4. Garnishment, § 63*—when garnishee must state manner of holding fund. It is the garnishee’s duty to inform the court in just what way it holds the fund sought to be reached, particularly if it has knowledge that the fund is not the property of the debtor but belongs to others.
    Appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed and remanded.
    Opinion filed April 21, 1920.
    Charles M. Haft, for appellant.
    W. S. Johnson, for appellee.

      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.

On September 5, 1918, Albert J. W. Appell filed an affidavit in the municipal court reciting that a judgment had been rendered by said court in his favor and against John B. Dandridge for the sum of $552.37 and certain costs, and an execution had been issued thereon and returned “No property found”; that the affiant had reason to believe that the Northern Trust Company was indebted to the defendant, Dandridge, and had effects and estate of his in its possession. On the same day a garnishee summons was duly issued against, and on September 6, 1918, served, upon the Northern Trust Company, to answer as to what property it had in its hands belonging to John B. Dandridge.

On September 9, 1918, the Northern Trust Company, garnishee, answered that at the time of the service it had not in its possession any property belonging to J. B. Dandridge, but. that it had in its possession at the time of service and now has “the sum of thirty-four dollars and twenty-six cents ($34.26) to the credit of ‘John B. Dandridge, Atty.,’ and that said John B. Dandridge claims that said sum is held by bim in trust and is not his individual property.”

- At the trial which was had by the court without a jury, counsel for the Northern Trust Company, garnishee, asked that it be allowed to put Dandridge on the stand on behalf of the garnishee. That request being refused, counsel then offered to prove that, at the time of the service of the garnishee process, the Northern Trust Company had not, and has not had since, any money in its hands belonging to Dandridge; that the latter in his business as an attorney received and deposited in the Northern Trust Company certain money belonging to certain clients; that none of his own money was deposited in that account; that said account was not used by him as his individual account or for any of his personal uses but solely to carry funds belonging to clients and for that purpose alone. That offer of evidence was by the trial judge refused.

It is recited in the record that the court before making its finding took judicial notice of the judgment theretofore entered on January 28, 1918, in favor of Appell and against Dandridge, the defendant, for the sum of $552.37.

At the close of the evidence, counsel for the Northern Trust Company presented five propositions of law to be held. The court refused them all but one; and on September 1, 1918, entered judgment against the garnishee in the sum of $34.26.

It is claimecj on behalf of the garnishee that it does not appear in the record that an execution was ever issued and returned, nulla bona, before the garnishment, and, further, that the evidence offered on behalf of the garnishee concerning funds in the hands of the garnishee should have been admitted.

Garnishment proceedings are statutory; and it is a condition precedent to garnishment that there shall be a judgment, issuance of an execution, and a return “No property found.”

Where it appears, as it does here, that the garnishment proceedings are part and parcel of the same cause as that in which the original judgment was obtained—the original and garnishment proceedings bear the same general number—and the trial court takes, as it should, judicial notice of all that has transpired in the cause, we are of the opinion that it then becomes unnecessary to have the judgment and execution and return offered in evidence, and thereafter, on appeal or writ of error, made a part of the bill of exceptions. We are of the opinion that it is sufficient if they appear in the common-law record as they do here. In Sheehan v. Union Stock Yard & Transit Co., 172 Ill. App. 528, it does not appear that the proceedings in which the judgment was obtained and those begun in garnishment were one and the same cause.

As to the admission of the evidence offered on behalf of the garnishee: The offer was to prove by Dandridge, the nominal plaintiff, on behalf of the garnishee, the Northern Trust Company, that neither at the time of the service of process nor since then did the Northern Trust Company have any money in its hands belonging personally to Dandridge. We are of the opinion that the garnishee should have been allowed the right to offer evidence on that subject. That Dandridge was named as the judgment debtor could, of course, make no difference, and it was the duty of the garnishee to inform the court in just what way it held the fund which it described in its answer. If it had knowledge that Dandridge claimed that that particular sum was trust property and not individual property, it was particularly important that the truth should be known in order that that fund might not through error be taken to pay a personal debt of Dandridge when, in fact, it was the rightful property of other persons. Gorham v. Massillon Iron & Steel Co., 209 Ill. App. 606; Greenwich Ins. Co. v. Columbia Mfg. Co., 73 Ill. App. 560.

Owing to the errors mentioned, the judgment is reversed and the cause remanded.

Reversed and remanded.

Mr. Presiding Justice Thomson and Mr. Justice O’Connor concur.