text:
    Adam Vangundy v. Jennie Berkenmeyer.
    Mistake nr lew — Damages.—Where appellant, who was seeking to collect a just debt, by mistake levied upon two trunks belonging to his debtor’s wife, and there was no evidence which would warrant the jury in finding malice, oppression or wantonness in the conduct of appellant, and the evidence showed the actual damage to the debtor’s wife to be $19.50( and the jury brought in a verdict for $170, held, that the damages were excessive. This was no case for punitive damages.
    Error to the Circuit Court of Scott county; the Hon. C. Epler, Judge, presiding.
    Opinion filed February 25, 1886.
    George Berkenmeyer had been running the Pacific House at Bluffs, Scott county, Illinois, as the tenant of Adam Vangundy. He gave up possession of the hotel, and stored his goods taken from the hotel with one Arundel, a justice of the peace. Two trunks were taken to another hotel called the Commercial House. Adam Yangundy began an attachment suit for rent due him for the Pacific House, against George Berkenmeyer, before Justice Arundel, on March 6th, and Miley, the town constable, levied said attachment on the goods st >red at Arundel’s and on the two trunks. The goods were not removed from where they had been stored, but the constable simply indorsed the levy. The two trunks were taken by the officer from the Commercial House, and placed in the office or sleeping room of his livery stable.
    Jennie Berkenmeyer, the wife of George Berkenmeyer, claimed the goods as her property, and on Sunday, March 9th, the two trunks were given up to her, and on March 12th the other goods were released from the levy because claimed by her, and the attachment was dismissed.
    Jennie Berkenmeyer then began this suit for wrongful levy on her personal property. The evidence shows actual damages of $19.50, not objected to on the part of plaintiff in error. Ho other damage was-shown. The jury gave a verdict for $170.
    Mr. Wm. H. Barnes and Mr. Chas. A. Barnes, for plaintiff in error.
    Mr. James A. Warren and Messrs. Brown & Kirby, for defendant in error.
   Conger, J.

We feel compelled to reverse this judgment on the ground that the damages found by the jury are excessive. After a careful consideration of the evidence, we are unable to find anything which would warrant the jury in finding malice, oppression or wantonness in the conduct of appellant. There were some trifling things of Berkenmeyer’s in the box mingled with those of appellee upon which a levy could be rightfully made.

He was seeking to collect a just debt, and for a mistake in seizing property that did not belong to his debtor, under tlie .circumstances shown by tho evidence, he should not he held liable for punitive damages. The just demands of appellee, we think, are fully met when she recovers all actual damage she sustained by the levy; but to permit a jury to go beyond that, and punish appellant with about one hundred and fifty dollars smart money, is to make the law an instrument of revenge instead of a dispenser of justice.

Although no objection was made to the evidence of defendant in error in reference to amounts paid out for attorney’s fee and railroad fare, we arc inclined to think those amounts not proper subjects for the assessment of damages, in a ease where punitive or vindictive damages are not proper. We have commented at length upon this subject in the case of Jones v. The People, for use, etc., decided at the present term.

The judgment will he reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Congeb, J.

license: Public Domain

text:
    Citizens Gaslight and Heating Co. v. Nora O’Brien, Adm’x, etc.
    1. Expert testimony. — A witness is not incompetent to testify as an expert by reason of the fact that his special knowledge of the particular subject of inquiry has not been derived from experience or actual observation but from the reading and study of standard authorities.
    2. Instructions. — It was not. error in this case for the court to refuse a large number of appellant’s forty-two instructions. A few plain statements of the law governing .the case would suffice.
    3. Same. — An instruction which in substance tells the jury that if deceased did or refused to do certain specified things it was negligence, is erroneous, invading as it does the province of the jury.
    Appeal from the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding.
    Opinion filed February 25, 1886.
    Messrs. Kerrick, Lucas & Spencer, for appellant.

      Mr. John T. Lillard, for appellee.
   Congeb, J.

This case was formerly before this court and is reported in 15 Bradwell, 400, where a general statement of the facts necessary to an understanding of the controversy will be found, and we shall only allude to the points made in the present record urged upon our attention as ground for reversal, and for convenience will notice them in the order presented in appellant’s brief.

It is insisted that the court admitted improper testimony, first, in permitting the witness Clark to testify that a certain stack or escape pipe, as shown on a plan in evidence, was not in place at the time of the accident. This was proper to sustain the second count of the declaration, which charged there was no suitable stack or ventilating flue to convey poisonous gases out of the building, and also to correct any misapprehension in the jury arising from the plan or diagram in evidence, which represented such stack or pipe at the place inquired about. But aside from these reasons, any evidence tending to show the true condition of the building and machinery at the time of the accident would be admissible.

Objection is made to the following question to Dr. Mason and his answer thereto.

Q. If you have had any experience with this kind of gas, tell what it is.

A. The gas that comes from a hard coal burner, as I have observed in sitting around in a room where this gas is eliminated, and there is no other evidence of any other gas, it pro? duces stupor and languor, of which after thorough ventilation and a reasonable length of time for a purifying of the air, you will be relieved; those are the effects I have had in my own experience.

While the answer is objectionable, we are unable to see how it could have injured appellant, for, in the language of appellant’s counsel: “ Ordinary men know just as well as the witness that if the product of burning coal or any other substance escapes into an unventilated room, languor and stupor and other disagreeable effects will be produced upon the occupants.”

In other words it simply stated a proposition admitted to he true by all parties to the controversy, not questioned or denied, and therefore could have done no harm.

It is next insisted that Professor Seymour was not qualified to testify as an expert, because his knowledge of the effect upon a human being of breathing poisonous gases had not been gained by actual experience and observation.

He was a teacher of natural sciences in the Normal University; had been investigating and teaching the science of chemistry for eighteen years; had lately made it a specialty and had had occasion in the study and teaching of that science to investigate the gases produced by the combustion of hard coal.

Under these circumstances we think he was qualified to testify as an expert.

“A witness is not incompetent to testify as an expert by reason of the fact that his special knowledge of the particular subject of inquiry has not been derived from experience or actual observation, but from the reading and study of standard authorities.” Rogers’ Expert Testimony, Sec. 20.

It is also urged that the court erred in refusing to allow appellant to show that the gas-making apparatus was at the time of the accident under the control of Granger & Co., and had not been turned over by them to appellant.

This evidence was given to the jury. Although an objection was sustained, the record fails to show it was excluded from their consideration, and we are left to presume that, notwithstanding the remarks of the court, the jury remained in possession of such fact.

But we think the evidence was not proper. Its purpose, as claimed by appellant, was to relieve its superintendent, Burns, from the duty of knowing whether the gene:ator or furnace doors were open, or partially so, at the time of, or just before the accident, such facts, as claimed, having a bearing upon the probability of poisonous gases being in the upper part of the room where O’Brien was sent.

Burns was superintendent of appellant’s gas wo ¡ks, and was, we presume, possessed of the skill and experience to properly perform the duties of his position.

It was his duty, before he sent O’Brien where he met his death, to use reasonable diligence to ascertain all existing facts and circumstances, which would enable one so skilled and experienced to determine whether his order to O’Brien was a reasonable one and could be executed with reasonable safety. And if the condition of the furnace doors was one of the facts upon which to base a conclusion, his duty to know it could not be changed or affected by showing he was not in the immediate control of the furnace.

If after the order was given to O’Brien some sudden change in the operation of the machinery had taken place by order of the servants of Granger & Co., which Burns could neither control nor reasonably anticipate, and which aided in causing the accident, there would be great force in appellant’s position.

Appellee’s second instruction would be somewhat clearer if the word without” was repeated before the words “ any fault” or “ negligence,” but we think any ordinary juror would read the instruction as though it was there. The word, “but” would also be understood as referring to the words following it, in which case the meaning would be clear.

Appellant' complains that a large number of its instructions were refused. The action of the trial court in this respect was not only proper, but highly commendable.

Forty-two instructions, covering thirteen pages of the printed abstract, were presented to the court by appellant.

To launch such a mass of legal conundrums upon a court, which can never enlighten a juiy, but are generally drawn with the real, if not avowed purpose of getting error into the record, and entangling the court in some technical contradiction that may be used,in a higher court, is a perversion of the law of instructing jurors. A few plain statements of the law governing the case would suffice. If the court in the hurry of trial did not sift this unreasonable number of instructions as carefully as appellant desired, we do not feel called upon to interfere unless some palpable error has occurred, clearly affecting the justice of the case.

The fifth refused instruction of appellant was as follows, and was properly refused. '

“ The court instructs the jury that if they believe from the evidence that Mr. Byerly was the foreman of Patrick O’Brien, and that Mr. Byerly told O’Brien not to go the way the evidence shows he did go, but to take a long ladder, and if the jury further believe from the evidence that Patrick O’Brien refused to obey Byerly, and in consequence of such refusal came to his death, then the court instructs the jury that such refusal of Patrick O’Brien did materially contribute to causing the injury, and in such case the jury should find for the defendant.” What did, or did not materially contribute to cause the injury was a question of fact for the jury, and not for the court to assert as matter of law. It was equivalent to telling them, if deceased did or refused to do certain specified things it was negligence, which is in the teeth of the former opinion of this court in the'present case, as well as numerous ones of the Supreme Court. Myers v. I. & St. L. R. W. Co., 113 Ill. 386, and cases there cited.

The sixth also invades the province of the jury. It asserts if O’Brien refused to obey Byerly, and in consequence came to his death, there could be no recovery.. That disobedience of an order might be such negligence as would be fatal to a recovery is true, but that it necessarily produces such a result is not the law. It was a question of fact for the jury whether under the circumstances it was negligence, and if so whether slight or otherwise.

The same objection applies to the 9th, 25th and 30th, and they were therefore properly refused.

The last point relied upon is, that there is no merit in the case as presented to the jury. Without entering into the case in detail, we think the jury were warranted in finding that O’Brien’s negligence, if it can be regarded as such at all, was slight, and that the other propositions as laid down by this court in the former opinion, were fully sustained, viz.: il First, that the deceased met his death by reason of poisonous gases at the place where Burns had sent him to work; secondly, that Burns was guilty of negligence in not detecting their presence.”

Neither .do we regard the damages as excessive. The value of O’Brien’s life to his family is not to be calculated by any exact rule, but should he left largely to the practical judgment and common sense of a jury; and when their judgment is not influenced by passion or prejudice their conclusion should not in such cases ordinarily be disturbed.

We think there has been a fair trial, and that justice has been done; and the judgment of the circuit court will be affirmed.

Affirmed.


author: Conger, J.

text:
    Franklin C. Oliver et al. v. Caroline E. Cochran.
    1. Objection made too late. — The objection that the action should have been in the name of the heir instead of the administratrix, urged for the first time in this court upon the second trial here, comes too late.
    2. Former adjudication. — Whatever effect the decree, which, it is u god, was a former adjudication of the subject-matter of this suit, might have upon the individual rights of defendant in error, it could have none upon those of the estate she represents in the present controversy.
    3. Pleading. — Pleas to the jurisdiction of the court, the disability of the plaintiff or defendant, must preclude all pleas to the action itself in bar thereof.

      4. Pleading — Raising question of intestate’s domicile. — If a defendant wishes to go further than a mere denial of the grant of administration and raise the question of the domicile of the intestate at the time of his death, it can only be done by a special plea setting fo.th the facts.
    Error to the Circuit Court of Ford county ; the Hon. O. T. Beeves, Judge, presiding.
    Opinion filed February 25, 1886.
    Mr. L. E. Payson, for plaintiff in error.
    Messrs. Tipton & Beaver, for defendant in error.
   Conger, J.

On the 18th clay of January, 1856, Franklin Oliver, by a written contract of that date, sold to James 0. Walker twenty acres of land for §1,300. The contract acknowledges the receipt of §500 of the purchase money, and provides that the balance, §890, was to be paid in a few days, and upon its payment Oliver agreed to make said Walker “a good and sufficient deed in terms of general warranty.” The §500 was paid at that time, and the balance some time before the death of James O. Walker, which occurred March 12, 1859. On the 8th of February, 1865, Oliver and -wife conveyed the same land to one Nathan Simmons, an innocent purchaser, and on the 7th day of August, 1877, this action of assumpsit was brought by Mertys E. Walker, as heir at law of James O. Walker. In 1879 an amended declaration was filed in the name of defendant in error, Caroline E. Cochran, as administratrix of the estate of James C. Walker deceased, and since then the suit has proceeded in her name as such administratrix. The amended declaration contains the common counts, and also a special count setting out in Ime verla the written agreement, the payment in full of the purchase money, the conveyance to Simmons, the failure to convey to Walker in his lifetime, or to his heirs since his death, whereby the land became wholly lost to Walker’s estate, and averring that by means thereof defendant became liable to pay the §1,300, etc.

To this declaration there were filed the following pleas : 1. General issue upon which issue was joined. 2. That plaintiff is not the administratrix of the. estate of James C. Walker, deceased, and issues joined thereon. 3. Statute of Limitations of sixteen years. 4. Statute of Limitations of five years. 5. Special plea: That claim of plaintiff to act as administratrix is based on assumed appointment by County Court of McLean county, which issued letters to her April 8, 1859, on this state of facts : that J. C. Walker was a resident of and died at Vermilion county, Illinois, March 12, 1859 ; that the only petition for letters, and on which th; court acted, recited the fact that he so died at Vermilion county; that the letters issued to plaintiff recited the fact that J. O. Walker, the intestate, was, at the date of his death, of Vermilion county, and so not of McLean county.

Further avers: That the record of her appointment does not show that the court found, as a fact, that Walker was a resident of, or died at McLean county, Illinois; that plaintiff’s sole claim, to act is under said supposed appointment, and that the County Court of McLean county has no jurisdiction to grant letters in that estate, and so she is not the legal administratrix, etc.

To the special plea a general demurrer was filed and sustained by the court. The trial was by the court, a jury having been waived, and judgment rendered for appellee for $1,300.

All questions arising upon the pleas of statutes of limitation are settled by the former decision of this case reported in 7 Bradwell, 176.

The first point relied upon by plaintiff in error for a reversal is, that the contract sued on was a chattel real, and for that reason suit should have been brought by the heirs of James C. Walker, instead of his administratrix.

Whatever of merit there might be in this objection had it been raised at the proper time, we think it can not avail plaintiff in error now. The amended declaration filed by the defendant in error as administratrix set forth the-contract at large, thereby notifying plaintiff in error expressly of the grounds upon which she was relying for a recovery, to which, as before stated, the plea of general issue, and other pleas were filed, but none of them raised this question. LTo objection at any time was made to the introduction of the evidence upon this ground, and in that shape the case has once before been passed upon by this court without the slightest intimation that we can discover in the record as presented to us, or in the former opinion of this court, that the objection now so forcibly urged was pressed upon the attention of the court below.

If, as counsel now insist, the action should have been in the name of the heir, upon winch we express no opinion, the error could have been corrected at once, at any time before final judgment, by an amendment to the declaration.

If a party will be silent on the occurrence of a mistake that can bs corrected on the instant, should the attention of the court bs called to it, ons that in no wise aSects the merits of the controversy, he ought to be foreclosed of his right to assign it for error on an appeal to this court.” Bowden v. Bowden, 75 Ill. 112.

The second point relied upon for reversal, is, that there was a formsr adjudication of the, subject-matter of this suit to which defendant in error was a party and by which she is bound.

The proof relied upon to sustain this position is the record of a suit brought in 1874 by the Home Insurance Company to foreclose a mortgage given by'Nathan Simmons, in 1865, to secure a portion of the purchase money for the same land previously contracted to Walker. This mortgage having passed into the possession of said company by assignment, a bill was filed praying for the usual decree of foreclosure and miking Caroline E. Cochran, the defendant in error, with mmy other parties, defendants thereto.

To -this bill a cross-bill was filed by Moses Walker, the brother of James C. Walker, deceased, setting up that he was interested jointly with his brother in the purchase of the twenty acres from Oliver; that they were in possession of said land at the time it was sold by Oliver to Simmons; that Simmons had notice of their rights; and asking that a decree be entered that all parties claiming an interest in the land be compelled to convey to himself and the heirs of James C. Walker, deceased.

To this cross bill O’iver and the insurance company filed answers denying the allegations therein contained, and Mertys E. Walker answered admitting their truth.

Whereupon a decree was entered foreclosing the mortgage as prayed in the original bill, dismissing the cross-bill, and finding against the allegations contained in it.

Defendant in error, not in her present representative capacity as administratrix, but as an individual only, was made a defendant to the original bill, and being a non-resident, service was had upon her by publication, and she was defaulted. She does not appear to have been made a defendant to the cross-bill, but if the general language used can- be regarded as including her, she never answered it, was not required to do so by any order of the court, nor was any default entered against her for not doing it.

Under the circumstances Caroline E. Cochran, even in her individual capacity, could only be bound by so much of the decree as was based upon the original bill for foreclosure, and not that part founded, upon the side issue injected into the case by the cross-bill, to which an answer was never required, or made.

Again, whatever effect the decree might have upon her individual rights, it could have none upon those of the estate she represents in the present controversy. These rights would be quite different. We are therefore of opinion that the decree offered in evidence does not bar defendant in error, as administratrix, from asserting in the case at bar the rights of Walker’s estate.

It is finally urged that the court below erred in sustaining the demurrer to the special plea of Ho. 5.

This was a plea to the disability of the plaintiffs, and could not be pleaded after the- general issue. It seems hardly necessary to refer to the well establishedrule that pleas to the jurisdiction of thecoart of the disability of the plaintiff or defendant, must preclude all pleas to the action itself in bar thereof, “because such subsequent plea admits that there is no foundation for the former, and precludes the defendant from availing himself of the matter, as when the defendant pleads to the person of the plaintiff he admits the jurisdiction of the court; and when the defendant pleads to the court he admits the plaintiff is able to sue him and the defendant to be sued, and after a, plea inbar to the action the defendant can not plead in abatement, unless for new matter arising after the commencement.of the suit.” Chitty PI, 440. “The plaintiff’s character of executor or administrator should be proved, except when it is admitted by the defendant’s plea, as non-assumpsit, etc.” 1 Saunders on PL and Ev., 1125.

The plea was improperly filed, and the better method of dealing with it would have been to enter a motion to strike it from the files, bat the same result substantially was accomplished by sustaining the demurrer.

The same is true of the second plea; hut issue having been joined upon it by the defendant in error, it simply put in issue the granting of the letters as alleged in the declaration, and the introduction of the letters issued by the County Court of McLean county was sufficient proof of that issue; for if the defendant wished to go further than a mere denial of the grant of administration, and raise the question of the domicile of the intestate at the time of his death, it could only be done by a special plea setting forth the facts. “If he contends the intestate did not live in the diocese at the time of his death, he should plead it specially, and the mere denying the grant of administration to plaintiff will not suffice.” 1 Saunders’ PI. and Ev., 1121.

Such a plea was filed as we have seen, and had it been pleaded at the proper time, before a plea in bar had been filed, or had defendant in error joined issue upon it, as she unnecessarily did upon the second, the question sought to be presented of the domicile of the intestate at the time of his death would have been properly before us for consideration.

Finding no substantial error in the record, the judgment of. the circuit court will be affirmed.

Affirmed.


author: Pleasants, J.

text:
    Darius L. Vigus v. Matilda O’Bannon, Executrix, etc.
    1. Evidence — Fraud.—In 1874, appellee’s husband was appellant’s agent to collect a policy of insurance of $5,000. He reported to appellant that the company disputed the claim on the ground of misrepresentation on the part of the insured, and that they would pay only $2,000. Upon these representations appellant accepted the amount and signed a receipt. In 1883 appellee’s husband died, and about that time appellant, being informed that appellee’s husband had receipted to the insurance company for $5,000, filed a claim for @3,000 against his estate, alleging that the cause of action had been fraudulently concealed from him. Appellee contested, denying the alleged collection and setting up the Statute of Limitations. Held, under the evidence in .this case, the court was justified in disallowing the claim.
    2. Statute oe Limitations. — In order to bring a case within the exception made by section 22 of the Statute of Limitations, the law requires reasonable diligence. Where relations of trust and confidence exist, a lesser degree may be reasonable than would be so if the parties were strangers or dealing at arm’s length. Faith, however sincere, which neglects work where reason demands it, is not accepted by the law as a substitute for diligence.
    Appeal from the Circuit Court of Montgomery county ; the Hon. J. J. Phillips, Judge, presiding.
    Opinion filed February 25, 1886.
    Mr. George L. Zink and Mr. James M. Truitt, for appellant;
    as to proof of fraud, cited Bigelow on Fraud, 476; Bump on Fraudulent Conveyances, §§ 541, 560; Carter v. Gunnels, 67 Ill. 270; Bullock v. Narrott, 49 Ill. 62; Bryant v. Limoneau, 51 Ill. 324.
    As to reasonable diligence: Buckner v. Calcate, 28 Miss. 431; Wilson v. Ivy, 32 Miss. 233; Bigelow on Fraud, 445; Harrisburg Bk. v. Foster, 8 Watts (Pa.), 12; Way v. Cutting; 20 N. H. 287; Atlantic Nat. Bk. v. Harris, 118 Mass. 147; Wear v. Skinner, 46 Md. 257.
    Mr. R. McWilliams, Mr. L. Allen and Messrs. Lane & Cooper, for appellee;
    that there is no fraudulent concealment of the cause of action within the meaning of section 22 of our statute, cited Cole v. McGlathey, 9 Me. 131; McKown v. Whitmore, 31 Me. 448; Street v. Henting, 24 Kas. 497; Sutton v. Dye, 68 Ga. 449; Freeman v. Kroner, 59 Ga. 161; Foster v. Rison, 17 Grat. 322; Finly v. Stewart, 40 Ia. 603; Wood v. Carpenter, 101 U. S. 135; Nudd v. Hamblin, 8 Allen, 130.
    Appellant had the means of knowledge of the supposed concealment, and this was equal to knowledge itself: Wood v. Carpenter, 101 U. S. 135; Buckner v. Calcate, 28 Miss. 596.
   Pleasants, J.

Mrs. Eliza Vigus, mother of appellant, held a policy on her life in the Protection Life Ins. Co. of Chicago, payable to him at its office within ninety days from the receipt of proof of her death. She died at Raymond October 12th, and proof was submitted Nov. 28th and approved Dec. 16th, all in 1874. Early in January, 1875, Richard W. O’Bannon, at the request of appellant, took the policy to Chicago to settle and collect the insurance. Upon his return he reported that the company disputed the claim on the ground of misrepresentation as to her health when insured, but that he had succeeded with difficulty and only through the personal friendship of the secretary, in getting an allowance of §2,000, and no more. He presented to appellant its check on the Fidelity Savings Bank and Safe Depository of Chicago and its note at sixty days, each for §1,000, dated Jan. 5, 1875, and payable to appellant, together with a receipt to it in full, but not specifying the amount, which was in the handwriting of A. W. Edwards, said secretary ; and upon his statement and advice appellant accepted the note and check, and signed the receipt which was returned to the company and by it received on Jan. '9, 1875.

O’Bannon was then between sixty-five and seventy years of age. His son had married a sister of appellant, and his own personal re1 at ion with him and his family had been intimate, and so continued to the time of his death. He died Nov. 15, 1883, after a residence in the county of thirty years.

About that time appellant was informed that O’Bannon had receipted to the insurance company for §5,000, and on June 30, 1884 filed in the county court the claim here in controversy, which is for $3,000 and interest thereon from March 14, 1875, alleging that the cause of action had been fraudulently concealed from him.

Appellee contested, denying the alleged collection by her testator and setting up the Statute of Limitations. The cause was tried without a jury and the claim disallowed. The claimant appealed to the circuit court, where it was again tried without a jury, and the issues were found and judgment rendered for defendant. Exception thereto was duly taken and the record is brought here by further appeal.

If O’Bannon collected on this policy, directly or indirectly, anything more or else than the check and note he delivered to appellant, either before he delivered them or afterward, if in pursuance of a purpose formed before, it must be conceded upon the evidence that he fraudulently concealed this cause of action, and that appellant was actually ignorant of it until a time within five years before the filing of his claim. The main questions of fact, then, are whether he did collect more, and if so, whether appellant’s ignorance was due to a want of reasonable diligence to discover it.

It sufficiently appears that the company actually paid §5,000, so that if appellant received only §2,000, either he or the company must have been defrauded of the difference by O’Bannon or some other person or by both; but the narrowed range of our inquiry is whether the fraud was committed by O’Bannon and upon appellant.

The receipt indorsed on the policy is as follows: “Received of the Protection Life Insurance Company five thousand dollars, being the amount in full on the within policy. D. Yigus, by R. W. O’Bannon,” and the signature is admitted to be in the handwriting of the latter, which unexplained would doubtless be conclusive against him.

Some evidence was introduced which tended to show that the word “five” was originally written “two,” and other, perhaps of greater weight, that there had been no alteration.

But it was fully proved that the body of this receipt, excepting the amount therein stated, was written by the head book-keeper of the company, who also wrote the check and the note mentioned; that though without date, it was in fact written and delivered to the secretary, with a blank space left for the insertion of the amount, on the 5th day of January, 1875 — the date of said check and note — while O’Bannon was in the office, and nothing further is shown respecting the policy or this receipt until the fall of 1883. It further appears without dispute that the company paid no money directly, at any time, on account of this policy, but always and only by check on its bank; that all it gave on that account to O’Bannon or any other person on January 5th was the check and note mentioned; that the note was entered at the time on its books, introduced in evidence by appellant, as given u for balance due on policy 4266, on death of Eliza Vigus,” thus apparently showing the whole amount to be $2,000; that the other $3,000 was paid by check which was not issued until two months afterward, March 4th, nor paid by the bank until June, and that it was tilled out by the book-keeper, made payable to appellant, and delivered to Edwards, the secretary. O’Bannon was not in Chicago on March 4th, nor is there any evidence that after he left in January he ever had any dealing or correspondence, directly or indirectly, with the insurance company or any of its officers, or with the bank on which these checks were drawn. He resided at Raymond until the latter part of May, 1875, when he removed to Litchfield, some twelve miles distant, where he had formerly lived, and there remained until his death. The $3,000 check was returned by the bank to the insurance company after its payment, about the last of June, and properly filed by the book-keeper; but whether it had been indorsed or not h 3 could not remember, and no later or further account is given of it except that it was mysteriously missing. Of all the papers relating to the claim, this alone could not be found. In 1877 the company failed, its affairs went into the hands of a receiver, and its secretary removed to Dakota, where his deposition was taken by appellee; but he disclaimed all recollection of the particulars of the claim or of its settlement or even of the fact that he settled it.

From these circumstances, which are undisputed, it is not unreasonable to infer that the receipt was signed on the-5th day of January, 1875; that if not afterward altered as to the amount, it was without any statement of it when signed; that nothing had been or then was received by O’Bannon except the check and note amounting to' $2,000, and that these were received to be, so far as he could make it, a settlement in full of the claim on the policy. And the facts so inferred fully explain the receipt and overcome its grima facie effect as evidence in this case.

Counsel are forced to admit the probability that it was signed at the- time and in the condition stated, but argue that if O’Bannon afterward collected the $3,000, or by signing it in blank enabled the secretary, by inserting the full amount, to collect the $3,000, his estate is liable therefor to appellant. As already intimated we apprehend not, unless such collection was in pursuance of an intention formed before his settlement with appellant; for otherwise the fraud would be wholly upon the company or its policy holders who contributed to make up the amount, and not at all upon him. ISTor is this claim predicated upon negligence whereby the amount was lost to him; and if it were O’Bannon might have signed receipt in blank as to the amount without any great degree of negligence, for either or both of two reasons : first, that being ntended as a receipt in full it was immaterial to him and his principal what amount was specified; or, second, that the sett'ement for $2,000 was not understood by him or the secretary to be binding until ratified by appellant, and so the true amount to be inserted was still uncertain.

The only other direct evidence produced by appellant upon the issue now under consideration was the testimony of Elias W. Miller, who stated that in April or May, 1875, O’Bannon told him he wanted to ask a favor ; that as agent of appellant he had collected on his mother’s policy $5,000, and settled with him for less, but not for how much less ; that appellant did not know what he had collected ; that he had kept a part of the money for what he had-'done about a suit of Mrs. Vigus against the city of Litchfield; that he feared appellant’s relatives were going to give him trouble, as they were complaining that the insurance company had not paid him enough, that he knew witness was a friend of appellant and wanted witness to,ad vise him to stand by the settlement he had made, but not to speak to him about it unless he first spoke to witness or trouble ensued over the matter. He further testified that appellant never did speak to him about it and witness had never spoken of these statements to anybody until a few days before, when he met Dr. Wheeler, a brother-in-law of appellant, who told him of this litigation, and he then told the doctor of this conversation.

If this testimony were believed it would of course settle the question. What the court below thought of it we have no means of knowing, but there are circumstances that raise serious doubt as to some portion of it. The conversation is stated to have occurred ten years before it was related. On its face it is somewhat improbable if not unnatural. Counsel accounts for it as a confession ” forced by conscience, and made to an old friend, for relief, if not resorted to as a refuge from suicide. But it certainly was not accompanied by penitence, as is usual with confession. It has some appearance of an attempt to enlist aid to conceal his crime and hold on to its fruit from a known friend of the party to be wronged. O’Bannon had not then received the money,'at least not from the bank, but only a check for it, and that not payable to himself but to appellant; so that to realize upon it a forgery or falsehood as foul was necessary, since his authority to use the name of the payee, if he ever had any, had long since ceased. The voluntary taking of such a risk of betrayal and its consequences was not to be expected ; yet the request mido of the witness was of a character to be received with indignation and resented by in dant exposure. He admitted, also, that since the death of O’Bannon, his widow and executrix, the appellee here, had sued him on a note before a justice of the peace, and though he was successful in that court she took an appeal and got her judgment. So it appears that for ten years and so long as O’Bannon lived he was silent, and when death had made contradiction impossible and he had oeen sued for a debt by the surviving widow, he spoke. His silence and his speech, under the circumstances of each respectively, seem alike discreditable. Still further, an attempt was made to impeach him generally. The court limited the number of witnesses on this subject to six on each side. Each produced so mmy and offered more. We do hot say how far the attempt succeeded or failed. Observation teaches that men in general are reluctant to impeach a neighbor and are apt to speak softly and with qualification, under oath, of the general reputation even of those whom they know to be discredited. Without knowing the witnesses or hearing them testify, a just idea of the real force of tlieir testimony can hardly be formed. It is perhaps due to him that we should say the impeaching evidence, as it appears in the record, was not very strong. But it was entitled to be considered, and it was for the judge who heard it, as for a jury, to determine its weight. If he thought that in connection with the circumstances above referred to as affecting the credibility of Miller and the other undisputed facts of the case it was sufficient to overcome or bikmeo his testimony, we see no sufficient reason for overruling his judgment on that point.

It seems that on the 1st of February, 1875, the executive committee of the insurance company assessed against its policy holders the sum of §2,500 only, for the payment of this death loss, but the notice to them called for a summer capita which ■ in the aggregate would amount to $5,000. It is quite likely, since they were assessing for twelve losses for that month, of which some were of $5,000 and others of $2,500, that the latter was assessed for the payment of the policy in question, through inadvertence. The fact does not affect our judgment herein, because it is clear that the amount paid on account of this loss was $5,000.

Several witnesses, including a son of O’Bannon, testified that on his return from Chicago in January, 1875, he told appellant, and often afterward repeated it to him and other members of the family, that the company disputed the claim because of a letter or letters from an uncle and three aunts of appellant, who were named, to the effect that his mother had been afflicted with a cancer for years before she was insured, and finally died of it, and that he saw such letter or letters in its possession; and some of them added that in consequence of this statement appellant broke off family relations with these relatives until after O’Bannon’s death.

The uncle and one of the aunts mentioned then resided at Litchfield, "the two others at St. Louis. All were sworn and offered as witnesses to prove they had never so written to the company or anybody else; but the court, upon defendant’s objection excluded them. A surgeon from St. Louis was offered on behalf of defendant to prove that she was operated upon and treated for cancer in that city some years before the policy was issued, but he was excluded also. We are inclined to think the evidence relating to the letters should have been admitted, not because it would at all affect the proof that O’Bannon had not received the §3,000 or the check for it wdien he signed the receipt, but as bearing, in connection with other evidence, upon the question of a fraudulent intention, or whether he had formed any at that time, in conjunction with Edwards or otherwise, with reference to it. But we are not disposed to reverse the judgment on account of its exclusion, for several reasons. As it turned out think it would have amounted to no more than ground for suspicion that there may have been such intention, and would not have supported a finding that there was. The head book-keeper was permitted to testify that he had carefully examined all the papers in the office relating to this claim and found no such letters, nor ever heard of any, though he would if any such had been received. This substantially covered the same matter, and no doubt the judge was satisfied, as we also assume, that no such letters were written.

We are not satisfied, however, that O’Bannon said he saw them. It is possible that on that point the recollection of the witnesses, whose honesty is not doubted, was at fault. It appears by a letter to the company from one of its agents that it had been informed of a personal injury to Mrs. Vigus before the date of her policy, from an obstruction of a sidewalk in Litchfield, for which she had recovered damages, and also that the secretary had written letters to appellant in regard to her health which were not produced “ having been burned by him, as he stated, nor their contents disclosed; ” nor need there be any question that the matter of a cancer was spoken of by O’Bannon, nor that the relatives named were mentioned as being reported to have given information about it. What he said on that subject was not to appellant alone or in confidence nor confined to a single occasion. It long continued to be talked of by him to and among the different members of the family. From these circumstances, after so long a time and through the repeated conversations on the subject since his death, with inevitable variations and additions, that would naturally take place in the family, in view of this litigation, some of them may well have come to think he so reported. The statement that he understood such letters had been written, or that the company so claimed, would have fully answered his purpose, whether it was fraudulent or not, to get appellant’s ratification of his settlement. But such a lie as is here charged was so needless, so likely to provoke denial and lead to investigation and exposure with such serious consequences to him, that to believe he told it and repeated it from time to time, to different persons, with no charge of secrecy, and continued to live in the neighborhood of everybody interested to deny and disprove it, and yet was never convicted of it or even charged with it until after his death, certainly requires clear proof.

If, however, it is to be believed from the evidence in this case, then the fact would operate powerfully to take th ; claim out of the exception made by § 22 and leave it subject to the bar of the Statute of Limitations.

Appellant was a young but full grown man of business education and some experience. Iiis claim against the insurance company was for $5,000. He knew of no reason why it should not be paid in full. He knew that by the proofs submitted and approved his mother was shown to have died of paralysis. His agent to collect the claim, and who had himself been a witness to prove the death from paralysis, returned with the report that he could get only $2,000, because her own brother and sisters, named and within easy reach, had - informed the company in writing which he had seen, that she died of a cancer from which she had been suffering for twenty years. And thereupon he at once accepted the little that was offered, relinquished his claim to the large amount withheld, and broke off relations with his uncle and aunts without explanation of the cause, or auy inquiry of them or of the insurance company as to the fact or reason of so injurious a communication. Such inquiry, made promptly, would have prevented the settlement, or at any time within five years after, it would have discovered the cause of action here relied on, if any there was. Its omission, in any view, was unjust to his relatives and to himself.

The only excuse offered for it is his confidence in O’Bannon and the relations long existing between them. We think these insufficient. The law requires reasonable diligence. What degree of diligence is reasonable must depend upon the special circumstances of the case. Where relations of trust and confidence exist a lesser degree may be reasonable than would be so if the parties were strangers or dealing at arm’s length, but in every case it must be reasonable under all its circumstances. Faith, however sincere, which neglects work where reason demands it, is not accepted by the law as a sub stitute for diligence.

But the rule referred to by counsel in this connection does not apply here. There is no evidence that appellant believed or suspected that his mother died of cancer or was suffer, ing from it when she was insured. From his treatment of his relatives and the evidence admitted the contrary is to be inferred. His confidence in O’Bannon’s statement should itself have caused rather than prevented inquiry. If the company had shown him such letters reasonable care and diligence with reference to his own interests would have required him to see the informants and be satisfied of the truth of the information before he settled with it.

We are of opinion therefore that appellant suffered no harm by the exclusion of this ev'dence, and if it had been received and the court had found that O’Bannon said he saw the letters or that the company declined to pay in full for the reason stated, it would have no less supported him in the conclusion we reach, that the claim is not within the exception made by § 22 of the Statute of Limitations. It was presented ten years after the cause of action, if any, accrued, and after the death of the party charged with the fraud. It is defended by his widow under very great disadvantages. She is not chargeable with any knowledge of the facts alleged by appellant and can derive no aid even by way of information or suggestion from him who must have had it and whose conduct and character, so dear to her, arc here in question. In such a case the statute, where it applies as a rule, is prima facie a just and necessary as well as a full protection, which should be denied only where the cause of action is both fairly proved and fairly shown to he within the exception. Both of these issues were made and tried. We need not say that the finding was clearly right upon either; but we are clearly of opinion there was evidence sufficient to support it upon both.

It is said the court below improperly refused to hold certain propositions of law submitted for appellant.

As to the one numbered 2, we see no room in this case for any presumption of law to determine the question of notice, whether actual or constructive, and which is intended the proposition does not indicate. It depended on the evidence alone, which called for no presumption. If it was appellant’s duty to make inquiry he is chargeable with notice of what the inquiry would surely have discovered. Ho. 3 is here a pure abstraction. As to Ho. 6, the law does not determine what evidence in a given case is to be deemed “ satisfactory ” and the proposition does not define what is “convincing.” Ho. 7 improperly regards the receipt as the exclusive means of knowledge of the fact in question, aud makes the law determine the sufficiency of a particu'ar item of evidence. Ho. 9, if true as matter of law, which we need not decide, is important only where -the evidence is exactly balanced, which can hardly he claimed to be the case here. Ho. 10 is substantially embodied in Ho. 5 given. The hypothesis in Ho. 11 lacks the necessary element of falsity of the report. If true, and made in good faith, the legal consequence stated would not follow. In reference to a collection “ afterward ” we have said above all that we desire. Ho. 12 made the qualification stated in Ho. 5 given.

We find no material error in the record.

Judgment affirmed.


text:
    Comm’rs of Highways of Bloomington Township v. The People ex rel., etc.
    1. Discretion on highway commissioners — Mandamus.—The duty of highway commissioners as outlined in sections 2 and 5 of Road and Bridge Act of 1883, is general in its terms, and its performance, as to time, manner and extent of repair, is necessarily in some measure conditional and discretionary, and is not the subject of mandamus.
    2. Petition for mandamus. — When the answer to a petition for a writ, of mandamus is sufficient in law, issues of fact should be formed upon it by further pleading even though it traverses the allegations of the petition, much more when it introduces new matter.
    3. Mandamus to compel rebuilding of bridge. — A petition for a mmdamus to compel highway commissioners to rebuild certain bridges, which on demand they had refused to do. Held, that mandamus will not lie in this case inasmuch as the commissioners were without the means and without ability by taxation to procure the means required to build the bridges. The order of the court attempting to control the discretion of the commissioners in the application of the fund on hand is reversed.
    4. Mandamus — Section 14 of act. — Mandamus will not lie to compel highway commissioners to levy a tax under section 14 of the Road and Bridge Act of 1883.
    Appeal from, the Circuit Court of McLean county; the Hon. O. T. Beeves, Judge, presiding.
    Opinion filed February 25, 1886.
    Messrs. Tipton & Beaver, for appellant;
    that when a duty is general, depending on judgment and discretion, mandamus will not lie, cited County of St. Clair v. People, 85 Ill. 400.
    As to commissioners’ powers: Brunas v. Town of Peoria, 82 Ill. 11; Commissioners v. Newell, 80 Ill. 588.
    Messrs. Blades & Neville, for appellee;
    cited Hall v People, 57 Ill. 315; County of St. Clair v. People, 85 Ill. 401.
   Pleasants, J.

The petition herein filed Oct. 6, 1884, set forth that upon that part of a public highway in said town of Bloomington which is on or near the center line, north and south, of section 27, and has been in use for more than twenty years, two bridges over the Little Kickapoo creek were washed away in 1882, and said road has ever since been impassable ; that the commissioners of highways of said town have had due notice of the condition; that they have examined said road and bridges at different times and know what it will cost to repair the same; that the petitioner has been informed and believes they have on hand for bridge purposes money enough to build them, and have been notified and requested, but refused and still refuse so to do, and prays that a mandamus may issue, commanding them that they immediately repair said bridges and put the road in condition for use as a public highway, and if they have not money enough for the purpose that a mandamus may issue compelling them to “ levy a tax and use the same without unnecessary delay to build good and sufficient bridges,” and for such other and further orders in the premises as justice may require.

Eespondents answered that if there ever was a highway at the place described it had been abandoned and a new road located on the east line of said section; that to build said bridges and the approaches thereto would cost not less than $3,000, being more than twenty cents on each $100 of the taxable property in the town; that they had no money to build them; that the levy of the road and bridge tax made by them for the current year (1885) was for the full amount of sixty cents on each $100, allowed by law for them to raise, and that the whole would be needed for the ordinary repair of roads and bridges; that they also had levied a tax of twenty cents ón each $100, to pay damages allowed and awarded for laying out and vacating roads and for ditching to drain them; that if they had the means it would be wasteful and useless to build said bridges; that the road runs along the bottom of the Little Kickapoo, by which it is twice crossed, and by reason of the character of the soil and frequent washouts would be impracticable; that it is of no public benefit, the travel being fully accommodated by other roads mentioned, and that they have twice made order granting petitions to vacate the same, which were reversed, on appeal by petitioner to three supervisors, in consideration of promises made by him by way of inducement, which he has refused to fulfill.

The replication denies that said road has been vacated and that petitioner made any proposition to the supervisors, by way of inducement, in writing.

Upon a hearing by the court without a jury on the pleadings and proofs the writ of mandamus was neither awarded nor refused, but an order was made “ that the commissioners of highways proceed at the earliest practicable time to put said highway in suitable repair for use as a public highway, and to this end * * * take all the steps provided by statute to raise thé largest amount by taxation for road purposes that the ¡aw allows, and that out of the amount of taxes that come into their hands from the levy of the taxes of the year 1885, they set apart a sum sufficient to put said highway in a.suitable condition for public travel, and that they proceed to make such repair on said highway as soon as they have the funds to do so, as above provided, unless prevented from beginning at once on the receipt of such funds by the condition of the weather, and that defendants pay the costs of this proceeding,” to which exception was duly taken and an appeal prayed and allowed.

As at common law, so under the statute, the office of a mandamus is to compel the performance of some particular act or acts of imperative duty, due by clear right to the relator, which he has properly demanded and the respondent has refused. Where the duty is not specific but general, and its performance as such involves the exercise of judgment and discretion, the writ will not lie. This is elementary law. Bouvier’s Law Dict. (Mandamus 1-3-9); Tapping on Mandamus 282.

Section 2 of the Road and Bridge Act of 1883, declares that “ The commissioners of highways shall have charge of the roads and bridges of their respective towns, and it shall be their duty to keep the same in repair and to improve them so far as practicable,” and by Sec. 5 they are “ to exercise such care and supervision over them as the public good may require,” which doubtless :mplies the duty, subject to the same limitations, of putting them in suitable condition for public use and travel when they get out of repair. But this is general, and its performance, as to time, manner and extent of repair, is necessarily in some measure conditional and discretionary. In these broad terms therefore it is not the subject of mandamus. County of St. Clair v. the People ex rel., 85 Ill. 400-1.

The specific act or acts here sought to he enforced was the rebuilding of these bridges, which had been demanded and refused. Whether it was an imperative duty of the commissioners might depend on one or more of" many circumstances. The answer denied it on several distinct grounds; (1) that the road had been abandoned and another substituted; (2) that upon petition duly presented it had been vacated by their order, which was reversed on appeal to three supervisors in ■consideration of promises made by relator, which he had failed and refused to perform; (8) that they had no money on hand with which to rebuild them, nor any means of procuring the amount necessary for that purpose; (4) that if the bridges were" rebuilt, the road, for reasons stated, would still he impracticable during a large portion of the year; (5) that if practicable it was not demanded by public necessity or convenience, which were fully met by others mentioned.

It will he observed that some of these averments were in denial of allegations in the petition, and others presented new matter.

We understand, under the statute, as before, where the answer is sufficient in law, issues of fact should be formed upon it by further pleading, even though it traverses the allegation of the petition — much more when it introduces new matter. Thus, in The People v. The Ill. Cent. R. R. Co., 62 Ill. 512, the court said, “It will be seen that the return traverses the allegations of the writ, which charge,” etc. “ To this portion of the return the demurrer will therefore be overruled and the relator will have leave to withdraw the demurrer an$ make an issue of fact.” Under the statute the petition takes the place of the alternative writ here referred to, and the answer that of the return. And in The People v. The Town of Waynesville, 88 Ill. 472, it was said, “ There were no pleas filed or other issues made than were presented by the petition and answer, nor other special issues of fact formed, but the trial was had before the jury on each allegation contained in the petition. ■ This was contrary to the well established practice and should not be sanctioned.”

In the ease at bar the replications filed only denied, (1) that the road had been “vacated” (which we think was not intended to be alleged in the answer), and (2) that any “inducement” had been offered to the supervisors “in writing” (the materiality of which may be doubted, as the case is not within the terms of § 51 of the act). So that it was tried as was the one last above cited, with no issues but those presented by the petition and answer, and none whatever as to the new matter introduced by the answer.

Overlooking this irregularity we proceed to notice, what is sufficient for our present purpose, the question of means with which to rebuild the bridges.

Without these, clearly, there could be no duty to rebuild, for it would not be, in the language of the statute, “ practicable.” The petition represents, upon information and belief,, that respondents had on hand money enough for the purpose.. The answer denies it, and the proof is, without contradiction, that they had not a dollar. This ends the case for a mandamus “that they immediately repair said bridges and (so) put the road in condition for use as a public highway.” And why not to the whole case, since the alternative prayer — for a mandamus “that they levy a tax and use the same without unnecessary delay to build good and sufficient bridge.;-,” — was not supported by any averment that they had reñv ed, or been requested to levy a tax, or could have raised, by such means, the amount required. But waiving this omission, the answer averred that before the petition was filed they had levied for the current year the maximum amount allowed by law for road and bridge purposes; that in their judgment it would all be needed for ordinary repairs, and that the bridges and approaches would cost §3,000. And although no issue was made upon these averments, evidence was produced in support of them, from which it appeared by a clear preponderanee that the cost of suitable bridges and approaches would he §2,500, and absolutely that the value of the taxable property of the town, outside the city of Bloomington, by the last assessment roll, was §66,486, and the amount levied §4,500, or about 69 cents on the §100, of which the excess over 60 cents was to pay damages- allowed and awarded for laying out and vacating roads and for ditching to drain them.

This exhausted their power to levy a tax for road and bridge purposes under § 13 of the statute, and no other is given, so far as we have been able to find or are advised by counsel, except by § 14, which authorizes a further amount, not exceeding four tenths of one per cent., with the consent in writing of a majority of a joint board composed of the commissioners and the town auditors and assessor, “if in the opinion of the commissioners a greater levy (than is allowed by the preceding section) is needed in view of some contingency and they certify. the same as therein prescribed. But the record contains no intimation that there was any contingency. Certainly the destruction of these bridges was not, of itself, nor is any suggested as having arisen out of it and if there had been, the exercise of this power depended, first, upon the discretion of the commissioners to so certify, and second, the consent of one or more of the other town officers mentioned, and therefore it could not he compelled by mandamus.

It is thus seen that they, were without the means and without ability by taxation to procure the means required to build these bridges. iSTor were they under any obligation of duty to apply to the county hoard for aid under § 19, if that had been the case attempted to be made by the petition, for the reason that they were not able to “ furnish” on the part of the town “ one half of the required amount.”

The specific and sole object of this proceeding was to obtain a writ of mandamus. We know of no precedent or authority for granting an order of court in lieu of it. The order here made requires the performance of no particular act, but generally that the respondents “ proceed at the earli.est practicable time to put said highway in suitable repair,” and to that end “ take all the steps provided by the statute to raise by taxation the largest amount that the law allows” and “out of it set apart a sum sufficient ” for that purpose. An order so general and uncertain can hardly be said to he in the nature of a mandamus.

As has been shown, the commissioners had already levied the largest amount allowed by the law, and since that, in their judgment, was not as much as was needed for ordinary repairs of roads and bridges, and also to put tills particular piece of road in suitable condition for use as a public highway, we apprehend the court could not rightfully control their discretion in the application of tho fund.

'\For the reasons above given the order will beTeversed.

Order reversed.


text:
    Commissioners of Highways of Town of Oran v. John A. Hoblit.
    1. Road ard Bridge Act — Notice.—The notice required to be given by the commissioners of highways under section 33 of the Road and Bridge Act of 1883, is jurisdictional, and unless it has been given, the commissioners are not authorized to act.
    2. Same. — The designation of a general locality or one embracing others commonly known as places, without the particular place, is not a substantial compliance with the statute. The notice in this case held defective, both as to time and place.
    3. Same — Damages.—Where all that was shown upon the subject of damages accruing to appellee (Road and Bridge Act, §§ 39, 40, 41) was set forth in the following recital in the commissioners’ final order, “that the route of said road, so far as it passes over appellee’s lands (describing the land), passes wholly upon an old established route which was duly laid out and opened many years since, and has been a public highway since 1870, that appellee has personally released all damages accruing to him from laying out a road along said route through his land,’’ the court is of opinion that this is not competent evidence of what is so recited.
    4. Certiorari — Appeal.—An appeal is .a recognition of jurisdiction. The commissioners not having acquired jurisdiction of appellee’s person, their proceedings were void, therefore there was nothing to appeal from and certiorari was the proper remedy.
    5. Costs. — It was error to award costs against the commissioners- personally.
    Appeal from the Circuit Court of Logan county; the Hon. C. Eplbb, Judge, presiding.
    Opinion filed February 25, 1886.
    Mr. Osoab Allen, for appellant;
    that judgment against respondents for costs is erroneous, cited Arnold v. Tharpe, 9 Bradwell, 357.
    Substantial compliance with the statute in road matters is all that is required : Town v. Town of Blackberry, 29 Ill. 138.

      Certiorari does not lie to investigate a question which might be investigated in"an appeal: Dillon on Municipal Corporations, 2d Ed., § 743.
    Messrs. Blinn & Hoblit, for appellee;
    as to notice, cited R. S., Ch. 121, § 33; Frizell v. Rogers, 82 Ill. 109.
    The record must affirmatively show either that the owner’s land was taken by legal proceedings to assess his damages or by his release in writing accompanying the final order: R. S., Ch. 121, § 40; Hyslop v. Finch, 99 Ill. 184; People v. McRoberts, 62 Ill. 38; Kine v. Defenbaugh, 64 Ill. 291.
   Pleasants, J.

Upon review, on certioi'ari, of appellant’s proceedings to lay out and establish a highway, the circuit court quashed the same, and they appealed.

The petition was for a road beginning near the southwest corner of the east half of the northeast fractional quarter of section 6 in T. 20 N., R. 1, W. of the 3d P. M., and running by different courses and distances, of which the last being nearly a quarter of a mile was over land of appellee to the southeast corner of section 31, in township. 21.

Section 33 of the Boad and Bridge Law of 1883 provides that whenever the commissioners shall receive any such pe. tition they shall fix upon a time when and place where they will meet to examine the route of such road and to hear reasons for or against the altering, widening, vacating or laying out the same, and they shall give at least ten days’ notice of the time and place of such meeting by posting up notices in five of the most public places in the township, in the vicinity of the road to be widened, altered, vacated or laid out.”

The notice here required is jurisdictional, and unless it has been given the commissioners are not authorized to act. Frizell v. Rogers, 82 Ill. 111; Commissioners v. Harper, 38 Id. 103; Corley v. Kennedy, 28 Id. 143. And the requirement must be strictly complied with. Hyslop v. Finch et al., 99 Id. 171 (p. 184).

In this case, besides other defects of less importance, the notice as to the time and place was that they had “ fixed upon the 9th of March, A. D. 1885, at the hour of one o’clock p. 31. in Beason, in said town.”

The record presents no evidence of the time or manner of giving it except the recital in the final order declaring said road to be laid out and established, that “ said commissioners gave ten days’ notice of said meeting by posting up notices on said 9th day of March, A. D. 1885, in writing, in five of the most public places in said Oran township, in the vicinity of the said above described road.”

Pei haps this was a clerical error in drawing up the order or in copying it into the transcript, since notice of a meeting to be held on the 9th of March, posted on that day, is certainly not ten days’ notice of such meeting. But the notice itself is not such as the statute requires in respect to the place of meeting. In the final order Beason is described as “ a small unincorporated village of about a dozen houses,” and the meeting is therein said to have been held u at the office of William P. Eandolph, a grain dealer, in said village.” This office, then, was “ the place ” where they met, and it was a place not specifiei l, as it might have been, by name, description or reference, in the notice given. In other words, there was no notice of the place of meeting.

It is said Beason was a place. So, and in the same sense, the second week in March was a time. But a notice that the commissioners would meet at the hour of one o’clock p. m., in the second week of March, A. D. 1885, would hardly he a notice of “the time,” within the meaning of the statute. Again, notice in the alternative of a meeting at one place or another, as “ at Randolph’s office or the postoffice,” is not notice of a meeting at either. The one here given was no hotter than if it had read, “the office of William P. Randolph, or some other of the dozen houses in Season, in said town.” It should he so definite that one who knows or ascertains the place as designated or described, will thereby know, or learn without further inquiry, at least the building — if it be a building — in which the meeting will be held. It must designate the place directly, and not merely put him on inquiry for it. It can not properly make him liable, without his fault, to attend at two or more places in order to find one meeting. Appellee might have attended at any one or more of the others (no less in Reason than was Randolph’s office) without being at the place of the meeting. In short, the designation of a general locality, or one embracing others commonly known as places, without the particular place, is not a substantial compliance with the statute.

Here we might stop, since this defect makes void the whole proceeding on the part of the commissioners. But we further observe it does not appear from the record that the damages accruing to appellee by reason of the laying out of said road over his land were either released, agreed upon, assessed or in any way ascertained, as is expressly required and made essential by §§ 89, 40., 41 of the statute. All that is shown upon that subject is set forth in the following recital in said final order, to,wit: “ that the route of said road, so far as it passes over lands, that is to say the north half of east half of section six, owned by said Hoblit, passes wholly upon an old established route which was duly laid out and opened many years since, and has been a public highway since the year A. D. 1870; that said Hoblit lias personally released all damages accruing to him from laying out a road along said route through hisland above specified.” We apprehend this is not competent eviden -e of what is so recited. The record contains a notice from these commissioners to appellee “to remove his fences standing across or being in any way upon the line ” of the highway so recited to have been “duly laid out and opened,” from which it appears it was not then open.

If the recital was true it was their duty to remove the fences and open the highway as one already established, and not, upon this petition and their own assumptions as to other and different proceedings having no connection with these, to establish it. They could not, by mere recital, furnish even prima facie proof of anything which, according to the recital itself, formed no part of the proceedings in which the order containing it was made. These must stand or fall by their own record exclusively. The circuit court, then, could not know,'from this record, that any part of the route had been “duly laid out” many years before, or that appellee had released his damages, or that they were agreed upon by him and the commissioners or assessed by a jury. No such release, agreement or assessment was deposited and filed in the office of the town clerk with the final order establishing the highway as the statute required. Hyslop v. Finch, supra. The commissioners therefore proceeded illegally in making such order.

Appellants' entered a motion below to quash the writ of certiorari for divers alleged defects of form in' the petition therefor, and also in the form and direction of the writ itself. This motion, however, came after a certified copy of the proceedings had been returned and filed. The respondents and the record were then duly before the court. All had been accomplished that could have been by a proper writ upon a proper petition, and the defects alleged were immaterial. The motion was properly overruled.

It is also said there was a remedy by appeal to three supervisors, and hence that certiorari would not lie. For the reason above given the commissioners acquired no jurisdiction of the person of appellee or of the subject-matter. Their proceedings being therefore void there was nothing to appeal from. An appeal is a recognition of jurisdiction. Frizell v. Rogers, supra. The record of these proceedings was rightly quashed.

But it was error to award costs against the commissioners personally; R. S. 1880, Ch. 139, § 50; Commissioners, etc., v. The People, 38 Ill. 347; Hindman v. Village of Aledo, 6 Bradwell, 442; Arnold v. Tharpe, 9 Id. 357; and for this error the judgment must be reversed and the cause remanded.

Beversed and remanded.


text:
    The People ex rel. v. Board of Supervisors of Macon County.
    Mandamus — Bridge Act. — A petition for im.nd.unus to compel the board of supervisors to make an appropriation in aid of the repairing of a bridge. The application for aid was made under section 19 of the Road and Bridge Act of 1883. On demurrer to the petition, held, that the petition shows a prima facie case for a mandamus; that the language used in section 19 does not clothe the board of supervisors with the right to determine conclusively whether the duty of making the appropriation asked has arisen. Distinguished from the case of People v. Dental Examiners, 110 Ill. 180.
    Error to the Circuit Court of Macon county.
    Opinion filed February 25, 1886.
    Mr. W. C. Johns, for plaintiff in error;
    that a proper state of facts appearing there is no discretion in the hoard of supervisors to refuse to make the appropriation, cited People v. Bd. of Supervisors, 100 Ill. 640; Town of New Boston v. Bd. of Supervisors, 110 Ill. 197; Bd. of Supervisors v. People, 110 Ill. 511.
    The determination of the commissioners as to the necessity for the repair of the bridge and its cost, the kind of repairs to be made, and as to the major part of the money coming to their hands being necessary for the ordinary repair of the roads and bridges, is final, and establishes the existence of the facts as they have determined them to be: Bd. of Supervisors v. The People, 12 Bradwell, 210; The People v. Bd. of Supervisors, 100 Ill. 640; Town of New Boston v. Board, 110 Ill. 197, Board of Supervisors v. The People, 110 Ill. 511.
    The statute under consideration should be construed liberally, because it is remedial: Bd. of Supervisors v. Town of New Boston, 13 Bradwell, 274; Potter’s Dwarris, p. 231; Walcott v. Pond, 19 Conn. 597.
    Mr. Edwabd P. Tail, for defendants in error;
    that mandamus will not lie, cited People v. Jameson, 40 Ill. 93; People v. Dental Examiners, 110 Ill. 180; People v. Common Council, 78 N. Y. 33; Freeman v. Selectmen, 34 Conn. 406; Hoole v. Kinkead, 17 Nev. 217; Bailey v. Ewart, 52 Ia. 111; Benjamin v. Perkins, 55 Cal. 483; Hildreth v. Heath, 1 Bradwell, 83; U. S. v. Howard, 17 Howard, 225; People v. McCormick, 106 Ill. 184.
   Pleasants, J.

This was a petition for mandamus to compel appellees to make an appropriation in aid of the repairing of a bridge over Sangamon river, in Decatur township, which the circuit court dismissed on demurrer; and the question is whether it was sufficient in law. .

The application for aid was made under section 19 of the Hoad and Bridge Act of 1883, so much of which as is pertinent is as follows:

“ When it is necessary to construct or repair any bridge over a stream, or any approach or approaches thereto, by means of an etnbankment or trestle work, on-a public road, in any town, or on or near to or across a town line, in which work the town is wholly or in part responsible, and the cost of which will be more than twenty cents on tlie one hundred dollars on the latest assessment roll, and the levy of the road and bridge tax for that year in said town was for the full amount of sixty cents on each one hundred dollars allowed by law for the commissioners to raise, the major part of which is needed for the ordinary repair of roads and bridges, the commissioners may petition the county board for aid, and if the foregoing facts shall appear the county board shall appropriate from the county treasury a sum sufficient to meet one half the expense of the said bridge or other work, on condition that the town asking aid shall furnish the other half of the required amount. * * * Provided, however, that before any bridge or approaches, as contemplated as above, shall be constructed or repaired under the provisions of this section, the commissioners shall make a careful estimate of the probable cost of the same and attach thereto their affidavits that the same is necessary and will not be more expensive than is needed for the purpose desired; and such estimate and affidavit shall be filed with the petition. ”

The petition for the writ represents that the petition, estimate and affidavits therein set forth in hceo verba, were presented by the relators to the appellees at their annual meeting in September, 1885; that the. statements therein contained were true; that there was then in -the county treasury, not otherwise appropriated, a sum sufficient to pay the amount asked for; that they demanded the appropriation, and that the board refused to make it.

Appellees here admit — what appears on the face — that this petition properly averred every ma ter that is by said section made a condition of the appropriation, and that the estimate of cost and affidavits thereto attached and filed with said petition were in proper form ; and the demurrer further admits that those statements were true in fact, and that they nevertheless refused the demand to make the appropriation, and yet they insist that relators are not entitled to a writ of mandamus nor to an answer to the petition for it. ™

This position rests wholly upon the phrase in the section above quoted “ and if the foregoing facts shall appear.”

It is claimed that this is a condition which makes the petition mere allegation; and requires evidence alimide of the facts alleged, to the satisfaction of the county board; from wliich it follows and is claimed that if mandamus will lie in any case of this kind the petition for it here is fatally defective in not averring that such evidence was produced, and that the facts did thereby “ appear” to the board; and further that the county board, having the right to require such evidence, and_ consequently to determine its sufficiency, must also'have the discretion to make or refuse the appropriation as it shall or shall not be satisfied by it; in short, that this section of the statute is not mandatory, but directory merely, and that therefore mandamus will not lie in any case.

From the premises assumed the conclusion is inevitable. If discretion is given its exercise in a particular way can not be compelled. The People, ex rel., v. Dental Examiners, 110 Ill. 180; Board of Supervisors of Will Co. v. The People ex rel., Ibid. 517; and the action of the board is final, for no provision is made for its review by appeal or otherwise.

Upon this view of the effect of the phrase in question, as is inferred from the argument here made, the circuit court sustained the demurrer. We do not concur in it. This section (19) is new and a substitute for the 110th of the act of 1879, which was as follows: “When it shall be necessary to construct or repair any bridge in any town, or to build a bridge over any stream between towns, or over streams on roads between towns in the same county, which would be an unreasonable burden to the same, the cost of which will be more than can be raised in one year by ordinary taxes for bridge purposes in such town or one of such towns, the commissioners of highways of either town desiring to build such bridge shall present a petition to the county board in which such town or towns is situated, praying for an appropriation from the county treasury to aid in the building, constructing and repairing of such bridge; and such county board shall, when one half of the necessary funds have been provided for by the town authorities of either or both such town or towns, appropriate the other half.”

Under that section the county board was not bound to make the appropriation upon a petition of the commissioners of highways merely asking for it, without averring the necessary facts. These must not only have existed, but also “appeared” to the body called on to make it by reason of them. Thus, they were justified in refusing it where it was shown, on proceedings for a mandamus, that the provision for the other half of the expense had not been legally made by the town authorities,Jmt only by private arrangement by the commissioners for the loan of it when needed. Board of Supervisors of Stark Co. v. The People ex rel, 110 Ill. 577. Tet it was also held that a petition for mandamus, setting forth a petition to the county board which properly averred all the facts indicated by the statute as conditions of the appropriation and a refusal of the demand thereon to make it, without showing the 'production of any other proof of these facts to the county board, was sufficient on demurrer. The People ex rel., v. The Board of Supervisors of Iroquois Co., 100 Ill. 640; Town of New Boston v. Supervisors, etc., 110 Id. 197.

Thus it is shown that under that section, although not in terms required, it was no less necessary than under the substitute now in force and the particular phrase therein relied on, that the facts should appear to the county board; yet the unsupported petition of the commissioners was sufficient, prima facie, as to all that were averred in it. In other words, that the facts did “appear ” prima facie, by means of the petition alone, when therein properly averred.-

It would seem that the phrase under consideration really made no change in the law, but only declared in terms what was before implied and still would be, without it. Section 110 of the act of 1879 imposed an imperative duty, upon the conditions or in the case therein specified, and mandamus would lie. Board of Supervisors of Will Co. v. The People ex rel., 110 Ill. 517, and cases supra and so, by parity of reasoning, does section 19 of the act of 1883. The clause in question invests the county board in such cases with no more discretion or right of final judgment as to the duty of making the appropriation, than is possessed by all parties charged with an imperative duty upon conditions or in a case prescribed. To all such parties the facts constituting the conditions or case upon which the duty arises must “ appear.” But they do appear, in the sense intended when they are set forth or presented — when information of them is given — to such party in the manner prescribed by the law imposing the duty, if any is so prescribed, or, if not, in any reasonable and effectual manner. Proof of them to his satisfaction is never required. He can make no issue up>on such information, but must act upon it and the demand to perform, by complying or refusing. Of course and necessity he must determine for himself, in the first instance, whether the information is in proper form or the facts stated really exist, but that is not such a discretion as bars a mandamus. If for any reason in his judgment he ought not to do the thing demanded he may refuse, but his judgment is not conclusive. He must submit to that of the court upon the proceeding fora mandamus. The issue is made, not upon the presentation of the facts or the demand to perform, but upon the petition for mandamus.

So here, consistently with the view that the statute is imperative and with the usual course in such cases, it contemplates no issue upon the petition to the county board. Ho notice to whom it may concern, of the intention to present it, is required to be given; no provision for answer thereto is made ; no mode of trial is indicated; no tribunal for its determination assigned.

The conditions of the duty are certain facts specified, a petition presented with accompanying estimate and affidavits, and a demand of its performance. The means and mode of information to the county board of the conditions or case for its performance, is the petition with the accompanying papers in proper form. If they contain and present them they thereby do “ appear ” in the sense of the law. Thereupon the county board must act, by making the appropriation or refusing to make it. If they refuse, they must do so at the peril of their ability to justify it on the proceedings that may follow to compel them.

Just here is a principal fallacy in the argument, for appellees’ counsel assume the only alternatives to be that the county board must have the power to determine conclusively the question of duty, or else it must at once comply with the demand of the commissioners to make the appropriation asked, and argue for the power, because, if not given, the board would be compelled, upon the mere averment of the commissioners, to appropriate §50,000 for half the cost of a bridge which it might know, and be able to prove, ought not to cost in all §5,000. This is a mistake. Upon our construction of the statute the county treasury is not so exposed. Here, as in every case where an imperative duty is imposed upon conditions prescribed, the party charged may refuse to comply with any given demand to perform it, and take the judgment of a competent court, on proceedings for a mandamus, whether in the case presented he ought to comply, and the question here is whether, under this statute, this is such a case.

For the contention that it is for the county board and not for the court to decide the question of duty, counsel cite with great confidence the case of The People ex rel., v. Dental Examiners, 110 Ill. 180.

The purpose of the statute there involved, (Laws of 1881, p. 77,) as indicated by its title, was “ to insure the better education of practitioners of dental surgery.” It provided that the governor should appoint a board of five experts, “ practicing dentists” whose duty it should be “ to carry out the purposes and enforce the provisions thereof,” and, to that end, that they should issue a license to practice dentistry to such persons desiring it as “they shall find,” upon personal examination with reference to their knowledge and skill in dental surgery, “ to possess' the requisite qualifications,” and without such examination, “to any regular graduate of any reputable dental college.” The Supreme Court held that whether the college of which the applicant was a graduate was “ reputable ” was a question of fact which was by that act submitted to the decision of the board of dental examiners — •“ not in so many words, but by the plainest and most necessary implication ” ; that “this involved investigation, judgment and discretion,” and therefore that mandamus would not lie to compel a decision in a particular manner. A single sentence set forth the argument for the implication stated, as follows: “ Their action is to be predicated upon the existence of the requisite facts, and no other tribunal is authorized to investigate them, and of necessity, therefore, they must do so.” In this sentence alone, considered apart from all else in the opinion, is found all the analogy that is claimed to exist between the two cases. It was quite enough to say of the board, the-fact and the action of which the court was speaking. The action was the granting or refusal of a license to practice a profession requiring special knowledge and skill; the fact on which it was to be predicated was the possession or the want of the requisite knowledge and skill on the part of the applicant, and the board was an official body of experts specially qualified and charged to ascertain the fact. They were to ascertain it actually, by personal examination as to one class of applicants, and presumptively as to another, by actually ascertaining the fact on which the law allowed the presumption. It is manifest from the whole act that the legislature depended on the judgment of this board alone as to the fitness of the applicant to be licensed, from the character of the examination passed in one case, and of the college whose diploma was to be its equivalent in the other.” “ No other tribunal was authorized to investigate it.” But the county board sustains no such relation to town bridges. It lias no special qualification. It is not authorized to determine the necessity of a bridge, or its kind or cost, or what portion of the road and bridge tax levied for a given year in any town is needed for the ordinary repair of roads and bridges. These are the material facts which constitute the condition of the appropriation, and the county board cannot legally know them of its own knowledge. Another tribunal, the commissioners of highways, is authorized to investigate and determine them. They are presumed to know also — it is their duty to know — the existence and location of all public highways in their town or for the bridging of which it is wholly or in part responsible; and it will not be claimed that the ascertainment of the remaining fact, that the levy of the road and bridge tax for the year in the town was for the full amount of sixty cents on the one hundred dollars, on the latest assessment roll, “ involves investigation, judgment and discretion.”

So the cases of the county board and dental examiners are quite unlike, except in the circumslances that the action of each is to be predicated upon the existence of the requisite facts.” But as has been seen, this was true of the county board under the act of 1879, and not made more so by the words and if the foregoing facts shall appear” introduced into that of 1883. It is true in every ease of imperative duty imposed. Therefore, if that circumstance would give discretion and so bar mandamus this writ would never lie.

For the reasons above given we hold that the language in said section 19, here relied on by appellees, does not clothe them with the right to determine conclusively whether the duty of making the appropriation asked has arisen, that the petition herein shows a jprima facie case for a mandamus, and that the circuit court erred in sustaining the demurrer thereto.

The judgment will therefore be reversed and the cause remanded for further proceedings in conformity with this opinion.

Reversed and remanded. .


text:
    John C. Lamb v. William Campbell et al.
    Mechanics lien — Parties.—Under section 28 of the Lien Law, as applied to liens created by trust deed, the cestui que trust is the real creditor intended, and to postpone his lien to that of the mechanic or material man, he must be made a party to the proceeding for the enforcement of the lien within the six months therein limited. Here the cestuis que trust were not so numerous nor so represented by the trustees as to bring the case within the recognized exception to the general rule.
    Error to the Circuit Court of Cass county; the Hon. Lyman Lacey, Judge, presiding.
    Opinion filed February 25, 1886.
    Mr. T. C. Mather, for plaintiff in error.
    Mr. R. W. Mills, for defendants in error.
   Pleasants, J.

Defendants in error, being severally holders of certain bonds of the Virginia Coal and Water Company, secured by trust deed of its lands, shafts, machinery, etc., of December 1, 1883, in January, 1885, filed' the bill herein . against said company to foreclose said deed, making plaintiff in error a party defendant also.

He filed an answer setting up that under a contract with the company of October, 1883, he had furnished it certain machinery for the improvement and operation of its property, whereby he acquired a lien upon the same, which Avas prior to that of said trust deed, and at the August term, 1884, of the Cass County Circuit Court, he had obtained a decree declaring and establishing said lien, under Avhich the property had been sold by the master and purchased by the respondent; to which ansAver there Avas a general replication, and thereupon the cause was referred to the master to take proofs.

By the record of the proceedings on the petition for a mechanic’s lien, set up in said ansAver and produced in evidence; it appeared that for the machinery so furnished to the company the respondent had taken its promissory note, due April 1, 1884; that the petition was filed after said trust deed was recorded, and that Avhile the trustees in said deed named Avere made parties to the proceeding, defendants in error, the cestuis qua trust, were not.

Upon the hearing the court decreed that the lien of the defendants in error under the trust deed was prior to that of the plaintiff in error, even as to the material and machinery which had been furnished by him and become incorporated in the property of the company; and the single question presented upon the record is, whether this was error.

Section 28 of the lien law (Ch. 82 of R. S.) provides that “Ho creditor shall be allowed to enforce the lien created under the foregoing provisions, as against, or to the prejudice of any other creditor or incumbrancer or purchaser, unless suit be instituted to enforce such lien within six months after the last payment for labor or materials shah have become due and payable.”

Under this section, as applied to liens created by trust deed, it has been repeatedly held that the cestui que trust is the real creditor intended, and to postpone his lien to that of the mechanic or material man he must be made a party to the proceeding for the enforcement of the lien within the six months therein limited. McGraw v. Bayard, 96 Ill. 146; Clark v. Manning, 95 Id. 580; Gaytes v. Franklin Savings Bank, 85 Id. 256; Scanlan v. Cobb, Ibid. 296; Dunphy v. Riddle, 86 Id. 22; Crowl v. Nagle, Ibid. 437; Ridenour v. Shideler, 5 Bradwell, 190; Phœnix Mut. L. Ins. Co. v. Batchen, 6 Id. 640.

This is according to the general rule of chancery practice, that all persons having an interest in the subject-matter of the suit to be affected by the decree should be made parties. Here the eestuis gue trust were not so numerous nor so represented by the trustees as to bring the case within the familiar exception stated in Perry on Trusts, §§ 873-885, Freeman on Judgments, §§ 157-173, and recognized in Land Co. et al. v. Peck et al., 112 Ill. 435.

Decree affirmed.