author: Mr. Justice McDonald Mr. Justice Barnes

text:
    Sidney S. Gorham and Henry W. Wales, Appellees, v The Massillon Iron & Steel Company, Appellant.
    Gen. No. 23,165.
    1. Corporations, § 156

      —when transfer of stock properly refused after garnishment. Where, prior to the demand of persons,, claiming to hold certain stock under assignment, that the stock be transferred to them, the corporation is served with a garnishee summons in suits instituted against the assignor in which attachments in aid were issued, the stock is in custodia legis and the corporation is justified in refusing a transfer thereof.
    2. Attachment, § 263*—when judgment may not he collaterally attacked. An assignee of stock, seeking to hold a corporation liable for conversion for refusing to transfer stock which it refused to transfer because of having been previously served with garnishee summons issued by a plaintiff in attachment in aid against the assignor, cannot set up that the refusal was unjustified because the attachment proceedings were void for want of jurisdiction, where the question of jurisdiction was raised by the assignor in those proceedings and judgment was entered against him.
    3. Garnishment, § 64*—what are duties of garnishee as to property.' A garnishee is merely a custodian of the property and must not prejudice the rights of either of the parties seeking the property.
    4. Garnishment, § 64*—duty of garnishee to call to attention of court conflicting claims. The garnishee must call to the court’s attention all conflicting claims to the property and cannot set up. the judgment rendered against him in an action by one whose interest he has concealed from the court.
    5. Trover and conversion—when garnishee guilty of conversion. Where a garnishee-fraudulently conceals from the court the interest of a claimant in the property, such concealment is a denial of the claimant’s ownership which constitutes a conversion.
    6. Fraudulent conveyances, § 19*—when assignment of personalty not in fraud of creditors. An assignment of personalty cannot, on appeal, be said to have been made for the purpose of defrauding creditors, where the record fails to show that the assignor was without other funds to meet his liabilities.
    7. Fraudulent conveyances, § 180*—who may not set up fraud. One who is not a creditor cannot set up that an assignment was made for the purpose of defrauding creditors.

      8. Troves and conversion, § 38

      —what considered in determining value of corporate stock in absence of market value. In an action for the conversion of corporate stock 'which has no ascertainable market value, it is proper,' in determining its value, to take into consideration the value of the company’s assets, its liabilities and its earning power for a number of years prior to the conversion.
    9. Trover and conversion, § 39*—when amount for which property of corporation will sell at forced sale not controlling in ascertaining value of stock. In an action for the conversion of corporate stock, in ascertaining the value of such stock, evidence that at a forced sale the company’s assets would not bring a sufficient amount to cover its liabilities is not controlling where it appears that the company was then and has been since a going concern and that it was in a prosperous condition and had large earnings for a number of years prior to its financial difficulties, and that the latter were caused, by the defalcation of one of its officers.
    10. Trover and conversion; § 39*—tohen finding as to value of corporate stock warranted by evidence. In an action to recover for the conversion of corporate stock, where the; evidence showed that the book "value at the date of the conversion was $40 per share and tended to show an approximate good-will value of $12 per share, it cannot be said- that the court erred in fixing the value of the stock at $51.
    Barnes, J., dissenting.
    Appeal from the Superior Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 12, 1918.
    Matz, Fisher & Boy den, and Victor Elting, for appellant.
    Amos 0. Miller, for appellees.

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

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

   Mr. Justice McDonald

delivered the opinion of the court.

This is an appeal from a judgment for $35,700 recovered by Sidney S. Gorham and Henry W. Wales against the Massillon Iron & Steel Company (defendant below), in an action of trover for the wrongful conversion of 700 shares of its capital stock.

In one of the counts of the declaration it was alleged that the conversion took place on April 30, 1912, while in another the conversion was alleged to have occurred on February 28, 1913.

The defendant is an Ohio corporation, with its principal offices and plant located at Massillon, Stark county, Ohio. Prior to March 15, 1912, Frank F. Fisher, who was vice president and Chicago sales agent of the defendant company, and who was the owner of record of 1,575 shares of its capital stock, executed for the accommodation of the defendant company four promissory notes, aggregating upwards of $11,000. These notes, which were renewals of previous ones executed by said Fisher for a similar purpose, were discounted for the defendant company by certain banks in Massillon, and to secure their payment 210 shares of the said Fisher’s stock were pledged. At the time these latter notes were given, the defendant company was in financial straits, and, to relieve the situation, several plans of reorganization were proposed, to all of which the said Fisher objected. His antagonistic attitude in this regard hampered the reorganization for a time and gave rise to strained relations between tom and the other officers of the defendant company and culminated in Fisher’s discharge as sales agent.

On March 19,1912, two of the Massillon banks, each holding one of the aforesaid notes, instituted suit thereon and attachments in aid thereof against the said Fisher in the Common Pleas Court of Stark county, Ohio, and served the defendant company as garnishee. It appears that these suits were brought at the instance of the defendant company.

On. March 30,1912, defendant company wrote Fisher a letter in which it stated that it had been informed by Fisher’s attorney that he no longer owned the stock.

On April 18, 1912, defendant company filed answer as garnishee, setting forth that there stood on its books 1,575 shares of its capital stock in the name of the said Fisher.

On April 20, 1912, similar proceedings were commenced by two other Massillon banks, each holding one of the remaining notes executed by Fisher, and the defendant company was again served as garnishee.

On April 30, 1912, plaintiffs presented to defendant company at Massillon certificates for 700 shares of its capital stock duly assigned to them in writing by Fisher, 600 shares of which were assigned under date of March 15, 1912, and 100 under date of March 19, 1912, and demanded a transfer thereof on the books of defendant company and that a new certificate be' issued in their name therefor. Defendant company refused to comply with this demand, assigning as its reason therefor the pendency of the attachment suits hereinabove referred to in which it had been served as garnishee. A similar demand had been made by plaintiffs on defendant company on April 26th, which was refused because the books of the defendant company were then in Cleveland.

On June 1, 1912, the defendant company filed its answers in the two last-mentioned proceedings, which said answers were similar to those filed on April 18th in the first two suits.

On August 6, 1912, before final judgment was rendered in the aforesaid attachment suits, Fisher filed a petition in equity in Stark county, Ohio, against the defendant company and the Massillon banks aforementioned, alleging that he made and delivered to the defendant company the four said promissory notes, which were then past due, for the accommodation of the defendant company, and without any consideration to him whatsoever, and prayed that the defendant company be compelled to pay same.

On October 9, 1912, defendant company filed its amended and supplemental answers in the foregoing attachment suits, in which it alleged that since the •filing’ of its original answers, 210 shares of stock which then stood in the name of the said Fisher had been sold by the pledgees thereof and transferred on its books out of the name of Fisher, and that there then stood on the books of the company in his name 1,365 shares of its capital stock.

On February 28, 1913, judgment was entered against defendant company as garnishee, on =its answers in the aforementioned attachment and garnishment proceedings, and in the judgment order the defendant company was directed to issue a certificate for 1,365 shares of its capital stock, then standing in the name of the said Fisher, to the sheriff of Stark county, and recited further that defendant company, having already complied therewith, was discharged as garnishee.

On April 15, 1914, the court entered a decree in the proceeding commenced by Fisher on August 6, 1912, in which it found that the defendant company was primarily liable on the notes in question, and ordered and decreed that it pay the amounts due thereon, and that the banks cancel and surrender them to the company. This decree was later affirmed on appeal by the defendant company. The order of affirmance denied Fisher’s motion for statutory damages, reciting that there was reasonable ground for the appeal, although it did not set forth the nature thereof. Subsequently the attachment suits were released, the certificate of stock theretofore issued to _the sheriff of Stark county was canceled and returned to the defendant company, who then for the first time notified plaintiff of its willingness to transfer upon its books the 700 shares of stock assigned to them by Fisher.

It is contended by defendant company that under the circumstances it was not guilty of a conversion of the said stock; that the said Massillon banks were creditors of Fisher on the notes in question and were pursuing their legal rights in prosecuting the said suits; that by the service of the garnishee summons on it, Fisher’s stock then appearing of record on its books was custodia legis, and that hence it was warranted in denying a transfer thereof to plaintiffs as assignees, pending the outcome of the said suits. In support thereof, we are referred to the rule laid down in Spangenberg v. Nesbitt, 22 Cal. App. 274, 134 Pac. 343, and in Mundt v. Commercial Nat. Bank of Ogden, 35 Utah 90, 99 Pac. 454, that the officers of a corporation may rightfully refuse, for the time being, a requested registry of stock by the assignee thereof, when notified to do so by a third person who claims some interest therein which might be lost or injuriously affected by the transfer; that with notice of such conflicting claims, it is the privilege and the duty of the corporation or its officers, if there be a reasonable doubt as to the respective rights of the contending claimants, to refuse or delay registry to either party until the lapse of a reasonable time within which the merits of the controversy may be determined. In our opinion, these authorities enunciate a correct principle of law. The garnishee summons having been served on the defendant company prior to the date of the demand by plaintiffs as the assignees of the stock, the defendant company was justified in refusing a transfer thereof, the stock then being custodia legis, and hence there was no conversion on April 30, 19.12. National Bank of New London v. Lake Shore & M. S. Ry. Co., 21 Ohio St. 221.

Plaintiffs argue, however, that the said attachment proceedings were void for want of jurisdiction because of a defective acknowledgment in the affidavit, and that hence it affords defendant no justification for its refusal to make the transfer of stock. It appears that in said proceedings Fisher entered a special appearance to question the jurisdiction of the court, but the court found, that it had jurisdiction, and entered judgment against him. Under such circumstances, the court having expressly passed upon the question of jurisdiction, its finding is not subject to collateral attack. Swift v. Yanaway, 153 Ill. 197; Figge v. Rowlen, 185 Ill. 234.

The next question presented by this record is, whether or not there was a conversion of the said stock by defendant on February 28, 1913, as charged in the declaration.

Defendant company’s only justification for having issued the stock certificate to the sheriff of Stark county is based on the judgment entered against it in the aforementioned attachment proceedings, wherein it was served as garnishee. Its conduct as such therefore becomes material.

A garnishee is a mere stakeholder or custodian of the property or funds sought to be reached, and by reason of his position he must stand equally indifferent to both parties to the controversy, refraining from any acts which might prejudice the rights of either. It is also his duty to bring to the attention of the court any and all conflicting claims made to the property in his custody, to enable the court to determine the rights of the claimants. Failing therein, the garnishee is precluded from setting up the judgment rendered against him in an action by a third party whose interest he has concealed from the court. Greenwich Ins. Co. v. Columbia Mfg. Co., 73 Ill. App. 560, wherein the court held, p. 568:

“If a garnishee, with notice of an assignment to a'third party of the debt garnisheed, fails to bring it to the attention of the court, the judgment rendered against him will be no bar to a suit by such third person. [Citing Drake on Attachments, secs. 607, 608; 8 Am. & Eng. Encyc. of Law, 1183.]
“The authorities are abundant in support of that holding. Nor will the mere fact that the assignee knew of the pendency of the garnishee proceedings and might have intervened to assert his right, relieve the garaisheé of the duty to set up in his answer the fact of his having received information of the assignment. ’ ’

It appears from the record that the defendant company was aware of its primary liability on these notes, as shown by the resolution spread of record in 1910, whereby it agreed to save the said Fisher harmless thereon. Notwithstanding this fact, and its duty to pay same, it procured suits to be brought on said notes against Fisher by the Massillon banks and caused itself to be summoned as garnishee. In its-answers filed as such, defendant company failed to disclose the claim of the plaintiffs to this stock, despite its admitted knowledge that Fisher no longer owned it, and the further fact that on April 30, 1912, plaintiffs, as assignees, demanded a transfer thereof. Even as late as October 9, 1912, when defendant company filed its supplemental answers as garnishee, no mention was made of the assignment thereof, although it was stated therein that 210 shares of Fisher’s stock pledged as security for the' payment of the said notes had been sold and transferred on its books, leaving 1,365 shares still in his name.

Defendant company having caused the attachment suits to be instituted against Fisher and against itself as garnishee, and having fraudulently failed to disclose to the court by its answers the assignment of the said stock, as a result of which it was transferred on the company’s books and a certificate therefor issued to the sheriff of Stark county, it thereby precluded itself from setting up this proceeding as a justification for the said transfer. Such fraudulent concealment from the court of plaintiffs’ interest in said stock was clearly a denial of their ownership therein, which constituted a conversion. London, Paris & American Bank v. Aronstein, 117 Fed. 601.

The further point is made that' the assignment of stock by the said Fisher to plaintiffs was made for the purpose of defrauding his creditors, and hence void. With this contention we cannot agree, for the reason that the record fails to show that he was without other funds or means to meet his liabilities to his creditors. Nor does it appear that Fisher had any creditors except as a result of his secondary liability to the banks on the notes in question. However, the defendant company not being a creditor, it cannot question this assignment.

It is also contended that the damages awarded are excessive.

The stock in question had no ascertainable market value. Therefore, in determining the value thereof, the court properly took into consideration the value of the defendant company’s assets, its liabilities, and its earning power for a number of years prior to the conversion. This method of computation was approved in McDonald v. Danahy, 196 Ill. 133, wherein the court held:

• “It appeared that the stock had no ascertainable market value, and it became necessary to prove its value by the next best evidence. By ascertaining the value of the assets of the company and the amount of its liabilities and the dividends paid, the value of its capital stock could be determined with reasonable certainty. ’ ’

This rule was followed in Leavitt v. Lusch, 192 Ill. App. 504, the court citing Cook on Corporations (5th Ed.), vol. 2, sec. 581, and Sutherland on Damages, vol. 1, pp. 798-800.

It is argued, however, that because of its financial embarrassment at and prior to the time of the conversion, defendant company’s common stock had no value, as shown by the testimony of its expert witnesses. This testimony was to the effect that, at a forced sale, the assets of the company would not bring sufficient to cover, all its liabilities. The defendant company, however, was then and has since been a going concern, and hence this testimony was not controlling. The evidence shows that for a number of years prior to its financial difficulties, due principally to the defalcation of one of its officers, defendant conn pany’s net earnings were large, and the company was in a prosperous condition.

The book value of the stock, as shown by the financial statement-of the defendant company’s condition as of December 21, 1912, which it was stipulated showed its financial condition as of February 28, 1913, also, amounted to $40 per share. The evidence tended to show a good-will value of approximately $12 per share. The court fixed the value of the said stock at $51 per share. In view of all the evidence, we cannot say that the court erred in fixing the value of the stock at that figure.

Other errors have been assigned, which upon careful examination we deem it unnecessary to discuss, except to say that they are without merit. Accordingly the judgment will be affirmed.

Affirmed.

Mr. Justice Barnes

dissenting.

I do not think trover will lie on this state of facts.


source: Caselaw Access Project

author: Mr. Justice McDonald

license: Public Domain

text:
    Frank F. Fisher, Appellee, v. The Massillon Iron & Steel Company, Appellant.
    Gen. No. 23,166. (Not to be reported in full.)
    Abstract of the Decision.
    1. Corporations—what presumption raised as to compensation of officer on re-election. When an officer of a corporation is reelected to the office, the presumption is that his duties and compensation will remain the same.
    2. Corporations—when salaries of officers not subject to alteration. Where the directors of a corporation which was in financial straits and had suspended operations adopted a resolution reducing all salaries and the officers consented thereto, and at the next election of officers adopted a resolution, also consented to by the officers, continuing the reduced rate temporarily, but later in the year restored the prior rate, held that the intention of the directors on re-electing the officers was that they should receive their former salaries, subject to the temporary reduction consented to by them, and that the officers did not, by acquiescing in the reduction, waive any rights under the original contract of employment, that the resolution restoring the rate of pay was simply in fulfillment of this intention and that the salaries were not subject to alteration without the officers’ consents.

      Appeal from the Superior Court of Cook county; the Hon. Oscab E. Heard, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed March 12, 1918.
    Statement of the Case.
    . Action by Frank F. Fisher, plaintiff, against the Massillon Iron & Steel Company, a corporation, defendant, to recover salary. From a judgment for plaintiff for $8,916.67, defendant appeals.
    Matz, Fisher & Boyden and Victor Elting, for appellant; Victor Elting and Walter L. Fisher, of counsel. . _
    Miller, Gorham & Wales, for appellee.

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

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

   Mr. Justice McDonald

delivered the opinion of the court.

3. Corporations'—when directors may not alter salaries and duties of officers during term of employment. The provision in the by-laws of a corporation that the officers are under the direction and control of the directors and that their duties and salaries are to be fixed by the directors does not reserve to the latter the power to alter the salaries and duties during- the term of the employment without the consent of the officers, but only to fix them at the outset of the term.

4. Corporations—when election of officer is contract for year. The election of one to the office of vice president of a corporation constitutes a contract for a year.

5. Corporations—when relieving officer of duties constitutes breach of contract. Where one who has been continuously elected vice president of a corporation every year for 11 years has, for the same length of time, performed the duties of sales manager, his contract of employment contemplates the performance of such duties, and, by relieving him of them, there is a breach of his contract.

6. Master and servant, § 84 —when reasonable effort to secure other employment after breach not shown. In an action to recover for the breach of a contract of employment, evidence held not to show that plaintiff failed to make a reasonable effort to secure other employment after the breach.

7. Master and servant, § 81*—when defendant has burden of showing that plaintiff might have obtained other employment. In an action to recover for the breach of a contract of employment, the burden of showing that plaintiff might have obtained other employment is on defendant.

8. Master and servant, § 82*—what evidence admissible in mitigation of damages in action by servant for breach of contract. In an action to recover for the breach of a contract of employment, evidence that plaintiff might have obtained other employment after the breach is only admissible in mitigation of damages.

9. Trial, § 292*—when proposition of laio in action by officer of corporation to recover for breach of contract of employment inapplicable to facts. In an action to recover for the breach of a contract of employment as officer of a corporation, where it is shown that plaintiff’s salary and duties were to continue the same as in his former terms, subject to a temporary reduction consented to by him, a proposition of law that where, upon the election of an officer, the directors fix his duties and salary for the present and afterwards relieve him of his duties and reduce his salary to a nominal amount, such action on their part is not a discharge of the officer and a breach of his contract, while possibly correct as an abstract proposition of law, is not applicable to the facts of the case.

10. Master and servant, § 75 —when recovery for breach of contract of employment may be under either special count or indebitatus assumpsit. In an action for the breach of a contract of employment, where plaintiff has partly performed and has been prevented from performing. the remainder by defendant’s act, a recovery may be had under either the indebitatus assumpsit or under the special count.


text:
    William H. Kidston, Appellee, v. The Massillon Iron & Steel Company, Appellant.
    Gen. No. 23,167. (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Oscab E. Heard, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 12, 1918.
    Statement of the Case.
    Action of trover by William H. Kidston, plaintiff, against the Massillon Iron & Steel Company, a corporation, defendant, for the conversion of corporate stock. From a judgment for plaintiff for $30,851, defendant appeals. The decision in this case is controlled by that in Gorham v. Massillon Iron & Steel Co., ante, p. 606.
    Matz, Fisher & Boyden and Victor Elting, for appellant; Victor Elting and Walter L. Fisher of counsel.

      Amos C. Miller, for appellee.
   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Emma C. Enoch, Appellant, v. John F. Walter et al., Appellees.
    Gen. No. 23,211.
    1. Fraudulent conveyances, § 264

      —when assignment of property to prevent collection of alimony not shown. On a creditor’s hill, the allegation of complainant that an assignment of property had been fraudulently made to prevent her from recovering alimony due her by the assignor, held not sustained by the evidence.
    2. Wills, § 482*—what is nature of legacy made charge upon realty. A legacy which is made a charge upon realty merely becomes a lien thereon, enforceable by a proceeding analogous to the foreclosure of a mortgage, and does not constitute an interest in realty.
    3. Divorce, § 127*—when decree for payment of alimony does not become lien upon realty. A decree for the payment of alimony to become due does not become a lien upon the real estate of the person against whom it is entered, unless it is made so by statute or the decree itself recites that it shall become a lien.
    4. Equity, § 507*—necessity that decree be for money due in order to be lien on land. Section 44 of the Chancery Act (J. & A. IT 924), making a decree for money a lien on lands, contemplates a decree for money due at the time of its entry!
    5. Divorce—order for payment of alimony as not lien upon realty. Section 44 of the Chancery Act (J. & A. ’)[ 924) does not warrant the inference that an order for the payment of alimony to become due shall be a lien on realty.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 12, 1918.

      Samuel B. Hill, for appellant.
    Montgomery, Hart, Smith & Steers, for appellees.

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

   Mr. Justice McDonald

delivered the opinion of the court.

By this appeal it is sought'to reverse a decree dismissing for want of equity a creditor’s bill filed by appellant, complainant below.

It appears from the evidence that during the year 1905 the complainant procured a decree of divorce from Charles H. Walter, in Cook county, Illinois, at which time the said Walter was ordered to pay complainant a certain sum of money per week as alimony, but the decree did not recite that it should be a lien on his realty; that upon supplemental hearing, on January 22, 1915, the said Walter was found to be in arrears in the sum of $2,552.90 for alimony due, and accordingly the court entered a decree against him for that amount. It further appears that the said Charles H. Walter was made a legatee, to the extent of $1,500, under the last will and testament of his father, who died on January 7, 1913; that, of this legacy, $1,000 was expressly made a charge upon certain real estate devised to John F. Walter, another son of the testator, who was named as executor in said will, and who was also made a party defendant hereto; that on January 21, 1913, the said Charles H. Walter executed an assignment of the said legacy to the defendant, John F. Walter, which recited that it was “in full settlement for board, room rent and moneys lent.”

It is contended by complainant that the said assignment was fraudulently made to prevent her from recovering the alimony in question. ' From a careful examination of the evidence, we are of the opinion that the court properly found that complainant had failed to establish this charge.

It is also argued by complainant that the decree of divorce obtained by her from the said Charles H. Walter, which contained a provision requiring him to pay her $6 per week as alimony, became a lien upon the aforesaid leg'acy in favor of the said Charles H. Walter. Underlying this contention is the theory of complainant, (1) that this legacy constituted an interest in realty because it was made a lien on the property devised to the aforesaid John F. Walter, and (2) that an order for the payment of alimony to become due ipso facto becomes a lien on the realty of the person against whom it is entered, even in the absence of any recital in the decree to that effect. In our opinion, neither of these positions is tenable.

A legacy, when made a charge upon realty, merely becomes a lien thereon, enforceable by a proceeding analogous to the foreclosure of a mortgage. Houck v. Herrick, 179 Ill. App. 274.

As we view the authorities, a decree for the payment of alimony to become due does not become a lien upon the real estate of the person against whom it is entered, unless it is made so by statute or the decree itself recites that it shall become a lien thereon. 14 Cyc. 783; 2 Am. & Eng. Encyc. 133.

Section 44 of the Chancery Act (J. & A. ¶ 924) provides that a decree for money shall be a lien on the lands and tenements of the party against whom it is entered, to the same extent and under the same limitations as a judgment at law. It would appear that an order for alimony not yet due lacks several of the essentials of a money judgment or decree as contemplated in this section. A judgment at law must be for a definite sum of money due at the time of its entry. So, too, this provision of the Chancery Act contemplates a decree for money due at the time of its entry, for such decree is in personam, and unless execution issue thereon within one year from its entry, the same as on a judgment at law, the lien created thereby ceases to exist. (Kirby v. Runals, 140 Ill. 289.) The order for the payment of alimony to become due may be modified or altered when the circumstances of the parties require. Upon default in the payment thereof, the court may, by supplemental proceeding, ascertain the amount due and enter a decree for the payment thereof, upon which execution may issue. We find nothing in the said section to warrant the inference that an order for the payment of alimony to become due shall be a lien on realty.

This view finds support in section 20 of thé Divorce Act (J. & A. ¶ 4235) which provides as follows:

“Whenever, in any case of divorce, a decree for alimony or maintenance is made a lien on any real estate to secure the payment of any money to become due by instalments, and a sale of such real estate shall become necessary to satisfy any of such instalments, the property shall be sold subject to the lien of the instalments not then due, ’ ’ etc.

If, as contended by the complainant, the decree for the payment of future alimony ipso facto becomes a lien on realty, then the language, “Whenever * * * a decree for alimony or maintenance is made a lien, on any real estate to secure the payment of any money to become due by instalments,” becomes superfluous.

Our. conclusion is, that the original decree of divorce, providing for the payment of alimony to become due, was not a lien on real estate as contemplated by section 44 of the Chancery Act, supra; that the aforesaid legacy in favor of Charles H. Walter, which was made a charge on the real estate devised to John F. Walter, constituted merely a lien thereon.

Without discussing the other points raised on this appeal with reference to the admissibility of certain evidence, it is sufficient to say that, in view of the foregoing holding, such errors, if any were committed, were harmless.

There being no error in the record which necessitates a reversal, the decree will be affirmed.

Affirmed. ■


text:
    William A. Stuart, Appellant, v. Joseph Fegers et al., Appellees.
    Gen. No. 23,219. (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded with directions.
    Opinion filed March 12, 1918.
    Statement of the Case.
    Bill by William A. Stuart, complainant, against Joseph Fegers, Albert Storts, Wendelin Meyer & Sons, Grus Berkes, .Hittel Cigar Company and Anheuser-Busch Company, defendants, to have a chattel mortgage and certain notes declared null and void and to enjoin the foreclosure of the mortgage and the collection, negotiation, transfer or assignment of the notes. A temporary injunction having been granted as prayed on condition that the amount due on such notes be paid into court and the total amount having been paid in, a decree was entered directing that such moneys be paid to the legal holders of such notes (the defendants other than Fegers) upon their surrender. From this decree complainant appeals.
    Myer H. Gladstone, for appellant.
    SoNNENSCHEIN, BeRKSON & LaUTMANN, FrED B. Schuchardt, William S. Newburger, Joseph S. Samuels and James B. Ward, for appellees.

      Abstract of the Decision.
    1. Equity, § 549

      —when recital of decree that equities of case and right to funds are toith defendants are insufficient to support decree. On an appeal from a decree directing the payment to certain defendants of moneys in the hands of the clerk of the trial court, where the record contains no certificate of evidence and the decree recites no findings of facts to support it, the recital of the decree that equities of the case and the right in the funds were with defendants is insufficient to support it.-
    2. Equity, § 441*—when error to enter decree disposing of subject-matter of suit. It is error to enter a decree which, in effect, disposes of the subject-matter of the suit before issue has been joined and without disposing of the bill of complaint or the demurrer thereto and without dissolving a temporary injunction issued therein.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    N. A. Williams Company, Appellee, v. C. J. McCarthy et al., on appeal of Charles S. Smith, Appellant.
    Gen. No. 23,237. (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. WnsroES, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed March 12, 1918.
    Rehearing denied March 23, 1918.
    Statement of the Case.
    Bill by N. A. Williams Company, a corporation, complainant, ag’ainst C. J. McCarthy, City of Berwyn, Charles S. Smith, individually and as president of the Board of Local Improvements of the City of Berwyn, and unknown owners of certain bonds, defendants, under section 23 of the Mechanics’ Liens Act (J. & A. ¶ 7161). From a decree ordering Charles S. Smith, individually and as treasurer of the Diamond-Smith Company, a corporation, to deliver up to the clerk of the Circuit Court certain bonds, and that in default thereof complainant have and recover against him a personal decree for $620.86, defendant Smith appeals.
    Abstract of the Decision.
    Corporations, § 298

      —when personal decree against treasurer for failure to deliver municipal bonds to materialman is erroneous. On a proceeding under section 23 of the Mechanics’ Liens Act (J. & A. 1i 7161) to enforce a lien on bonds, issued by a city, in payment for the erection of a sewer, to a contractor to whom complainant had furnished material, where the court finds that the city, after being served with notice of the lien on the bonds, delivered them to the contractor, and that the latter sold them to a corporation, which paid for them, and delivered them to the treasurer of such' corporation which was controlled by the treasurer, it is error to enter a personal decree against the treasurer for the failure of the company and of him, as its treasurer, to deliver over the bonds as decreed by the court.
    Harry A, Biossat, for appellant.
    Hollett, Satjter & Hollett, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Arthur Wolf, Appellant, v. Elodia T. Dick, Appellee.
    Gen. No. 23,243. (Not to be reported in full.)
    Abstract of the Decision.
    Replevin, § 123

      —when judgment for defendant- not disturbed. In an action of replevin to recover the possession of personal property, where the evidence, though conflicting, is sufficient to support a finding that plaintiff was indebted to defendant and that the property was delivered by plaintiff to defendant to secure the payment of the indebtedness, a judgment for defendant will not be disturbed. *
    Appeal from the Municipal Court of Chicago; the Hon. John Stem, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 12, 1918.
    Statement of the Case.
    Action in replevin by Arthur Wolf, plaintiff, against Elodia T. Dick, defendant, to recover possession of a diamond ring. From a judgment finding that defendant had a lien thereon for the payment of certain moneys claimed to be due her from plaintiff, to secure the payment of which the ring was pledged with defendant, plaintiff appeals.
    S. B. Krohn, for appellant.
    Clyde C. Fisher, for appellee. •

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Henry Brown, Plaintiff in Error.
    Gen. No. 23,391. (Not to be reported in full.)
    Abstract of the Decision.
    Disorderly house, § 8

      —who is inmate of. The word "inmate” as used in section 57a—1 of the Criminal Code [Callaghan’s 1916 St. Supp. f 3591(1)] refers only to a woman who is in a house of ill-fame for the purpose of plying the business of fornication, and a male cannot be convicted thereunder.
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed.
    Opinion filed March 12, 1918.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Henry Brown, defendant, for being an inmate of a house of ill-fame for the- practice of fornication. To reverse a judgment finding plaintiff guilty, he prosecutes this writ of error.
    N. A. Kaufmann, for plaintiff in error.
    Maclay Hoyne, for defendant in error; George C. Bliss, of counsel.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Nathan Turetzke, Appellee, v. Frank Meyer et al., Appellants.
    Gen. No. 23,958. (Not to be reported in full.)
    Abstract of the Decision.
    1. Injunction, § 174

      —when village is necessary party to bill against officers to compel turning on of water. On a bill for an Injunction against certain persons, made defendants as individuals but described as officers of a village, to compel them to turn on in complainant’s premises water supplied by the village which it is alleged that they, as such officers, had arbitrarily shut off from the premises, the village is a necessary party defendant.
    2. Injunction, § 191*—when HU to compel village officers to turn on water is insufficient. Bill of complaint for injunction to compel village officers to turn on village water in complainant’s premises, held not to aver facts warranting the interposition of a court of equity.
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. Robert E. Crowe, Judge, presiding.
    Heard in the Branch Appellate Court.
    Reversed and remanded with directions.
    Opinion filed March 12, 1918.
    Statement of the Case.
    Bill by Nathan Turetzke, complainant, against Frank Meyer, Louis Sweeney and Fred Norton, defendants, for an injunction to compel defendants to turn on the water in premises owned by complainant. From a decree for complainant, defendants appeal. '
    F. J. G-riffen and Northup, Fairbank & Klein, for appellants.
    Cornelius R. Adams, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Harris Automatic Press Company, Appellee, v. Cream of Wheat Company, Appellant.
    Gen. No. 22,900. (Not to be reported in full.)
    Abstract of the Decision.
    Sales, § 284

      —what is remedy of seller upon retention, of goods by buyer after termination of contract. Where a contract for the purchase of a printing press was terminated by the buyer in accordance with the terms of the contract but the press was used by him thereafter, his liability for such use, if any, would be upon a quantum meruit and not on the contract, which provided for the terms of its use only while' the contract was in force.
    Appeal from the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed March 12, 1918.
    Statement of the Case.
    Action by the Harris Automatic Press Company, a corporation, plaintiff, against Cream of Wheat Company, a corporation, defendant, to recover for the use of a printing press under the terms of a written contract. From a judgment for plaintiff, defendant appeals.
    Brown & G-uesmer, of Minneapolis, Minn., and Adams, Follansbee, Hawley & Shorey, of Chicago, Ill., for appellant.
    Thompson, Tyrrell & Chambers, for appellee.

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

   Mr. Justice Matchett

delivered the opinion of the court.


text:
    John J. Hanrahan, Jr., Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 23,171.
    1. Municipal cobpobations, § 1079

      —when declaration in action against city for personal injuries due to fall of awning is sufficient. A declaration, in an action against a city to recover for personal injuries, which alleges that a city, with notice, permitted an awning attached to private property adjoining the street and extending out and over the sidewalk on the street but not resting on or attached to the street itself, to be and remain in a weak and dangerous condition, and that it fell on plaintiff while he was using the street with due care, etc., injuring him, states a cause of action.
    2. Municipal cobpobations, § 993*—what duty required of city to keep streets and sidewalks safe. It is the duty of a city to use ordinary care to keep its streets and sidewalks reasonably safe, and it is liable for injuries caused by its neglect of this duty.
    3. Municipal cobpobations, § 993*—what is extent of duty of city to keep streets and sidewalks reasonably safe. The duty of a city to keep its streets and sidewalks reasonably safe is coextensive with the powers conferred upon and accepted by it.
    4. Evidence, § 435*—what is proper hypothetical question as to relation between accident and injuries. In an action against a city to recover for personal injuries caused by the fall of an awning over the sidewalk, where it appears that plaintiff became insane after the injury, it is not error to permit an expert medical witness to testify, in response to a hypothetical question by plaintiff setting out the facts shown by the evidence and asking whether or not there was, in his opinion, any relation between the accident described- and the plaintiff’s subsequent condition, that such condition was due to the accident and the injury, especially where defendant’s experts were allowed to answer similar questions.
    5. Evidence, § 423*—when physician may testify directly that malady is due to original injury. In an action for personal injuries, where there is no dispute as to the manner and cause of the injury nor that there was an injury sustained by reason of the acts of which complaint is made, a physician may testify directly that a later malady was or was not caused by the accident or original injury.

      Appeal from the Superior Court of Cook county; the Hon. Theodobe Bbextaxo, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 12, 1918.
    Samuel A. Ettelsoh and Charles B. Frahcis, for appellant City of Chicago; Bobert H. Farrell, of counsel.
    Earl J. Walker and James D. Power, for appellee; A. B. Miller, of counsel.

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

   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal by the defendant, City of Chicago, from a judgment of the Superior Court of Cook county entered upon the verdict of a jury, in an action on the case for personal injuries.

Appellant urges that the declaration does not state a cause of action. The declaration, in substance, alleges (and the proof shows) that the City of Chicago with notice permitted a certain awning attached to private property adjoining the street and extending out over the sidewalk on the street, but not resting on nor attached to the street itself, to be and remain in a weak and dangerous condition; that it fell on plaintiff while he was using the street with due care, etc., injuring him.

In Hanrahan v. City of Chicago, 145 Ill. App. 38, this court held that a precisely similar declaration arising out of the same transaction did not state a cause of action. The ground of that decision was that the negligence alleged related to acts which the city was empowered to do as a governing - agency and duties imposed for the public welfare to which the maxim respondeat superior did not apply. The authority relied on was Oliver v. City of Worcester, 102 Mass. 489, and it was there stated: “We are aware of the conflict of authorities on this subject, * * * but we are disposed to follow the general current of the decisions of our Supreme Court as we understand them * * *.”

Appellee calls our attention to decisions in Massachusetts and Illinois which indicate that divergent views on this subject are held by these courts. Hill v. City of Boston, 122 Mass. 379; City of Chicago v. Keefe, 114 Ill. 222.

The Supreme Court of Illinois in City of Chicago v. Keefe, supra, said: “In the view of the New England courts there is no implied liability for injuries resulting from defective streets or sidewalks—the liability is wholly statutory. * * * On the contrary, we hold, on principles of common law, that an action for damages resulting from negligence will lie against a municipal corporation if the duty to make repairs is fully declared, and adequate means are put within the power of the corporation to perform the duty.” Citing, with other authorities, Browning v. City of Springfield, 17 Ill. 143.

In the later case of Johnston v. City of Chicago, 258 Ill. 494 [4 N. C. C. A. 40], the liability of a municipal corporation for negligence of its employees was discussed. The plaintiff there sued the City of Chicago because of the alleged negligence of an employee who was driving an automobile for the Chicago Public Library upon a public street, and had judgment. This was affirmed by the Appellate Court and a certificate of importance granted. [174 Ill. App. 414.]

It was urged that the City of Chicago in establishing and carrying on a public library was exercising a public or governmental function and that the action, therefore, would not lie. The Supreme Court affirmed the judgment, stating: “The organization of this public library is for the exclusive benefit of the territory of the City of Chicago and not for the State at large. It . has been organized by the people of that city, through their proper representatives, voluntarily, and the duties to be performed have not been thrust upon the people of said city nolens volens. Even a municipality, usually considered a quasi corporation, when voluntarily organized has been held by this court responsible for certain negligent acts of its employees.”

Upon the same reasoning, in the case of Kinnare v. City of Chicago, 171 Ill. 336, the Supreme Court held: “The City of Chicago voluntarily adopted the Cities and Villages Act * * *. By adopting the act the city voluntarily assumed the burden of exercising the powers thus conferred upon it. * * *”

Included among the powers so conferred, and voluntarily undertaken by the city, is that of control of awnings which encroach upon the streets. Hurd’s Rev. St. ch. 24, sec. 62 (J. & A. ¶ 1334). We think, therefore, within the rule announced in Johnston v. City of Chicago, supra, the declaration in this case stated a cause of action.

Further, the duty of the City of Chicago to use ordinary care to keep the street and sidewalks reasonably safe, and its liability for negligence with respect thereto, is so well established in this State as to make the citation of authorities unnecessary. It would seem on principle that the duty should be coextensive with the powers conferred and accepted. The extent of such power and. authority is set forth in People v. Harris, 203 Ill. 272. Here it is said: “And the dedication of the strip of land for a public street embraced not only the surface of the ground, but the light and air above, and an individual has no more right to obstruct the light and air above the street than he has to obstruct the surface of the soil.” (See also, Hibbard, Spencer, Bartlett & Co. v. City of Chicago, 173 Ill. 91.)

Our attention is called by appellant to Vossler v. DeSmet, 204 Ill. App. 292. That was a case where a pole which stood on a vacant lot of a private owner adjacent to, bnt neither on nor over the street, fell, injuring one who was traveling upon the street. Any power or authority which the city there had would necessarily have been exercised under its police powers, which makes the case clearly distinguishable from the instant one.

We conclude that the decision in the case of Hanrahan v. City of Chicago, 145 Ill. App. 38, is contrary to the law as announced by our Supreme Court as well as to the great weight of authority. Elliott on Roads & Streets, vol. 2, sec. 790; 15 Am. & Eng. Encyc. of Law, 458; 28 Cyc. 1379.

Appellant next urges that the court erred in the admission of evidence. It appears that, subsequent 'to the injury, plaintiff became insane and upon the trial a medical expert was called as a witness for the purpose of showing that the subsequent mental condition was caused by the injury received at the time of the accident. Counsel for plaintiff put to the expert a hypothetical question elucidating the facts as disclosed by the evidence for plaintiff and concluding: “Have you an opinion as to whether or not there is any relation between the accident described and his subsequent condition, including his subsequent condition T’ An objection to this question upon the ground that it invaded the province of the jury was interposed and overruled. The expert answered: “That is the relation of cause and effect, that the subsequent condition was due to the accident and the injury.”

Appellant insists that the admission of this evidence was error under the rule laid down in the case of Fellows-Kimbrough v. Chicago City Ry. Co., 272 Ill. 71. We think not. In the first place the rule which appellant here contends for does not apply in cases where there is no dispute as to the manner and cause of the injury, nor dispute that there was an injury sustained. The fact of the injury and the manner thereof was not disputed ón the trial, and the defendant offered no evidence on that subject. In Fellows-Kimbrough v. Chicago City Ry. Co., supra, the court stated: “In cases where there is no dispute as to the manner and cause of the injury and no dispute that there was an injury sustained by reason of the acts of which complaint is made, this court has held that a physician may then directly testify that a later malady was or was not caused by the accident or original injury, upon the same principle that he may testify that death resulted from a certain wound. Schlauder v. Chicago & S. Traction Co., 253 Ill. 154; City of Chicago v. Didier, 227 Ill. 571.” (See also, Heineke v. Chicago Rys. Co., 279 Ill. 215.) In the second place, upon this trial, the defendant in presenting its expert evidence asked and its witnesses were allowed to answer questions similar to those of which it now complains. This it may not be allowed to do. Policemen’s Benev. Ass’n v. Ryce, 115 Ill. App. 95; Chicago & A. Ry. Co. v. Jennings, 120 Ill. App. 195.

It is also urged that the verdict was against the weight of the evidence. We do not find it to be clearly and manifestly so. The judgment will therefore lie affirmed.

'Affirmed.


text:
    Chai Nashelman, Appellee, v. Grand Lodge Progressive Order of the West, Appellant.
    Gen. No. 23,188. (Not to be reported in full.)
    Abstract of the Decision.
    1. Insubance, § 434

      —what proof necessary to permit recovery for loss of hand. In an action to recover under an accident insurance policy for the loss of a hand through sustaining a fracture in falling, plaintiff, to recover, must show that the injury resulted* in a total loss of the usual functions of the hand.
    2. Evidence, § 410*—when expert evidence admissible to show nature and extent of fracture of hand. In an action to recover under an accident insurance policy for the loss of a hand through sustaining a “Colle’s fracture” thereof, defendant may introduce expert evidence to*show the nature of such a fracture and the effect of it.
    Appeal from the Municipal Court of Chicago; the Hon. "WIixiam N. Gemmill, Judge, presiding.
    Heard in the Branch, Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed March 12, 1918.
    Statement of the Case.
    Action by Chai Nashelman, plaintiff, against Grand Lodge Progressive Order of the West, a corporation, defendant, to recover on an accident insurance policy. From a judgment for plaintiff for $500, defendant appeals.
    G. J. Norden and Samuel Micon, for appellant.
    Max M. Kobshak and George L. Reker, for appellee.

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

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

   Mr. Justice Matchett

delivered the opinion of the court.

3. Tbial, § 45 —when remarks of court prejudicial. In an action to recover under an accident policy, remarks of the court in ruling upon the testimony held prejudicial to defendant.


text:
    Mary Callahan et al., Appellants, v. John J. Healy et al., Appellees.
    Gen. No. 23,193. (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded with directions.
    Opinion filed March 12, 1918.
    Statement of the Case.
    Bill by Mary Callahan and others, complainants, against John J. Healy, Mrs." Johh J. Healy, John Ryan and Gertrude Bonfield Ryan, defendants, brought under section 10 of the Dramshop Act (J. & A. ¶ 4610), to subject certain premises belonging to defendants John J. Healy and Gertrude B. Ryan to the lien of a judgment obtained under section 9 of the Dramshop Act (J. & A. ¶ 4609) against certain keepers of dramshops by whom said premises were leased and used as dramshops. From a decree dismissing the bill, complainants appeal.
    Samuel W. Norton and William C. Dunn, for appellants.
    Litzinger, Healy & Reid, for appellees John J. Healy and Mrs. John J. Healy.
    Burton, Kannally & Megan, for appellees John Ryan and Gertrude B. Ryan.

      Abstract of the Decision.
    1. Intoxicating liquobs, § 202

      —when declaration in action 6y wife and children of drunkard against saloon keepers for loss ofy support is sufficient. A declaration by a wife and children in an action under section 9 of the Dramshop Act (J. & A. If 4609), which alleges that defendants kept dramshops and sold and .gave intoxicating liquors to the husband and father of complainants which, in whole or in part, caused him to be and become, during a specified time, habitually intoxicated, in consequence of which he squandered his money and failed and neglected to support plaintiffs, thereby injuring them in their means of support, states a cause of action.
    2. Intoxicating liquobs, § 168*—what is purpose of section 9 of Dramshop Act. The purpose of section 9 of the Dramshop Act (J. & A. If 4609) is to make every person who sells intoxicating liquors responsible for injury proximately caused thereby to other persons.
    3. Intoxicating liquobs, § 202*—what are necessary allegations in action under section 9 of Dramshop Act. The necessary allegations in a declaration under section 9 of the Dramshop, Act (J. & •A. If 4609) are that defendants were either directly or indirectly engaged in the liquor business, that defendants sold or gave intoxicating liquor to some person named and that plaintiffs thereby sustained injury in some manner indicated by the statute.
    4. Intoxicating liquors, § 199*—what election persons have to sue for violation of section 9 of Dramshop Act. Under section 9 of the Dramshop Act (J. & A. 1f 4609), the plaintiff in an action thereunder may elect whether he will sue alone the person giving or selling the liquor or whether he will join persons permitting their premises to be used for selling.
    5. Intoxicating liquors, § 260*—when judgment under section 9 of Dramshop Act conclusive. Unless fraud or collusion is made to appear, the amount of the judgment obtained in a suit against the seller under section 9 of the Dramshop Act (J. & A. If 4609), may not be contested in a proceeding under section 10 of the Act (J. & A. If 4610), to subject the property used by the seller to the satisfaction of the judgment, but complainant in the latter proceeding must prove, and the owner or lessor of such property is allowed to controvert, all the facts which it is claimed create the lien.

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

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

   Mr. Justice Matchett

delivered the opinion of the court.

6. Intoxicating liquobs, § 260 —what complainant must prove in proceeding to subject property to satisfaction of judgment. In a proceeding under section 10 of the Dramshop Act (J. & A. If 46Í0) to subject property to the satisfaction of a judgment obtained under section 9 of the Act (J. & A. If 4609), the questions whether the property was rented or leased to be used or occupied in whole or in part for the sale of liquor, whether defendant knowingly permitted it to be so used or. occupied and whether the judgment under section 9 (J. & A. jf 4609) has been' obtained against the person occupying the premises which it is sought to subject are questions of fact, the burden of showing which is on complainant.

7. Intoxicating liquobs, § 260*—when declaration not defective in proceeding to subject property to satisfaction of judgment. A failure to allege in the declaration in an action under section 9 of the Dramshop Act (J. & A. If 4609), the selling or giving of the liquor upon the premises whicli it is sought to subject, under section 10 of the Act (J. & A. jf 4610), to the lien of the judgment recovered under section 9, does not defeat the proceeding under section 10.


author: Conger, J.

text:
    Third District
    November Term, 1885.
    The People ex rel. John S. Lyman v. The Ohio and Mississippi Railroad Company.

      Railroad Renees — Objects of — Construction of Sec. 3, Act of March 31, 1874 — Location to be on Line of Right of Way.
    1. The words, “ on both sides of its road,” as used in Sec. 3, Act of March 31, 1874, relating to fencing railroads, mean the margin or border of the entire grounds used as a roadway.
    2. Where an adjoining owner has notified a railroad company, under said section, to fence its track, it can not construct a fence within its right of way and prevent him from connecting his fences with the fence so con structed, the incidental benefit arising to land owners being within the intention of the act, although its main object is the protection of the traveling public.
    8. In the construction of a statute its language should be given, when the sense will bear it, its usual and popular meaning.
    [Opinion filed February 26, 1886.]
    In error to the Circuit Court of' Sangamon County; the ’ Hon. James A. Creighton, Judge, presiding.
    Statement of the case, by Conger, J. The plaintiff in error assigns as error the judgment of the Circuit Court in sustaining the demurrer to his petition and dismissing the same. The petition sets forth in substance that the O. & M. Bailroad Company some years since constructed their railroad through relator’s farm, leaving part on each side of the right of way; that he never waived nor compromised with the railroad its duty to construct fences along its sides where they pass through his farm; that they had been operating their road through his farm several years, but had not built the fences required by law along the sides of their right of way; that relator had given the thirty days notice required by the statute, requesting the railway company to construct a fence on the south side of its road where the same ran through his farm; that the company had neglected and refused to do this, but had required of relator that he help pay for the fence, and refusing to do so threatened to construct the fence which he had notified them to build on the side of their road ten feet inside their right of way, and would then forbid his crossing their ten feet of right of way, thus thrown out to connect his fences with theirs; that he refused to comply, and thereupon the company had built a fence ten feet inside their right of way, and had then cut away and removed its hedge and fence at the ends of petitioner’s said tract of land, where said road enters and goes out of the same, and between said fence which it had so erected and petitioner’s land, thereby exposing petitioner’s said land to the trespassing of stock from the highway at one end and the egress of petitioner’s stock upon said highway, and also exposing petitioner’s stock to said company’s track at the other end of said fence, and then forbade petitioner from inclosing his said land upon said new fence being erected by said company, and forbade relator entering upon their ten feet for the purpose of inclosing his fences upon theirs. The petition avers it is still the duty of the railway company to build and maintain a fence upon said line as required by the “ act ” and the notice.
    These averments of the petition are all admitted by the demurrer filed by the railway company. The petition prays for a peremptory writ requiring the company to erect and maintain a fence upon said line as required by said law and notice. The question presented is, can a railroad company, after it has been notified by an adjoining owner, under Sec. 3 of the Act of the Illinois Legislature, entitled “An Act in relation to fencing and operating railroads,” approved March 31, 1874, to construct a fence on the side of its road where the same passes through his farm, build the fence anywhere except on the line between its right of way and the adjoining owner’s land?
    Messrs. Connelly & Mather, for plaintiff in error.
    The meaning and intention of Sec.l of the Act of March 31, 1874, in relation to fencing and operating railroads, was construed by the Supreme Court in W., St. L. & P. R. R. Co. v. Zeigler, 108 Ill. 304.
    The court in that case construed the phraseology requiring railroads to erect and maintain fences on both sides of their roads, to mean on the dividing line between the right of way and the farmer’s land.
    The question was raised under precisely the same sort of a notice given, and precisely the same provision of the statute as in this case.
    In that case the Supreme Court held Zeigler could not recover the penalty of double the value of the fence because he had not built the fence on the line.
    Had relator in this case built a fence under this notice and placed it where the company have, ten feet inside their right of way, then under this provision of the statute, and this same notice, he could not recover because not having complied with the statute.
    Can the railway company comply with the same law and the same notice by building the fence ten feet within their right of way instead of on the side, which the Supreme Court holds to mean on the line?
    Fences are for the use of the adjoining proprietor, for the purpose of fencing his stock in and other stock on the right of way out, as well as a police regulation for the benefit of the traveling public. Chapin v. Sullivan R. R., 39 N. H. 53; Eames v. S. & L. R. R. Co., 98 Mass. 560; Enright v. S. F. & S. J. R. R Co., 33 Cal. 236; Berry v. St. L. & L. R. R. Co., 65 Mo. 172.
    It is competent legislation to require railroads to use tlieir capital to fence the lands of adjoining owners. Trice v. H. & St. J. R. R. Co., 49 Mo. 438.
    Messrs. Ramsey, Maxwell & Matthews, C. A. Beecher, Percy Werner, and J. H. Matheny, Jr., for defendant in error.
    Statutes requiring railroad companies to fence their roads, are upheld as regulations designed for the protection of the lives and property of the traveling public. O. & M. R. R. Co. v. McClelland, 25 Ill. 140; G. & C. U. R. R. Co. v. Crawford, 25 Ill. 529; P., D. & E. R. R. Co. v. Duggan, 109 Ill. 537; C., B. & Q. R. R. Co. v. Hans, 111 Ill. 114; I. & C. R. R. Co. v. Parker, 29 Ind. 471; Blair v. M. & P. du C. R. R. Co., 20 Wis. 254; Gilman v. E. & N. A. R. R. Co., 60 Me. 235.
    The statutory obligation to fence, being a police regulation for the benefit of the general 2Duhlic, it is immaterial whether the owner of cattle injured in consequence of the failure to fence, be an adjoining proprietor or not, so far as the question of liability of the company for such injury is concerned. I. & C. R. R. Co. v. McKinney, 24 Ind. 283; Gilman v. E. & N. A. R. R. Co., 60 Me. 235; Rhodes v. U. I. & E. R. R. Co., 5 Hun, 344; McCall v. Chamberlain, 13 Wis. 637; M. & C. R. R. Co. v. Stephenson, 24 O. St. 48.
    Therefore no peculiar protection or benefit to adjoining 2)roprietors, as such, was intended.
    The statute requiring railroad companies to fence their tracks is not for the purpose of protecting land owners from damage that might he done by stock getting on tho right of way and thence to the adjacent crops. Its object was to prevent stock from coining on the railroad and being injured, and to prevent accidents likely to occur if stock were not fenced away from the track. P., D. & E. R. R. Co. v. Schiller, 12 Ill. App. 443.
   Conger, J.

The question presented by this record is, whether a railroad company, under the circumstances stated in the petition, and the laws of Illinois, in reference to fencing railroads, may build the fence required, anywhere except on the line between its right of way and the adjoining owner’s land.

The portion of the section involved is: “ That every railroad corporation shall, within six months after any part of its line is open for use, erect and thereafter maintain fences on both sides of its road, or so much thereof as is open for use, suitable and sufficient to prevent cattle, horses, sheep, hogs or other stock from getting on such railroad (except at the crossing of public roads and highways and within the limits of cities and incorporated towns and villages) with gates or bars at the farm crossings of such railroad, which farm crossings shall be constructed by such corporation when and where the same may become necessary, for the use of the proprietors of the ' lands adjoining such railroad, etc.”

What is the proper construction to be given the words “ on both sides of its road,” as used in the foregoing section? “In construing statutes we are required to give to language, when the sense will bear it, the usual and popular meaning attached to the words employed.” Stuart v. Hamilton, 66 Ill. 255.

Webster defines “side,” to mean “The margin, edge, verge or border of a surface: the bounding line of a geometrical figure, as the side of a field.”

We hold the meaning of these words, “ on both sides of its road,” to be the margin or border of the entire ground used as a roadway. This gives certainty and completeness to all the sections in reference to fencing.

If railroads may construe this language to "mean any imaginary line between the track and the margin of the right of way, why may not the adjoining land owner do the same for the other sections providing for the building of “ such fence” - by adjoining proprietors, clearly refer to the same fence spoken of in section one ?

It is not to be supposed this law was meant to produce such absurd consequences, but that from the first to the fourth sections, inclusive, the same fence and the same place, were meant.

In W., St. L. & P. Ry. Co. v. Zeigler, 108 Ill. 306, where the adjoining land owner intentionally built a fence two feet inside the company’s right of way and sought to recover from the company, the court held he could not, and say: “ To recover

upon this penal liability of double the value of the fence, the statute should be strictly followed in the building of the fenc». The fence should be such a one as the statute requires and authorizes, built in the mode the statute contemplates.

“Sucha fence is one on the sides of the railroad. The fence in question was not built on the side of the railroad, but was intentionally built two feet inside the right of way, two feet from the side of the road. * * * To entitle to a recovery under this statute the fence must be built where the statute requires it should be, on the side of the railroad. It was not so built here.”

It is urged by appellant that the benefit to the adjoining land owner of using the fence constructed by the railroad as a partition fence, was one of the objects to be accomplished by the law, while appellee insists that the only purpose intended was the protection of the traveling public, and the stock of the neighborhood through which the road passes.

The great and primary object of the statute was the increased safety to the traveling public, and the statute can be upheld only upon the ground of police regulations to more thoroughly secure such protection.

While the power of the Legislature to require railroad companies to make partition fences, as such, could not be sustained, we see no good reason why, in exercising its police power, by requiring railroad companies to protect the public by fencing their roads, the Legislature might not have had in contemplation also the incidental benefit arising to adjoining land owners by such fences being built upon the sides of the railroad, thereby enabling such adjoining land owners to join their fences to them and using them as partition fences.

It is also urged that in some cases there might be high embankments, deep cuts, or other physical conformation of the ground, making it difficult or impossible to comply with the law as we have construed it, and in such case a fence placed anywhere upon the right of way which would keep animals off the track, would be a compliance with the spirit and intention of the law. There is no such difficulty, however, presented by this record, and hence it is not necessary to express any opinion as to how far such a state of facts might excuse a railroad from a compliance with the literal language of the statute.

We think the Circuit Court erred in sustaining the demurrer and dismissing the petition, and the judgment below will be reversed, and the cause remanded for further proceedings in accordance with the foregoing views.

Reversed and remanded.