text:
    The People of the State of Illinois ex rel. Nancy S. Tilden, Appellee, v. J. J. Massieon, Mayor, and City Council of Peru, Illinois, Appellants.
    Gen. No. 6,356.
    1. Appeal and error, § 205

      —when constitutional question may he raised on appeal. While, where a party makes no objection in the trial court in a civil action that he is deprived of his rights by an unconstitutional law, the question cannot be raised on appeal, yet, where a petition for a mandamus to compel the mayor and city council of a city to approve a certain plat of an addition to the city was pending on appeal to the Appellate Court at the time, June 29, 1915, section 62 of the Revenue Act (Cal. Ill. St. Supp. 1916, ¶ 9280) was amended, which that court held was not then in question as to its effect before the court, held, that such petitioner, whose petition was thereafter granted on demurrer thereto, could raise the question, on appeal from the granting of-such petition, of the constitutionality of such amendment.
    2. Mandamus, § 15*—when should not issue. Mandamus should not issue upon a state of facts existing when the petition was filed if such state of facts had ceased to exist when final judgment was rendered.
    3. Appeal and error, § 200*—when constitutional question not involved. The Act of June 29, 1915, amendatory of section 62 of the Revenue Act (Cal. Ill. St. Supp. 1916, ¶ 9280), as to survey and platting of lots and approval by a city of a new subdivision, had no application to a petition then pending on appeal in the Appellate Court for a writ of mandamus to compel the mayor and city council of a city to approve a certain plat, and no question as to the constitutionality of that act would be presented in such case.
    4. Appeal and error, § 1725*—power of Appellate Court to review own decisions. The Appellate Court has no power to review its own decisions.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Charles W. Helmig, for appellants.
    MoDougall & Chapman and Hoberg & Hoberg, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

This is an appeal by the respondents in a mandamus proceeding. A petition in the name of the People on the relation of Nancy S. Tilden was filed in the Circuit Court of La Salle county, March 31,1914, to compel the mayor and city council of Peru to approve a plat of an addition to said city. In December, 1914, the trial court sustained a general demurrer to the petition and entered final judgment against the petitioner, from which judgment an appeal was prosecuted to this court where the judgment was reversed and the cause remanded, and opinion filed May 24, 1916 (200 Ill. App. 86). We there reviewed sections 1, 2, 3 and 5 of the Plats Act (chapter 109, Rev. St. J. & A. ¶ 8517-8521) providing the manner in which such plats should be made and recorded, the effect of the acknowledgment and recording of the plat, and making it a penal offense to sell any lot in any city or addition without complying with the provisions of the act, and section 5 of the Cities, Villages and Towns Act (chapter 24, art. X, Rev. St. J. & A. ¶ 1504) providing for approval by municipal authorities of such plat, and section 13 of the Recorder’s Act (chapter 115, Rev. St. J. & A. ¶ 9110) making it a penal offense for any recorder to record such a plat until the same shall have been approved by the legislative authority of such municipality, and concluded that the petition, which we set out in full in the opinion, showed a compliance by the relator with all the duties imposed upon her, and that under the statute as it existed when the petition was filed and when final judgment was entered thereon, if the allegations in the petition were admitted, a duty rested on the respondents to approve the plat. That opinion may be read for a more complete and detailed statement of what was there involved and then decided.

Meantime (June 29, 1915), the Legislature amended section 62 of our Revenue Act (Cal. Ill. St. Supp. 1916, ¶ 9280), leaving the section as it theretofore stood down to the word “Provided,” and adding the matter after that word. It now reads as follows:

“In all cases where any tract or lot of land is divided in parcels, so that it cannot be described without describing it by metes and bounds, it shall be the duty of the owner to cause such land to be surveyed and platted into lots. Such plat shall be certified and recorded. The description of real estate, in accordance with the number and description set forth in the plat, aforesaid, shall be deemed a good and valid description of the lot or parcel of land so described: Provided, that hereafter no new subdivision of any tract of land, lots or blocks shall be approved by a city, town, incorporated town or village officer, unless all redeemable sales for unpaid taxes or special assessments have been redeemed and all forfeited taxes- or special assessments have been paid as required by law, and before any recorder of deeds files and records or any city, town, incorporated town or village officer in charge of such matters approves any plat or new subdivision, vacation, or dedication submitted, he shall require that a statement from the county clerk be endorsed upon any such proposed plat of new subdivision, vacation or dedication to the effect that the county clerk finds no reasonable tax sales or unpaid forfeited taxes against any of the real estate included in such plat.”

It will be seen that this section before the amendment referred to lands generally without special reference to lots and blocks in cities, towns and villages. The amendment is directed especially to tracts of land in such corporations and in terms imposes an additional duty on owners platting such lands and forbids the approval by the corporate officers and the record by the recorder if that duty is not performed. This amendment of the Revenue Act was called to our attention while the former appeal was pending in this court. We concluded that the question of its effect was not before us, and remanded the cause with no direction or expression of opinion as to its bearing on the decision of the case.

The cause was reinstated in the court below where the general demurrer to the petition theretofore filed was overruled. The respondents standing by their demurrer a peremptory writ of mandamus was ordered commanding them to pass a proper ordinance in due form approving the plat.

Appellants contend that because of said amendment to the Revenue Act it is beyond their power to comply with the order of the court. Appellee answers that said amendment should not be construed as effecting the statutory provisions in other acts above referred to, and should not be given a retroactive effect, but if it is so construed then it is, in effect, an amendment of those statutes and unconstitutional and void in violation of section 13 of article IV of the Constitution, which provides that no law shall be revived or amended by reference to its title only but the law revived or the section amended shall be inserted at length in the new act.

If the validity of a statute or a construction of the Constitution is involved, the appeal should have been taken to the Supreme Court under section 118 of our Practice Act (J. & A. ¶ 8655), and under section 102 of the Practice Act (J. & A. ¶ 8639) it would be our duty to transfer the cause to that court. We must therefore determine whether a constitutional question is involved. It must really exist and be presented in the case, and' be one that has not been previously settled. Burns v. Illinois Cent. R. Co., 258 Ill. 302. Although such question is raised, still if the decision must be the same whichever way it is answered, it is not considered involved. Curtis Pub. Co. v. City of Chicago, 273 Ill, 373, 375; Rittenhouse & Embree Co. v. F. E. Brown & Co., 254 Ill. 549. The constitutionality of a statute will not be determined when the cause in which its determination is sought may be fully disposed of without such determination. Illinois Cent. R. Co. v. Chicago & G. W. Ry. Co., 246 Ill. 620, 624. But if it is necessary for an appellant to show both the constitutionality and application of a statute, he may maintain his appeal in the Supreme Court, even though that court finds it unnecessary to pass on the constitutional question. Barrett Mfg. Co. v. City of Chicago, 259 Ill. 578; Rittenhouse & Embree Co. v. F. E. Brown & Co., supra. It is also the general rule where no objection is made in the trial court by a party to a civil case that he is deprived of his right by an unconstitutional law it cannot be raised on appeal. Mechanic’s Sav. Ass’n v. People, 184 Ill. 129; Chiniquy v. People, 78 Ill. 570; Pearson v. Zehr, 125 Ill. 573; and People v. Harrison, 223 Ill. 540.

We do not see that appellee had any occasion to raise a constitutional question in the court below. She obtained a judgment in her favor on the face of her pleading. There is nothing in the record to show that appellants asked the trial court to consider the amendment in question, and of course nothing to show whether the trial court considered that amendment as applicable to this case, and if he did, whether he regarded it within the power of the Legislature to enact. In this respect the case differs from those in which there is a trial by the court without a jury, with opportunity to the parties to present propositions of law to he held or refused and thus indicate on what theory of the law the court acted. We are inclined to the opinion that appellee can be heard to raise that question on appeal, and if it is a controlling question we should transfer the case to the Supreme Court.

If the amendment is held valid and applicable to cases pending, it seems to us controlling and that the peremptory writ should not have been ordered. It is well settled that the writ should not issue upon a state of facts existing when the petition was filed if that state of facts has ceased to exist when the final judgment is rendered. 26 Cyc. 146. Or where the act would be unauthorized or illegal. Id. 150. Or is beyond the possibility of performance. Id. 155, 167. Many authorities, including Illinois cases, are cited in Cyc. supporting these propositions.

The question is whether this amendment should be construed to effect this action which was pending at the time of its enactment, and in which appellee had performed every act required of her in compliance with the then existing statutes, and was before the amendment was enacted entitled to a judgment in her favor. Section 4 of our Statutes Act, ch. 131 (J. & A. ¶ 11105) provides:

“No new law shall be construed to repeal a former law, * * * as to any act done, * * * or any right accrued, or claim arising under the former law, or in any way whatever to affect any * * * act so committed or done, * * * or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding. * * * This section shall extend to all repeals, either by express words or by implication, whether the repeal is in the act making any new provision upon the same subject or in any other act.”

This statute was considered in Merlo v. Johnston City & Big Muddy Coal Mining Co., 258 Ill. 328, and many authorities of this and other States discussed and reviewed. We think that case is authority for the position that a right accrued to or a claim arose in favor of appellee under, the former law, and to give this amendment effect in this case would be to affect an act done by her or a right accrued to her under the old law in violation of said section. The rule is that legislative acts operate only in the future and are never to be given a retrospective effect if susceptible of any other construction. Such an intention is not to be presumed, but must be manifested by clear and unequivocal language. An, ordinance providing that it will “hereafter” be unlawful to erect certain buildings was held not to apply to one begun under a permit before the ordinance went into effect. Barrett Mfg. Co. v. City of Chicago, supra. It seems that in the absence of statutory provision affecting retroactive laws, such laws will not be applied by the courts to pending actions or proceedings whenever such application would work injustice, as by cutting off rights which parties were entitled to under the prior law, subjecting a party to new disabilities, rendering void proceedings valid when taken, and abating an action properly commenced in requiring steps not necessary under the former law. 36 Cyc. 1215, 1216; Murphy v. Boston & M. R. R., 77 N. H. 573, 94 Atl. 967; Dickinson v. Lovell, 36 N. H. 364. In the latter case the court said:

“In cases where the Legislature have unquestionable power under the Constitution to take away or substantially modify the remedy in a pending suit, it is generally impolitic and unjust to exercise the power. When the plaintiff commences his action he relies, and has reason to rely, on the remedy which the existing law gives bim in the form of action which he has chosen, and it is an established maxim in the construction of statutes that the lawgiver will not be presumed to intend that the law should in any way affect the remedy in a pending suit unless the intention is very clearly expressed.”

See also Auditor General v. Chandler, 108 Mich. 569, 66 N. W. 482; Clark v. Hall, 19 Mich. 356; Smith v. Humphrey, 20 Mich. 398; People v. Monroe County Sup’rs, 36 Mich. 70. An examination of the authorities cited will show that they do not rest on the ground that a party to an action has a property right or a vested right in a law, or ordinance, or mode of procedure but on other and different grounds. We are of the opinion that the amendment to the statute here in question does not apply to this pending action; therefore it is immaterial whether it is or not constitutional.

As we have before said, it does not appear that any constitutional question was presented to or decided by the trial court. We are of opinion that no such question is material in the decision of this case. Appellants argue that their demurrer to the petition should have been sustained for reasons not suggested or considered on the former appeal. We see no reason to change the conclusion reached by hs on that hearing, but we have no power to review that decision. We then held the petition good and in compliance with the statute existing at the time it was filed and judgment entered in the trial court thereon. We cannot sit to review our own decisions. If that decision was erroneous because of failure of counsel to suggest or of this court to consider reasons in support of the demurrer, it is now past our power to control.

For the reasons above indicated the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    B. A. Cotton, Administrator, Appellant, v. Lulu Worthing (now Lulu Worthing Haskins), Appellee.
    Gen. No. 6,363.
    Wills, § 483

      —when executor of will required to pay specific legacy made a charge on land out of residue of estate. Where a husband and wife executed a joint will providing that each should take absolutely the other’s property on his or her death and that upon the death of both that certain lands should go to a certain devisee upon his paying three hundred dollars to another devisee, to whom such sum was also specifically devised, but said lands were deeded by one of such testators after the other’s death to the residuary legatee, so that such, devise of said lands could not be carried out, held that the executor should, under the residuary clause of the will devising the residue of the estate “after paying all the aforesaid legacies,” first pay such specific legacy of three hundred dollars, he having sufficient funds in his hands.
    Appeal from the Circuit Court of Kendall county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    W. M. Mercer and N. M. Jones, for appellant.
    John Fitzgerald and Sears & Solfisburg, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Henry Minard and Tirzah Minard, his wife, of Kendall county, Illinois, made a joint will December 1, 1883, in which after providing that on the death of one his or her property should go to the survivor absolutely, they declared their joint intention concerning the disposition of their property after they both should be dead. The will was probated in Kendall county, and a question there arising was before this court in Wor thing v. Hall, 153 Ill. App. 587. Another question whether appellee, Lulu Worthing Haskins, should be paid a legacy in her favor by the personal representa^ tive has arisen on the final report of B. A. Cotton, administrator with the will annexed. It was decided in the County Court and in the Circuit Court on appeal in favor of appellee, and the administrator brings that part of the record which he deems material for consideration here for review, and presents in his abstract a stipulation of facts used on the trial in the Circuit Court, and portions of the will, a construction of which is presumed to govern the determination of the question here. In clauses 7 and 8 of the will were devises to Henry Minard and Eugene Minard, nephews of the testator, Henry Minard, to each a certain tract of land in Bourbon county, Kansas, with the statement as to each devise that the testators had executed a deed of said land to the devisee which would be found among their papers and effects, and a direction to the executor to deliver said deeds to said devisees respectively. Clauses 9 and 11 read as follows:

“Ninth. To Lulu Worthing six hundred dollars ($600) in money to be paid as follows, three hundred dollars ($300) by Henry Minard, and three hundred dollars ($300) by Eugene Minard in twelve months after they respectively receive from our executor-the deed of a certain tract of land as specified in bequests seven and eight of this instrument.”
“Eleventh. Our executors hereinafter named are hereby fully empowered with certain restrictions hereinafter specified for the purposes of this will to sell and convey all our real estate not hereinafter specifically devised, and collect our notes and mortgages, and reduce all our other property to money and after paying all the aforesaid legacies shall pay the residue to the trustees of the Garrett Biblical Institute of Evanston in the State of Illinois to be held by them and their successors in trust forever, as a permanent fund for the use and benefit of the chair of practical theology of said Garrett Biblical Institute, the money so paid to the trustees .to be by them placed at interest and the interest thereof only to be applied to the sustaining said chair in such manner and way as shall by the said trustees be deemed to be the most proper and beneficial. ’ ’

Clause 12 provided that the lands in Kendall county should not be sold for less than fifty-five dollars per acre, and directed the executors to sell the same and pay the proceeds to the trustees of the Garrett Biblical Institute “as hereinbefore directed” when they could sell for at least that price, and to lease the land and pay over the net rentals to said trustees until they could sell for that price.

It appeared in the stipulation of facts that the final report showed that three hundred dollars of the legacy to appellee is unpaid, and that there was in the hands of appellant a sum of money in excess of the amount of that legacy, and “that all of the costs and expenses and all other legacies of said estate have been fully paid”; that the other three hundred dollars of the bequest to appellee had been paid by Henry Minard; that the deeds of land to Henry and Eugene Minard above mentioned were accidentally destroyed by fire during the lifetime of the testators and while in their possession, and that Tirzah Minard, after the death of Henry Minard, conveyed the lands in said deeds described to the Garrett Biblical Institute, the residuary legatee, and that the only property inventoried in the estate was a farm of 206 acres situated in Kendall county, and that farm was sold by the executor of said estate “under and by virtue of an order of the County Court of Kendall county for the purpose of paying the legacies mentioned in said will, and that there were no debts against said estate.”

The testators offered Henry and Eugene Minard each a tract of land if they would pay each one-half of the $600 legacy to appellee. There was no obligation to pay that legacy unless they accepted the land. They never had an opportunity to exercise the option to take the land and pay the legacy, and therefore that provision in the will for paying appellee’s legacy entirely failed. Henry Minard did pay one-half of it, three hundred dollars, whether voluntarily or under some other obligation not disclosed by the record we do not know. That left the question whether the other three hundred should be paid by the personal representative. In the absence of the provisions in clause 11 there might be doubt, but that clause which required the conversion into money of all assets not specifically devised only made the Garrett Biblical Institute the legatee “after paying all the aforesaid legacies.” In other words, it was a direction to the personal representative to pay “all the aforesaid legacies” before turning over the residue of the property to the Garrett Biblical Institute. The provision for appellee in the ninth clause was one of the aforesaid legacies. The land in Kendall county was not specifically devised. We see no room for doubt that the testators, after providing that appellee’s legacy might or might not be paid by Henry and Eugene Minard depending upon their acceptance of the devises to them, intended to say. in the eleventh clause that that legacy should be paid in any event before the residuary legatee should be entitled to receive the proceeds of the property directed to be converted into money. The twelfth clause-in providing that the proceeds of the lands should be paid over to the Garrett Biblical Institute expressly says that it shall be “as hereinbefore directed”; therefore we do not see that the rights of the residuary legatees as to this land are enlarged by that clause.

We agree with the trial court in his construction of the will under the facts stipulated, therefore the order and judgment that'appellant pay appellee said sum of three hundred dollars with interest is affirmed.

Affirmed.


text:
    A. T. Scovill, Appellant, v. Albert C. Lange, Appellee.
    Gen. No. 6,369.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Action by A. T. Scovill, plaintiff, against Albert C. Lange, defendant, to recover damages for personal injuries sustained by driving his automobile into a ditch. From a judgment for defendant, plaintiff appeals.
    The defendant as one of .the highway commissioners of his township caused a temporary bridge to be erected for public travel leaving the highway, a State aid road, about seventy or eighty feet from the embankment of an old bridge which had been washed away, and a railing about twelve feet long and four feet high to be erected about ten feet from the washout to prevent travelers driving into the open space. The plaintiff after dark on the evening the work was completed drove up at the rate of about fifteen miles an hour, and not seeing the railing or knowing of the washout until too near to stop his car drove through the railing and into the ditch.
    Robert W. Besse and Charles C. McMahon, for appellant.

      Abstract of the Decision.
    Roads and bridges, § 220

      —when commissioners not personally liable for injuries to persons using highway. The commissioners of highways are not individually liable for the injuries resulting to individuals using the highway when they have exercised in good faith their best judgment and discretion in repairing and improving roads and bridges of the town.
    W. A. Blodgett and McCalmont & Ramsay, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    William C. White, Appellant, v. Leopold F. Bourquin, Appellee.
    Gen. No. 6,376.
    1. Libel and slander, § 3*—when words are libelous per se. Words written or printed are libelous per se, that is, without any allegation or proof of special damage, if they expose the plaintiff to public hatred, contempt, ridicule, aversion or disgrace, and to induce an evil opinion of him in the minds of right thinking persons and to deprive him of their friendly intercourse and society, even though the same words if spoken would not have been actionable.
    2. Libel and slander, § 159*—what are questions for court and for jury where language is unambiguous. Where the words published are clearly defamatory on their face and are unambiguous and incapable of an innocent meaning, the court may, as matter of law, declare to the jury that such words are libelous, .leaving it to the jury to say whether the publication was made,, with what intent it was made, and whether the published words were true or false.
    3. Libel and slander, § 159*—what are questions for court and for jury where language is ambiguous. It is the province of the court to determine whether the language of the alleged libel is ambiguous or double in meaning, one of which is libelous, and when the court has so determined that it will bear such double meaning, it is then the province of the jury to determine in what sense the language was used.
    4. Libel and slander, § 21

      —when malice and damage presumed. If words are libelous per se it is not necessary to allege or prove special damage; both malice and damage are presumed, and if the general issue only is pleaded the verdict must necessarily be for the plaintiff.
    5. Libel and slander, § 3*—when words in newspaper article are libelous per se. Language in an action for libel based upon certain newspaper publications, charging that an alderman who was prominent in local option matters was incapable and that he had been addicted to drink in his past life, held to be libelous per se.

    6. Libel and slander § 119*—what evidence may be given under general issue in mitigation of damages. In an action for libel, the defendant may give under the general issue evidence of prior publications by the plaintiff of a provoking nature in mitigation of damages.
    7. Libel and slander, § 134*—when letter referred to in libelous matter may be read in evidence. A previous letter referred to in libelous matter may be read in evidence in explanation of language used in such matter, in an action for such libel.
    8. Libel and slander, § 140*—when circumstances tending to disprove malice may be 'shown. Circumstances tending to disprove malice may be shown in an action for libel, but it must appear there was provocation operating as the immediate cause.
    9. Pleading, § 99*—what is nature of notice of defense. A notice of defense filed under section 46 of the Practice Act (J. & A. K 8583) calls for no answer by the plaintiff, and no issue of law or fact can be made on it, and no question arises until the defendant offers evidence to support it on the trial, when, if it be found defective or not to state a good defense, evidence will not be admitted under it.
    10. Pleadins, § 359*—what is proper method of testing sufficiency of notice of defense. A motion to strike from the files, and not a demurrer, is the proper way to test the sufficiency of a notice of defense filed under section 46 of the Practice Act (J. & A. 1i 8583).
    11. Set-off and recoupment, § 17*—when there may be no recoupment in action of libel. There can be no recoupment in an action for libel by showing another libel which provoked that sued on.

      12. Libel and slander, § 148

      —when jury in action for libel may award more than nominal damages. In an action for libel for words actionable per se, it would be within the right and power of the jury to award more than nominal damages.
    13. Libel and slander, § 8*—how libelous language should be considered. Alleged libelous language must be considered with reference to the time and place in which it was used.
    14. Libel and slander, § 56*—when newspaper articles are not privileged as public matter. Newspaper publications charging that an alderman who was prominent in local option matters was incapable and that he had been addicted to drink in his past life, which were libelous per se, held not privileged as public matter.
    Appeal from the Circuit Court of Jo Daviess county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed February 10, 1917.
    F. J. Campbell and M. H. Cleary, for appellant.
    Sheean & Sheean and Hudson & Hodson, for appellee.

      See minois 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 Carnes

delivered the opinion of the court.

This is an appeal from a judgment for the defendant in an action for libel.

Appellant, William C. White, and appellee, Leopold F. Bourquin, in 1915, resided in Apple River, a village of six or seven hundred inhabitants on the northern border of Jo Daviess county. Appellant was a member of the village board of trustees. There was much agitation of questions arising under the local option laws of this State. Appellant was prominent on the “dry” side of the. controversy, and had introduced a village ordinance on that subject, and was said to be instrumental in the summoning of witnesses before the grand jury in prosecution of alleged offenders under the Dramshop Act. Appellee advocated the other side of the question. Appellant was a correspondent of the Shullsburg Pick and Gad, a newspaper published near by in Wisconsin. Appellee was a correspondent of the Hazel Green Beporter, another nearby newspaper published in Wisconsin. They each in their newspaper articles discussed the public affairs of their village. June 17, 1915, appellant published in the Shullsburg Pick and Gad an article as follows:

“Sometime ago an article appeared ill the Hazel Green Beporter under the heading ‘Can’t be good.’ The writer stated that he attended the meeting of the Village Board of Apple Biver ‘and after the regular routine of business had been finished, he states that Alderman White said that an ordinance ought to be passed, so the president ordered the clerk to read the dope, which was spread over fourteen sheets of paper. As a matter of fact the ordinance covered just seven pages. The writer of the above mentioned article is given full credit for the seven pqges which never existed. He also states that its' contents would put a tyrant of ancient times to shame, yet he does not say one word about the nature of its contents. No reader could form the slightest opinion of the nature of the ordinance from what was said. The fact of the matter'is, it was ‘An ordinance concerning liquor.’ Aider-man White made the statement before the Board that there was no ordinance in the village ordinance book which conformed to the local option statutes, and thought it was for the best interests of the village to adopt one that would be in legal keeping with the State law. The ordinance was practically a copy of the statute, and what other sections were in it were legalized by the State law. Alderman White also offered annotations containing .a great many Supreme Court decisions sustaining every section of the ordinance.
“Furthermore, the same ordinance has been adopted in Jacksonville, Galesburg, Rockford, and over three hundred cities and villages in Illinois. Does this wonderful literary expert mean to call in question the honesty and intelligence of the City Council of Rockford and all of the above mentioned places ? Is it possible that" his judgment is superior to that of all these people, or is it merely in his own estimation? That is for the reader to judge. It is evident that the city councils which have adopted this ordinance are in favor of law enforcement. If they were not, it would not have been passed.
“The main object in passing the ordinance would be as follows: In the absence of the ordinance, all suits brought for the violation of the local option law would have to be brought in the name of the People of the State of Illinois, instead of in the name of the Village of Apple River. Under the proposed ordinance, fines from convictions would go to the village instead of to the county. This is the sum and substance of the so-called ‘fourteen pages of dope.’
“Of course, this ordinance was not intended to shield, vindicate, uphold and protect bootleggers, blind piggers and law violators, but just to the contrary. Is it any wonder that some people of the above type call it a ‘damnable piece of nonsense?’ No doubt if an ordinance had been introduced compelling every male person in the village to take three or four drinks of whisky and as many bottles of beer every day, or to prohibit the building of any church or other building for the promotion of the public welfare within three miles of any saloon without the unanimous consent of all the saloon keepers within the said distance, or to prohibit any coroner, sheriff, constable, policeman or other officer from entering any complaint, making any arrest, or serving any process on any blind piggers, bootleggers, or illegal vendors of nose paint, we have reason to believe that such ordinance would meet with approval, and its adoption would have been earnestly and sincerely recommended. The statement that the ordinance was unanimously defeated was not true, as the Journal will show that the votes stood three and three, the president declaring the motion lost.
“There is one thing that Alderman White can say without fear of successful contradiction, that he never sat behind the barred doors of a gambling joint at midnight, shivering and shaking in his shoes for fear that a vigilance committee of law abiding women might break in and catch him red handed. Neither does Alderman White frequently take a Sunday afternoon to Galena or Dubuque to spend his time gambling with cards or other devices, which is contrary to our State laws, or inveigle any of his friends into any game by which they are parted from their hard earned cash. Certain correspondents from here for the last year or more have been heaping tirades of abuse upon people who do not think as they do, or do as they want them to do, but as the old saying has it, * People who live in glass houses should never throw stones/
W. C. White.”

This was followed by two articles published by appellee in the Hazel Green Reporter at the dates indicated, reading as follows: (June 24, 1915) “The correspondent of this department was very much amused last week on reading an article published in a Shullsburg paper, signed W. C. White. It was an attempt to ridicule a certain criticism which had appeared in this department about a month ago on the famous ordinance which was presented to the village board for adoption. Up to this time we have always refrained from entering into the private life discussions of any individuals, and it really surprised us to read his tirade which was intended-to attack our personalties. The fact of the matter is that if he knew the pleasure and fun we had out of it he would be very sorry that he gave us such an opportunity to laugh and recall many incidents of his past life. There are but very few of his old associates but what have already lost respect for him as a man, consequently their recollections were freely discussed, and the sum and substance of it was that such a type was a success as a society humbug, unfit to be trusted in any public position. He is wrapped up in a cloak of hypocrisy which had to be spread over his followers to cover up their past. It will no doubt please him to have us cite a few quotations from the remarks passed by different ones who were not actuated by any personal enmity but have remained men among men. They spoke freely as they knew him before the badge of manhood had been stripped from him.

“The pet names which he refers to as bootleggers, blind piggers and vendors of nose paint are expressions copied from Billy Sunday’s beautiful language, and who gets a big price for such, and would not refer to them free of charge against his own past life. Naturally the boys said after this polite language was read: ‘Why, I remember not long ago when he used to be the best posted as to where a man could get the biggest can of beer for five or ten cents to take home.’ While on the farm the boys remember when he bought it by the keg and took up a collection among them so he would get his share free. His hobby was ‘can rushing’ as he could get more for his money, and usually that class of people find their associates in back yards, lumber yards, or at Hinky Dink’s in Chicago. The only reason he hasn’t more of the ‘nose paint’ on his nose is that Bye and Bourbon were not on the bill of fare at the free lunch counters. So far as our Galena and Dubuque trips are concerned, they are in the nature of recreation, which is far more honorable than to be a ‘rubber neck’ at every train to get your nose in everybody’s affairs. The only time he would take a trip to Caleña was for the purpose of getting people into trouble—to either separate families or make the boys pay fines.

“He has been a disturbing element since he located here and certainly would be in obscurity now if woman’s suffrage had not been granted, but we are glad to say that a great many of them have discovered his unfitness as a leader to better conditions and the election of last spring was a good showing as to his standing in public opinion.

“We trust he will prove game and not show the white feather, as we are all supplied with ammunition of a more serious nature. We consider this a friendly bout and trust you will be as good as you can under the circumstances. Try our remedy; it works fine.

“Hoping to hear from you again soon, I remain respectfully yours,

Correspondent Hazel Creen Reporter.

“P. S. We wish to have it understood that our previous criticism and remarks which have appeared in our columns from time to time was only a faint echo compared to what was circulated by these people. We have no society to organize a campaign of damnable lies, consequently we adopted this plan to enlighten the people on public questions, and, as truth will prevail, we kept their associates at a respectable distance at the polls.”

(November 11, 1915)

“The correspondent has not devoted much time of late to personals, but in some future issue will take up the trail of the skunks who disturbed the peace of our village last week. We will show you how a few insignificant and harmless looking animals can spray their vile odor and raise more stink than any we have had here for years. What we will have to say about it is a testimony of disgust from that better class of people—those that have been decent all their lives and were not swept out when decency and good moral characters had a house cleaning. Those who are raising the most ‘hell’ are ones who were put in the scavenger wagon years ago. Their names have not appeared on the surface, but the people that have made these complaints have squawked and said they were forced to do it by a class that we are positive were no angels a few years ago.” The newspapers containing these publications circulated in Apple River and vicinity.

Appellant brought this action of libel, and in his declaration in different counts set out each of the two above-quoted articles written by appellee with innuendoes charging the meaning of various words and clauses found therein, and a colloquium alleging the surrounding circumstances. There was _no allegation of special damages.

"After the court had overruled demurrers to each count of the declaration and amended declaration upon which the suit was tried, the defendant pleaded not guilty, and took leave “to give notice of any special matter.” Pursuant to that leave he filed a notice that he would give in evidence and insist that before and at the time of the commencement of this suit the defendant was, and still is, “indebted to the plaintiff in the sum of $5,000, the amount for which plaintiff has brought suit.” The notice goes on to state that the plaintiff had on June 17,1915, published in the Shullshurg Pick and Glad a libel on the defendant and sets out the article so alleged to be published. (The article written by appellant above quoted.) That the defendant has been damaged by that defamatory matter and that on the trial the defendant will allow the plaintiff, if any damages are proven by him on his part, as much as may be found to be due the plaintiff out of said sum of money due the defendant from the plaintiff herein. The court overruled a general demurrer to this notice of defense. The notice did not purport to be a plea, and did not conclude to the country, or with a verification, but the plaintiff filed a similiter “to the pleas of the defendant by him in the above case pleaded and whereof he has put himself upon the country does the like.”

On a jury trial the publication of the articles by appellee was proven; also against the objection of the plaintiff his publication of the article above set out. In the instructions the court, at the instance of the plaintiff, • submitted the question to the jury whether the articles published by the defendant were capable of a meaning so as to bring the plaintiff into public hatred, contempt or ridicule, and whether they were so understood by those who read them, and also that they might consider the article published by the plaintiff for no other purpose than to determine the meaning of the article published by the defendant June 24, 1915, and as showing the feeling of malice or otherwise of the defendant in writing said article. And at the instance of the defendant that if the plaintiff had not proven by a preponderance of the' evidence that the defendant maliciously and falsely wrote and caused to be published the words, or some of them, charged in the declaration, the verdict should be not guilty. There was a verdict of not guilty, and judgment entered thereon, from which this appeal is taken.

Appellant argues that there being no conflict in the testimony as to the publication of the articles by the defendant he was entitled to' a verdict, and the court, erred in submitting the question to the jury whether there should be a verdict for the plaintiff or defendant. His sixth and seventh refused instructions were intended to advise the jury that there must be a verdict for the plaintiff, but they were offered with other instructions that left that question to the jury, leaving the court to choose between the two theories of the case and appellant in no position to complain if he chose the wrong one. Appellee answers that the articles are neither of them actionable per se; therefore the above questions were necessarily left to the jury, and says the innuendoes in the declaration cannot be considered in determining whether or not the publications were actionable per se. Libel is defined in our criminal code (J. & A. ft 3808) as “A malicious defamation, expressed either by printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, ridicule^ or ‘financial injury.” A similar definition is given in the text of 25 Cyc. 243, as one that has frequently met with judicial approval in civil and criminal cases: “The law recognized two classes of damages in suits for defamation—general and special. Special damages are such as are computable in money. General damages are those which the law presumes must actually, proximately and necessarily result from the publication of the defamatory matter. The latter arise by inference of law and are not required to be proved by evidence, and are allowable whenever the immediate tendency of the words is to impair plaintiff’s reputation, although no actual pecuniary loss has in fact resulted; the words from which the law presumes injury in such cases being deemed actionable per se. All other defamation is actionable per quod; that is, special damages must be alleged and proven.” 25 Cyc. 249.

Many charges which if merely spoken of another would not be actionable without proof of special damages will be libelous per se when written or printed and published. Id. 250. Words written or printed are libelous and actionable per se; that is, without any allegation or proof of special damages “if they tend to expose plaintiff to public hatred, contempt, ridicule, aversion or disgrace, and to induce an evil opinion of him in the minds of right thinking persons and to deprive bim of their friendly intercourse and society, even though the same words, if spoken, would not have been actionable.” Id.; Cerveny v. Chicago Daily News Co., 139 Ill. 345; Herrick v. Tribune Co., 108 Ill. App. 244.

The rule is “that if the words published are clearly defamatory on their face and are unambiguous and incapable of an innocent meaning, the court may, as a matter of law, declare to the jury that they are libelous, leaving it to the jury to say whether the publication was made, with what intent it was made, and whether the published words were true or false.” Dowie v. Priddle, 216 Ill. 553, 558. It is the province of the court to determine whether the language of the alleged libel is ambiguous or double in meaning, one of which is libelous. “When the court has so determined that it will bear such double meaning, it is then the province of the jury to determine in which sense the, language was used.” Beeson v. H. W. Gossard Co., 167 Ill. App. 561, 569, and authorities there cited. If the words are libelous per se, it is not necessary to allege or prove special damages, both malice and damages are presumed, and if the general issue only is pleaded the verdict must necessarily be for the plaintiff. Willfred Coal Co. v. Sapp, 193 Ill. App. 400.

We are of the opinion that the language charged in the declaration is libelous per se. We do not see how there can be any question about its having an ambiguous or double meaning. The court properly overruled demurrers to each count of the declaration, which action was not necessarily based on an opinion that the language was libelous per se and incapable of an innocent meaning, but might have been well based on that ground. It therefore follows under the above authorities that the verdict should have been for the plaintiff, and if it be said that appellant cannot complain of the action of the court in submitting that question to the jury it still remains true that the verdict of the jury was so manifestly against the evidence that a new trial should have been granted for that reason.

Appellant assigns and argues error in permitting his letter to be read in defense. We think it was competent under the general issue not only as explanatory of appellee’s first letter, but also for other reasons.

“In the absence of statute, any defense which does not amount to a justification may be given in evidence under the general issue in mitigation of damages.” 25 Cyc. 476. The defendant may prove prior publications by the plaintiff of a provoking nature in mitigation. Thomas v. Dunaway, 30 Ill. 373. The court said on page 387 such publications may show “that they were highly calculated to provoke appellant, and that his act was not of such a wanton, reckless and malicious character as to require severe punishment. ’ ’ A previous letter referred to in the libelous matter complained of may be read in evidence in explanation of language used in the alleged libel. Young v. Gilbert, 93 Ill. 595. In criminal cases the fact that the publication was made under provocation by the prosecuting witness is said to be competent to be considered in mitigation of punishment. 25 Cyc. 585. Circumstances which tend to disprove malice may be shown. Storey v. Early, 86 Ill. 461. But it must appear there was provocation operating as the immediate cause. 25 Cyc. 421. The - parties treated the notice of defense under the general issue as a plea, and the court overruled a demurrer to it. We assume the defendant in filing that notice relied on section 46 of onr Practice Act (J. & A. ft 8583). We know of no authority for such notice except the statute. : The notice calls for no answer from the plaintiff, and no issue of law or fact can be made upon it, and no question arises until the defendant offers evidence to support it on the trial. If the notice is then found defective or does not state a good defense, the court will not admit evidence under it. Burgwin v. Babcock, 11 Ill. 28; Bailey v. Valley Nat. Bank, 127 Ill. 332. If there is any exception or qualification of the language above used it is that the sufficiency of a notice may be tested by motion to strike from the files. 31 Cyc. 191. The court did not err in overruling the demurrer to the notice, because that was not the way to test its sufficiency. Notwithstanding the language of the notice it is not claimed by appellee that there can be a set-off in this action. He speaks of this defense as a recoupment. There is no indication in any law that we have been referred to, or know of, that there can be a recoupment in cases like this. Publications are not treated as growing out of the same transaction within the meaning of that term as applied to the right to recoup in the authorities that we have examined where one slander or libel has been provoked by another.

Appellant admits that if the words are held actionable per se, where the general issue only is pleaded, the law implies both malice and damages, but also says that a new trial should not be granted to permit a recovery of nominal or vindictive damages, and cites authorities in support of that general rule. It would be within the right and power of a jury to award more than nominal damages on another trial, and we think we ought not to assume on this record that they would or would not do so. Appellee also argues that this was a public matter and he was privileged to discuss it as such. It is true that such a privilege sometimes exists, and also that alleged libelous language must be considered with a reference to the time and place in which it is used; but we see no ground for holding that the publication here complained of should be held privileged. Other questions are raised by appellant in matters that will not likely occur on another trial. The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Dibell

text:
    The People of the State of Illinois, Defendant in Error, v. G. W. Gilbert, Plaintiff in Error.
    Gen. No. 6,066.
    1. Contempt, § 30

      —when courts have power to punish as contempt publication of news articles concerning case in court. Courts have power to punish as a contempt the publication of news articles concerning a ease pending in the court which reflects on-the court’s action therein or impeaches its integrity or seeks to intimidate it by threats of popular clamor.
    2. Contempt, § 30*—when court may punish as contempt making of publication concerning case in court. In order to authorize a court to punish a publication of news articles concerning a case in court as a contempt, the publication must have been while the cause was pending so that it was calculated to embarrass the court and bring its further action therein into disrepute.
    3. Lis pendens, § 2*—when action is pending. An action is pending from its beginning to final judgment pronounced and entered.
    4. Contempt, § 69*—when evidence sufficient to show that cause was pending at date of publication. Evidence held to show that the cause as to which a certain newspaper publication was made was pending at the date of such publication, where it appeared a decision was rendered by the court in said cause shortly prior to such publication and the cause continued to a date subsequent thereto for further disposition, in a proceeding to punish for contempt in making such publication.
    5. Contempt, § 2

      —what is power of County Court to punish for. A County Court, though one of limited jurisdiction, has power to punish as a contempt a newspaper publication as to a case then pending before it.
    6. Contempt, § 40*—what is effect of newspaper proprietor’s lacle of knowledge of libel on liability for contempt. A newspaper proprietor’s lack of knowledge of a libel published therein should influence' the degree of his punishment for contempt of court but not exonerate him from liability.
    7. Contempt, § 69*—when evidence is sufficient to show that publication of newspaper article as to cause in court is injurious. The evidence held to show that a certain newspaper publication as to - a cause then pending in court was calculated to impede and embarrass and obstruct the court in the due administration of justice in the cause and be properly punishable as a- contempt.
    Error to the County Court of Boone county; the Hon. William C. De Wole, Judge, presiding. Heard in this court at the April term, 1935.
    Affirmed.
    Opinion filed February 10, 1917.
    Alexander J. Strom and William L. Pierce, for plaintiff in error.
    David E. Joslyn, for defendant in error; Waite & Donovan, of counsel.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

On November 27, 1914, an information was filed in the County Court of Boone county, charging that Gf. W. Gilbert, on June 27, 1914, published in a newspaper in Belvidere, in said county, of which he was the editor and proprietor, an article set out in the information, concerning a cause then pending in said court, which was a contempt of court. The information was under oath. Gilbert filed an answer and also filed answers to interrogatories propounded to him by the relator, all of which were under oath. He also filed certain affidavits by other parties. There was a hearing and these matters were offered in evidence, and the respondent was found guilty and sentenced to pay a fine of one hundred and fifty dollars, and to imprisonment in the county jail for twenty-four hours. Gilbert brings the judgment here for review. We reversed the judgment on the ground that the suit was not pending in the County Court at the time of the publication of the article complained of. On a petition for rehearing we found in the bill of exceptions certain matters material to that question which had not been incorporated in the abstract. We therefore granted a rehearing to consider that subject.

The power of courts to punish, as a contempt, the publication of articles in newspapers concerning a case pending in court which reflects upon the action of the court therein, or impeaches its integrity, or seeks to intimidate the court by a threat of popular clamor, is well established. People v. Wilson, 64 Ill. 195, expresses the views of the Supreme Court of this State on that subject. The latest expression is in Schmidt v. Cooper, 274 Ill. 243, where the court said: “The power to punish for contempt is inherent in every court of justice, and necessarily includes all acts calculated to impede, embarrass or obstruct the court in the due administration of justice, and the power is independent of statutory provisions.” Other cases are there cited in support of the doctrine. This doctrine is supported, with full discussion and the citation of many authorities, in Cooper v. People, 13 Colo. 337, 373, 6 L. R. A. 430; Telegram Newspaper Co. v. Com., 172 Mass. 294, 44 L. R. A. 159; State v. Bee Pub. Co., 60 Neb. 282, 50 L. R. A. 195; Hughes v. Territory, 10 Ariz. 119, 6 L. R. A. (N. S.) 572; 9 Cyc. 20. It is, however, clearly pointed out in these authorities that in order to authorize a court to punish a publication as a contempt, the publication must have been while the cause was pending, so that it was calculated to embarrass the court, and bring its future action therein into disrespect. An action is pending the entire time from the beginning of the action until final judgment has been pronounced and entered up. 30 Cyc. 1364, note.

It appears from the record that there had been an election in the Town of Belvidere upon the question whether that town should become dry territory, and that election seems to have resulted in making the town dry, and a suit had been brought by several parties in the County Court to contest that election, and there had been an order for the counting of ballots, and a decision by the court thereafter, upon argument, that the ballots should not be counted except those cast in the third precinct. Then followed the publication here involved. In the brief filed by respondent to the petition for a rehearing, it is alleged that, except a brief statement in the information that said publication concerned a cause then pending in said court and not finally determined, there can be nowhere in this record found any proof that there was a cause then pending in the County Court when said publication was made, and that a search of the record from beginning to end will not reveal any reference to a case pending in court. This is not a correct statement of the condition of the record. The decision of the court that certain ballots should not be counted was made on June 24, 1914. The article was published on June 27, 1914. The answer of the respondent, which was under oath, states that respondent has recently learned, since the information was filed, that there was still pending in said County Court, on June 27, 1914, the cause described in the information concerning the integrity and validity of said election, but that on the date of said publication respondent supposed the proceeding had been disposed of by the ruling of the court refusing to admit certain ballots in evidence. Therefore the answer squarely admits that the cause was then pending. The abstract filed by respondent, and upon which we relied in our former decision, entirely omitted the following contained in the bill of exceptions: “Let the record show that after the date mentioned in the affidavit of a conference, the cause proceeded, and witnesses testified, and the matter was pending for some couple of weeks.” The conference referred to in this statement is shown by the affidavits to have taken place on June 24, 1914, after the decision of the court in relation to counting the ballots. The bill of exceptions does not directly show whether this was in the nature of a stipulation or was inserted by direction of the trial judge, but it is followed by the following stipulation, which was also omitted from the abstract: “It is also agreed and stipulated that the record shows there was no session of the court and no hearing in said cause from the 25th day of June to the 29th day of June, but that the cause in question was on hearing on the 25th day of June, at which time said cause was continued by order of court until June 29th, 1914.” This makes it plainly appear that it was stipulated at the hearing of this proceeding for contempt that the election contest was pending when said publication was made, and for nearly two weeks thereafter, and that witnesses thereafter testified in the cause. A careful examination of the affidavits offered in evidence by respondent reveals plain indications that the cause was still pending. This proof shows that after the decision of the court regarding the ballots on June 24th, the three attorneys for the persons who were contesting the election and one or more of said contestants and the respondent. Gilbert held a conference at the office of one of said attorneys. It is clear that respondent was then told that this decision was regarded by the attorneys as fatal to success in the cause; that the contestants would not be able to prove a sufficient number of illegal votes to defeat the official return of the election, and that the cause was not likely to be further prosecuted by the contestants, but that they wished respondent not to indicate that in his newspaper, so that the defense in the election contest should not know that they were likely not to press the matter further. The article of which complaint is made contains evidence on its face that the election contest was not yet ended, but it is not necessary to discuss that further, because the matters omitted from the abstract but contained in the bill of exceptions show without question that the Suit was pending when this publication was made and for some time thereafter. It is not the law that when a ruling has been made in a pending case it cannot be a contempt of court to abuse the court for that ruling because that particular ruling is past. There is never an occasion to discuss a ruling in a pending case until that ruling is made, and if that publication is calculated to impede, embarrass or obstruct the court in the due administration of justice, then it is a matter which the court possesses an inherent power to punish. It is suggested in the briefs that the County Court, being a court of limited jurisdiction, has no such power. In Illinois the County Court is established by the Constitution, and we have no doubt that it is as much within the protection of the rules above announced as any other court in the State. Authorities in the various States contain interesting discussions of the question when a case ceases to be pending in court; as, for example, that it is pending while the court has power to grant a reconsideration of the cause, and the like. But inasmuch as it clearly appears here that beyond all question the case was still pending and undecided, we find it unnecessary to consider the question when a case ceases to be pending.

The article complained of is of great length, and it would unduly extend this opinion to insert it here. The heading of the article was as follows: “The wet and dry controversy still in the melodrama stage. Judge DeWolf makes grandstand play in rejecting the recount of ballots as evidence in four of the five wards in the city.” The important words in said heading begin with capital letters, so as to catch the attention of the reader. Eespondent states that he did not write this heading, nor know of it until after the paper was issued. It was held in People v. Wilson, supra, that such lack of knowledge by the respondent should influence the degree of punishment, but does not exonerate the proprietor of the newspaper from responsibility. The rest of the article respondent admits that he wrote, and that it was published in the paper, and that he owned and edited the paper, and that the article was circulated. The article set out a section of the election law which required the ballots to be opened in open court. It seems that an order had been entered naming three men who should open and count the ballots, and' it is in said article insinuated that the judge of the County Court violated the law in entering that order. Of course he did not violate the law if the order was entered by consent of the parties, and one of the affidavits offered in evidence by respondent tends to show that they were concurring in the making of such an order. It seems that these three men appointed by the court conducted the count of the ballots in a private room in a bank, and this is commented upon adversely. The article also alleges that this work would cost the county sixteen dollars per day. It appears that at the hearing of the argument upon the question whether the ballots should be permitted in evidence, the judge of the County Court called two other county judges to sit with him and hear the arguments, informing counsel, however, that this was only advisory, and that the decision would be made by the judge of that county alone. This action is criticised in the article, and it is plainly intimated that there were no questions involved that required the presence of three judges. It is charged in the article that in deciding that matter the County Court did not read or refer to all of the cases which the contestants had cited, and especially omitted West v. Sloan, 238 Ill. 331,. where the Supreme Court held that under the statute the ballots were admissible in evidence in any event, but that their probative force depended upon the care with which they had been preserved. This was calculated to influence the public to believe that the judge had been unfair in his decision of the matter then pending. The respondent failed to state that the opinion in said case further said that if the ballots had been so carelessly kept as to be exposed to change their effect as evidence would be destroyed, and that the burden is on the contestant to show that the ballots are in the same condition as when cast, and unless their preservation has been such that there has been no reasonable opportunity for tampering with them they cannot overcome the returns; and that in that case, which was an election contest in the County Court, after reviewing the facts, the Supreme Court held that the probative force of the ballots had been destroyed. It is clear from the article itself that what the County Court of Boone county held was that the ballots of certain precincts were so situated that under that rule they could not overcome the returns, and that so far as appears the only respect in which he departed from that decision was that instead of saying they could not overcome the returns he said they would not be admitted in evidence. The article proceeded to say that the court could have admitted these ballots in evidence in harmony with the law, and would thereby have furthered the ends of justice, which could not be reached by rejecting the ballots. The article declared that there was a strong desire by the public to ascertain the true facts, and that if the people had the power to recall decisions, as they ought to have, this decision would be recalled; that the other two judges sitting with the county judge of Boone county had no weight with any thinking man; that the editor hoped that justice would prevail in the end; and that the editor did not believe that the decision of the County Court was in keeping either with the preponderance of the decisions of the Supreme Court or was in harmony with law or public opinion; that the people ought to have the right to recall this decision, and that the county judge in such a case becomes an absolute czar; that in the third precinct, where the ballots were properly preserved, the wets made a clear gain of fifteen votes, and, taking that as a basis, any man could see what the actual majority would have been if the returns by the election judges had been correct, and that what the editor wanted was a square deal, simple, old-fashioned justice, with the word “justice” printed in capitals.

The County Court still had complete jurisdiction of the cause and power to set aside the action it had taken. It still had power to decide that all the votes should be counted. It still had power to require that to be done in open court. The charge that he had violated the law in the manner in which the ballots had been opened and counted, and in afterwards rejecting the ballots in certain precincts, was calculated to intimidate a weak judge. It was calculated to arouse public passion and prejudice against the decision which had been made. In People v. Wilson, supra, the Supreme Court had under consideration a publication in a newspaper of an article reflecting upon the action of the Supreme Court in granting a supersedeas in a criminal case. On this subject the court there said: “A court will, of course, endeavor to remain wholly uninfluenced by publications like that under consideration, but will the community believe that it is able to do so? Can it even be certain in regard-to itself? Can men always be sure of their mental poise? A timid man might be influenced to yield, while a combative man "would be driven in the opposite direction. Whether the actual influence is on one side or the other, so far as it is felt at all, it becomes dangerous to the administration of justice. Even, if a court is happily composed of judges of such firm and equal temper that they remain wholly uninfluenced in either direction, nevertheless a disturbing element has been thrown into the council chamber, which it is the wise policy of the law to exclude.” The court there further said: “It is a contempt, because, in a pending case of the gravest magnitude, it reflects upon the action of the court, impeaches its integrity, and seeks to intimidate it by the threat of popular clamor. ’ ’ On the same subject, it was said, in State v. Bee Pub. Co., supra: “Men have in the past yielded to the demands of an angry populace, and it is quite possible that they may yield again. Moral fiber is not stronger now than it ever was before. Courts are charged with the function of administering justice, and it is their duty, not only to give to every suitor his demandable right, but to give him assurance that no banned and hostile influence shall operate against him while his cause is under consideration. A litigant is entitled, not only to a just decision, but to a decision altogether free from the suspicion of having been coerced. Nothing else will satisfy him; nothing less can fill the measure of his expectations. He has no standard with which to gauge judicial firmness; and if the court had been exposed to influences calculated, as in the Kennedy case [60 Neb. 300], to tell against him, he "will not know whether an adverse decision is the voice of the law or an echo of the mob.” Respondent denied that he intended to commit a contempt of court. This denial is unavailing if the facts show that a contempt of court was committed. In People v. Seymour, 272 Ill. 295, the person charged with contempt made a general denial of any intention to commit a contempt of court, but it was held that the admissions of the answer showed that he committed the acts charged, and that they were a contempt of court, and the judgment was sustained. The respondent here disclaims any intentional disrespect of the court and any design to embarrass the administration of justice. It was held in People v. Wilson, supra, that such a disclaimer would not be accepted as a reason for discharging the respondent, but that the meaning and intent of the respondent must be determined by a fair interpretation of the language used by him in the objectionable article, and such is also the holding in People v. Seymour, supra. We do not doubt that the publication of this article in respondent’s newspaper while the cause was pending was calculated to impede and embarrass and obstruct the court in the due administration of justice in that cause. Nothing we have said is intended to even suggest any restraint upon the liberty of a newspaper to freely discuss all features of a case after it has ceased to be a pending cause. If such a discussion is unlawful it can then only be punished in a proper legal action. For the reasons stated the judgment is affirmed.

Affirmed.


text:
    Fred Rose, by George Rose, Defendant in Error, v. Helen Morton, Plaintiff in Error.
    Gen. No. 6,236.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Negligence, § 187

      —when evidence sufficient to sustain verdict for plaintiff in action for injuries sustained by rearing of horse being backed. In an action for damages for personal injuries negligently sustained, where it appeared in proof that the defendant, while training a horse which she knew was accustomed to rear up whenever a curb bit was used and would not back, asked the plaintiff, a boy under sixteen and one-half years old, and a stranger to her, to back the horse, not telling him about the horse’s disposition, and the plaintiff accordingly got on the horse and pulled on the curb bit, with which he was not acquainted, in order to back the horse as directed by the defendant, whereupon the horse reared and fell backward, breaking plaintiff’s leg, evidence held sufficient to sustain a verdict for the plaintiff.

      Error to the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Statement, of the Case.
    Action by Fred Rose, minor, by Ms next friend, George Rose, plaintiff, against Helen Morton, defendant, to recover damages for personal injuries sustained by being thrown from defendant’s horse. From a judgment for plaintiff for $1,000, defendant brings error.
    Cooke, Pope & Pope, for plaintiff in error.
    Daniel P. Trude and Thomas J. Peden, for defendant in error; M. Marso, of counsel.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

2. Negligence, § 128 —when declaration is good after verdict. Where a declaration, in an action to recover damages for injuries sustained by reason of defendant’s horse rearing and throwing plaintiff while he was riding it, by the defendant’s direction, whereby he was injured, failed to allege that the horse was accustomed to rear, as shown by the proof, held that the declaration was good after verdict notwithstanding such variance, no claim being made during the trial as to the variance.

3. Damages, § 124*—when verdict for personal injuries as remitted is not excessive. Where the plaintiff was in a hospital by reason of the alleged injury to his leg for eight weeks, wearing splints, and a plaster cast for two or three weeks thereafter and crutches for some further time, both bones being broken, with good recovery but usual restricted knee motion, and pains at the time of trial two and one-half years after the accident, held that a judgment for $1,000, on remittitur from a verdict for $2,000, was not excessive.

4. Appeal and error, § 1466*—when admission of evidence relating to accident insurance company in personal injury action is harmless "error. The admission of evidence in an action for personal injuries showing that an accident insurance company had nothing to do with the action is not reversible error, particularly where no objection was made to its admission on the trial, and also where a remittitur of one-half of the verdict was made.


text:
    F. M. Smith, Appellee, v. George Whitham, Appellant.
    Gen. No. 6,306.
    1. Tender, § 20

      —when qualified plea of general issue and plea of tender are in proper form. A qualified plea of general issue and plea of tender, held in proper form, in an action to recover on a lumber bill.
    2. Tender, § 20*—when replication accepting tender is in proper form,. Replication accepting a tender made, held in proper form where the plaintiff admitted a tender could be proved and was prepared to show more due than was tendered.
    3. Tender, § 15*—when amount of tender paid in court should be remitted. Where a tender was made in court of less than the amount sued for, and was accepted, and judgment was entered after trial for the full amount sued for and all the costs, held that such judgment was erroneous and that the amount of the tender should be remitted.
    4. Sales, § 124*—when evidence sufficient to show delivery of lumber in reasonable time. The evidence held to warrant finding that no time was fixed for the delivery of certain lumber and that it was delivered within a reasonable time, in an action to recover Its purchase price in which recoupment was claimed on the ground that it was to be delivered within a certain time and was not delivered within that time.
    5. Sales, § 320*—when buyer may recoup damages for failure to deliver according to contract. To enable a buyer sued by the seller to recoup damages for a specially advantageous use which the buyer was to make of an articlé not delivered according to contract, he must show that the seller knew of such use and its advantages to the buyer.
    6. Sales, § 320*—when buyer sued for purchase price of lumber cannot recoup for loss of corn due to failure to malee delivery. A buyer cannot, when sued for the purchase price of lumber to be used by him to build a corncrib, recoup by charging the plaintiff with depreciation in value of the corn which the defendant expected to store in such crib but by reason of the lumber not being delivered which he left unhusked or husked on the' ground uncovered and exposed to the elements all winter, as he should have promptly taken other steps to cover and protect the corn.

      Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed on remittitur.
    Opinion filed February 10, 1917.
    R. S. McIlduff and B. R. Thompson, for appellant.
    P. A. Gibbons, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Appellee sued appellant in assumpsit to recover a lumber bill amounting to $666.52. Defendant pleaded the general issue, and a separate plea of recoupment for damages alleged to have been sustained by appellant because the lumber was not delivered when it should have been. There was a jury trial and a disagreement. Thereafter appellant filed a qualified plea of the general issue and a plea of tender and payment into court of $474, made up of $8.95 accrued costs and $465.05 admitted to be due upon the bill. This plea of tender was filed February 5, 1916. Appellee filed a replication thereto, in which he said that he “freely takes and accepts the same out of court here; therefore as to said sum of $470 including court costs now taxed, the plaintiff is satisfied.” There was another jury trial, resulting in a verdict for plaintiff for $666.52. A new trial was denied, and plaintiff had judgment for the full amount, with an award of execution therefor. The defendant appealed to this court, and we reversed the judgment and remanded the cause because it was obvious that the verdict and judgment included the sum of $465.05 tendered and accepted, according to the replication. We granted a rehearing on the petition of appellee, in order to determine whether on the other questions litigated the verdict was right, so that a remittitur of" the amount of the tender could be entered here, and save the parties the expense of a third trial of the cause.

This qualified plea of the general issue and the plea of tender were in the proper form. County of Jo Daviess v. Staples, 108 Ill. App. 539. The replication was in proper form, where the plaintiff admits that a tender can be proved and is prepared to show that more is due than the sum tendered. 3 Chitty’s Pl. 1156, and note. The acceptance of such a tender does not bar the plaintiff from recovering more, if more is due. Higgins v. Halligan, 46 Ill. 173, which was approved in Alexander v. Loeb, 230 Ill. 454; Fowley v. Thompson, 173 Ill. App. 333. Where such a tender is in court the plaintiff has a right to take it, and, if necessary, it is the duty of the court to order it paid over. Dickinson v. Boyd, 82 Ill. App. 251. If the money has been tendered but not paid into court, the plaintiff is entitled to a judgment for the amount tendered. Supreme Tent Knights of Maccabees v. Hammers, 81 Ill. App. 560. We gave a proper form for judgment for plaintiff where a tender has been paid into court, and thereafter plaintiff recovers a verdict for a larger sum, in McConaughy v. Huston, 142 Ill. App. 230.

Here, $8.95, the court costs accrued up to February 5, 1916, and $465.05 upon the contract had been paid into court, and appellee either took these sums or was entitled to take them and was entitled to an order of court that they be paid over. The question to be submitted to the jury was whether any damages had been shown by appellant to prevent appellee recovering the full amount of the bill remaining unpaid, or more than the amount tendered. If the jury found for the full amount that plaintiff claimed, it could only have been for $201.47, to which interest could be added if a case for the payment of interest was made, and if he recovered any more than the sum tendered, he would be entitled to the costs which accrued after February 5, 1916. Here, though he pleaded his acceptance of the tender of part of the debt and costs to that date, and that he had taken the same out of court, he is given judgment and execution for the whole amount of the debt and for all the costs. It is impossible that this should be correct. On rehearing it is alleged that the tender is, in fact, still in the hands of the clerk of the court.

The recoupment sought by defendant was based upon his claim (1) that the agreement was to deliver the lumber by a specified time, and that that agreement was not kept; (2) that if the agreement was only to deliver the lumber within a reasonable time, that also was not done; (3) that defendant had a contract with a carpenter to erect a corncrib with this lumber, and that, because the lumber was not delivered when it should have been, his contractor went away for the, winter, and was not there to build the crib, and defendant was obliged to hire other carpenters and pay more to get his crib erected; and (4) that for want of a crib he was obliged to husk his corn late and to leave it on the ground all winter, and it became depreciated in value and sold for a less sum than it would have done if it had been properly covered and cared for. Plaintiff and defendant differed as to the terms of the agreement, but the jury were warranted in believing plaintiff’s testimony, and in finding that no time was fixed for the delivery of the lumber, and also in finding that it was delivered within a reasonable time in view of ‘the circumstances disclosed by the evidence. There is no proof that plaintiff knew that defendant had made a contract with a carpenter, and that it was an advantageous contract, and that the carpenter would abandon his contract if the lumber did not reach the ground promptly, and therefore no damage against plaintiff can be predicated upon the fact that defendant’s carpenter went away and abandoned his contract, and that it cost defendant more to build the crib than the contract price with the carpenter. The general principle that, to enable a vendee sued by a vendor to recoup damages for a specially advantageous use the vendee was to make of an article not delivered according to contract, he must show that the vendor knew of the intended use and its advantages to the vendee is variously illustrated and applied in Illinois Cent. R. Co. v. Cobb, Christy & Co., 64 Ill. 128; Carpenter v. First Nat. Bank of Joliet, 119 Ill. 352; and Rhea Thielens Implement Co. v. Racine Malleable & Wrought Iron Co., 89 Ill. App. 463. It is obvious that defendant could not leave his corn unhusked or husk it and pile it upon the ground uncovered and exposed to the elements all winter, and then charge plaintiff with its depreciation in value caused thereby. He should have promptly taken other steps to cover and protect his com, and there is no proof that he could not have done so. Whether any extra expense he would thus have incurred could be charged against plaintiff is a question not presented for our consideration.

There are two instructions which could be interpreted to say that appellant must prove all his damages for which he sought recoupment in order to be allowed for any of them, but upon a consideration of all the instructions we are of opinion that the jury would not so understand them.

The jury found for plaintiff the full amount of his bill, and thereby found- against defendant on all his items of recoupment. We would be satisfied with this judgment, but for the fact that it includes the sum tendered into court, and awards execution for the whole amount. This opinion will be lodged with the clerk and counsel for appellee notified thereof, and if within seven days he remits from the principal of his judgment $465.05, and also remits from said judgment for costs all costs accrued before February 5, 1916, the judgment will be affirmed in the sum of $201.47 and for the costs of said Circuit Court accruing on and since February 5, 1916, at the costs of appellee in this court. If such remittitur is not made the judgment will be reversed and the cause remanded.

Appellee having remitted $465.05, together with all costs accrued in said cause before February 5, 1916, the judgment is therefore affirmed in the sum of $201.47, and for costs of said Circuit Court accruing on and since February 5, 1916, at the costs of appellee in this court.

Affirmed.


text:
    Martin J. Regan, Plaintiff in Error, v. Chicago, Milwaukee & St. Paul Railway Company. Henry R. Rathbone, Defendant in Error.
    Gen. No. 6,320.
    1. Appeal and error, § 420

      —when objection in trial court that petition by client to determine right of attorney to lien is premature is necessary. Where the plaintiff in an action filed a petition therein alleging he had never authorized such action or employed the attorney appearing of record therein for him, and that such attorney had filed with the defendant notice of an attorney’s lien and asking that the attorney be required to answer and make a showing and that the court determine his right to a lien and fix his compensation, held that such petition was premature, as no recovery in the plaintiff’s favor had been had and no attorney’s lien had attached, but such attorney having answered and made no objection the Appellate Court would not, on its own motion, refuse to consider such petition because premature.
    2. Appeal and error, § 269*—what constitutes a final order. An order on a petition filed by the plaintiff in an action as to an attorney’s lien filed with the defendant therein prior to any recovery in the plaintiff’s favor in such action recognizing and allowing such lien, held so far a final order as to be reviewable by the Appellate Court on writ of error.
    3. Attorney and client, § 55

      —what are rights of client as to termination of relation. A client has the right to terminate the relation between himself and his attorney at his election with or without cause, and the existence or nonexistence of a valid cause for discharge of the attorney bears only on his right to compensation, and such right is not affected by a previous arrangement for a contingent fee.
    4. Trial, § 82*—when denial of right to introduce further testimony in rebuttal is erroneous. Where a party to an action rested his case upon the opposite party’s statement that he would introduce further testimony, which he did not do, held that a refusal by the court to allow the former party to introduce further testimony in rebuttal was erroneous and an abuse of a sound judicial discretion.
    Error to the City Court of Elgin; the Hon. Fbank E. Shopen, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed February 10, 1917.
    Paul F. Compart, for plaintiff in error; Robert D. Melick, of counsel.
    Frank L. Tuttle, for defendant in error.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

In January and February, 1916, there was pending-in the City Court of Elgin a suit wherein Martin J. Regan was plaintiff and the Chicago, Milwaukee & St. Paul Railway Company was defendant, and in which Henry R. Rathbone had appeared as attorney for plaintiff. On a motion by plaintiff made on January 22nd and granted on February 5th, Paul F. Compart was substituted as attorney for plaintiff in place of Rathbone. On February 26th, by leave of court, plaintiff filed a petition in said cause, in which he stated that his cause of action stated in the declaration was by him placed in the hands of Joseph McGreevy for adjustment and settlement; that Rathbone either started said suit of his own initiative or with the knowledge and acquiescence of McG-reevy under some independent arrangement between them, not authorized by plaintiff; that he never had any agreement with Rathbone as to any fee or compensation to Rathbone, but that Rathbone filed an attorney’s lien with defendant and makes claim thereunder, and that all this was without authority, either direct or indirect, from plaintiff, and that when plaintiff learned of this he repudiated this action and notified Rathbone thereof, and that he had had Compart substituted as his attorney in the case in place of Rathbone; that he desired to do equity, and asked the court to fix a reasonable fee for Rathbone for what he had done" in the case, and that Rathbone be required to answer and show what he had done, and to attach a copy of any instrument under which he claims a lien, and that the court on a hearing determine whether or not Rathbone is entitled to a lien on said cause of action. Rathbone answered, alleging that he had been employed by Regan in the case, attaching a copy of a contract made by Regan with him, a copy of his notice of attorney’s lien, served on defendant, stating what he had done in the case, that he had been discharged without his fault and asking that he be decreed a lien amounting to one-third of any amount which may be obtained by suit or settlement of said cause of action. Proofs were heard and an order was entered that Rathbone have a lien on one-third of what might be recovered in that cause. Plaintiff has sued out this writ of error to review said order.

We have serious question whether this petition was not prematurely filed. The statute (Hurd’s Rev. St. 1916, page 1667, J. & A. 611) does not say when such a petition shall be filed, but it provides that, under the petition there authorized, the court shall adjudicate the rights of the parties and enforce a lien.. There is no lien that can now be enforced. The lien, if any, is inchoate only. If the railway company should succeed in the litigation, there will be nothing upon which the lien can attach. The railway company is not' made a party to this petition. The record before us does not show that.it has ever been served with summons or ever appeared in the suit. If it should hereafter settle with plaintiff, it will have a right to claim, as plaintiff here claims, that plaintiff did not sign a contract with Eathbone. It will not be bound so far as here appears, by any order under the present petition. Before the case reaches a final judgment favorable to plaintiff; there may be other attorneys, not now in the case, who will have a right to contest with Eathbone his right to a lien. But Eathbone did not file this petition to establish his lien. Plaintiff filed the petition to establish that Eathbone had no right to a lien, and Eathbone did not object that the petition was premature but joined issue and tried the question. We conclude that we should not of our own motion refuse to consider the petition as premature.

Eathbone has moved to dismiss this writ of error on the ground that the order sought to be reviewed is not final. The order gives Eathbone a lien upon any verdict or judgment which may be recovered in said suit and upon any money or property which may be obtained upon said cause of action. Everything is fixed except the amount, which will be a matter of computation after a verdict, or a judgment has been recovered or a settlement has been made. This seems to us final within the rule we recognized in Sammis v. Poole, 89 Ill. App. 118, and, as to the only party who appealed therefrom, that decree was affirmed in Sammis v. Poole, 188 Ill. 396. We conclude that the order is so far final that it can be reviewed by writ of error.

As in the view we take this cause must be tried again, we think it unnecessary to discuss in detail the testimony introduced by the respective parties. We think it sufficient to say that the apparent preponderance of the evidence is to the effect that Began did not enter into the alleged contract with Bathbone. If he did not, then Bathbone has no such lien as he here claims. Wliether he did or not, Began could no doubt discharge him. 2 R. C. L. 957 states what we conceive to be the true rule, as follows: “The authorities universally recognize the right of a client to terminate the relation between himself and his attorney at his election, with or without cause, the existence or nonexistence of valid cause for the discharge of the attorney bearing only on his right to compensation. This power cannot be affected by a previous arrangement between the parties, as, for instance, by a contract for a contingent fee.” We are also of the opinion that the court erred in refusing to admit testimony offered by plaintiff in rebuttal. True, plaintiff had stated that he rested; but this was upon the statement by Bathbone that he would introduce further testimony. When Bathbone declined to offer further testimony at the next session of court, we think in the exercise of a sound judicial discretion plaintiff should have been allowed to offer his further proof. There was no jury and the court had repeatedly postponed the case from time to time to accommodate the parties, and plaintiff should not have been deprived of the right to offer further testimony. The order is therefore reversed and the cause remanded.

Reversed and remanded.