text:
    City of Chicago, Appellee, v. The People’s Gas Light & Coke Company, Appellant.
    Gen. No. 18,182.
    1. Injunctions—when discretion abused in granting preliminary injunction. While it is true generally speaking that the matter of granting a preliminary injunction rests in the sound discretion of the trial court and that appellate courts are averse to interfering with the proper exercise of such discretion, yet the authorities hold that an improper exercise of such discretion is shown if it appears that some established rule of law or principle of equity has been violated.
    2. Injunctions—what essential to granting preliminary. To warrant a court of equity in granting a preliminary injunction some fact or facts must be made to appear from which the court can see that unless prevented the acts sought to be enjoined will in all probability be committed to the injury of the complainant.
    3. Injunctions—what essential to granting of preliminary, to restrain commission of alleged threatened acts. If a preliminary injunction is sought to restrain the commission of acts which it is charged will be done by the defendant unless restrained, the bill should set up facts and not conclusions to show that such charge is well founded.
    4. Injunctions—what not. sufficient to authorize granting of preliminary. The mere fact that it wiU do no harm to a defendant to issue an injunction against him pendente lite is not a sufficient ground for granting an injunction.
    5. Injunctions—when “impounding feature’’ erroneous. Upon a bill filed by a.city against a gas company to prevent its charging and collecting rates for gas furnished to consumers in excess of those fixed by an ordinance set up, a preliminary mandatory impounding order, requiring such gas company to pay over to a trustee during the pendency of the action, all monies charged and collected in excess of the ordinance rates and restraining such company from using or disposing of any such monies, is erroneous.
    6. Injunctions—what essential to granting of mandatory preliminary. “While a court of equity is always reluctant to grant a mandatory injunction upon an interlocutory application before final hearing, it may do so in an extreme case where the right is clearly established and the invasion of the right results in serious injury.”
    7. Payments—when oharacter whether voluntary or otherwise cannot he adjudicated. In the absence of an existing issue and proof with respect thereto an appellate court cannot adjudicate as to whether payments for gas made by consumers to a gas company have been voluntary or under protest.
    Bill for injunction. Appeal from interlocutory order of the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911. Reversed.
    Opinion filed April 25, 1912.
    Rehearing denied April 29, 1912.
    Sears, Meagher & Whitney, for appellant; Nathaniel C. Sears and James F. Meagher, of counsel.

      William H. Sexton, for appellee; Maclay Hoyne, Bryan Y. Craig and Joseph F. Grossman, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from an interlocutory injunction order, entered after notice and argument, but before answer filed, upon complainant’s motion based solely on the bill of complaint and exhibits thereto.

The bill was filed October 31,1911, and avers, in substance, that the defendant gas company is an Illinois corporation engaged in the manufacture, sale and distribution of gas to the people of Chicago; that through its system of pipes laid in the public streets and alleys, it supplies gas to over five hundred thousand consumers, one of whom is the complainant, the city of Chicago; that complainant’s gas bills for the last year exceeded two hundred thousand dollars; that all such consumers, including complainant, are wholly dependent upon the defendant for their supply of gas, there being no other concern in Chicago properly equipped to furnish such gas; that by an ordinance of the City Council passed February 14,1906, and accepted by the gas company, the maximum net price or rate for gas furnished to consumers within the city limits during a period of five years then next ensuing was fixed at eighty-five cents per thousand cubic feet; that in October, 1910, one of the standing committees of the City Council of Chicago began an investigation for the purpose of ascertaining what rates would be just and reasonable to be charged and collected for gas to be supplied during the succeeding period of five years; that said committee employed one Hagenah, who, with a number of assistants, accountants and engineers spent about six months time examining the books, papers and records of the gas company, preparing therefrom an inventory and appraisal and collecting and tabulating data concerning the cost of construction, receipts, operating expenses and other matters bearing upon the question of the value of the company’s property; that said Hagenah made a report to the council committee, covering eighty printed pages, recommending a rate of 77 cents per thousand feet as just and reasonable, but left all his data and memoranda in the company’s vaults, and later removed them from the state, claiming to own the same; that the committee then employed one Bemis, who is averred to be a man of large experience and high reputation in such matters and who had been employed as such in connection with the previous revision of gas rates in 1906; that though often requested, the company refused to lend any assistance to Bemis or permit him to examine its property, books or papers, and refused to attend any of the committee’s meetings except that on one occasion one of its attorneys appeared and made a speech criticising the committee; that thereupon Bemis made a thorough and careful analysis of Hagenah’s report, and from it and such other information as was available, he made a report covering thirty printed pages recommending graded rates averaging 70 cents per thousand feet; that after full and careful discussion of both reports in many meetings, the committee reported to the council recommending for passage an ordinance which provided that for the ensuing five years, the maximum net gas rates should be established as follows: first year, seventy-five cents per thousand cubic feet; second and third years, seventy cents, fourth and fifth years, sixty-eight cents; that the committee’s report was, on motion of its chairman, deferred and ordered published in the council proceedings, and was so published with the reports of both Hagenah and Bemis, on July 10, 1911; that on July 17, 1911, the ordinance thus prepared and recommended was passed, approved by the Mayor the next day, published in a daily newspaper on July 31, 1911, and became effective August 10, 1911. This ordinance, after fixing the rates to be charged as above stated, provides a penalty of not less than $25 nor more than $200 for each violation.

The bill further avers that the rates thus established are just and reasonable, and that it became the duty of the gas company to comply with the ordinance; that it has failed to do so, “does not intend to, and unless required so to do by an order or decree of this court, will not comply with the provisions of said ordinance passed July 17, 1911, but will charge, exact, demand and collect of and from” the complainant “and all other consumers of defendant’s gas in said City of Chicago more than seventy-five cents and more than eighty cents for each 1,000 cubic feet of gas consumed or used during the year beginning August 10th, 1911, and more than seventy cents ’ ’ during the second and third years, and “more than sixty-eight cents” during the last two years of the five years period; that the defendant company claims that such rates are unjust, unreasonable, confiscatory and do not afford a reasonable return upon the value of its property; and claims further that the ordinance violates several provisions of the constitution of this State and of the United States; that such claims are based in part upon the further claim that the value of its property is the face value of its capital stock and outstanding bonds, but it is averred that large amounts of such stock and bonds were issued wholly without consideration, or without adequate consideration in the course of sundry alleged successive mergers and consolidations with other corporations, and that such amounts do not represent any actual value and cannot lawfully be considered in determining what are reasonable maximum rates to be charged by the defendant for its product; that while the defendant claims that the present value of the property used in its business is over $70,000,000, its actual value does not in fact exceed $45,000,000.

The bill further avers that on July 31, 1911, the defendant company filed in the Circuit Court of Cook County a petition, a copy of which is attached to the bill of complaint as an exhibit and by reference is made a part thereof. Said petition recites the passage of the two ordinances of February 14, 1906, and of July 17, 1911, the proceedings of the Council Committee leading up to the passage of the latter ordinance, the investigation of the company’s books, papers and property made by the agents of the city from October, 1910, to April, 1911, charges in substance that the first, or Hagenah report, was ignored by the committee for political reasons, and that the subsequent investigations by the committee and by Bemis were not conducted in good faith; and avers that the defendant is paying dividends of only seven per cent per annum, which is claimed to be a minimum of profit to which it is reasonably entitled. The petition further sets out at length the defendant’s claims as to the value of its property and the amount of its receipts and operating expenses, deduces therefrom the conclusion that it would have been impossible for the agents of the city to recommend a lower rate than 80 cents for each thousand cubic feet of gas supplied, except by making unjust valuations of the company’s property, and concludes, without naming any one as defendant, with a statement that the rates prescribed by the ordinance of July 17, 1911, are unjust and unreasonable, and a prayer “to review and determine the same as provided by law, and tp that end to make all such ancillary or other orders as shall seem meet and proper.”

The bill of complaint further avers that no process was issued on said petition and no. appearance, plea or answer was filed; but a notice was served on the Corporation Counsel of the city to the effect that on August 1, 1911, the gas company would apply to Hon. John Gibbons, Judge of the Circuit Court, to take action on the petition; that the Corporation Counsel appeared before Judge Gibbons and denied the jurisdiction of the court to take any action on such petition; nevertheless, an order was entered the next day providing that until final action by the court “herein” the gas company “shall charge, collect and receive” for gas supplied after August 7, 1911, not to exceed 80 cents per thousand cubic feet, restraining it from collecting more than at that rate and also restraining the city from enforcing the ordinance against the gas company, with a provision that if the ordinance rates shall be finally adjudged to be just and reasonable, the excess paid by consumers should be returned to them by the company.

The bill further avers that from July 24, 1911, to August 7, 1911, the defendant charged and collected at the rate of eighty-five cents and that ever since August 7, 1911, has charged and collected at the rate of 80 cents per thousand cubic feet in pursuance of the order entered on that day before Judge Gibbons, which acts, it is averred, are in violation of the ordinance and constitute an abuse of the defendant’s corporate powers and duties; that all the proceedings before Judge Gibbons were void and of no effect as against the city and other consumers of gas; that defendant has threatened that if upon the hearing on •said petition that court shall prescribe rates unsatisfactory to defendant, it will then file a bill in chancery attacking the reasonableness of such rates and of the ordinance rates or both, and seek a hearing de novo; that the defendant may dismiss such petition at any time, and that consumers of 'gas are entitled to have the questions involved conclusively determined in one suit so as to bind all the parties thereto.

The bill further avers that the complainant brings this suit for itself as a consumer of gas and on behalf of all other consumers, “and also in its capacity as representing the inhabitants of the City of Chicago; ’ ’ that unless the consumers of gas yield to the demands of the defendant and pay prices for gas exceeding the maximum rates prescribed by the ordinance of July 17, 1911, the defendant will discontinue the supply of gas to such consumers, and a multiplicity of suits will follow ; that all such suits would arise from the same common cause and involve similar facts; that if complainant should bring suits for violations of said ordinance, the great number of such suits would impede the business of the courts and of the public; that if the ordinance is not enforced pending a judicial determination of its reasonableness, and it shall hereafter be adjudged to be just and reasonable, numerous suits must be brought to recover the excess payments, to the serious inconvenience and loss of consumers and the public generally, “unless an order be entered herein requiring and directing the defendant to pay and turn over to the clerk of this court or to some other person to be named by the court, all moneys that may be collected by said defendant from consumers of gas during the pendency of this suit in excess of the maximum rates and charges for gas prescribed by said ordinance of July 17, 1911.”

The bill prays that upon the final hearing the defendant may be enjoined from violating the ordinance of July 17, 1911, and that on the filing of the bill an order may be entered enjoining it, “as was done in the aforesaid order entered by this court on August 2nd, 1911,” from charging or collecting more than 80 cents for each 1,000 Cubic feet of gas consumed, until the further order of the court, and requiring and directing it to pay over to the clerk of the court or some other person to be named by the court, all moneys collected from consumers, in excess of the maximum rates prescribed by such ordinance, to be held subject to the further order of the court; that defendant may schedule all its property and all records and data relating to the cost and value of the same, the amount of its stocks and bonds and the consideration therefor, its income and expenses, and that it be required to permit complainant or its agents to inspect defendant’s books, papers and property, and for such other relief as equity may require.

After a demurrer to this bill had been argued and overruled, the court entered the interlocutory in junctional order in question here. In substance that order provides first that the defendant, its officers and agents be and are enjoined and restrained until the further order of the court, from charging or collecting more than 80 cents per thousand feet for gas supplied by defendant to the complainant or to any other consumer and that a writ of injunction issue to that effect; second, that until the further order of the court, all moneys collected from consumers of gas by defendant in excess of the maximum rates fixed by the ordinance of July 17, 1911, shall be paid over by defendant, on or before the fifth day of the succeeding month, to the Central Trust Company of Illinois, as trustee, who shall give bond for $500,000, and hold and pay over such moneys with interest at three per cent to such persons as the court shall direct; and that a writ of injunction issue without bond, restraining defendant, its officers and agents until the further order of the court, “from retaining, using or disposing” of moneys collected in excess of the ordinance rates, “in any way or manner other than by the payment thereof to the Central Trust Company as trustee, on or'before the fifth day of each month.”

It is contended by the appellant that the first part of the interlocutory order is erroneous because no threats are alleged to have been made by the appellant, and no facts are set up from which it appears even probable, that appellant will collect more than 80 cents per thousand feet for its gas unless prevented by an injunction; to which, the city replies that the issuance of a preliminary injunction is discretionary and that the order granting the same should be affirmed, unless it clearly appears that the court below has improperly exercised its discretion.

While it is true, generally speaking, that the matter of granting a preliminary injunction is a matter resting in the sound discretion of the trial court and that appellate courts are averse to any interference with the proper exercise of such discretion (New Ohio Washed Coal Co. v. Coal Belt Ry. Co., 116 Ill. App. 153, 157; West Side Hospital v. Steele, 124 Ill. App. 534, 543), yet the authorities hold that an improper exercise of such discretion is shown if it appears that some established rule of law or principle of equity has been violated. High on Injunctions, 4th Ed., Sec. 1696.

It is a familiar principle of equity, that to warrant a court in granting a preliminary injunction, some fact or facts must be made to appear from which the court can see that unless prevented the acts sought to he enjoined will in all probability be committed to the injury of the complainant. Coquard v. National Linseed Oil Co., 171 Ill. 480, 482; Chicago Telephone Co. v. Northwestern Telephone Co., 199 Ill. 324, 365; 16 A. & E. Ency. of Law, 2nd Ed., 360.

In this case there is no averment in the bill or exhibits which were under consideration at the time of the granting of the injunction, showing that the defendant has threatened or intends to demand or collect more than 80 cents per thousand feet for its gas, and no facts are alleged from which it can be inferred that there is any reasonable probability that the defendant expects or intends so to do. On the contrary, it appears on the face of. the bill that ever since August 7, 1911, the defendant “has been and is now charging, exacting, demanding and collecting * * * 80 cents for each 1,000 cubic feet of gas consumed.” The statement at one place in the bill that defendant “will charge, demand and collect * * * more than 75 cents and more than 80 cents” is a mere conclusion, unsupported by any fact or circumstance alleged, and inconsistent with the facts which are elsewhere set forth.

It is also urged that even if the court below committed error as to this part of the order, yet the preliminary' injunction can do no harm; but the mere fact that it may do no harm to a defendant to issue an injunction against him pendente lite is not a sufficient ground for granting an injunction. Dunne v. Bryan, Ir. R. 7 Eq. 143, 158; Mullen v. Jennings, 9 N. J. Eq. 192, 195.

As to the second part or so-called “impounding feature ’ ’ of the order appealed from, the record shows that by one clause of this portion of the order the defendant company is peremptorily ordered' to pay over monthly to a trustee named in the order, all moneys charged and collected for its gas in excess of the ordinance rates, to be held by such trustee subject to the further order of the Court; while by another clause of the same order a writ of injunction is directed to issue against the company, enjoining and restraining it “from retaining, using or disposing of any moneys collected or received by the defendant after the entry of this order * * * in excess, of the maximum" rates and charges prescribed and fixed in and by the aforesaid ordinance * * * in any way or manner other than by the payment thereof to said Central Trust Company of Illinois, as trustee. ’ ’ It is urged by appellee’s counsel that the purpose of this “impounding feature” is merely to provide a practicable method whereby the defendant, for convenience, is temporarily permitted to charge and collect from consumers amounts in excess of the ordinance rates, on condition that such excess shall be turned over to a trustee and held by said trustee until such time as the court shall determine whether the ordinance rates are reasonable. But even if it be conceded that such was the purpose of this feature of the order, it is apparent that it is mandatory in terms ■ as well as in its operation and effect, and goes beyond the -ordinary function of a preliminary injunction, which is merely to maintain or preserve the status quo. Such status, as it existed at the time that the bill was filed, was that the gas company, in pursuance of an order then but recently entered before Judge Gibbons, was collecting 80 cents per thousand feet for gas furnished by it to consumers in Chicago, which amount was five cents per thousand feet less than had been collected during the five years preceding under the authority of an ordinance of the City Council, and that by the same order the city had been enjoined from enforcing the ordinance of July 17, 1911, until such time as there could be a legal determination of the question whether the rates fixed by such ordinance were reasonable. Hence the order restraining the gas company from using any money collected pending such determination, in excess of the rates fixed by the new ordinance, otherwise than by turning over the same to a trustee named by the court, was tantamount to a command on the part of the court to pay over all such collections to such trustee. In fact the defendant was in express terms required to do this by another part of the same order, as above stated. Such an order comes clearly within the class known as mandatory interlocutory injunctions.

The rule as to the issuance of a mandatory preliminary injunction is thus stated in High on Injunctions, 4th Ed., Sec. 2: “While a court of equity is always reluctant to grant a mandatory injunction upon an interlocutory application before final hearing, it may do so in an extreme case where the right is clearly established and the invasion of the right results in serious injury. ’ ’

In Florida East Coast Ry. Co. v. Taylor, et al., 47 Southern Rep. 345, the rule is thus stated: “It is .settled by an overwhelming weight of authority that except in rare cases where the right is clear and free from reasonable doubt, a mandatory injunction commanding the defendant to do some positive act will not be ordered, except upon final hearing, and then only to execute the judgment or decree of the court. ’ ’

In Hunt v. Sain, 181 Ill. 372, 378, the court apparently holds that a mandatory injunction will never be ordered except on final hearing; but this was interpreted in City of Rock Island v. Central Union Telephone Co., 132 Ill. App. 248, 259, as stating only the usual rule.

In 22 Cyc. 742, the author of the article on Injunctions says: “There is no doubt that the court has jurisdiction to issue preliminary mandatory injunctions and it is proper to do so in cases of extreme urgency where the right is clear indeed, and where considerations of the relative inconvenience bear strongly in complainant’s favor,” citing many authorities which amply support the statement quoted.

In view of these authorities thus clearly limiting the power of a court of equity in the issuance of mandatory preliminary injunctions to very rare cases of extreme urgency, where the right is clear indeed and free from reasonable doubt, the obvious question to be determined is whether such an extreme case is made by the bill and exhibits in this case.

In view of the facts that the city employed two experts in succession to assist in its determination of the reasonable rate to be fixed by ordinance; that these experts disagreed in their conclusions; that the report of the first (which was the result of six months’ investigation of the properties, books and papers of the defendant) recommended a higher rate than the ordinance prescribes; that the second report was based upon an analysis of the first, with little, if any, independent examination of. the facts, and that all these matters are alleged by the city in its bill of complaint, it certainly cannot be said that the case thus presented is so very clear and so free from reasqnable doubt as to come within the class of cases in which the trial court is justified in granting to a complainant in advance of a hearing upon the merits this exceptional and extraordinary process.

No case has been cited by counsel in which a mandatory preliminary injunction has been granted upon facts such as are here alleged. Several cases have been cited in which a public service corporation has sought the aid of a court of equity to enjoin a municipality from enforcing an ordinance similar to the one in this case, in which the court required of the complainant as a condition to the issuance of a preliminary injunction, that the moneys collected in excess of the ordinance rates be deposited to await the final action of the court; but such cases merely follow the well recognized practice of requiring a complainant who is seeking relief from a court of equity to give bond or other security against a wrongful use of injunctive process as a condition to the granting of a preliminary injunction. It is quite a different matter to impose the same sort of conditions upon a defendant before a trial has been had.

These views require us to reverse the interlocutory order appealed from and the same will therefore be reversed. We deem it unnecessary to discuss any of the other propositions advanced by counsel.

Order reversed.

Additional opinion filed on petition for rehearing.

Per Curiam. A rehearing is asked upon the ground that the opinion heretofore filed makes no disposition of an alleged fund which is said to have been impounded under the terms of the order reversed. The record before us is silent as to the existence of any such fund. It is stated for the first time in the petition for a rehearing that such a fund was collected without protest from consumers who relied upon the order impounding the fund thus collected; and it is urged that this court, under the section of the statute permitting appellate courts, in reversing an interlocutory order, to “direct such proceedings to be had in the court below as the justice of the case may require,” ought to enter some order designed to protect such consumers against the possibility that appellant may hereafter make the claim that all such payments were voluntarily made, as was successfully done in Illinois Glass Co. v. Chicago Telephone Co., 234 Ill. 535.

Manifestly, the duty of an Appellate Court is to decide matters that are properly before it for decision. Its province is to review the judgments, orders and decrees of the trial courts. We cannot assume to know without proof, nor are we permitted to take for granted, on the mere statements of counsel, that consumers who have paid their gas bills have done so voluntarily or otherwise; nor how much, if any, of such fund has been paid under protest or without objection; nor whether all or some of such consumers, and if only some, then how many, have so paid in reliance on the ability of the city or the order of the court to protect them. In the absence of such proof we have nothing upon which to base any decision or direction to the court below.

If the theory of the bill of complaint is correct, viz: that the city represents in this case all consumers of gas within the city limits, it would seem to follow that all such consumers are now, and have been since the filing of the bill, contesting the right of the gas company to collect any sum in excess of the ordinance rates. Whether such a contest is equivalent to a protest at the time of payment, is a question not raised or discussed in the briefs of counsel in this case, and cannot be first raised in a petition for rehearing.

In Fry v. Radzinski, 219 Ill. 526, an interlocutory injunction order was reversed and it was contended that the Appellate Court should have assessed damages under the statute. In reply to this contention, the court said (p. 541):

“It was never the intention of the legislature that the Appellate Court, which is a reviewing court, should take testimony for the purpose of assessing damages upon the dissolution of an injunction. When the Appellate Court dissolves the injunction, it is the duty of the Circuit Court to hear evidence, and assess the damages. * * * As the case still remains in the. Circuit Court, notwithstanding the appeal to the Appellate Court, the order of reversal entered by the Appellate Court, merely has the effect of wiping out the order granting the injunction.” See also, Garrity v. Chicago, etc. R. Co., 22 Ill. App. 404.

Following the rule so announced, we see no reason why the Circuit Court may not take evidence concerning the.facts alleged in the petition for rehearing, and make such order in the premises as will adequately protect the rights of all parties.

The petition for rehearing is therefore denied.


source: Caselaw Access Project

author: Mr. Presiding Justice Gridley

license: Public Domain

text:
    Sam Cohen et al., Defendants in Error, v. Abraham Bernstein et al., Plaintiffs in Error.
    Gen. No. 16,386.
    1. Mechanic’s liens—who not necessary party to an action by a subcontractor. A person who was a member of the firm of general contractors at the time the original contract was signed is not a necessary-party to such an action where after the retirement of such person from said firm all parties treated the firm as thereafter constituted as the general contractors.
    2. Mechanic’s liens—when statement of contractor in compliance with section 84 of act. A statement furnished by the contractors to the owner if actually sworn to is not rendered insufficient by the absence of a jurat or certificate by the officer, who actually administered the oath. It may be shown by evidence aliunde that the statement was in fact 1 sworn to.
    Mechanic’s lien. Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 25, 1912.
    Blum & Blum, for plaintiffs in error.
    Harry M. Fisher, for defendants in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is a suit at law to enforce a mechanic’s lien, commenced in the Municipal Court of Chicago by Sam Cohen and Jacob Cohen, subcontractors, defendants in error, against Abraham Bernstein and Henry Wolf, owners, and Harry Stone and Max Hanoch, original contractors. The trial court found for the defendants in error in the sum of $92.55, entered judgment on the finding against said owners and said contractors, and further adjudged that defendants in error have a lien for said sum upon certain real estate in Cook county.

The facts are substantially as follows: That in July, 1908, Stone, Hanoch and Barnet Luntz, co-partners in the general contracting business, entered into a written contract with said Bernstein and Wolf, owners, whereby they agreed for a certain price to do certain work in repairing a building on the premises in question; that they employed defendants in error, as subcontractors, to do the masonry work on said building for the suya of $340; that defendants in error completed this masonry work on October 7, 1908, at which time there remained due them under their subcontract the sum of $90; that on August 11, 1908, the partnership existing between the original contractors, Stone, Hanoch and Luntz, was dissolved, and Stone and Han-och, with the knowledge and consent of the owners, Bernstein and Wolf, proceeded with the work under the original contract; that subsequent to said date all payments by said owners to said original contractors were made by checks to the order of “Stone and Hanoch;” that the sum of $250 was paid by said owners, Bernstein and Wolf, directly to the defendants in error on account of said sub-contract; that on October 13, 1908, the architect, mentioned in the original contract as architect and as agent for said owners, issued a certificate to Stone and Hanoch for $490 which Bernstein and Wolf refused to pay because they claimed there was no money due and that the architect had erroneously issued the certificate, which claim the evidence does not substantiate; that on November 5, 1908, Stone and. Hanoch refused to proceed with the work then remaining uncompleted, and that the owners completed it on December 6, 1908; that no notice of a subcontractor’s lien was at any time served on said owners by the defendants in error, but during the progress of the work the owners demanded of Stone and Hanoch, original contractors, a statement showing the names of all subcontractors and the amounts due them respectively, and in compliance with such demand Stone and Hanoch delivered to said owners such a statement, which was headed ‘ ‘ Stone & Hanoch, carpenters and general contractors, make the following statement,” and in which appeared.the item “Brick, Material and labor, $340, J. Cohn,” and which was signed by both Stone and Hanoch, but there was no jurat thereon; that this statement was admitted in evidence over the objections of counsel for said owners; that a witness, by the name of Saboroff, testified that he was a notary public, that said Stone and Hanoch were by him sworn to said statement and that the jurat was, to the best of his recollection, contained on a separate instrument, which was not produced; that the said sum of $250, so paid by said owners to defendants in error was paid after the delivery of the said statement to the said owners; that one of said owners, Bernstein, testified that when he received said statement, it had no jurat attached; and that the said judgment of $92.55 is made up of the balance due defendants in error on their sub-contract of $90, and $2.55 interest thereon.

In urging a reversal of the judgment, counsel for said owners contend that the trial court had no jurisdiction to render any judgment because Barnet Luntz, a copartner of Stone and Hanoch at the time the original contract was signed, was a necessary party, and he was not made a party; that this is so for the reason that (a) section 28 of the Act of 1903 in relation' to mechanic’s liens provides that “All suits and actions by sub-contractors shall be against both contractor and owner jointly, and no decree or judgment shall be rendered therein until both are duly brought before the court,” and that “all such judgments, when the lien is established, shall be against both jointly,” and (b), while section 22 of said act has made provisions for the contractor, after the contract has been made, associating with him a partner or partners, in which case “the lien for materials or labor furnished by a sub-contractor to such contractor and his partner or associates, as originally agreed upon, shall continue the same as if the sub-contract had been made with all of said partners,” no similar provision is provided by the statute where, at the “time of signing the contract, the “contractor” is a partnership composed of several persons, who all sign said contract, and after said signing and during the progress of the work thereunder one of the partners leaves the firm and the work under said contract is continued by the remaining partners, and (c) that .the mechanic’s lien act, being in derogation of the common law, must be strictly construed.

We do not agree with counsel’s contention. Shortly after the original contract was signed, the partnership between Stone, Hanoch and Luntz was dissolved, and Stone and Hanoch, with the knowledge and consent of . the owners proceeded with the work under the contract, and thereafter the owners treated Stone and Hanoch as the contractors, making all payments for work and materials furnished by checks payable to the order of ‘ ‘ Stone and Hanoch, ’ ’ and demanded of them a contractor’s statement. The architect, who was the agent of the owners, issued a certificate to Stone and Hanoch only. By all parties Stone and Hanoch were treated as the original contractors. Furthermore, the owners, after the receipt from Stone and Hanoch of the statement, showing the sum of $340 due “ J. Cohn” for “brick, material and labor,” paid directly to defendants in error the sum of $250 on account, thereby recognizing them as sub-contractors of Stone and Hanoch. And defendants in error complied with the statute, by joining as parties to this action the owners and the two persons, Stone and Hanoch, who were treated by all parties as the contractors. In our opinion, Luntz was not a necessary party. Putnam v. Ross, 55 Mo. 116.

Counsel for the owners also contend that the statement, which Stone and Hanoch delivered to the owners, was insufficient to dispense with the necessity of the service on the owners of a subcontractor’s notice of lien by defendants in error, inasmuch as such statement was not a sworn statement, as required by section 24 of said mechanic’s lien act.

Section 24 of said act requires substantially that a subcontractor, or party furnishing labor or materials, within 60 days after the completion of his contract, or 60 days after the completion of any extra work or furnishing extra materials, shall cause a written notice of his claim to be personally served on the owner or his agent, “provided, such notice shall not be necessary when the sworn statement of the contractor * * * shall serve to give the owner notice of the amount due and to whom due.” The evident purpose of this section of the statute is to give the owner, before he pays the original contractor, information as to the amounts due or to become due persons who might be entitled to liens upon the premises for work or materials furnished at the instance of the contractor, and what sum of money he, the owner, should hold back from the contractor in order to satisfy the claims of all such persons. Murphy v. Harris, 57 Ill. App. 351. The statement given to the owners in this case by the contractors served that purpose. The owners received it without objection and evidently • acted upon the information therein contained. The statement was signed by both Stone and Hanoch personally, but bore no jurat and did not appear on its face to be a “sworn” statement. It contained the names of thirteen firms or individuals who had been employed by the contractors to do work on, or furnish materials to, the premises, and the amounts due or to become due them respectively, and also disclosed the character of the work of each.

Among the items was “Brick, material and labor, $340, J. Cohn.” After the receipt of the statement the owners paid to defendants in error the sum of $250 on account of this masonry work. The witness Saboroff, a notary public, testified that .both of the signers of said statement, Stone and Hanoch, actually swore to the truth of the statement before him in his official capacity, and that fact was not controverted. We think the statement was sufficient. It was in fact a sworn statement, and the statute was complied with. The jurat, or certificate of an officer administering an oath, is not a necessary part of an affidavit. It may be shown by evidence aliunde that the statement was in fact sworn to. Cox v. Stern, 170 Ill. 442; Turner v. St. John, 8 N. Dak. 245.

For the reasons indicated the judgment of the Municipal Court is affirmed..

Judgment affirmed.


text:
    Lewis N. Nelson et al., Appellants, v. Northwestern Elevated Railroad Company, Appellee.
    Gen. No. 16,413.
    1. Evidence—when impeaching statement improperly used. While a prior written statement of a witness at variance with his testimony on the trial is proper to he used and under some circumstances may be put in evidence after the attention of the witness has been called thereto, such a statement cannot be used as affirmative evidence, and where it contains matters of opinion the party against whom it is used should be protected from harm by appropriate instruction.
    2. Trial—what should not he taken by jury upon retirement. A written statement used for purposes of impeachment should not be taken by the jury upon retirement.
    Action in case. Appeal from the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Eeversed and remanded.
    Opinion filed April 25, 1912.
    Eugene R. Cox and Simon La Grou, for appellants.
    Sheriff, Dent, Dobyns & Freeman, for appellee; Clarence A. Knight, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an action in case brought in the Municipal Court of Chicago by appellants, plaintiffs below, against Northwestern Elevated Railroad Company, appellee, defendant below and hereinafter referred to as defendant, in which plaintiffs seek damages for the destruction of an automobile by reason of a collision, December 24,1908, with a train of the defendant at the intersection of its road with Kenilworth Avenue, in the city of Chicago. Plaintiffs demanded a trial by jury, which was had, resulting in a verdict of not guilty, upon which verdict judgment was entered in favor of the defendant, and-plaintiffs appealed.

The facts are substantially as follows: Kenilworth avenue in said city runs east and west, and at the point of its intersection with the double tracks of defendant’s road said tracks run upon the surface and in a direction almost due north and south. A short distance north of Kenilworth avenue said tracks curve in a northwesterly direction. Bast of said tracks and north of the north line of Kenilworth avenue are trees, telegraph poles, a house and a flagman’s shanty, which tend to conceal the approach of a train from the north to occupants of vehicles approaching said tracks on Kenilworth avenue from the east. The shanty was immediately east of said tracks. There were no gates at the crossing, but the company maintained a flagman there to warn persons of an approaching train. One of the plaintiffs, Lewin, had lived for nearly two years- prior to the accident on the north side of Kenilworth avenue, about 300 feet east of said tracks. About seven o’clock on the evening in question, Lewin was driving the automobile very slowly in a westerly direction on Kenilworth avenue east of said tracks, and while attempting to cross said tracks a south bound train, going about 25 miles per hour, struck the automobile and wrecked it. Lewin testified that he was aware of the maintenance by defendant of a flagman at the crossing, that he knew there were no gates, that it was dark, that he looked for the flagman’s light and did not see it, that he saw no light of an approaching train, that he heard no whistle or other signal immediately before attempting to cross the tracks, and that on account of the shanty he could not see the approaching train until it was right on him, and that almost immediately after the front wheels of the automobile passed upon the track the collision occurred.

A witness named Johnson, called by plaintiffs, testified on direct examination that at the time of the collision he was on Kenilworth avenue about 50 feet west of the tracks, that he was looking east, that he saw the automobile east of the tracks and moving toward the west, and also saw the train coming from the north, that the door of the flagman’s shanty faces west and that he saw the flagman come out of the shanty and take about two steps when the front end of the motor car went by and the collision took place, that it was not more than a fraction of a second after the flagman stepped out of the shanty before the motor car passed by, that the train consisted of five cars, and before it came to a stop the rear end of the train was south of the south line of Kenilworth avenue, that he went over to where the automobile was, found it wrecked and Lewin partly underneath, that he did not notice any headlight on the train and did not hear any whistle or bell prior to the collision. On cross-examination of the witness, Johnson, it developed, that on January 2, 1909, nine days after the collision, Johnson, at the solicitation of the defendant, went to the office of the claim agent of the company, made a statement as to the collision, which was written out on a typewriter, and that Johnson signed it. This statement was shown the witness and he identified it as signed by him. Two police officers of the city of Chicago, named G-ildea and Ausenbaum, also testified on behalf of the plaintiffs, to the effect that at the time of the collision they were standing together on the south sidewalk of Kenilworh avenue about 200 feet west of the tracks, facing the tracks, that they saw the train approaching from the north, saw the lights of the automobile, but did not see anyone with a green lantern in the street, nor any headlight of the oncoming train, nor any flash from any train headlight, nor did they hear any whistle. After the collision they went to where the wrecked automobile was lying and assisted Lewin out from underneath.

On behalf of the defendant, a passenger in the motor car of the train at the time of the collision, the motorman of said train, the flagman at Kenilworth avenue,' and the flagman at Chase avenue, a block north of Kenilworth avenue, all testified as to their observations at and immediately before the collision. In the view we take of this case, it is not necessary to relate the testimony of these several witnesses. Suffice it to say that their testimony is in marked conflict with the testimony for the plaintiffs as to whether, at the time of the collision, the flagman at Kenilworth avenue was in that street waving a green lantern, or whether the motorman sounded a whistle, or whether there was a headlight burning on the train of the motor car.

Over the objection of counsel-for plaintiffs the court allowed the said written statement of the witness, Johnson, to be introduced in evidence as an exhibit, and the entire statement was read to the jury, and it appears that the same was taken by the jury into the jury room when they were deliberating upon their verdict. The statement is quite lengthy and is made up of a statement of certain facts (at variance with the facts as testified to by said witness while on the stand), and of many conclusions and opinions of Johnson. Portions of said statement are that he “could plainly see the electric light on the motor car of the train,” that “the head light could be seen plainly from where I stopped,” that he “saw the flagman on the sidewalk with his lantern,” that “I do not see how any one could help seeing the light of the train if they had looked for it,” that “if a person had looked either to the north or south they would have known a train was coming,” that “I could see the front end of the motor car from-where I was possibly a half block to the north, and I saw the reflection of the headlight before that,” that “I think if the man on the automobile had looked for a train he could have seen the light,” that “any one at or near the crossing could have seen the reflection from the train’s electric headlight and could have heard the train coming, yet the man in the auto seemed to pay no attention to the light, or to the crossing watchman who I saw standing at the crossing directly south of the watchman’s shanty and held a green lantern in his hand,” that the “watchman was standing at the crossing before the automobile reached the crossing and before the train reached the crossing,” that “while the motorman may have blown his whistle, I did not hear it, I will not say positively that he did or did not blow the whistle,” and that “in my position as an uninterested person there was no excuse for the automobile driver not noticing the light from the train, and not noticing the flagman with his green lantern. The motorman of the train had no opportunity to avoid the collision owing to the action of the automobile driver.”

The plaintiffs requested the court, in writing, to give the jury the following instruction, which was refused by the court, and so marked:

“The court instructs the jury that a certain signed statement of the witness, Laurance 0. Johnson, has been admitted in evidence in this case; that so much of said statement as states the conclusions of the said witness as to the negligence or want of negligence of the motorman in charge of said train is not evidence of the facts so stated, and you have no right to consider said statement as affirmative evidence of any fact stated therein. It is for the jury to determine what the ultimate facts in the case are without any reference to conclusions of witnesses and from the facts in evidence, and all conclusions, whether made in or out of court, by witnesses are incompetent and must be disregarded.”

Counsel for appellants urges that prejudicial errors were committed by the trial court in connection with this written statement of the witness Johnson, namely, in the character of the cross-examination of said witness thereon allowed by the court, in the remarks of the court and in the remarks of counsel for the defendant in his closing address to the jury relative thereto and in allowing said statement to be taken by the jury into their room, together with the refusal of the court to give the instruction above mentioned.

Counsel for appellants contends that, while a prior written statement of a witness at variance with his testimony on the trial’may under certain circumstances be introduced in evidence, after the attention of the witness has been called to it, for the purposes tif impeachment solely, such statement cannot be used as affirmative evidence, that the record herein discloses that it was so used, and that, where in such a written statement so introduced matters of opinion and of fact are so blended as not to be easily susceptible of separation, the objecting party can have the former excluded from the consideration of the jury by asking an appropriate instruction.

We agree with these contentions, and are of the opinion that at the trial the said written statement was given greater weight, by the rulings of the court and by the actions of counsel for the defendant, than it was entitled to, and also that the court erred in refusing to give the instruction above mentioned. In Central Railway Co. v. Allmon, 147 Ill. 471, 481, it is said:

“It is unquestionably true that, if a witness has simply testified to a fact, his previous opinion as to the merits of the cause cannot be regarded as relevant to the issue. Hence, the questions addressed to him on cross examination with a view of laying a foundation for his impeachment should be directed to matters of fact only, and not to mere opinions which he has formerly expressed; the latter are inadmissible unless the case is one where evidence of opinion is material. * * * If the matters, of opinion and fact are so intimately blended in the previous account as not to be easily susceptible of separation, the objecting party can have the fofmer excluded- from the consideration of the jury by asking proper instructions to that effect.” (See also Gould v. Lead Co., 63 Mass. 338, 347; Lane v. Bryant, 75 Mass. 245, 247; Holmes v. Anderson, 18 Barb. 420, 423; Holmes v. Morse, 50 Me. 102, 109).

We are also of the opinion that it was error to allow said written statement to be taken to the jury room. Fein v. Covenant Benefit Association, 60 Ill. App. 274, 276; Johnson v. Fairbank Co., 156 Ill. App. 381, 388.

It is also urged that the trial court erred in giving certain instructions, asked for by the defendant, in that they invade the province of the jury. While some of these instructions do not meet with our approval, we deem it unnecessary to discuss them. For the reasons indicated the judgment of the Municipal Court is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Brown

text:
    Annie L. Clowry et al., Defendants in Error, v. James Holmes et al., Plaintiffs in Error.
    Gen. No. 14,800.
    1. Evidence—when failure to prove material fact not material. If it appears from the record that the fact of ownership, which was a material fact to be proved, was understood by counsel for plaintiff and the court as having been conceded by the defendant, and such understanding was justified by the record, the failure to make proof of ownership is immaterial.
    2. Evidence—when certified copy of deed, must be specifically objected to. The competency of a certified copy of a deed cannot be first questioned on review, because of the failure to make the necessary preliminary proof.

      3. Dram-shops—how section 9 construed. Section 9 of the ¡¡tram-shop act is highly penal in character and should be strictly construed.

      4. Dram-shops—how evidence of loss under section 9 may be established. “It is not required that the evidence shall be clear, positive and specific as to the time, place, manner and each item of loss, to authorize the jury to find injury to the support of the family, but that fact may be proved, like any other, by circumstances. ’ ’ ■

      Error to the Municipal Court of Chicago; the Hon. J. B. Newcomer, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed. April 29, 1912.
    Rehearing denied May 13, 1912.
    William J. Lacey and Thomas J. Young, for plaintiffs in error.
    Francis A. McDonnell and Morton A. Mergentheim, for defendants in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

Under the provisions of section 9 of the Act of March 30, 1874, commonly called the Dram-Shop Act, the plaintiffs in this case, Annie L. Clowry, wife of John J. Clowry, and Genevieve Clowry, John Clowry and Fern Clowry, minor children of said John J. Clowry and Annie. L. Clowry, on June 13, 1908, recovered in the Municipal Court of Chicago, on the verdict of a jury, a judgment for one thousand dollars and costs against the defendants, James Holmes and the Fortune Brothers Brewing Company. To reverse this judgment the said defendants have sued out of this Court a writ of error, assigning as error the failure of the trial Court to take the case from the jury at the close of the plaintiff’s evidence by a peremptory instruction from the defendants; alleged errors in rulings on evidence and instructions; the denial of a new trial; and that the verdict was against the law and the evidence, and that the damages assessed were excessive and unwarranted by the evidence. '

The section of the Dram-shop Act above mentioned, under which judgment was obtained, is as follows:

“Every husband, wife, child, parent, guardian, employer or other person, who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her name, severally or jointly, against any person or persons who shall by selling or giving intoxicating liquors, have caused the intoxication in whole or in part of such person or persons, and any person owning, renting, leasing or permitting the occupation of any building or premises and having knowledge that intoxicating liquors are to be sold therein, or who having leased the same for other purposes shall knowingly permit therein the sale of any intoxicating liquors that have caused in whole or in part the intoxication of any person, shall be liable severally or jointly with the person or persons selling or giving intoxicating liquors aforesaid, for all damages sustained and for exemplary damages; and a married woman shall have the same right to bring suits and to control the same and the amount recovered as a feme sole, and all damages recovered by a minor under this Act shall be paid either to such minor or to his or her parent, guardian or next friend, as the court shall direct; and the unlawful sale or giving away of intoxicating liquors shall work a forfeiture of all rights of the lessee or tenant, under any lease or contract of rent upon the premises where such unlawful.sale or giving away shall take place, and all suits for damages under this Act may be by any appropriate action in any of the Courts of this State having competent jurisdiction.”

The statement of claim filed with the praecipe in the case described James Holmes as tenant and Fortune Brothers Brewing Company as owner of certain premises known as 1319 Ogden avenue in Chicago and used as a saloon. It then proceeds to allege damages to the plaintiffs through the furnishing of intoxicating liquors to John J. Clowry, “an habitual drunkard,” by James Holmes after notice had been given to said Holmes by Mrs. Clowry to discontinue the furnishing of liquors to her husband.

The following colloquy and proceedings appear in the record concerning proof of the connection of the defendant, the Fortune Brothers Brewing Company, with the premises:

“Counsel for the Plaintiff: I wish to offer in evidence certified copy of deed.” (Indicating).
# ## * * * * * # * ■» ' *

Counsel for Fortune Bros. Brewing Co.: I object; there has been no proper foundation laid for the introduction of certified copy of deed.

************

The Court: What do you mean—foundation?
Counsel for Fortune Bros. Co.: The statute prescribes the method of producing them.
The Court : My impression of it is that it has been held that in the transfer of real estate that certifibd copy of the record has been held sufficient.
Mr. Mergentheim, one of the counsel for plaintiffs: * * * There is no question about it; it has been held time and time again. Well, let the record shdw with the consent of the defendants, that the defendant, Fortune Bros. Brewing Company admits the ownership of the premises at 1319 Ogden avenue, occupied by James Holmes as a saloon, for the purposes of this suit only.
************
Mr. McDonnell, the other counsel for Plaintiffs:' I would like to show the title conveying to Fortune Brothers from Mortimer Prindiville, who owned the property prior to Mr. Holmes.
The Court: Let it be admitted and marked Plaintiffs ’ Exhibit A. ” .

The transcript of the records proceeds:

“Which said document, so offered and received in evidence, marked Plaintiff’s Exhibit A., is in the following words and figures, to-wit:”

The document, however, does not appear in the transcript. ,

Counsel for plaintiffs in error in their argument say:

“Over the objection of defendants’ counsel the Court admitted the paper in evidence. The record shows that Lt was marked Exhibit A., but the exhibit itself does not appear in the record. We are unable to account for the absence of the exhibit from the record, but we are not taking advantage of that omission in urging this point.
“Admitting that the paper offered in evidence purported to be a certified copy of a deed as stated by plaintiffs’ counsel in his offer, we insist that it was error on the part of the Court to admit that paper in evidence without requiring that the proper foundation be laid in eomphanoe with Section 37 of the ‘Conveyances’ Act, Chapter 30 of the Revised Statutes of Illinois. * * * ' There is, therefore, nothing on the face of this record connecting the said Fortune Bros. Brewing Company with the case, and the judgment against it should be reversed.”

In the “Statement” prefixed to the Argument for the defendants in error, counsel say that the record shows “that the attorney for defendants in error stated in open court, with the consent of the defendants, that the record should show that Fortune Brothers Brewing Company admitted, for the purpose of this suit only, the ownership of the premises occupied by defendant Holmes as saloon property, and that later defendants raised no objections to the introduction of a certified copy of the deed of conveyance of said premises to Fortune Bros. Brewing Company—one of the plaintiffs in error. No evidence was introduced by the defendants, or either of them, to disprove any of the testimony furnished by the plaintiffs. The record shows that the Court, after fully instructing the jury, requested counsel for both sides to state whether they had any objections to the instructions as read. All counsel answered in the negative.”

In their argument counsel for plaintiffs say that the “counsel for defendants complain that it was error for the Court to permit the title of defendant, Fortune Brothers Brewing Company, to be shown by a certified copy of the deed to the premises. The record shows that with the consent of both defendants, Fortune Bros. Brewing Company admitted the ownership of the premises at 1319 Ogden avenue, occupied by James Holmes as a saloon. In addition to this admission, the record is clear as to the ownership of the premises by this defendant.”

To this counsel for plaintiffs in error in their Reply Brief interpose a denial, saying that “As a matter of fact the record shows that defendants did not at any time or in any maner indicate their consent or acceptance of the proposition or voluntary statement made by plaintiff’s counsel. The statement was a purely voluntary and unauthorized one on the part of plaintiff’s counsel, unaccepted and unnoticed by counsel for defendants, and defendants could not by any possible construction be bound by such a statement. ’ ’

Whether the record as we have quoted it does not tend to show that the final outcome of the colloquy of Court and counsel was an understanding between the parties, taken note of by the Court and jury, that the defendants, who made at no time any specific denial of the ownership of the premises, but placed their joint defence on entirely different grounds, admitted that ownership, is at least very doubtful. If there was not such an understanding there would seem to have been a misunderstanding between counsel. The fact that the plaintiffs in error have not seen to it that the exhibit was included in the transcript, and the fact that they expressed their satisfaction with the charge of thé trial Judge to the jury, would seem to heighten the probability of the first hypothesis. For in his charge the trial Judge, after stating the provisions of the statute that the power of the premises should be jointly liable with the person furnishing the liquor, proceeded with the statement that they should find for the plaintiffs if they believed the preponderance of the evidence showed that Clowry was in the habit of getting intoxi-' cated, that defendant Holmes sold Clowry liquors after having been notified not to do so, and that such sale caused Clowry to be intoxicated, and in consequence plaintiffs were injured, and should find for the defendants if they found that these three propositions had not been sustained by the preponderance of the evidence. He did not suggest or hint at any issue between the plaintiffs and defendants, or either of them, as to the ownership of the property.

This matter appears to us by far the most serious point urged by plaintiffs in error in this case. We understand the decisions of the Supreme Court to be that under sections 35 and 36 of the Conveyance Act (Chapter 30 Revised Statutes), taken together, preliminary proof must be made as provided in section 36 before the certified copy of a recorded deed can be introduced (Scott v. Bassett, 174 Ill. 390); but that objection to the want of it cannot be made for the first time in the reviewing court. The objection must be made at the trial and point out the specific grounds for it. B. & O. S. W. R. R. Co. v. Brubaker, 217 Ill. 462.

In the case at bar, when the plaintiffs’ counsel first stated that they wished to offer in evidence a certified copy of a deed, a specific objection was made that there was no proper foundation for it; but after a colloquy which seems to show that counsel for plaintiff at least, if not the Court, understood that defendants consented that the record should show the alleged ownership, counsel for plaintiffs, without further describing what he was offering, offered a document to show “title conveyed to Fortune Brothers,” and no objection was repeated, specific or otherwise. Then whatever was offered (described only as a “document”) ivas admitted, but does not appear in the record brought up here by plaintiffs in error. After this, as before, the whole tenor of the proceedings and of the Judge’s charge and the defendants ’ acquiescence therein, seem to show that no issue was made on the ownership. We are not inclined, under these circumstances, to hold that on ethis review this objection can be successfully urged. '

If this objection to the judgment is not valid, we do not see any merit in the defence.

We entirely agree with the counsel for plaintiffs in error, that the statute under which the proceeding originated is of a highly penal character and should receive a strict construction. The Supreme Court has so decided. Freese v. Tripp, 70 Ill. 496.

But the statute has been sustained and "enforced in many cases which we do not think offered, in the facts which the evidence tended to prove, any stronger ca,se than that made by the plaintiffs in the case at bar.

It would serve no good purpose for us to enter upon a discussion or make a resume of the evidence in this case. The history of the case has been such that we have read and studied it in detail twice, and it-is sufficient to say that we think there was abundance" of evidence to go to the jury to show that the plaintiffs were injured in their means of support by reason of the furnishing of intoxicating liquor by James Holmes to John J. Clowry; that John J. Clowry was an habitual drunkard and known to be so to Holmes; that the said furnishing of liquor by Holmes- caused “in whole or in part” the intoxication and the habitual drunkenness of Clowry; that there were aggravating circumstances connected with the sales in question, and that Fortune Brothers Brewing Company knew that intoxicating liquors were sold by Holmes in the dram shop of Holmes, he being indeed a customer of the Company for such goods.

The ingenious argument of defendants does not seem to us -to meet this evident situation. Nor do the damages appear excessive to us. The Supreme Court said in Horn v. Smith, 77 Ill. 381: “It is not required that the evidence shall be clear, positive and specific as to the time, place, manner and each item of loss, to authorize the jury to find injury to the support of the family, but that fact may be proved, like any other, by circumstances. ’ ’

If it were clear that the damages assessed were exemplary or punitive, it would not justify us in reversing this judgment, in our opinion. Hackett v. Smelsley, 77 Ill. 109; Beckerle v. Brandon, 229 Ill. 323.

But it is not clear that they were. They seem to us justified if they were meant merely as actual damages.

Although rulings on instructions were assigned for error, the plaintiffs ignore them both in the lower court and here and have expressed their satisfaction with the instructions given. That we hold that the court should not have given a peremptory instruction for the defendants, nor granted a new trial on the evidence,- follows from what we have already said. The only admission of improper evidence complained of, except of the “document to show title,” is that Mrs. Clowry was allowed to answer the question “Was money from any other source besides your husband ever procured for you?” “Yes, my friends got up a card party benefit for me.” This particular question was not objected to, although a former one as to whether anything was ever done by her neighbors in the way of contribution to her support, had been. In any event the answer could not have injured the defendants we think", and the matter is immaterial.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    The Novelty Tufting Machine Company, Plaintiff, v. Peters & Roberts Furniture Company, Defendant, for use of Chicago, Burlington & Quincy Railroad Company, Garnishee, Plaintiff in Error.
    Gen. No. 15,888.
    1. Constitutional law—token transfer of appeal unauthorised. If a constitutional question arises in the appellate court after a writ of error has been sued out, the appellate court is not authorized to transfer the appeal to the supreme court.
    2. Municipal court—within what time writs of error must he sued out. Writs of error to review judgments of the municipal court rendered in 4th class eases, must be sued out within 30 days after the entry of such judgments.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the March term, 1910.
    Dismissed.
    Opinion filed April 29, 1912.
    J. A. Connell and Herbert Haase, for plaintiff in error.
    Herman Frank and Harry J. Lurie, for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

The judgment which this writ of error seeks to reverse was rendered by the Municipal Court of Chicago June 17, 1909. It is a ease of the fourth class. The writ of error was sued out of this Court September 16, 1909, which was 92 days thereafter.

The Municipal Court Act (Sec. 23) provides that in cases of the fourth class, the final orders and judgments of the Municipal Court shall be reviewed by writ of error only, and that the time within which a writ of error may be sued out in any such case shall he limited to thirty days after the entry of the final order or judgment complained of.

A motion to dismiss the writ of error for want of jurisdiction because it was not sued out within the time thus limited by law, seems to have been heretofore made and denied, but if the want of jurisdiction now appears evident to us, we must take notice of it.

Counsel for plaintiff in error concede in their argument that if the provision of the Municipal Court Act mentioned is valid, this Court is without jurisdiction of this writ of error.

This Court can only disregard an enactment standing on the Statute Book and purporting to be a law of the State when it plainly appears to be unconstitutional and beyond the power of the Legislature to pass. It is, moreover, to the Supreme Court of the State, and not to us, that the spirit of the laws relating to the duties, and jurisdiction of the courts relegates constitutional-questions.

The counsel for plaintiff in error concedes these propositions also, but vigorously contends that the Supreme Court has clearly expressed its opinion that this limitation on writs of error from this Court to review the judgments of the Municipal Court is unconstitutional, and that we should follow this decision-. This may have been also the view of this Court as then constituted when the motion to dismiss was passed on; but complete consideration of the matter and of all the decisions of the Supreme Court on- the Municipal Court Act does not make it clear to us that the Supreme Court has so decided. We note the sugestión of the plaintiff in error that if we do not consider the constitutional question clear, we should transfer the cause to the Supreme Court, on the theory that it was wrongfully taken to this Court, since it involves a constitutional question. This is plainly inadmissible. If the writ of error could be legally sued out of any court, it was properly sued out from this Court. The constitutional question did not arise in the Municipal Court, but in the Appellate Court, after the writ of error was sued out. It would be very desirable to have the Supreme Court pass on the constitutional question involved, but the question can only come before that Court on an appeal from the order of this Court, allowed by us on a certificate of importance. Such an appeal can be granted on a certificate of importance from an order dismissing the writ of error. Thomas v. Lumber Co., 185 Ill. 374. If the Supreme Court in such a case affirm our judgment, it would end the litigation. If it should reverse it, it would undoubtedly remand the cause to us to decide on the merits.

Counsel for plaintiff in error rely on Clowry v. Holmes, 238 Ill. 577, and David v. Commercial Mutual Accident Co., 243 Ill. 43, as authority for their contention that the provision of the Municipal Court Act above mentioned is void as in conflict with the constitution.

The position taken by counsel, however, is based on an inference drawn from a supposed analogy. The precise point involved here was certainly not passed on or discussed in either of the cases relied on.

In City of Chicago v. Reeves., 220 Ill. 274, the Supreme Court while reserving its judgment on separate provisions of the Municipal Court Act, declared it in its main features a valid enactment.

In Clowry v. Holmes, supra, it was decided that the provision in the Municipal Court Act, that the denial of a supersedeas in certain cases should work an affirmance of the judgment, was unconstitutional, on the ground that it attempted to introduce diversity in the practice of the Appellate Court. It was a want of uniformity in the practice of the Appellate Court in writs of error properly pending there, and in which the Appellate Court had jurisdiction, which was adjudged in that case contrary to the constitution.

In David v. The Commercial Mutual Accident Company, supra, the Supreme Court held that the limitation of time within which transcripts of judgment appealed from might, in ease of appeals, be filed in the Appellate Court, could not constitutionally be made different in appeals from the Municipal to the Appellate Court from that provided for in appeals from other courts. But this decision was placed expressly on the ground that wbpn an appeal bond is filed, the jurisdiction of the Appellate Court attaches and that of the trial Court ceases. Therefore, the Court says, “All subsequent proceedings” (including the time of filing records) “must be regarded as a part of the procedure in the Appellate Court.”

In Lassers v. The North German Steamship Company, 244 Ill. 570, the Supreme Court again declared that “the provisions of the Municipal Court Act so far as they purport to affect the practice of the Appellate Court or Supreme Court are invalid, being in violation of Section 29 of Article 6 of the Constitution, which provides that ‘all laws relating to courts shall be general and of uniform operation, and the organization, jurisdiction, powers, proceedings and practice of all courts of the same class or grade, so far as regulated by law and the force, effect of the process, judgments and decrees of such courts severally shall be uniform,’ ’’ while “The provisions which affect only the record, jurisdiction, proceedings and practice of the Municipal Court are valid, since by virtue of Section 34 of Article 4 of the Constitution, Section 29 of Article 6 does not restrict the legislature in prescribing the jurisdiction and practice of such Municipal Court. ’ ’ The cause did not involve the provision in question here, nor does the opinion touch more precisely than above indicated on the point in controversy—whether the limitation of time within which writs of error could be sued out of reviewing courts to reconsider its judgments was a constitutional enactment.

In The People v, Hibernian Bank Association, 245 Ill. 522, and in The People v. The Cosmopolitan Insurance Company, 246 Ill. 442, the question directly involved was on the validity of that part of Section 23 of the Municipal Court Act which requires writs of error to review a judgment of the Municipal Court to be sued out of the Appellate Court in all cases except those in which a franchise, a freehold, the validity of a statute or a construction of the Constitution is involved. The subject-matter of each of these cases related to the Revenue, and the State was a party, and except for the provision- of the Municipal Court Act mentioned, the writs of error must have been sued out of the Supreme Court.

The Supreme Court held that Section 23 of the Municipal Court Act, so far as it attempts to change the jurisdiction of the two Courts in relation to the class of subjects to be taken by writ of error to one or the other of the reviewing Courts, is invalid and unconstitutional, and the inference is obviously suggested that the same position may be taken by the Court as to the limitation of time put on writs of error from those Courts by the same section. Language is indeed used in each of the cases which might reasonably be held to strengthen that inference. But the point was not directly involved, as, from all that appears and as therefore it may be assumed, the writ of error in each case was sued out within the time limited by the Municipal Court Act.

In Hosking v. Southern Pacific Company, 243 Ill. 320, decided after the Clowry case, before the Hibernian Bank and the Cosmopolitan Co. cases, and at the same time as the David case, before mentioned, the time limit for writs of error was directly involved. The exact question was whether “the writ was sued out in apt time. ’ ’ The appellant maintained that it was not, because the original money judgment had been en-; tered more than thirty days before, the issuance of the writ. The appellee contended that it was, because within thirty days after the entry of the judgment a motion to vacate the same had been entered, and the 'final order on that motion overruling the same had been made within thirty days of the issuance of the writ. The question was discussed at considerable length, whether the money judgment or the order overruling the motion to vacate was the final order, “so as to start the running of the time limited for suing out a writ of error.”

This discussion, it would seem, implied that the Court was not then prepared to hold the thirty days limitation invalid, although the point does not appear to have been raised, and we cannot therefore perhaps definitely assume that the Court intended to pass on it.

It may be noted that writs of error are new suits, not the continuance of old ones, and that as new suits they are subject to valid statutes of limitation, particular in their application, such as statutes limiting the time within which assignees in bankruptcy can be sued. International Bank v. Jenkins, 104 Ill. 143; International Bank v. Jenkins, 107 Ill. 291.

Perhaps like reasoning might lead to the conclusion that the statute making a special limitation in favor of persons recovering judgments in the Municipal Court of Chicago is valid, applying to all courts of review alike, and not varying their practice or procedure. At all events, under the state of the decisions we have reviewed we do not feel justified in holding that the Supreme Court has definitely passed on the thirty day limitation to writs of error, and the writ of error in this case must therefore be dismissed by us.

Writ of error dismissed.