text:
    The People of the State of Illinois ex rel. Andrew Russel, Auditor of Public Accounts (Complainant), v. Auburn State Bank et al. (Defendants). In the Matter of the Intervening Petition of the St. Paul Milling Company, Appellee, v. Herman H. Krueger, Receiver of Auburn State Bank, Appellant.
    Gen. No. 25,082.
    1. Banks and banking, § 59*—when owner of proceeds of draft entitled to preference on payment of claims by receiver. «Where a draft is forwarded for collection and remittance and the collection is made, the proceeds become a trust fund for the benefit of the forwarder, and in case of the failure or insolvency of the bank, the owner of the trust fund would be entitled to a preference over general creditors.
    2. Banks and banking, § 59

      —when owner of proceeds of draft entitled to preference on payment of claims by receiver. Where a

      hank collected drafts for a shipper and deposited the trust money so received in another hank as its own, the presumption was that the money drawn out by the depositor was its own, and that the balance which remained included the trust fund which it had no right to use, and the shipper was entitled to have his claim allowed as a preferred claim to be paid by the receiver of such depositor bank, before paying any other claims of the general creditors.
    3. Banks and banking, § 59*—when mixing of funds does not deprive claimant of right to priority on payment of claims by receiver.

    Where it was conceded that a fund collected by a bank for its correspondent, and deposited in another bank as its own,, was impressed with a trust, the mixing of the fund with other ijunds in the possession of the latter bank so as to lose its identity did not preclude the owner of the fund from claiming priority over the general creditors of the depositor bank.

      4. Banks and banking, § 59

      —when owner of proceeds of draft entitled to priority on payment of claims by receiver. One for whom a bank, before it failed, had collected a draft, was entitled to priority over general creditors, even if such bank had disposed of the identical proceeds before the receiver came into possession; and whatever such trustee bank had in its possession in various banks constituted the trust fund.
    Appeal from the Circuit Court of Cook county; the Hon. Mekbitt •W. Pinckney, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded with directions.
    Opinion filed October 27, 1919.
    Rehearing denied November 10, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    Bathje, Wesemann & Van Schaick, for appellant.
    Lawrence P. Conover, for appellee.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

The St. Paul Milling Company filed its petition in Be Auburn State Bank,' insolvent, seeking a preference for its claim of $4,846.30. The chancellor granted this to the extent of $1,183.97. By this appeal the bank contests any preference, while the petitioner by cross errors claims preference for a larger sum.

There is no dispute as to the facts. On May 5, 1917, the St. Paul Milling Company of Minnesota shipped two carloads of flour to the Acme Milling Company in Chicago, and at the same time forwarded to the Auburn State Bank of Chicago two drafts on the Acme Company, each for $2,423.15, covering the amount of said sales, with bills of lading attached, with directions for collection and return of the proceeds to the shipper. These were duly received by the bank and presented to the Acme Milling Company, which on May 18 gave its check to the bank in payment of one draft, which check was drawn on the South Side State Bank of Chicago, payable to the order of the Auburn State Bank, and deposited by it on the same day with the First National Bank of Chicago to the credit of the said Auburn State Bank. This cheek was paid by the South Side State Bank on May 19. On this same day, namely, May 19, the Acme Milling Company also gave its check, dated May 18, to the Auburn State Bank in payment of the other draft of $2,423.15; that check was likewise drawn on the South Side State Bank and payable to the order of the Auburn State Bank, which likewise deposited it on the same day with the First National Bank, and this latter check was paid by the South Side State Bank on May 21. These deposits of the Auburn State Bank with the First National were in pursuance of an arrangement between them whereby checks, drafts and other items were deposited with the First National in due course of business. The Auburn State Bank received credit upon the books of the First National for the respective amounts of the checks of the Acme Milling Company at the time of the deposits, namely, May 18 and May 19 respectively. At the close of business on May 19 the account of the Auburn State Bank with the First National was overdrawn to an amount of over $5,000. At the close of business on May 21, which was the day when the last check of the Acme Milling Company was paid, there was a balance of $1,183.97 to the credit of the Auburn State Bank on the books of the First National Bank.

On May 22, 1917, the Auburn State Bank, hereinafter called the bank, which was a corporation duly organized to conduct a general banking business in Chicago, was closed by the Auditor of Public Accounts of the State of Illinois, and on May 31 the auditor filed a bill of complaint charging improper conduct of the business, depreciation of resources and insoh, vency. Pursuant to the prayer of the bill a receiver was appointed, who is still in charge. When the bank was closed there was a balance of $8,408.59 to its credit on the books of the First National, which sum, less certain debits and charges which reduced it to $6,417.62, was paid to the receiver. It is also a fact of importance that on May 19 the bank had on hand cash $4,191.15, balance in other banks $535.66, total $4,726.81, and that this was the smallest sum on hand belonging to the bank from the time the first of the checks was collected until the bank was closed by the State Auditor on May 22.

The St.. Paul Milling Company, the petitioner, claims that the proceeds of both checks constituted a trust fund, and that it is entitled to have its claim for the total amount allowed as a preferred claim to be paid by the receiver before paying any other claims of the general creditors.

Where a draft is forwarded for collection and remittance, and the collection is made, the proceeds become a trust fund for the benefit of the forwarder. Goshorn v. Murray, 197 Fed. 407; National Life Ins. Co. v. Mather, 118 Ill. App. 491. In the opinion in the latter case are many citations supporting this rule. These authorities also hold that in case of failure or insolvency of the bank the owner of the trust fund would be entitled to a preference over general creditors. It seems to be conceded that this general rule is applicable to the present transaction.

Conceding that the fund is impressed with a trust, the bank says that this will avail .the petitioner nothing, because the fund was so mixed with other funds in the bank’s possession as to lose its identity, and in fact was dissipated by the bank, therefore the petitioner stands merely as a creditor like the others.

In Story on Equity Jurisprudence, vol. 2, sec. 1258, the rule is thus stated:

“ The general proposition which is maintained both at law and in equity upon this subject is, that if any property in its original state and form is covered with a trust in favor of the principal, no change of that state and form can divest it of such trust or give the agent dr trustee converting it, or those who represent him in right (not being bona fide purchasers for a valuable consideration without notice) any more valid claim in respect to it than they respectively had before such change. An abuse of a trust can confer no rights on the party abusing it or on those who claim in privity with him. This principle is fully recognized at law, in all cases where it is susceptible of being brought out, as a ground of action or of defense in a suit at law. In courts of equity it is adopted with a universality of application. ’ ’

This rule is supported by citations; also supporting it are White v. Sherman, 168 Ill. 589, and Breit v. Yeaton, 101 Ill. 242; 2 Perry en Trusts, secs. 835-36, and, conspicuously, the case of Woodhouse v. Crandall, 197 Ill. 104. In the last-mentioned case the court distinguishes most of the decisions which are now presented by the bank in support of its contention. It was there held that in such cases it is not necessary that the money or bank bills should be identified; that the suit is not to recover a specific thing but a certain sum of money held in trust, and that it is the identity of the fund and not the identity of the money which is to be established; that it makes no difference if the fund was mingled with other moneys so as to lose its identity as currency; that the character of the fund held by a bank in fiduciary capacity is not' changed by being placed with other moneys. It was also held that where moneys are so mingled the law will presume that the trustees drew out their own money first, and what remained belonged to the trust, but if it could be shown that the entire fund was withdrawn or actually dissipated so that none of it remained, the rule would necessarily be different; that if the fund has once been disposed of no charge can be made against the general estate to the exclusion of other creditors, but the fact that the same bills or currency were not retained or that the fund was traced into a larger sum of money in the same bank does not destroy its identity.

Following these authorities there can be little doubt as to the correctness of the chancellor’s decree in permitting petitioner a preference, at least as to $1,183.97, which was the balance to the credit of the bank on the books of the First National at the close of business May 21, the date the second check of the Acme Milling Company was paid. At all times from that date until the balance was paid to the receiver the amount to the credit of the bank with the First National exceeded said sum of $1,183.97. Applying strictly the presumption of law as to the payment of a check in cash, this money might be said to be not only the identical fund belonging to the petitioner, but also the identical money. It has been held that any credit on the books of a bank is presumptively a cash credit. In re City Bank of Dowagiac, 186 Fed. 250. As to the suggestion that this balance may not be a part of the proceeds of the checks because it may include other items of credit, it is sufficient to apply the rule above stated, namely, that where the trustee has deposited trust money in a bank as his own, the presumption is that the money drawn out by the depositor is his own, and that the balance which remains includes the trust fund which he had no right to use. Woodhouse v. Crandall, supra.

Petitioner contends that not only were the proceeds of the collections subject to a trust to the amount of the balance in the possession of the First National Bank, but that such trust should be extended to cover the smallest sum on hand belonging to the Auburn Bank whether in its own possession or to its credit in other banks, from the time the first of the checks was collected until the bank was closed by the state auditor on May 22; that during that period such sum reached the lowest point on May 19, when as we have seen the bank had in cash and to its credit in other banks $4,726.81. Petitioner insists that it is entitled to a preference to the extent of this amount.

It is conceded that if the evidence showed that the bank during this time had no money of its own, then it might be said that the trust fund had been dissipated; but, on the contrary, the evidence shows not only that it had at least the amount last mentioned on May 19, but that subsequent to the closing of the bank sufficient money was deposited with the First National to give it a balance to its credit of over $6,000. Upon the premise that a fund once impressed with a trust remains unchanged regardless of the physical change in the moneys representing the fund, and applying the rule that whatever the trustee withdraws will be presumed to be his own money, and the balance remaining the trust fund, it would seem logically to lead to the conclusion that whatever amount the trustee has in his possession must constitute the trust fund, whether such sum may be in one place or another as to physical location. We fail to see how the mere fact that the bank had its moneys in different places could change the character of the trust fund. To confine the preference to the amount on credit with the First National Bank is to determine the identity of the trust fund by the identity of the money. This is contrary to the rule.

Tending to support this view is the opinion in In re City Bank of Dowagiac, 186 Fed. 250, where the court quotes approvingly from In re Northrup, 152 Fed. 763:

“It would be extremely and ridiculously technical to assert that where a wrongdoer, so far as he can, rights a wrong committed in converting the money of another, by substituting at a subsequent time other money of his own to make good that converted, the beneficial owner may not claim and hold the substituted money or property as impressed with precisely the same trust as the original fund. * * * It does not lie with the wrongdoer or his assignee or trustee in bankruptcy who has made the substitution, to say that the substituted thing is neither the trust property itself nor its proceeds. ’ ’

In Macy v. Roedenbeck, 227 Fed. 346, the doctrine is thus stated:

“Where a trustee mingles trust funds and makes payments out of the common fund, there is a sufficient identification of the remainder, not exceeding the smallest amount the fund contained subsequent to the commingling, because the legal presumption is that he regarded the law, and neither paid out nor invested in other securities or property the trust fund, but kept it sacred. * * *

“The modern and more equitable doctrine permits the recovery of a trust fund from one not an innocent purchaser, and into any shape into which it may have been transmuted, provided he can establish the fact that it is his property, or the proceeds of his property, or that his property has gone into it and remains in a mass from which it cannot be distinguished.”

We are in accord with these statements and are of the opinion that the better rule is that one for whom a bank, as trustee, before it fails, has collected a draft, even if it has disposed of the identical proceeds before the receiver comes into possession, is entitled to priority with respect to the smallest amount the hank has in its possession from the time of the collection until it ceases doing business. We hold, therefore, that the chancellor was correct in giving petitioner preference as to $1,183.97, but that it was error to deny the prayer of the petitioner upon its claim for preference as to $4,726.81, the sum in the hands of the bank on May 19. The decree will therefore be reversed and the cause remanded with directions to find that petitioner is entitled to a preferred claim to the extent of $4,726.81. Costs of this appeal are to be taxed against the appellant.

Reversed cmd remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice MoSurelt

license: Public Domain

text:
    Anna M. Rieckhoff, Conservatrix of William F. Rieckhoff, Appellee, v. Gus G. Goddee et al. (Defendants). On appeal of Gus G. Goddee, Appellant.
    Gen. No. 25,091.
    1. Cancellation of instruments, § 35*—when evidence requires assignment of judgment to he set aside for mental incapacity. An assignment of a judgment executed on June 14 was set aside, where the assignor was adjudged insane on August 25 following, upon testimony of physicians indicating that he had been mentaUy afflicted for some 5 years, and where a number of witnesses testified to the assignor’s mental incapacity to enter into a contract on June 14, and where the witnesses to the contrary were not disinterested.
    2. Cancellation of instruments, § 5

      —when assignment of judgment will he set aside for mental incapacity. The rule that even where the contracting party was shown to have been suffering from impaired mental faculties, yet if the transaction in question was fair and honest and what the party might reasonably be expected to do under all the circumstances courts will not set aside such a transaction for the reason that the mental lack had not entered into the act, held not to apply in favor of the assignee of a

      judgment, where the circumstances forced the conclusion that the assignee, knowing that the liability for most if not all of his advances was not upon the assignor but upon his mother, and that the assignee was at best willing to recover that and more by taking from the mentally unsound son, whose condition he knew, the assignment of the collectible judgment in question.
    3. Cancellation of instruments, § 38

      —when defendant not ' reimbursed on setting aside of assignment of judgment for mental incapacity. Where an assignment of a judgment was set aside in equity on the ground of the mental incapacity of the assignor, the condition that the assignee should be reimbursed for his advances was not imposed, where the evidence tended strongly to show that the advances were made to the assignor’s mother and wholly upon the faith of her credit.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard ■ in this court at the March term, 1919.
    Affirmed.
    Opinion filed October 27, 1919.
    David G. Robertson, for appellant.
    E. O. Mapledoram, for appellee.

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

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

   Mr. Presiding Justice MoSurelt

delivered the opinion of the court.

By this appeal the defendant Goddee brings in review proceedings in the Circuit Court in which a bill was filed by the complainant seeking to set aside an assignment made on June 14, 1917, to Goddee of. a judgment which had been entered in favor of William Rieekhoff against Augusta Greenberg, the mother of Anna Rieekhoff, wife of William. The bill also asks that the sheriff, Traeger, be enjoined from collecting the judgment. The bill alleged that on the date of the assignment William Rieekhoff was insane and mentally incapable of making a valid assignment, which condition was known to Goddee. Answer was filed denying generally the allegations of the bill and alleging that William Rieekhoff was indebted to the defendant _____1_ Grodd.ee for money loaned, and had made said assignment in full and complete satisfaction of defendant’s claim, and that at the time of the assignment Rieckhoff was sane and mentally capable of transacting’ his business. After hearing evidence the chancellor was of the opinion that complainant had supported the allegations of the bill by sufficient proof, and granted a decree finding that at the date of the assignment, June 14, 1917, William Rieckhoff was insane and mentally incapable of making a valid contract and that said assignment was void. From this decree the defendant has appealed.

The evidence tends to show that William Rieckhoff was an epileptic, suffering convulsions occasionally since some time in 1910. Witnesses who had observed him testified that he seemed to be suffering from nervousness. Conduct is described which would indicate a decreasing ability to attend to business, and progressive mental feebleness. A number of witnesses gave it as their opinion that on the 14th day of June, 1917, the date of the assignment, he was not mentally capable of making a valid contract, and that he had been in this condition continually from early in the year 1916. His wife testified that he had been examined by a number of physicians, including the Mayo Brothers of Minnesota, and she was informed that he was suffering from dementia prascox. On August 23, 1917, in an inquest of lunacy in the County Court of Cook county, Rieckhoff was adjudged insane. The commission, composed of two physicians, examining him reported that he was insane and should be sent to the State Hospital for the Insane ; that his disease was of 5 years’ duration, caused by epilepsy and dementia pnecox, and that he manifested homicidal or suicidal tendencies. Pursuant to the finding and order of the County Court, Rieckhoff was confined in the asylum for the insane at Kankakee. Thereafter Anna M. Rieckhoff, his wife, was appointed conservatrix by the Probate Court.

Some witnesses, whom we can hardly consider as disinterested, testified on behalf of Goddee that in their opinion Reickhoff was mentally capable at the date of the assignment. The assignment prepared was drawn up by attorneys representing Rieckhoff and was executed in their office, and nothing seems to have occurred at the time of this transaction which would indicate that Rieckhoff did not understand what he was doing, nor any unwillingness or mental incapacity. It is earnestly said in behalf of Goddee that even if Rieckhoff was feeble-minded at this time, yet if the transaction was bona fide and fair, and the alleged mental incapacity was not a factor in the transaction in any way, the courts will apply the rule that there is no reason in good morals why even a lunatic should not pay his debts lawfully contracted.

It has been held in many cases that even where the contracting party was shown to have been suffering from impaired mental faculties, yet if the transaction in question was fair and honest and what the party might reasonably be expected to do under all the circumstances, courts will not set aside such a transaction, for the reason that the mental lack has not entered into the act. English v. Porter, 109 Ill. 285; Kelly v. Nusbaum, 244 Ill. 158; Fitzgerald v. Allen,

We should be inclined to apply this rule to the instant case if the assignment from Rieckhoff to Goddee was proven to be simply a bona fide payment of Rieckhoff’s legal indebtedness and one which, all the circumstances considered, would clearly appear to be free from any taint of unfairness because of the mental lack of one of the parties. We are of the opinion that this is not such a case, and that the chancellor, in the interests of fair dealing, was justified in setting the assignment aside and holding it void.

It appears that in August, 1916, Rieckhoif and his wife separated; that he went to the home of his mother and father to live, while she and their two children went to live at the home of Augusta Green-berg, her mother. Out of this situation seems to have grown a conflict between the parties and their relations, in which the mother of Mrs. Rieckhoif sides with her daughter, while William Rieckhoff’s mother was his active ally. In March and April, 1917, Mrs. Rieckhoff made many requests of William for the support of herself and their children, and sought to force such payment by presenting a petition to the County Court. Pursuant to this Rieckhoff was ordered to pay to his wife the sum of 8 dollars per week. This does not seem to have been paid, and attachment proceedings were contemplated. The judgment note held by Rieckhoff was made by Augusta Greenberg, his wife’s mother, and seems to have constituted the only assets of 'his estate.

Prior to July, 1916, Rieckhoff had been Working for the Chicago, Milwaukee & St. Paul Railway Company. At this time he left, but it was found that he was short in his accounts with the railroad in the sum of $500. Goddee claims that he advanced the money to make good this shortage, and that this advance was part of the consideration for the assignment of the judgment to him. Examination of the testimony, however, fails to convince as to this claim. At and before the time of the alleged shortage Goddee had never known or seen William Rieckhoff, but had had considerable dealings with his mother, Karolina Rieckhoff. He seems to have done work for her and made certain advances. Goddee testifies that upon the request of the mother he gave her some $375, also $7 and an item of $75, to be used to settle William’s shortage with the railroad; but there is also evidence tending to show that the mother induced her son and his wife to sell a certain lot to her, from the purchase price of which she deducted a sufficient amount to settle with the railroad. Whether or not the railroad ever did receive any money on William’s account does not appear. This transaction seems to have been between Goddee and Karolina Rieckhoff, for which she alone would be liable.

Goddee also testifies that he gave the mother the sum of $200, which she told him was to pay certain judgments against William. The only evidence as to such judgments is this statement of Goddee. The only money paid directly to William Rieckhoff is an item of $10 and another of $20, which apparently was advanced after June 14, 1917, the date of the assignment in question.

There is also evidence tending to show that Goddee, prior to the time of the assignment, knew of William’s lack of mental capacity; he was told that “there is something wrong with Will. * * # He does not seem to possess the capacity to act for himself.”

The judgment which was assigned was for $1,123, and as Mrs. Greenberg, against whom it ran, owned sufficient real estate, it was a fair presumption that the full amount of the judgment with interest could be collected.

These circumstances, and other details too long to recite, force the conclusion that Goddee, knowing that the liability for most, if not all, of his advances was upon Karolina Rieckhoff, and not upon her son William, was at least willing to recover these, and more, by taking from the mentally unsound son, whose condition he knew, the assignment of a collectible judgment for over a thousand dollars.

We cannot escape the conclusion, from a consideration of all the circumstances, that the impaired mental capacity of William Rieckhoff was a factor in the assignment of June 14, 1917; that in itself it has not the character of a transaction in good morals, and that a court of equity in justice should declare it void.

Defendant argues that if the assignment should be held void, the court should also decree as a condition thereto that he be reimbursed for his advances. If, as the evidence strongly tends to show, the advances were made to Karolina Rieckhoff and wholly upon the faith of her credit, the estate of William cannot be decreed to pay her obligation. In the cases cited where a return has been ordered, money or other thing of value has actually been delivered. That is not this case. By the wiping out of the assignment, Goddee is in no worse position than he was before it was made, and he may proceed legally to collect what may be due him.

In affirming the decree we do not mean to imply that we agree with all the findings or conclusions of the chancellor contained in the decree which was entered. We hold that for the reasons above indicated the assignment should be held void, and the decree is affirmed.

Affirmed.


author: Mr. Presiding Justice Me Surely

text:
    The People of the State of Illinois for use of Beauregard F. Moseley, Appellee, v. Anton J. Cermak and United States Fidelity & Guaranty Company, Appellants.
    Gen. No. 25,123.
    1. Partnership, § 202*—When bailiff not required to go bach of execution against partners. The rule that creditors of a firm have a prior claim as against partnership assets, which takes precedence over any levy made by an individual. creditor upon the interest of one copartner, had no application as between a judgment against D and C and one against C alone; and the bailiff was not required to go back of the execution describing C and D as individuals, nor was he required to take notice of anything not contained therein, nor to refer to the files to ascertain whether or not the judgment against the two ran against a partnership.
    2. Execution, § 118*—what is effect of order restraining levy. Where two executions were placed in the hands of the bailiff with directions to levy, and an order was entered restraining the bailiff from levying on one of such executions, such order was an insuperable objection preventing the bailiff from selling under the levy covered by such order, and so long as the order was in force the effect was not detracted from, because of the claim of improper issuance.
    3. Execution, § 93

      —When bailiff required to release levy. Under the rule that an execution is the process of the plaintiff and he has the right to control it, the bailiff was bound to follow the instructions of the assignee of the judgment in question to release the levy and turn over the property to the receiver in bankruptcy of the judgment debtor; and the bailiff could not be held liable for any loss sustained by reason of his following such instructions.
    Appeal from the Circuit Court of Cook county; ,the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed with finding of fact.
    Opinion filed October 27, 1919.
    Otto C. B-entner, for appellants.

      Lyle, Harrold, Hoover & Devitt, for appellee.

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

   Mr. Presiding Justice Me Surely

delivered the opinion of the court.

Plaintiff, Mosely, brought suit for damages alleged to have been incurred by the failure of Anton J. Cermak, one of the defendants, as bailiff of the Municipal Court, to perform his official duties. Upon trial a jury assessed the damages against the defendants in the sum of $1,395, and judgment was entered thereon. Defendants have appealed.

Moseley was the assignee of a judgment obtained by George Enconomous for the sum of $1,382 against Louis Demas and Nick Calliganes, trading as Louis Demás Company. On August 25, 1915, an execution was delivered to Cermak on a certain other judgment against Nick Calliganes. Later on the same day Moseley delivered to Cermak an execution on his judgment. This judgment simply ran against Louis Demás and Nick Calliganes as individuals, no other description of them appearing in the execution. At the time the Moseley execution was delivered a levy had already been made on the first execution, and Moseley demanded that the bailiff also levy his execution against the same property. There was nothing either on the face of this execution or in the written instruo tions given to the bailiff by Moseley to show that his execution was against a partnership or that it was for a partnership debt. However, Moseley’s execution was levied against the same property on the same day, and the. sale under both writs set for September 13, 1915. On September 7 a bill to enjoin the collection of Moseley’s execution was filed in the Circuit Court of Cook county, and on the same day an injunction was issued restraining Cermak from proceeding in any manner under Moseley’s execution, or under any other execution issued upon said judgment. This injunction remained in force and was not dissolved until December 1, 1916. On September 8, 1915, which was 5 days before the date set for the sale, Moseley, with two other creditors, filed a sworn petition in the United States District Court, praying that Louis Demas and Kick Calliganes, the parties against whom Moseley’s execution ran, be adjudged bankrupts, and on September 11 he filed another sworn petition in the District Court asking for the appointment of a receiver of all of said property levied on by Cermak under said executions, with power to take charge of, advertise and sell the same. Upon this application Frank M. McKey was appointed receiver, and qualified. On September 13 the bailiff, through his deputy, went to the premises where the property was located and sold it under the first execution, which was against Kick Calliganes individually, and which was not subject to the injunction order of the Circuit Court. Moseley was present and requested the deputy to retain his custodian in possession until the receiver, McKey, could come and take possession of the property pursuant to the order of the District Court secured by Moseley. This was agreed to by all parties present. On the next day, September 14, in accordance with this agreement, McKey took possession of the property, and retained possession of the same as receiver until December 1, 1915, when under an order of the District Court he was discharged as receiver, but was ordered to retain the property as trustee of the estate of Calliganes, who had in the meantime filed a voluntary petition in bankruptcy and was adjudged a bankrupt. The property was later sold by McKey as such trustee under an order of the court and turned over to the respective purchasers.

Plaintiff claimed that Cermak committed a breach of his bailiff’s bond in failing to give precedence on August 25 to the Moseley execution, thus violating the rule that creditors of a firm have a prior claim as against partnership assets, which takes precedence over any levy made by an individual creditor upon the interest of one copartner. That this is the rule is not controverted, but defendants say that the bailiff had no notice that the judgment was against a co-partnership, and that the execution runs against Demas and Calliganes as individuals. It has been held that a sheriff is not required to go back of the execution, and need not take cognizance of anything not contained therein, nor is he obliged to refer to the files to ascertain whether or not a judgment runs against a partnership'. Swan v. Gilbert, 175 Ill. 204. Furthermore, the indemnifying bond, prepared and presented to the bailiff by Moseley, refers to and describes.the judgment as against the parties as individuals only. Under such circumstances, the rule invoked by plaintiff does not apply, and there was no failure on the part of the bailiff in regard to the order of levies.

An insuperable obstacle preventing the bailiff from selling under the Moseley levy was the restraining injunctional order of the Circuit Court. It will not detract from its effect upon an officer of the court so long as it was in force, to say that it was improperly issued. As we have seen, this restraining order continued in force and was not dissolved until some time after these transactions had terminated, and obedience to this order cannot be considered as a breach of the bailiff’s official duties.

Plaintiff complains of the action of the bailiff in releasing the levy and turning over the property to the receiver, McKey. As above narrated, this was done on the express orders of Moseley and by agreement of all parties concerned. Execution is the process of the plaintiff and he has the right to control it, and the bailiff was bound to follow the instructions of Moseley with reference to the writ, and cannot be held liable for any loss sustained by reason of his following such instructions. Morgan v. People, 59 Ill. 58. Other cases stating this rule are Farnham v. Gilman, 24 Me. 250; Robertson v. Coker, 11 Ala. 466; Robinson v. Harrison, 26 Tenn. 190.

It is a fair inference that after the bailiff was restrained from proceeding with the execution, Moseley thought it better for his interests to have the entire matter, including the possession of the property, transferred to the District Court, and the receiver took possession of the property as part of his plan. It does not lie now with Moseley to say that the action of the bailiff in complying with his directions to turn over the property to this receiver was such a breach of duty as would entitle him to recover damages. The release of the levy was at Moseley’s instance and orders, and of this he cannot now complain.

The verdict and judgment are not supported by the evidence, and the judgment will be reversed with a finding of fact.

Reversed with, finding of fact.

Finding of Fact. The court finds as a fact that the defendant Anton J. Cermak did not fail in, regard to his official bond by refusing to levy Moseley’s execution, or in falsely returning said execution of August 25, 1915, no property found, as alleged in plaintiff’s declaration; and did not breach his official bond in levying and, without authority from Moseley, releasing said levy and returning said execution no property found, as alleged in plaintiff’s declaration.


author: Mr. Presiding Justice McSurely

text:
    James F. Bishop, Administrator of the Estate of Frank Birr, Deceased, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 25,163.
    1. Street railroads, § 138*—when proper to direct verdict for defendant in action for wrongful death. A directed verdict for defendant would have been justified, where plaintiff’s intestate died as the result of being crushed between a truck on which he was riding and a street car of defendant, where it appeared that the truck, which had been too near the track to permit the car to pass, turned out a sufficient distance to enable it to so pass, and then, when it had begun to pass and was proceeding safely, the truck suddenly veered towards the track far enough to crush the decedent between the truck and the car.
    2. Street railroads, § 86*—when motorman not negligent in failing to anticipate movement of truck. A motorman could not be called negligent because of his failure to anticipate the unexpected swerving of a truck towards the track after it had turned out sufficiently to enable the car to pass.
    3. Workmen’s Compensation Act, § 3*—street car company as within act. A street car company comes within the Workmen’s Compensation Act of 1913.
    4. Workmen’s Compensation Act, § 18*—when proceedings and settlement under act lar action against third person. Where a decedent, his employer, and the street car company, between whose car and the employer’s truck decedent was crushed and killed, all came within the Workmen’s Compensation Act of 1913, and the administrator had instituted proceedings before the Industrial Commission for compensation on account of the accident and death, which had resulted in a settlement for a lump sum, which was paid, such administrator had no cause of action against the street car company.
    .5. Workmen’s Compensation Act, § 18

      —when recovery under act lars action against third person. Under section 6 of the Workmen’s Compensation Act of 1913 [Cal. 1916 Stat. j[ 5475(6)], relegating an injured employee to recovery under such section, and section 29 [Cál. 1916 Stat. If 5475(29)], subrogating the employer to the right of recovery of the employee against a third person, an administrator, who had already recovered against his intestate’s

      employer under such act, could not also pursue an action against the third party under the Injuries Act.
    Appeal from the Circuit Court of Cook county; the Hon. Oscab M. Tobbisojst, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and judgment here.
    Opinion filed October 27, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    Harry P. Weber, George W. Miller and Arthur J. Donovan, for appellant; John R. Guilliams and John E. Kehoe, of counsel.
    Zimmerman & Garrett, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

On February 19, 1915, Frank Birr was crushed between a truck on which he was riding and a street car belonging to the defendant. From, the injuries received he died, and his representative, bringing suit, alleged that the accident was caused by the negligence of the defendant in the operation of its car. On trial by a jury he had a verdict and judgment for $5,000, from which defendant appeals.

At the time of the accident Birr was 17 years and 6 months old and was employed by John P. Lynch, who was operating an expressing business in Chicago under the names of Lynch Teaming Company and Lynch City Express Company. Birr’s work was that of a helper or bundle boy on a motor truck owned by the Lynch Company. On the day in question one of Lynch’s trucks started out with a load of boxes to be delivered. One Berkson was the chauffeur in charge of the truck; there was also another boy helper, as they used two boys when there was a heavy load. There seems to have been some trouble with the carburetor, and a mechanic named Towne was sent out to test it. Both the mechanic, Towne, and Berkson were attempting to find the seat of the trouble, while at the same time driving the truck in Chicago avenue westward. At the particular time of the accident the mechanic was driving, while Berkson was down on the fender looking for the source "of the trouble. Chicago avenue is a wide, well-paved street, with room enough for two trucks to drive between the westbound car track and the north curb. They drove west on Chicago avenue to about Spaulding avenue, while Birr was standing on the footboard of the truck on the south side, about opposite the driver’s seat. The body of the truck behind the driver’s seat had what were called wings, which extended out a few inches beyond the footboard. The truck ran westward, north of the westbound track, but within 6 or 8 inches of the north rail. A westbound street car came up from the east and caught up with the truck about a block east of Spaulding avenue and began to trail along behind it. As the truck was then running it was too near the track to permit the street car to pass. "Witnesses testified that the gong was rung, and that the truck turned out in a northwesterly direction, away from the track a sufficient distance to enable the car to pass. The witnesses testified that the clearance between the two vehicles was from 2 to 4 feet. The stories seem to agree that at this time there was not only apparently sufficient room to pass but in fact a sufficient clearance. The car began to pass and was proceeding safely when suddenly the truck veered southward towards the car track, far enough to crush Birr between the truck and the front right-hand comer of the car. There was no contact between the car and the truck itself. Both were running at a low rate of speed, and when Birr was hurt they stopped within a few feet. Birr jumped off, ran around the front end of the track to the north curb, and fell down; he died about a month later from the injury sustained.

The fact that the truck turned in somewhat towards the track seems to be conceded, but plaintiff’s version is that even if this is so it was the duty of the motorman not to attempt to pass until the truck was at a greater distance from the track. This ignores the evidence that at the time the ear started to pass the truck was at a sufficient distance from the track to permit the street car to pass without either striking it or any one standing on the footboard. We do not see how the motorman can be said to be negligent in accepting the opportunity to pass, which under the circumstances he would have every reason to believe was intentionally given by the driver of the truck. The action of the truck driver in turning in towards the car was sudden and unexpected. The motorman could not be called negligent because of the failure to anticipate this unexpected move. There is no negligence claimed in respect to the promptness in stopping the car.

We are of the opinion that the decision in Chicago Union Traction Co. v. Browdy, 206 Ill. 615, is applicable to the facts of this case, and upon what is there said, and the cases cited, we should be compelled to reverse with a finding of fact, if plaintiff had a cause of action.

We are of the opinion that plaintiff has no cause of action, for the following reasons: At the time of the accident the Workmen’s Compensation Act of 1913 was in force. Birr’s employer, Lynch, Birr, the employee, and the defendant all came within the operation of this act. Under the declaration and the evidence this is conclusively presumed to be the fact. That defendant comes within the act has been held in Chicago Rys. Co. v. Industrial Board of Illinois, 276 Ill. 112. Upon the trial defendant offered to show that Birr and his employer were both under the act, and that plaintiff, as administrator, had instituted proceedings before the Industrial Commission for compensation on account of the accident and death of Birr; that it was right to do so was admitted; an adjudication was had and an award made, which resulted in a settlement for a lump sum which was paid.

Section 6 of the Compensation Act of 1913 [Call. 1916 Stat. 5475(6)] provides:

“No common law or statutory right to recover damages for injury or death sustained by any employee while engaged in the line of his duty as such employee other than the compensation herein provided shall be available to any employee who is covered by the provisions of this act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.”

° Section 29 [Call. 1916 Stat. [¶] 5475 (29)] provides in part:

“Where an injury or death for which compensation is payable by the employer under this act was not proximately caused by the negligence of the employer or his employees, and was caused under circumstances creating a legal liability for damages in some person other than the employer to pay damages, such other person having also elected to be bound by this act, then the right of the employee or personal representative to recover against such other person shall be subrogated to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained, in an amount not exceeding the aggregate amount of compensation payable under this act, by reason of the injury or death of such employee. * * *”

In Keeran v. Peoria B. & C. Traction Co., 277 Ill. 413, these sections were construed to mean “that no common-law or statutory right to recover damages for any accidental injury arising out of and in the course .of his employment shall be available to any employee, either against his employer or against any third person whose negligence may have occasioned the injury, where such person had also elected to be bound by the act, the .employer in such case being subrogated to the right of the employee or his personal representative to recover, and the amount' of the recovery being limited to the aggregate amount of compensation payable under the act. ’ ’ This was followed in Friebel v. Chicago City Ry. Co., 280 Ill. 76 [16 N. C. C. A. 390].

It would seem to follow too clearly to require argument that plaintiff cannot pursue his action under the Injuries Act but must recover under the Compensation Act, as in this instance has already been done.

Plaintiff contends that section 29 controls a case where the negligence of the employer did not proximately cause the accident, whereas the evidence here shows that Birr’s injuries were caused by the negligence of both his employer and the defendant; hence there is no subrogation, and the section must be construed as leaving the right of action in the employee. This conclusion is squarely opposed by section 6, which clearly and without ambiguity negatives any right of the plaintiff to proceed under the Injuries Act. Section 29 does not purport to affect the right of an employee; it simply gives an employer, who has been compelled to pay damages because of the negligence of a third party, the right to reimbursement from such party. We do not see how the employee can be concerned in this.

A few of the considerations leading us to reject the construction sought by plaintiff are these: The employer, the Lynch Company, is not a party to this particular suit, but plaintiff says this is an adjudication that the employer’s neglig’ence was one of the proximate causes of the injury, hence it has no recourse against the defendant under section 29. We do not understand how the employer’s right against a negligent third party can be thus adjudicated against him in a suit in which he is not a party and without any opportunity to be heard.

Furthermore, plaintiff’s construction would clearly result in double compensation. The injured employee could collect from his employer the compensation fixed by the act, and then sue the third party under the Injuries Act, for the sole reason that the employer, having been negligent, could not be subrogated to the employee.

Again, this construction would penalize the third party who is under the act, for the negligence of the employer. If the employer is not negligent the third party can be made to pay only the amount awarded the employee under the Compensation Act, but if the employer also is negligent then the third party shall pay more, thus visiting the sins of the employer upon the third party.

Manifestly any construction resulting in such incongruities must be rejected as contrary to the purpose and spirit of the law. Such a strained and illogical construction cannot be adopted for the purpose of defeating the unequivocal operation of section 6, to say nothing of the purpose and aim of the entire Compensation Act.

For the above reasons we hold that under the law there can be no recovery by the plaintiff in this action, and that the trial court should have so instructed. The judgment is reversed, and as this disability of the plaintiff to pursue this action cannot be cured upon another trial, the cause will not be remanded, but judgment of nil capiat will be entered in this court.

Reversed and judgment here.


author: Mr. Justice Deveb

text:
    F. N. Matthews & Company, Appellant, v. Morris Lilienthal et al., Appellees.
    Gen. No. 24,642.
    1. Set-off and becotjpment—judgment on affidavit of merits to counterclaim. Section 55 of the Practice Act (J. & A. If 8592), providing that if the affidavit of defense is to only a portion of plaintiff’s demand, judgment may he entered for the balance, and the suit shall thereafter proceed as to the portion in dispute, did not authorize the court to enter judgment on defendants’ counterclaim for a part of defendants’ demand and to order that the cause proceed to trial as to the balance in dispute, where plaintiff’s affidavit of merits, although not setting forth a sufficient defense to a part of such counterclaim, did not admit the validity of any part of the claim within the purview of said section.
    2. Set-off and becotjpment—judgment on affidavit of merits to counterclaim. An affidavit of merits to a counterclaim which set forth that “affiant verily believes said plaintiff has a good and meritorious defense to the whole of defendants’ counterclaim; that the nature of said defense is as follows,” etc., did not warrant a judgment in fcyor of defendants under section 55 of the Practice Act (J. & A. 8592), although it failed to set forth a sufficient defense as to part of the claim.
    Appeal from the Municipal Court of Chicago; the Hon. Habby M. Fisheb, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded with directions.
    Opinion filed October 27, 1919.
    Herman Frank, for appellant.
    Cermak & McClellan, for appellees. ,
   Mr. Justice Deveb

delivered the opinion of the court-.

This is an appeal by plaintiff from a judgment of the Municipal Court of Chicago.

A former judgment in the case was reversed and the cause remanded by this court. 208 Ill. App. 302. The case was redocketed in the Municipal Court and a judgment was entered in that court in favor of defendants on a counterclaim. The suit was originally begun by plaintiff to recover damages for the breach of a contract. The affidavit in support of plaintiff’s claim set up a written contract between plaintiff and the defendants, and it was sought thereby to show that after allowing the defendants all just and legal claims the defendants were indebted to plaintiff. The trial court on motion of defendants entered a judgment on defendants’ counterclaim for the sum of $1,375.96, and it was ordered that the cause should proceed to trial as to a balance of the counterclaim in dispute.

An examination of the record discloses that plaintiff did not admit that it was indebted to the defendants in any sum whatsoever. The trial court held that the plaintiff’s affidavit of merits was an insufficient defense to a part of the counterclaim. Whether the court was right in thus holding need not be determined upon this appeal, as it is our opinion that the court erred in entering a judgment on motion of defendants for a part of defendants’ counterclaim and setting the cause down for trial as to that portion of the claim which under the pleadings presented a triable issue.

The trial court held that under the rules of the Municipal Court and the statutes of Illinois, the plaintiff by its amended affidavit of merits had admitted that it had no defense to a portion of defendants ’ counterclaim. While it may or may not be .true that the affidavit does not set forth a sufficient defense to a part of the counterclaim, it does not admit the validity of any part of the claim within the purview of section 55 of the Illinois Practice Act (J. & A. 8592), which is as follows:

“If the affidavit of defense is to only a portion of the plaintiff’s demand, the plaintiff shall be entitled to a judgment for the balance of his demand, and the suit shall thereafter proceed as to the portion of the plaintiff’s demand in dispute,” etc.

The plaintiff’s amended affidavit of merits set forth that “affiant verily believes said plaintiff has a good and meritorious defense to the whole of defendants’ counterclaim; that the nature of said defense is as follows,” etc.

It was held in the case of Cahn v. Northwestern Mut. Life Ins. Co., 192 Ill. App. 172, that under section 55 of the Practice Act (J. & A. ¶ 8592) a valid judgment could be entered as to a portion of a claim where the defendant’s affidavit of merits shows unequivocally or by admission that the defendant was indebted to the plaintiff for such part of the claim. In its opinion the court said:

“But the affidavit on which the judgment in this case was rendered begins first of all by stating that the affiant ‘verily believes that the defendant has a good defense to the whole of the plaintiff’s demand set out in the fourth count of the plaintiff’s declaration,’ and it proceeds to say that no recovery can be had under the fourth count on the claim of the defendant, because in effect the claim made in the affidavit of claim is not one that can come under the statements of the fourth count.

“It never was meant to allow judgment on the consideration of affidavits by the court irrespective of the state of the pleadings, or to turn a denial of indebtedness under the pleadings into an ‘admission’ or ‘confession’ of judgment.”

Section 55 of the Practice Act (J. & A. 8592) was enacted for the purpose of avoiding a technical difficulty frequently resulting from an adherence to the common-law rule against interlocutory judgments. Under this section of the statute the courts are authorized to enter judgment for part of a claim only in cases where it appears that no defense at all is made to a part of plaintiff’s demand, or where a portion of such demand is admitted.

In the present case there is no admission on the part of the plaintiff that any part of the counterclaim of the defendants is justly due. In its affidavit,of merits the plaintiff states that it is not indebted to the defendants in any sum whatsoever because of damages suffered by the plaintiff “by reason of a breach by the defendants of a written contract,” etc., and the affidavit attempts to show wherein the alleged breach of the contract resulted in furnishing the plaintiff with sufficient defense to the whole of the counterclaim.

In the case of McKey v. Provus, 181 Ill. App. 364, it was held that where it appeared from the pleadings that the defendant admitted indebtedness as to certain items of a plaintiff’s demand a valid judgment could be entered as to the sum of such items. But we have been unable to find any authority which holds that under section 55 of the Practice Act (J. & A. if 8592), or under similar statutes, an interlocutory judgment may be entered for a part of an entire claim merely because a pleading which is relied upon as a defense to the whole of a demand is held to be as to a part thereof insufficient. This is not, in our view, quite the same thing as an admission of indebtedness as to such part.

The judgment of the Municipal Court will, be reversed and the cause remanded with directions to enter an order or orders in the cause not inconsistent with the views herein expressed.

Reversed and remanded with directions.


author: Mr. Justice Dever

text:
    In re Estate of Abraham F. Doremus, Deceased. Isabelle Edwards, Administratrix de bonis non of the Estate of Abraham F. Doremus, Deceased, Appellee, v. German-American Trust & Savings Bank, Special Administrator of the Estate of Addie Moulton, Deceased, Appellant.
    Gen. No. 25,067.
    1. Limitation of actions, § 23*—when indorsement does not take note out of operation of statute. A note which had under its terms been barred by the statute of limitations was not taken out of the operation of the statute by an indorsement that in case of the death of the maker it was to become payable on demand.
    2. Bills and notes, § 313*—when demand note 'without interest is due and payable. A demand note without interest became due and payable immediately upon its execution, and suit might have been brought thereon without any demand.
    3. Limitation of actions, § 23*—lohen indorsement does not talce demand note out of operation of statute. A demand note without interest which had become barred by the statute of limitations was not taken out of the operation of the statute by an indorsement stating “in case of my sudden death please pay this note on demand.”
    4. Bills and notes, § 313

      —when agreement to pay interest does not change time when demand note is due. An agreement to pay interest in and of itself is not sufficient to take the obligation out of the operation of the general rule providing that when promissory notes are payable on demand they become due on their date and that an action may be begun thereon without demand for payment.
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGooett, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed October 27, 1919.
    King, Broweb & Hublbut, for appellant.
    Mabtin & Mabtin and James W. Hyde, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook county disallowing a claim of the administrator of the estate of Addie Moulton, deceased, against the administrator of the estate of Abraham F. Doremus, deceased, for $7,860.46.

The case came to the Circuit Court on appeal from the Probate Court of Cook county. Appellant, who was the plaintiff below, filed a claim against appellee based upon six promissory notes signed by A. F. Doremus and made payable to Addie Moulton. The first of these notes was dated March 17,1887, and was for the payment of $300 one year after date; the other five were payable on demand and were for the sum of $500 each and were dated as follows: June 10, 1890, October 10, 1890, May 21, 1891, November 25, 1893 and January 24, 1890. The notes dated June 10, 1890, May 21, 1891 and January 24, 1890, bore interest at the rate of six per cent per annum. The note dated March 17, 1887, for $300, bore the following indorsement: “In case of the death of A. F. Doremus this note is payable on demand.” The note of May 21, 1891, for $500, bore the indorsement: “In case of my sudden death please pay this note on demand.”

The claimant also sought to recover on a check for $652.20, dated May 10, 1897. The defense made on the trial was that the statute of limitations had run against each of the six notes and the check.

The questions presented to this court, as stated in the briefs of counsel for appellee, are:

“First: When does the statute of limitations begin to run against a note payable on demand without interest?

“Second: When does the statute of limitations begin to run against a note payable on demand, which contains a provision as to interest?

“Third: What effect does the law give to indorsements made on notes as to modifying or changing the terms thereof as contained in the body of said notes ? ’ ’ Section 16, chapter 83, Illinois Statutes (J. & A. |f 7211), provides that all “actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within 10 years next after the cause of action accrued. ’ ’

Three of the notes in question were made payable with interest; two of the notes, as also the check, did not provide for interest payments and five of the notes, as stated, were payable on demand. There can be but small doubt that the statute of limitations had run at" the time the action was brought on the note of March 17, 1887, for $300; this note was due one year after date. The right of action accrued upon the note when it became due. While this note bore an indorsement that in case of the death of A. F. Doremus the note was to become payable on demand, we are unable to see how this indorsement could materially affect the operation of the statute. It would not be an unreasonable interpretation of this indorsement to hold that the maker attempted to make the note a demand note in the event of his death within one year from the date of the note. The language of the indorsement is not ambiguous and it could in no reasonable interpretation have the effect of extending the time of payment of the note indefinitely. Nor do we think the indorsement on the note of May 21, 1891, for $500, materially affected the rights or liabilities of the parties under the note. This note on its face was payable on demand and the indorsement, if it can be given any effect at all, should be held to be a mere direction for the payment of the note in the event of the sudden death of the maker.

When does the statute of limitations begin to run against a note payable on demand? It is assumed by counsel that the Supreme Court of this State has never passed upon this question and we have been unable to find any decision of that court directly bearing thereon. Where nothing appears upon the face of a note payable on demand or by way of indorsement thereon tending to show a contrary intention, such demand note becomes due and payable immediately upon its execution and suit may be brought thereon without any demand. Slingo v. Steele-Wedeles Co., 82 Ill. App. 139; Pulling v. Travelers’ Ins. Co., 55 Ill. App. 452; Hall v. Jones, 32 Ill. 38; Knecht v. Boshold, 138 Ill. App. 430.

With reference then to the notes dated March 17, , 1887, June 10, 1890, November 25, 1893, and the check dated May 10, 1897, notwithstanding certain indorsements on two of the notes, there cannot be much doubt about the correctness of the judgment of the trial court.

Concerning the notes dated June 10, 1890, May 21, 1891 and January 24, 1890, which were payable with interest at six per cent per annum, a more difficult question is presented. The evidence does not disclose that any demand was ever made for the payment of these notes, and the question before us is whether the running of the statute of limitations as to these three notes was postponed until the filing of the claim in the Probate Court.

The case of Luther v. Crawford, 116 Ill. App. 351, does not deal with the question, as asserted by counsel. In that case the court had before it an instrument which it held to be a promissory note payable on demand; the instrument did not provide for the payment of interest.

In the case of Barough v. White, 4 B. & C. 325, Lord Littledale, concerning a demand note payable with interest, said:

“Neither do I think that the note was overdue, it seems to me that it was intended to be a continuing security, and that we could not treat it as overdue without evidence of payment having been demanded and refused.”

In the case of Wheeler v. Warner, 47 N. Y. 519, it was held that a promissory note payable on demand with interest became due forthwith and that the statute of limitations began to run from the date of the note. Justice Peckham in deciding the case said:

“There is no divided opinion here or in England that upon such a note, with or without interest, an action may be maintained against the maker without any demand because it is due. No demand can be sued before due; no action will lie upon any claim of any description arising upon contract before it is due. To say that the suit is the demand is to repeat an unmeaning phrase as thus used, which no number of repetitions can make sensible. A demand note is due forthwith, and hence may be sued without demand, nor until this decision of Merritt v. Todd [23 N. Y. 28] has there been any difference of opinion as to the time when such a note is barred by the statute. But that decision does not settle this qustion.

“In Herrick v. Woolverton (41 N. Y. 581), originally tried before me, and reversed by my brethren of the Supreme Court, this point was discussed, and all the judges who delivered opinions agreed that a note like this is due forthwith, so far as regards the statute.”

In Scovil v. Scovil, 45 Barb. (N. Y.) 517, it was held that where a note is payable on demand with annual interest, a presumption arises that “the parties intended that the note should not be immediately due,” etc. The Scovil case was decided by the Supreme Court of New York in 1865 and in view of the decision in the Wheeler v. Warner case, supra, by the New York Court of Appeals in 1872, cannot be considered as authority in the State of New York on the question.

In the case of Merritt v. Todd, referred to in the decision of Wheeler v. Warner, supra, the court was called upon to determine the liability of an indorser of a note, and the New York Court of Appeals in the Wheeler case refused to extend the principle beyond that laid down in the Merritt v. Todd case. Our attention has not been called to nor have we been able to find other cases which directly deal with the point in question. While certain English cases do make a distinction, not involving the application of limitation of actions statutes, between demand notes payable with interest from those payable without interest, we are inclined to agree with the later decision of the New York Court of Appeals which holds that a demand note payable with interest becomes due and payable forthwith; that an action may be based thereon without demand and that the stattite of limitations begins to run against the debts secured thereby from the date of the note.

Cases cited by counsel for appellant do not when examined aid greatly in determining the point.

In Ade v. Ade, 181 Ill. App. 577, it was held that a certain ambiguous instrument was a promissory note for the payment of interest on a principal sum, and the Appellate Court held that in that it appeared on the face of the instrument that it did not become due until after the death of one of the makers thereof, the statute of limitations did not begin to run until that time.

In Ferry v. Ferry, 2 Cush. (Mass.) 92, it was held that interest which became due upon a promissory note was a mere incident to the principal obligation, and that where it appeared that a statutory 20-year limitation period had elapsed since certain interest instalments became due, such interest indebtedness was not barred by the statute; that the interest stipulated, to be paid on the note was a mere incident to the principal debt and was recoverable with it.

While our attention has been directed to certain cases which hold that where demand obligations are payable with interest, this fact indicates an intention that such obligations were not to become due forthwith, we are of the opinion that the agreement to pay interest in and of itself is not sufficient to take such obligations ont of the operation of the general rule that provides that when promissory notes are payable on demand they become dne on their date and that an action may be begun thereon without demand for pay- ■ ment. We' believe this holding is in consonance with sound public policy; that it is in harmony with the later decisions of the New York courts of review and that it makes for uniformity of the law of commercial paper.

The judgiiient of the Circuit Court will be affirmed.

Affirmed.


text:
    Helen Kupfer, Appellee, v. Albert Kupfer, Appellant.
    Gen. No. 25,125.
    1. Divorce, § 109*—when court may modify decree by reducing alimony notwithstanding counsel marked decree “O. K." A court of equity had power to modify a decree for divorce and alimony, hy reducing the amount of the alimony, although the original decree had been marked “O. K.” hy the solicitors for the respective parties.
    2. Divorce, § 109*—when O. K. of decree by counsel does not

      deprive court of power to modify as to future alimony. Hurd’s#
    Rev. St. 1915-1916, ch. 40, sec. 18 (J. & A. f 4233), providing that on application the court may from time to time make alterations in the allowance of alimony and support of children, inferentially recognizes that conditions might arise from time to time which would render alterations in' such decrees just and reasonable, and the O. K. of defendant’s counsel in the case in question did not deprive the court of its power to modify the decree so far as it related to the subject of future alimony.
    3. Divorce, § 106

      —decrees for alimony in instalments as not

      final judgments. Decrees for the payment of instalments of ali-
    mony are not in their nature final judgments.
    Appeal from the Superior Court of Cook county; the Hon. Oscar Hebel, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded.
    Opinion filed October 27, 1919.
    Rehearing denied November 10, 1919.
    Edward G-. Berglund, for appellant.
    Joseph A. Weber, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.

This is an appeal by defendant from an order entered in the Superior Court of Cook county on October 8, 1918, vacating an order of that court entered August 28, 1918. The order of August 28, 1918, reduced the amount of alimony which defendant was required to pay to complainant under an earlier order of the court from $18 to $12 a week.

It is insisted that the court erred in entering the order of October 8,1918, the material part of which is:

“The court having heard the arguments of counsel of the respective parties and having examined the original decree, entered herein, and it appearing to the court that said original decree was marked ‘O. K.’ by the solicitors for the respective parties herein, therefore finds that said original decree was a consent decree not subject to change by order of court, it is, therefore, ordered that said order of this court entered herein on, to-wit: August 28th, 1918, reducing the alimony herein, from $18 to $12 per week, be and the same is hereby set aside and vacated.”

On the hearing to vacate the order of August 28, 1918, the only evidence submitted was two affidavits, one by the defendant and the other by his solicitor, Clyde C. Fisher. It appears from these affidavits that divorce proceedings were contested by the parties thereto and that the defendant objected to the entry of a decree for the payment of alimony and in fact did not consent to the entry of the decree. In the affidavit of Fisher it is stated that he, Fisher, marked the decree “O. K.” merely to signify his consent to the form of the decree. The defendant in his affidavit stated that he had no knowledge of the “O. K.” of the decree by his solicitor until August, 1918; that his solicitor had no authority to O. K. the same, and that, in that the decree for divorce was entered in favor of the defendant, the court had no power to award alimony to his former wife.

From an examination of the record it is apparent that the court entered the order of October 8, 1918, on the assumption that the court was powerless to modify the decree which awarded alimony against the defendant, for the reason that the decree bore the O. K. of defendant’s solicitor, and the sole question before us is whether the court under the circumstances was without such power. The complainant offered no evidence in support of her motion to vacate, the only evidence heard upon the motion being the two affidavits referred to.

In the original divorce proceedings a cross-bill filed by the complainant was dismissed for want of equity and a decree was entered in favor of the defendant on his bill. The decree upon its face, otherwise than as noted, does not appear to have been entered by consent.

Section 18 of chapter 40, Hurd’s Revised Statutes of Hlinois, 1915-1916 (J. & A. 4233), provides that:

“The court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, and * * * * support of the children, as shall appear reasonable and proper.”

In Hohenadel v. Steele, 237 Ill. 229, it was held that a decree by consent which fixed the custody of a child, upon a petition showing that material changes had taken place in conditions affecting the welfare of the child could be modified by the court, and the court in that case held that a decree respecting the custody of a child is exceptional in its character and is always regarded as temporary.

While it has been held that a decree by agreement, not being the result of the judgment of the court, could not be impeached or set aside upon a bill of review for errors of law, such decree could be set aside by an original bill in the nature of a bill of review. Krieger v. Krieger, 221 Ill. 479.

The record in the instant case does not disclose that a decree was entered solely by the agreement of the parties. It is apparent upon the face of the decree that its entry was the result of a full hearing and argument of the issues presented by the original pleadings, and that it represents not the agreement of the parties, but the judgment of the court upon those issues.

Section 18 of chapter 40 of the statutes above quoted (J. & A. j[ 4233) gives authority to the court to make, from time to time, such alterations in the allowance of alimony and for the support of children whose interest might be at stake in divorce proceedings as shall appear reasonable and proper. This statute inferentially recognizes that conditions might arise from time to time which would render alterations in such decrees just and equitable.

In Hilliard v. Anderson, 197 Ill. 549, the parties to the divorce proceedings agreed upon a lump sum to be paid in full satisfaction of alimony present, past and future. The decree provided, however, that it should not relieve appellant from the duty to provide for the support of the only child of the parties. In deciding the case the court said:

“The decree expressly provided the amount then ordered to be paid for that purpose should be subject to the further order of the court. The express declaration of the retention of power in the court over the amount so to be paid by the husband was not, however, necessary to authorize the court to increase or diminish the allowance, as the changed conditions or circumstances might require. Section 18 of chapter 40 of the Revised Statutes [J. & A. j[ 4233], entitled ‘Divorce,’ expressly empowers the court to make such alterations from time to time, after the final decree, in the amount allowed for the care, custody and support of a child or children, as shall appear reasonable and proper. We have approved this statutory provision in many cases in this court.”

Decrees for the payment of instalments of alimony in the future are not in their nature final judgments. Lynde v. Lynde, 181 U. S. 187; Garrett v. Garrett, 252 Ill. 319.

While it has been held in Chicago & V. H. Benev. Society v. Chicago & S. H. Aid Society, 283 Ill. 99, and in other cases, that a decrée bearing the O. K. of .counsel for a party thereto is binding upon such party and could not be set aside upon a bill of, review, such cases are no authority against the contention that under the statute a court of equity has the power, upon reasonable and proper grounds, to modify a decree for the payment of future instalments of alimony; nor do we think that there is merit in the argument that such change can only be made where it appears that a proposed change is for the benefit of minor children. The statute itself makes no such distinction; it authorizes the court to make from time to time any alteration in an award for future alimony where it is made to appear that such change is reasonable and proper. Where in a given case it is shown that a decree for the payment of future alimony could not be enforced, due to lack of means or ability in the party against whom it is intended to operate, the statute would warrant a modification of such order by the court even though in so doing the court might lessen the amount required to be paid under a former order or decree. While there may be merit in the contention that- the' findings in a decree cannot, subsequent to its entry, be contradicted by affidavit, we are of opinion that the trial court had power, upon a proper showing hy affidavit or otherwise, to modify that part of the decree which provides .for the payment of future alimony; that this power is exceptional and is conferred upon the court by the statute.

We do not regard the cases of Buck v. Buck, 60 Ill. 241; Miller v. Miller, 234 Ill. 19-20, and others relied upon by counsel for complainant, as holding to the contrary, and even should the O. K. of defendant’s counsel amount to a consent to all the terms of the decree—which is not conceded—this would not deprive the court of its- power to modify it so far as it related to the subject of future alimony.

The decree of the Superior Court is reversed and' the cause is remanded.

Reversed and remanded.


author: Mr. Justice Holdom

text:
    Henry C. Hill, Appellant, v. The Thomas B. Jeffery Company, Appellee.
    Gen. No. 25,016.
    1. Depositions—when attempt to take plaintiffs deposition is unwarranted. The practice of a defendant attempting to take a plaintiff’s deposition to find out from him facts on which he predicates a right of recovery, for the purpose of having witnesses in a foreign country who cannot he made amenable to the disciplinary power's of the court because of their absence from its jurisdiction, give evidence in contradiction of plaintiff, condemned, being unwarranted.
    2. Depositions—when party to action at lato cannot he compelled to testify hy deposition. Under Rev. St. ch. 51, sec. 26 (J. & A.
    1f 5543), providing the manner of issuing a dedimus potestatem, etc., and section 6 (J. & A. f 5523), regarding the power to examine an adverse party upon a trial, etc., and section 36 (J. & A. If 5553), regarding proceedings against and punishment of a witness refusing to obey a subpoena to testify, a party to a suit cannot he compelled to testify at the instance of an adverse party by deposition in a suit at law.
    3. Witnesses, § 4*—when plaintiff not guilty of contempt in declining to appear and testify by deposition. A plaintiff who declined to appear and testify at the instance of a defendant in answer to a subpoena of the commissioner named in a 1dedimus was not properly held guilty, of contempt.
    4. Depositions—statutory character of proceedings. The taking of evidence by deposition is purely statutory and the varied steps pointed out by the statute must be taken to make the evidence so taken admissible upon a trial.
    5. Witnesses, § 4

      —when plaintiff not guilty of contempt in refusing to answer subpcena to testify under dedimus. The power to compel a party to testify under a dedimus must be mutual, and as Rev. St. ch. 61, sec. 36 (J. & A, If 5553), relating to the procedure against and punishment of a witness refusing to obey a subpcena to testify, does not apply to a corporation, the plaintiff in the action in question who refused to answer a subpcena to testify before a commissioner under a dedimus issued upon the application of the corporation defendant was not properly held guilty of contempt.
    Appeal from the Superior Court of Cook county; the Hon. Oscab Hebel, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed.
    Opinion filed October 27, 1919.
    Miller, Gorham & Wales, for appellant.
    Mater, Meter, Austrian & Platt, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from an order committing the plaintiff to jail for a contempt of court in failing to obey a subpoena issued by one John H. Lewis, Jr., a master in chancery at Galesburg, Knox county, this State, as a witness under a dedimus potestatem issued in this case by defendant to take the deposition of plaintiff as its witness in said cause, there to remain confined and deprived of his liberty until he evidences to the court a willingness to obey the subpoena, appear before the master at Galesburg and submit himself for examination as such witness.

The twenty-two assignments of error practically resolve themselves into the one controlling principle of law—can a party to a suit at law be compelled to testify otherwise than upon the trial of the cause1?

Plaintiff is a resident of Galesburg in Knox county, Illinois, and commenced the suit in this record in the Superior Court of Cook county to recover a debt claimed to be due him from defendant. Defendant gave a statutory notice in due form to plaintiff to take depositions orally of witnesses resident in Paris, France. It then gave notice to take the deposition of plaintiff at Galesburg, as its counsel claimed, in writing, that it might learn of plaintiff’s evidence in support of his claim, so that the Paris witnesses might testify in contradiction. Plaintiff declined to appear and testify at Galesburg in answer to a subpoena of the commissioner named in the dedimus, whereupon an order was obtained against him in the Superior Court on the petition of defendant commanding him to obey the subpoena and to appear and testify before the commissioner at Galesburg. This he failed to do. A rule was then entered against him to show cause why he should not be dealt with as for a contempt of court in failing to appear and .testify before the commissioner at Galesburg, as previously ordered by the court. Upon a hearing plaintiff was found to be guilty of a contempt of court and committed to the Cook county jail, there to remain until such time as he indicated a willingness to comply with the order and appear before the commissioner as a witness as commanded by the previous order.

While, from the earliest times, evidence in equity causes was taken by deposition and oral testimony not allowed until comparatively later years, the rule of the common law did not permit of evidence by deposition, but confined evidence in law cases to the testimony of witnesses orally examined in open court at the time of the trial. Not until 1774 in England could evidence be given in law cases by deposition, and the right to examine witnesses by deposition in this State is circumscribed by the provisions of chapter 51, Rev. St. entitled “Evidence and Depositions.”, In Ex parte Fisk, 113 U. S. 713, the court held on this question that “It is not according to common usage to call a party in advance of the trial at law, and subject him to all the skill of opposing counsel to ex-¡ tract something which he may then use or not, as it: suits his purpose.” |

This reasoning is particularly applicable to the con-; dition presented by the record before us, for it stands admitted by defendant’s counsel that it is not merely the evidence of plaintiff that it desires, but to find out from him the facts on which he predicates a right of, recovery for the purpose of having the witnesses in Paris, France, who cannot be made amenable to the disciplinary powers of the court because of their absence from its jurisdiction, give evidence in contradiction of plaintiff’s testimony. This carries with it an assumption on the part of defendant that its Parisian witnesses will in their testimony deny whatever facts may be testified to by plaintiff, regardless of what the truth may be. This theory is subversive of the due administration of justice and would seem, if judicially sanctioned, to open a path for perjury.

Furthermore, this is an attempt to do indirectly what the law does not permit to be done directly, viz., the interrogating before trial of a party regarding the facts supporting his action. There are states in which statutes permit of such interrogation, but Illinois is not yet one of them.

The sections in chapter 51, supra, involved in this controversy are section 26 (J. & A. 5543), which provides for the manner of issuing a dedimus potestatem, etc., section 6 (J. & A. 5523), regarding the power to examine an adverse party upon a trial,- etc., and section 36 (J. & A. j[ 5553), regarding proceeding against and punishment of a witness refusing to obey a subpoena to testify.

So far as a party to a suit is concerned, he cannot under our statutes be compelled to testify at the instance of an adverse party by deposition in a suit at law. „

Section 36 as applied to cases at law simply permits depositions of witnesses to be taken and used in evidence upon the trial, in that regard changing the common-law rule.

' The cases cited in defendant’s brief where parties were dealt with as for a contempt for not obeying the subpoena issued by a commissioner under dedimus are all chancery cases, and we find no case in the courts of review in this State expressly adjudicating that a party to a suit may be compelled by his adversary to submit, at a time preceding the trial of the cause, to an examination by deposition touching his claim.

The provision in section 36, supra, providing for the punishment of witnesses refusing to appear before a commissioner under a dedimus in answer to a subpoena was held unconstitutional, and the Circuit Court was held to be without power to punish a witness refusing to obey such subpoena. Puterbaugh v. Smith, 131 Ill. 199; McIntyre v. People, 227 Ill. 26; Marshall v. Irwin, 280 Ill. 90. We think Puterbaugh v. Smith quite in point on the facts in the case before us.

The seriatim course of events is as follows: Service of a subpoena upon plaintiff by the master to appear under the dedimus for examination; failure to obey the subpoena; filing of a petition for an order on plaintiff directing him to obey the subpoena and appear before the commissioner and testify; entry of such order; failure of plaintiff to obey the order of court; and lastly, adjudging plaintiff guilty of contempt of court for failure to appear in obedience to the subpoena issued by the master. We think in these circumstances Puterbaugh v. Smith, supra, states the principle of law controlling this case thus:

“Where a person refuses to appear before a notary public and give his deposition, in obedience to a subpoena issued by him, it may be truly said that he acts in contempt of the authority of the notary; but how can it be said that he thereby acts in contempt of the Circuit Court, or of the judge of that court? He owed, by reason of the service of the subpoena, no duty to the Circuit Court or to the judge thereof. As to the Circuit Court and its judge, his failure to obey the subpoena simply placed him in the same situation as all other wilful violators of the law.” McIntyre v. People, supra.

As in the cases supra, this was an attempt to punish as for a contempt plaintiff’s disobedience of the commissioner’s subpoena and not of any valid order of the court. The taking of evidence by deposition is purely statutory and the varied steps pointed out by the statute must be followed in order to make the evidence so taken admissible upon a trial. No orders of court are contemplated to be made in the issuing of a dedimus under section 36. Furthermore, the power to compel a party to testify under a dedimus must be mutual, and it is patent that the statute does not apply to a corporation. If the Superior Court had the power to compel plaintiff to testify under the dedimus, it must do so in the exercise of its judicial discretion; and, the facts considered, it is clear that the order of com mi tal for contempt was an abuse of such discretion. Good faith was an indispensable element in the object which defendant sought to attain, and that good faith is admittedly lacking. In the similar ease of In re Davis, 38 Kan. 408, the lack of good faith was held to be sufficient to accomplish the discharge of the petitioner, who h'd been committed as for contempt of court for failure to submit himself for examination under a dedimus, and the court said:

< < There is an express admission by the railway company that it was not acting in good faith in the matter, and did not intend to offer in evidence the deposition proposed to be taken, but that it was acting oppressively, and for the purpose of fishing out the plaintiff’s evidence. This being conceded, the attempt to compel him to testify, and his imprisonment for refusing, is a clear abuse of judicial authority and process.”

From the admissions of defendant, through its counsel, its purpose in seeking an examination of plaintiff under a dedimus is shown to be as unwarranted as the purposes were adjudged to be in the Davis case, supra.

Schmidt v. Cooper, 274 Ill. 243, cited by defendant, is a chancery case and not in point.

The order of commitment of the Superior Court appealed from was unwarranted and it is therefore reversed.

Reversed.


text:
    Elmer E. Wilt for use of C. J. Guderyahn, Appellee, v. The Hartman Trunk Company, Appellant.
    Gen. No. 25,043.
    1. Garnishment, § 35*—when payment of wages in advance defeats .garnishment. The payment of wages in advance to an employee is valid, and it is apparently immaterial whether such an arrangement was made for the purpose of escaping the effect of garnishee proceedings or not.
    2. Garnishment, § 14*—when plaintiff without standing in court. In garnishment against an employer defendant, the plaintiff could have no standing in court except in a case where the employee could himself maintain an action.
    3. Garnishment—what is fatal variance between affidavit and proof. An affidavit for garnishee process which averred a judgment against the principal defendant, while the record showed a judgment against such defendant and another, was fatally variant as to allegation and proof.
    4. Appeal and error, § 543

      —when motion in arrest sufficient to preserve objection on ground of variance. A motion in arrest of judgment in garnishment proceedings was sufficient to preserve for review the point that there was a fatal variance between the allegations and proof, where the affidavit for garnishee process averred a judgment against the principal defendant, while the record showed a judgment against such defendant and another.
    Appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded with directions.
    Opinion filed October 27, 1919.
    Newman, Poppenhusen, Stern & Johnston, for appellant ; Henry J. Brandt, of counsel.
    Paden & Kropf, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of tlie court.

C. J. G-uderyahn obtained a judgment in the Municipal Court against Elmer E. Wilt and Perry Ulrich. An execution was issued on this judgment and returned nulla bona.

One of the defendants in this judgment, Elmer E. Wilt, was an employee of the defendant, The Hartman Trunk Company. This garnishee proceeding was commenced against Wilt’s employer, the affidavit for the garnishee summons setting forth that the judgment was rendered against E. W. Wilt. There was a conditional judgment against defendant by default and a scire facias issued to make it final, to which defendant answered, inter alia, that Wilt was then in the employ of defendant and since the 29th of January, 1918, had been so employed as a salesman in its Chicago store; that since the date of his employment defendant had paid Wilt $50 a week for his services; that such employment was at the will of his employer; that on September 6, 1918, Wilt applied to defendant for payment of his wages in advance, to which request defendant acceded, and ever since has paid said Wilt Ms $50 a week in advance; that neither at the time of the serving of the garnishee writ nor of the scire facias nor the filing of the answer was defendant indebted in any sum to the said Wilt. G-uderyahn traversed the answer by averring that defendant had not made true discovery of the property, etc., of said Wilt in its hands. Without further proof than the judgment against Wilt and Ulrich and the proceedings had thereunder, the trial judge entered judgment against defendant as garnishee for $350, and defendant appeals.

It is clear from this record that defendant was at no time indebted to Wilt, its employee. As his wages were paid in advance, there was never anything due Mm at the several times when he was paid $50. This manner of dealing between employer and employee is sanctioned by the law of this State. The method of paying an employee' in advance has been held to be valid in Chicago & E. I. R. Co. v. Blagden, 33 Ill. App. 254, and there it was in effect decided that it was immaterial whether such an arrangement was made for the purpose of escaping the effect of garnishee proceedings or not. Davis v. Siegel, Cooper & Co., 80 Ill. App. 278.

Wilt’s creditor was, for the purpose of the garnishee proceeding, simply subrogated to whatever rights Wilt might have had against his employer, the defendant. Ghideryahn could have no standing in court except in a case where Wilt could himself maintain an action.

As the defendant was not indebted to Wilt at any stage of these garnishee proceedings, it is bevohd dispute that he could not have maintained an action against his employer, as there was not only nothing due him, but he was at the several times when payment was made to him indebted to defendant in the amount paid until the expiration of the ensuing week of service. Furthermore, the allegata and probata were out of harmony. The affidavit for garnishee process averred a judgment against Wilt, while the record showed a judgment against Wilt and one Ulrich. This was a fatal variance and the motion in arrest of judgment was sufficient to preserve the point for review. The record shows that the trial was in a measure informal and the judgment of the court resulted from the court disregarding the defense set up in the answer, which answer presented a complete defense in the absence of countervailing proof, As held in Cairo & St. L. R. Co. v. Killenberg, 82 Ill. 295, the answer of a garnishee must be considered as true until it is contradicted or disproved. If judgment is demanded upon the answer, it must clearly appear therefrom that the garnishee is chargeable, or he will be discharged.

The judgment of the Municipal Court is reversed and the cause is remanded to that court with directions to enter a judgment discharging def 'uit as garnishee.

Reversed and remanded with directions.