author: Mr. Presiding Justice Philbrick

text:
    Frank Rowden, Administrator, Appellant, v. Mary L. Meisinger et al., Appellees.
    1. Administration op estates—what essential to jurisdiction of chancery. While circuit courts have concurrent jurisdiction with county courts in the matter of the settlement of estates, it is only upon extraordinary reason and when special occasions arise that a court of chancery will undertake the settlement of an estate.
    2. Administration op estates—jurisdiction of county court. In the matter of the settlement of estates the county court is clothed with original jurisdiction upon all probate matters and in the exercise of its power in the settlement of an estate it is not confined to the rules governing actions at law, but has equitable powers and full and complete equitable jurisdiction to settle all matters arising in the progress of the settlement of an estate.
    3. Administration op estates—section 99 of act construed. While section 99 provides that an administrator may file his petition in either the circuit court or the county court for the purpose of obtaining a decree for the sale of land to pay debts, there is no authority in this state by which the administrator can be compelled to go into the circuit court for this purpose by the filing of a petition for partition by either an heir or devisee of the decedent.
    4. Administration op estates—what does not bar or abate proceeding to sell real estate to pay debts. The filing of a bill for partition is not a bar and cannot be pleaded in abatement of a petition in the county court by an administrator for the purpose of selling the land for the payment of debts.
    5. Partition—what .without jurisdiction in proceeding for. The filing of a bill in chancery by an heir for partition does not give the eircuit court power or jurisdiction to order and decree a sale of the lands of the decedent for the purpose of paying debts.
    Petition to sell real estate to pay debts. Appeal from the County Court of Jersey county; the Hon. H. W. Pogue, Judge, presiding. Heard in this court at the May term, 1911.
    Bevei-sed and remanded.
    Opinion filed October 20, 1911.
    Ferns & Sumner, for appellant.
    Charles S. White, for appellee, Mary L. Meinsinger.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Isaac Jaynes died in Jersey county, Illinois, November 8, 1910. The county court appointed appellant administrator on November 14,1910. An inventory and appraisement bill were filed and on January 14, 1911, appellant rendered a just and true account to the county court showing the personal estate and the debts of the decedent. This account set forth that the personal property of the decedent amounted to $764.50, that the claims allowed and the liabilities existing against said estate amounted to the sum of $1626.98, leaving a deficiency of $862.48. At the time of bis death, deceased owned eighty acres of land in Jersey county, subject to a mortgage of $700. This real estate was occupied as a homestead by the decedent and bis wife, Margaret Jaynes, during bis lifetime, and bis surviving widow has continued to occupy the homestead. Decedent left surviving him no children or descendants of child or children. He left bis widow, bis brothers and sister and nephews and nieces as bis only heirs at law. Appellee herein is bis sister. On December 15, 1910, thirty-seven days after the death of her brother, she filed a bill for partition in the circuit court of Jersey county, asking for a partition of the premises. Appellant, as administrator, was made a party defendant to that proceeding. The prayer of the bill for partition was that the estate he divided and that the administrator he paid whatever snm might be found necessary to pay the liabilities existing against the estate. On January 14, 1911, appellant filed his petition as administrator in the county court of Jersey county setting forth by proper averments all matters necessary to obtain a decree directing the sale of the real estate of the deceased for the payment of debts. Summons was issued out of the county court and served on all of the defendants in Jersey county on January 22. Summons was issued to Madison county for part of the defendants residing there and returned properly served; also to Calhoun county for one Thomas Jaynes, and returned on January 16,1911. All of the parties interested in the real estate were made parties in both cases. None of the defendants to the petition in the county court answered except appellee, who, on February 6, filed a plea in abatement. This plea set forth that on December 15, 1910, she filed her bill for partition in the circuit court, - to which appellant as administrator was made a party, praying for partition of the real estate described in the petition, that summons was issued out of the circuit court and served upon the administrator. The plea does not aver when service was had of the summons issued out of the circuit court, but avers the filing of the bill in the circuit court prior to the filing of the petition in the county court, that the cause in the circuit court is still pending and undetermined, that the circuit court has complete and ample power to determine and settle all rights of the parties involved in this controversy, and that if there is a deficiency in the personal property, prays that the circuit court shall order and direct the administrator to be paid whatever sum may be found to be necessary for the proper settlement of the estate.

While circuit courts have concurrent jurisdiction with county courts in the matter of the settlement of estates, it is only upon extraordinary reason and when, special occasions arise that a court of chancery will undertake the settlement of an estate. Shepard v. Speer, 140 Ill. 238; Strauss v. Phillips, 189 Ill. 9; Goodman v. Kopperl, 169 Ill. 136.

In the matter of the settlement of estates the county court is clothed with original jurisdiction upon all probate matters and in the exercise of its power in the settlement of an estate it is not confined to the rules governing actions at law, but has equitable powers and full and complete equitable jurisdiction to settle all matters arising in the progress of the settlement of an estate. Shepard v. Speer, 140 Ill. 238.

While section 99, chapter 3 of the Revised Statutes, 1909, provides that an administrator may file his petition in either the circuit court or the county court for the purpose of obtaining a decree for the sale of land to pay debts, we have been cited to no provision of the law or any authority in this state by which the administrator can he compelled to go into the circuit court for this purpose by the filing of a petition for partition by either an heir or devisee of the decedent.

The administrator having been appointed by the county court of Jersey county and having elected to file his petition for the sale of real estate to pay debts in that forum, the county court thereby was authorized and empowered and it was its duty to order and direct the sale upon the petition of the administrator unless it was deprived of its power by reason of the filing of the hill for partition in the circuit court by appellant as an heir of the deceased. The real estate at the time of the death of the deceased descends to the heirs who. receive it subject to the condition that it may he necessary to sell it to pay debts of the deceased. Whatever interest the heir receives in the estate is subject to that contingency. Vansyckle v. Richardson, 13 Ill. 171; Wachter v. Doerr, 210 Ill. 242.

While the practice has been indulged in in this state of permitting the filing of a bill for partition prior to the final settlement of the estate of the decedent and our Supreme Court has sustained the practice of permitting a bill to be filed prior to the final settlement of an estate where the administrator has been made a party and a decree of sale entered which provides that certain amounts sufficient finally to settle the estate shall be paid to the administrator out of the proceeds of the sale of the real estate, this practice has been criticized by that court and the better practice held to be that the proceeding should abate until it is finally determined whether it will be necessary to resort to a sale of the real estate for the payment of debts; but has not held a partition suit cannot be maintained prior to that time. Sutton v. Read, 176 Ill. 69. We know of no authority, and have been cited to none by counsel for appellee, holding that the filing of a bill for partition was a bar or could be pleaded in abatement of the petition in the county court by an administrator for the purpose of selling the land for the payment of debts.

While it must be conceded that when a court has jurisdiction and obtains it, that court will retain jurisdiction for the purpose of giving full and adequate relief to all parties interested in the questions properly involved in that proceeding, yet before a bill for partition in the circuit court can be held to be a bar to a petition of an administrator in the county court to sell land to pay debts, it must appear that the circuit court has complete and adequate power to settle and determine all questions involved, and if it cannot grant full and adequate relief then the proceeding cannot be pleaded in abatement in bar of such petition. The bill for partition prayed for a partition and division of the real estate, with the usual prayer that if the land could not be divided without manifest prejudice then that the court should order and direct a sale and divide the proceeds. Authorities are abundant in this state that an heir takes real estate from the decedent subject to the rights of creditors of the estate where it may be necessary to resort to the sale of the real estate to pay debts, and while a court of chancery may entertain a bill for partition filed by the heirs before final settlement of the estate, before that court can decree a sale of the real estate sought to be divided, it is necessary that the commissioners appointed by the court of chancery shall make a report that the premises are not susceptible of division, and make appraisement of the premises, and when the commissioners find the premises susceptible of division and make a division thereof, then the portion set off to each heir is still subject to the sale by the administrator for the purpose of paying debts where it may be necessary.

The circuit court is without jurisdiction to order and direct a sale of the premises unless the commissioners appointed in that proceeding report that the premises are not susceptible of division without manifest prejudice to the parties interested. The filing of the bill in chancery by an heir for partition does not give the circuit court power or jurisdiction to order and decree a sale of the lands of the decedent for the purpose of paying debts and unless it has such power and can so decree, then the proceeding in partition is inadequate for the purpose of providing funds with which the administrator may pay debts of the decedent. Labadie v. Hewitt, 85 Ill. 341.

It must also be conceded that a party defendant in a chancery proceeding can obtain no affirmative relief in that proceeding without filing a cross bill, and in a partition suit where the land is reported susceptible of division and the premises are divided by the commissioners appointed for that purpose, the administrator, although a party to that proceeding, could obtain no relief from that source to secure money for the payment of debts unless he had filed a cross bill.

It cannot be presumed upon the bill filed for parti-, tion that the commissioners will report that the premises are not susceptible of division. It is therefore apparent that the circuit court can, only on conditions which cannot be foreseen, grant full and adequate relief to all parties, and therefore that proceeding cannot be pleaded whether in abatement or in bar of the petition by the administrator in the county court for sale of the same land to pay debts, and the county court should have sustained the demurrer to the plea and required defendants to answer the petition filed by the administrator.

For error of that court in overruling the demurrer and dismissing the petition, the judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mb. Pbesiding Justice Philbbick

license: Public Domain

text:
    The People of the State of Illinois, ex rel J. R. Harris Appellee, v. Patrick J. Howard et al., Appellants.
    Quo warranto—when judgment of ouster erroneous. If the respondents have failed to perform their duties as public officers a judgment of ouster cannot for that reason be entered against them if their failure was the result of litigation in the course of which they were enjoined from the performance of such duties.
    Quo warranto. Appeal from the Circuit Court of Sangamon county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed.
    Opinion filed October 20, 1911.
    Rehearing denied December 8, 1911.

      Certiorari denied by Supreme Court (making opinion final).

      C. F. Mobtimeb and Hogan & Wallace, for appellants.
    E. S. Smith and Stevens & Hebndon, for appellee.
   Mb. Pbesiding Justice Philbbick

delivered the opinion of the court.

This is an information in the nature of a quo warranto filed in the Sangamon Circuit Court against defendants, upon the alleged ground that defendants were duly elected members of the Board of Education of a certain high school district lying partly in Sangamon county and partly in Christian county, but that defendants have abandoned and wilfully failed to perform the duties of their said offices and that by reason thereof have forfeited their rights to the offices and to the franchise held by them, and are now usurping the same, etc. Defendants answered by pleading their election to the said offices in due and proper form and by a further plea setting forth that after their election and the due determination of their respective terms of office as required by the statutes,, an injunction had issued out of the Circuit Court of Christian county restraining them from performing the duties of their offices, that since the dissolution of said injunction they have resumed their duties as members of the Board of Education, etc. Eelator filed replications denying that defendants had exercised and performed the duties of their offices except during the time enjoined, etc.; that defendants failed to take any action towards the dissolution of said injunction and that they have wilfully failed and neglected to establish a high school in said district or do any act necessary therefor.

The court below held defendants were guilty and entered a judgment of ouster; this appeal is prosecuted to reverse that judgment, on the ground that it is not supported by the evidence in the record.

The record discloses that this high school district was established in the spring of 1909, with one-half of the district located in Christian county and one-half in Sangamon county, that after the establishment of this district the Board of Trustees met for the purpose of calling an election to elect a school board for the high school district. The Board of Trustees at this meeting did not specify any place where said election should be held; the direction to the township treasurer to call this election designated no place where the election should be held. The matter of its location was not determined at any meeting of the board but by two of the members of the Board, who selected the town hall in Pawnee as the place for holding the election, and under their direction the township treasurer designated in the notice of election the town hall at Pawnee as the place for holding the same. Prior to the time of holding this election the Board of Trustees again met and by proper proceeding called an election for the purpose of electing a Board of Education and designated Hopewell School House in said district as the place where such election should he held. Elections were held in accordance with each of said notices. The Board elected at the town hall in Pawnee assumed the duties of such Board and proceeded with the duties required of such Board; they called an election to select a site, to issue bonds, to construct a school house, and directed the levying of a tax for the district. No bonds were ever issued and no site selected, but a tax levy was made by this Pawnee Board.

Proceedings were instituted by a taxpayer of the district and an injunction issued by the Christian Circuit Court restraining both the Board elected at the Pawnee town hall and the Board elected at the Hopewell School House, from proceeding with the duties of such board and from making any collection of this tax. Quo warranto proceedings were also begun against the Board claimed to have been elected at the town hall in Pawnee, information was filed, and upon a hearing a judgment of ouster was rendered against that Board upon the ground that the Board of Trustees had selected no place for holding the election at which they pretended to have been elected. During the time the Pawnee Board was acting as the Board of Education the Board elected at the Hopewell School House did not undertake to perform or assume the duties of that office. After the judgment of ouster against the Pawnee Board, the injunction issued restraining the collection of the tax was, through the action of defendants, dissolved, and from the decree dissolving that injunction an appeal was prosecuted to the Supreme Court, but the injunction continued in force only as to the collection of the tax. Upon a hearing in the Supreme Court, the decree of the Chancellor was affirmed upon the ground that the Pawnee' Board was, at the time they had directed the levying of this fax, a de facto Board.

"While fhe proceedings were pending in the Supreme Court on appeal from the decree dissolving the injunction, quo warranto proceedings were also instituted against defendants, the Board elected at the Hopewell School House, and information filed requiring them to show by what authority they were holding this office; they replied setting forth their election in due and proper form. Replications were filed to these pleas, alleging that this Board had failed, neglected and refused to perform the duties of the office of the Board of Education, that by reason thereof they .had abandoned their office. Upon a hearing on this information the court found defendants guilty and rendered a judgment of ouster.

The record in this case discloses that the reason ' and cause for the failure of these defendants to perform the duties of the office of the Board of Education was the litigation pending and the injunction restraining them from performing their duties as such Board, the first litigation commenced being the information filed against the Pawnee Board, that Board having usurped the office and its members having certificates of election and performing all of the duties of the office prevented this Board from proceeding therewith. The record further discloses that upon complaint to him, the county superintendent of schools of Sangamon county, by virtue of his office, pretended to hold proceedings for the purpose of investigating the charge that these defendants had failed, neglected and refused to perform their duties, but that without a hearing or without any evidence being taken by him and without any opportunity given to these defendants to refute the charges made against them, pretended to remove them from office, and made a record of such removal in his office. The record further discloses that this Board, after the dissolution of the injunction granted by the Christian Circuit Court, and before these proceedings were begun, proceeded to call and hold an election to elect successors to certain members of their Board, whose terms of office had expired, that the injunction granted by the Christian Circuit Court, in addition to restraining the collection of the tax, restrained them from attempting to perform any of the duties or obligations imposed upon them by virtue of their office, but that upon appeal to the Supreme Court the injunction was continued in force only as to the collection of the tax and that while the injunction proceedings were pending in the Supreme Court this quo warranto proceeding was instituted against them and a judgment of ouster rendered. It is not to be wondered at, under the conditions shown by this record, that the defendants have not performed all of the duties required of them as such officers. This record discloses their failure to have performed these duties was not by reason of tbeir neglect or refusal, but was occasioned by reason of tbe litigation, instituted and continued concerning matters relating to tbis district, over wbicb they bad no control and cannot be held responsible for.

The judgment rendered by tbe trial court is so clearly unwarranted by tbe evidence that it must be reversed. Tbe cause having been submitted to tbe trial court without a jury, tbis court is empowered to render tbe judgment that should have been rendered by that court, without remanding tbe cause, and tbe finding and judgment of tbis court is that the defendants are not guilty, that tbe writ be quashed, and tbe information dismissed at tbe costs of tbe relator.

Judgment reversed.

Reversed.


text:
    The People of the State of Illinois, ex rel Patrick Howard, Appellant, v. J. R. Harris et al., Appellees.
    1. Schools—when removal of school directors by county superintendent illegal. A county superintendent of schools has jurisdiction only with respect to his own county. If a school district comprises more than one county the superintendent of one of such counties cannot remove school directors elected by the people of several counties to serve as school directors for the entire district.
    2. Appeals and ekboks—when final judgment may be entered. A jury having been waived and the cause submitted to the court for final determination without the intervention of a jury the Appellate Court has authority to render the judgment which should have been rendered by the trial court without remanding the cause.

      Quo warranto. Appeal from the Circuit Court of Sangamon county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed.
    Opinion filed October 20, 1911.
    Rehearing denied and opinion modified December 8, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    C. F. Mortimer and Hogan & Wallace, for appellants.
    E. S. Smith and Stevens & Herndon, for appellees.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This cause is a companion piece to the People ex rel J. R. Harris v. Patrick J. Howard, opinion filed this day. Ante, p. 131. ,

This is an information filed by the people on the relation of Patrick Howard against J. E. Harris and others, in the nature of a quo warranto, alleging the unlawful usurpation, use and exercise of the offices of the Board of Education of a high school district located partly in the county of Sangamon and partly in the county of Christian. Appellees answered the petition setting forth as their right to hold, use and perform the duties of the office of th^e Board of Education of that district that on June 5, 1909, an election was held in said district and five members of the said board elected, that on the 14th of June that board met and organized, that on that date it was determined by law the length of the term of office of the various persons elected to said offices, and that thereafter no election had been called or held for the election of their successors. The plea thereafter sets forth that that Board of Education had not performed or exercised the duties of that office, that on May 20,1910, the county superintendent of schools of Sangamon county removed the entire Board of Education from office, that on May 28, the county superintendent of Sangamon county notified the township treasurer of the removal of the school board, that vacancies existed and directed him to call an election to fill the vacancies. That regular.notices of said election were issued, that the election was held on the 11th day of June, that the defendants herein were duly and properly elected members of the Board of Education, and that is the right by which they hold office.

Replications were filed to these pleas denying that any vacancies existed, denying the authority of the county superintendent to remove the Board of Education and create vacancies. Upon the issues joined, the trial court found the defendants guilty, and rendered a judgment of ouster, from which judgment an appeal was prayed to the Supreme Court of the State of Illinois and the orders granting said appeal duly entered. All orders granting said appeal and the prayer for appeal were afterwards set aside by the trial court, thereupon the trial court set aside its judgment and entered a finding that the entire Board of Education previously elected and holding the offices of members of such board were removed by the county superintendent of schools of Sangamon county, that defendants are the duly and legally elected members of the Board of Education to fill the vacancies thus created, and were rightfully holding and exercising the duties of that office, quashed the writ, dismissed the information and rendered judgment for costs against relator. Relator prosecutes this appeal.

The errors assigned are that the judgment is contrary to the law and the evidence, that the trial court improperly held as law propositions submitted by defendants and improperly refused to hold propositions submitted by relator.

It is conceded that if the county superintendent of Sangamon county did not have the power to remove the Board of Education, or that his act was unlawful, then no vacancy existed which it was necessary to fill and under such conditions that these defendants are unlawfully and illegally claiming to fill the offices of the Board of Education. It being conceded that there did exist, under and by virtue of the election of June 5, 1909, a regularly constituted Board of Education of this district, and it appearing from the record that the term of office of two members of that Board expired on April 2, that in order to fill the terms of the members of this Board whose terms expired on that day, an election was held after the alleged removal of the entire Board from office by the county superintendent, but before the filing of the information herein. That at said election the two members whose terms of offica expired were elected. It is further conceded and stipulated in this record that the county superintendent acted without any charges being filed against the members of the Board so removed by him and without any hearing had before him in regard to the neglect, failure or refusal of the Board elected on June 5, 1909, and that he arbitrarily removed them for this cause.

It is insisted, however, that the county superintendent had, prior to the time when he had the pretended hearing, made an investigation and knew the facts and acted on the knowledge he possessed.

The only claim presented of any authority existing in the county superintendent of schools of Sangamon county to remove the Board of Education is based upon article 2, paragraph 7, section 16, chapter 122, in force July 1, 1909, which is as follows:

“Each county superintendent shall have power to remove any school director from office for wilful failure to perform his official duties.”

The office of county superintendent of schools is a county office; his duties and his powers relate to the conduct of schools located in the county for which he is elected, and we have been cited to no provision of the statute, and we know of none, that permits him to exercise any duties or any powers over any school officer not within the jurisdiction of his county. Wherever by statute provision is made for the performance of a duty of the county superintendent of schools which relates to matters in which more than one county is interested, it requires the joint action of the superintendent of the various counties which are interested in the action proposed to be taken, R. S.. ch. 122, sec. 57. Without special authority to act over . territory outside of his county, a county superintendent cannot be held to have jurisdiction over matters in another county. Part of the members of this Board of Education did not reside in the county of Sangamon hut were residents of the county of Christian, where one-half of this school district was located. This Board of Education was not elected alone by the voters of that portion of this high school district located in Sangamon county, hut was elected by the voters of the entire district. It cannot be said that.they are any more subject to the control of the superintendent of schools of Sangamon county than they are of the superintendent of schools of Christian county, and we cannot agree with the contention that they are subject to removal by the superintendent of schools of Sangamon county.

In our judgment the removal by the county superintendent of Sangamon county of the Board of Education elected June 5, 1909, was unlawful, unauthorized and illegal.

No vacancies existed by reason of which attempted removal to which defendants or either or any of them could have been elected, and the election held at which these defendants claim to have been elected as members of this Board of Education was unauthorized, illegal and void. Defendants are guilty of unlawfully usurping, seizing and attempting to hold the Office of the Board of Education of this district.

The holdings of the trial court on the propositions of law submitted are in accordance with the judgment rendered by it, and are erroneous. The jury having been waived and the cause submitted to the court for final determination without the intervention of a jury, this court is authorized to render the judgment which should have been rendered by the trial court, without remanding the cause.

The finding and judgment of this court is that the defendants are unlawfully exercising, usurping and pretending to hold the offices of the Board of Education of this school district, and a judgment of ouster is herein rendered against them, also a judgment against them for costs.

Judgment reversed and judgment in this court without remanding.

Reversed.


text:
    First National Bank of Lincoln, Appellee, v. Lulu Sandmeyer et al., Executors, Appellants.

      Evidence-—when stockholder not incompetent by virtue of interest. The test as to whether such a witness is in fact incompetent, the adverse party suing in a representative capacity, is, was he a stockholder at the time of testifying; if he was not then he is competent. It is immaterial whether he was a stockholder at the time of the transaction involved unless it can be shown that he parted with his stock for the purpose of qualifying as a witness.
    Appeal from the Circuit Court of Logan county; the Hon. T. M. Harris, Judge, presiding. Heard in this-eourt at the November term, 1910.
    Affirmed.
    Opinion filed October 20, 1911.

      King & Miller and Beach & Trapp, for appellants.
    C. Everett Smith and Blinn & Covey, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Prank Prorer during his lifetime was president of the Pirst National Bank of Lincoln. He died June 8, 1908. During his lifetime, he, together with Prank Hohlit, was interested in a corporation known as the Lincoln Excelsior Company; these two parties controlled the finances of that company and furnished the means with which to operate it. On August 12, 1902, the Lincoln Excelsior Company borrowed from J. H. Miller $5,000, and, as evidence of the indebtedness, made and executed to him its note, dated August 12, 1902, due one year after date, with five per cent interest ; this note was signed by Frank Prorer and Frank Hoblit. On August 12, 1903, this note was endorsed without recourse by J. H. Miller. The Pirst National Bank of Lincoln became the owner of this note, and claimed to be the owner at the time of the death of Prank Prorer. After his death, this note was made the basis of a claim filed against the estate and on trial in the Circuit Court, on appeal from the County Court, a judgment was rendered against the estate for the amount of the note, to reverse which the executors of the estate prosecute this appeal.

The grounds urged as a cause of reversal are that the court permitted one Prank Hoblit to testify as a witness in the cause, appellants insisting that he was an incompetent witness; also that the court improperly admitted evidence that after the payment of the note it was again put in circulation, and also that the judgment was contrary to the law and the evidence.

The record discloses that Prank Prorer, the president, and Prank Hoblit, the cashier, of the First National Bank of Lincoln, frequently borrowed money of the bank for the benefit of enterprises in which they were interested; but the only question involved in this controversy is whether at the time of the death of Frank Frorer he was indebted to the First National Bank of Lincoln. "While the claim is pretended to be made specifically on the note of August 12, 1902, if upon-the hearing upon the claim filed, the evidence disclosed that the deceased was indebted to the First National Bank of Lincoln for any amount, then the matter of the form of the claim was immaterial, and if Frorer was so indebted, it is immaterial whether this note represents that indebtedness or not, and the trial court had full and ample power to determine this question, and if the indebtedness existed, then it was the duty of the court to render judgment for whatever that amount was found to be. It is conceded by all parties that this note of date August 12, 1902, was the property of the bank and owned by it on August 31, 1907, that on that date the bank owned other claims for which Frorer and Hoblit were liable, that the notes which the bank held as representing these claims were long past due and in order to avoid carrying past due paper, Frorer and Hoblit borrowed from the National Bank of the Bepublie in Chicago $10,000 and gave their note for that amount, which was paid December 17, 1907. With the funds thus borrowed from the National Bank of the Bepublie, the funds of the First National Bank of Lincoln were credited with the amount of the note of August 12, 1902, and another note known as the Gordon Mill & Grain Company note, and these two notes were cheeked off from the books of the First National Bank as paid and no longer carried as assets of that bank. "When the note given by Frorer and Hoblit to the National Bank of the Bepublie became due that bank charged the account of the First National Bank of Lincoln with the amount due on this note and forwarded the note to the First National Bank of Lincoln as paid, Frorer being the president and Hoblit the cashier of the First National Bank of Lincoln and the National Bank of the Republic their correspondent with whom they carried an account in Chicago. The deposit of the First National Bank of Lincoln with the National Bank of the Republic having been reduced by the amount of this note, it became necessary for the First National Bank of Lincoln to replenish its assets to this amount. In order to do this, the note in question, which had always remained in the possession of Hoblit, the cashier, who was co-surety on the note, was again placed upon the records of that bank as an asset. Hoblit has no recollection that Frorer .ever directed this to be done but testifies that Frorer knew it was done; it was done without any direction or advice from the Lincoln Excelsior Company, the principal maker of the note. Prior to the time this note was replaced in the bank as an asset, another note which Hoblit now contends and describes as a memorandum note, of date July 8,1907, was placed in the envelope containing the pretended asset of the bank of August 12, 1902, but Hoblit testifies that this note in fact never had any existence, that the note of August 12, 1902, was the real asset in the bank, yet the records show that this accommodation note was secured for the purpose of having an asset in the bank which was not past due so that the bank examiner would not decline to pass it as an asset. This accommodation note of July 8,1907, was not signed by either Frorer or Hoblit and is the note of the Lincoln Excelsior Company; this note was entered upon the books of the bank as an asset and was given the number 8650, and the number of the note of August 12, 1902, was 8299. Appellants insist that when the $10,000 was borrowed from the National Bank of the Republic upon the note signed by Frorer and Hoblit and the funds placed to the credit of the First National Bank of Lincoln and the note in question, together with the Gordon Grain & Mill Company note, checked off from the hooks of the hank as an asset and the note taken and held by Hoblit as one of the sureties of the note, that this was payment and satisfaction of that note and having once been paid it could not again become a valid obligation against the makers by the act of Hoblit as disclosed by this record, and having once been paid it is no longer an obligation which this estate is liable to pay. But the record shows that the $10,000 borrowed by Frorer and Hoblit from the National Bank of the Bepublic was for the use and benefit of Frorer and Hoblit and was placed in the funds of the First National Bank of Lincoln for the purpose of relieving that bank, of which those two men were the principal officers and responsible for its conduct, of carrying paper contrary to the national banking laws, and that when the National Bank of the Bepublic took from the deposits of the First National Bank of Lincoln in its hands the amount of this note, treating it as the note of the First National Bank of Lincoln and returning as paid the note signed by Frorer and Hoblit, that the First National Bank of Lincoln by this transaction paid that amount of money for the use of Frorer and Hoblit and for which they became liable to the First National Bank of Lincoln. This then created an obligation which Frorer and Hoblit were bound to pay, and conceding that the transaction was a payment of that note of August 12, 1902, if Hoblit was a competent witness, then Frorer is indebted to the First National Bank of Lincoln to the amount due upon this note. There is no pretense that the First National Bank of Lincoln was in any manner ever repaid or has ever received any amount to reimburse it for the amount charged against its account by the National Bank of the Bepublic, on account of the note executed by Frorer and Hoblit. Thomson v. Black, 200 Ill. 465; Wolf v. Beaird, 123 Ill. 585.

Upon the question of the competency of the witness Frank Hoblit, the' ground of incompetency urged upon this record is that he was a stockholder in the First National Bank of Lincoln at the time when this transaction took place and at the time of the death of Frank Frorer and that although he has assigned all his stock in the bank and is now residing in the state of Missouri and has no connection or interest whatever in the assets of the First National Bank of Lincoln, the assignment does not render him a competent witness. The trial court refused to exclude the evidence on the ground of incompetency and it is solely upon his evidence that this judgment must be sustained if at'all. The test of his competency is not whether Hoblit was a stockholder in the bank at the time of these transactions but whether he was such stockholder at the time of the hearing. At that time he held no stock and was not interested in the bank and there is no attempt to show that he assigned his stock in the bank for the purpose of being able to qualify as a competent witness. On objection to the competency of a witness it is incumbent on the objector to show the incompetency of the witness. With the testimony of Hoblit, the record justifies the finding of the trial court that the estate of Frank Frorer, deceased, is indebted to the First National Bank of Lincoln to the amount of the judgment rendered against it, and the judgment is affirmed.

Affirmed.

Mr. Justice Puterbaugh took no part in the consideration of this case.


text:
    Mary Simpson, Appellant, v. City of Gibson et al., Appellees.
    1. Municipal corporations—when liable for acts of officers. While a municipal corporation is not liable for the wrongful acts of its officers, even when committed by an officer in the performance of his duty, this-rule does not go to the extent that where the city undertakes to perform an act which it is authorized by law to do and for the performance of which it is necessary to destroy or damage property, that the city is not liable therefor.
    2. Municipal corporations—when liable for removal of trees. If trees are so located that the branches overhang a portion of the street and damage the street or are an inconvenience to the public in the use of the street, or if the body of the tree extend into the street so as to obstruct its use by the public, the city has the right to remove such •branches of the tree as extend into the public street without any compensation to the property owner; but where it becomes necessary to remove the tree situated jointly upon property of the city and that of the property owner for the purpose of removing an obstruction to the public use of the street, the rule does not extend so far as-to permit the city to do so without making just compensation to the property owner.
    Tort. Appeal from the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed.
    Opinion filed October 20, 1911.
    L. A. Cranston and Frank Lindley, for appellant.
    A. L. Phillips, for appellees.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This in an action brought by plaintiff to recover damages on account of alleged wrongful conduct of the defendants in cutting down three trees alleged in one count of the declaration to have been located upon the property of plaintiff, with branches thereon over-hanging the streets of the city of Gibson; another count of the declaration charges that the trees were located upon the property line of the plaintiff and the line of the street, with branches extending over and upon a street in the city of- Gibson, and that the city of Gibson ordered and directed its street superintendent, George Wood, one of the defendants herein, to remove the said trees.- that in compliance with said order its street commissioner cut down, and removed said trees.

The city demurred to the declaration, the demurrer was sustained and a judgment rendered against plaintiff for costs and in bar of action.

The demurrer was sustained upon the ground that the action being in tort the city was not liable under the rule of law that a city is not liable for the wrongful acts of its officers, and there being no liability against the city, the defendant, George Wood, its street superintendent, could not be joined with it in this action.

While a municipal corporation is not liable for the wrongful acts of its officers, even when committed by an officer in the performance of his duty, we do not understand this rule to go to the extent that where the city undertakes to perform an act which it is authorized by law to do and for the performance of which it is necessary to destroy or damage property, that the city is not liable therefor. If the trees were so located that the branches which overhung a portion of the street and damaged the street or were an inconvenience to the public in the use of the street or if the body of the tree extended into the street so as to obstruct its use by the public, the city would have the right to remove such branches of the tree as extended into the public street without any compensation to the property owner; but where it becomes necessary to remove the tree situated jointly upon property of the city and that of the property owner for the purpose of removing an obstruction to tbe public use of tbe street, we do not understand the rule extends so far as to permit the city to do so without making just compensation to the property owner.

A tree located on the boundary line between the street and private property is the joint property of the city and the property owner.

Our constitution wisely provides that no property shall be taken or damaged for the public use, or for the benefit of the public, without just compensation being-made therefor.

Had there been a building- located upon this property in the same position that these trees were located and the city should remove the same or destroy any portion of it for the benefit of the public in the use of the streets of the city, it could not seriously be contended that the city would not be liable for the damage occasioned! thereby.

The mere fact that the trees were or might have been owned jointly by the city and the plaintiff does not authorize the city to destroy the trees to the injury or damage of the plaintiff without making due compensation therefor.

Section 2 of chapter 76, Hurd’s Revised Statutes 1909, is as follows:

“If any person shall assume and exercise exclusive ownership over, or take away, destroy, lessen in value, or otherwise injure or abuse any property held in joint tenancy or tenancy in common, the party aggrieved shall have his action of trespass or trover for the injury, in the same manner as he would have if such joint tenancy or tenancy in common did not exist.”

There is no argument presented why this section does not apply to a city as well as to an individual.

It has been universally held that trees growing upon a boundary line are the joint property of the adjoining owners and for their destruction an action of trespass will lie. In this state, the distinction between actions of trespass and trespass on the case has been abolished. Where a city or municipal corporation owns property it holds it subject to the same rules and rights which govern individuals in regard to such property. City of Pekin v. MacMahon, 154 Ill. 141; Hunt v. City of Boston, 183 Mass. 303, 67 N. E. 244.

It is contended on the part of the defendant, city of Gibson, in support of the ruling of the lower court in sustaining the demurrer to the declaration that a city is not liable for any unlawful act performed by its officers. While a city can only act through its officers and where the act performed is one which the city is authorized by law to perform, and is for the benefit of the public, and in the doing of which it damages or destroys property, and which is not done in the performance of its police power, the rule that it is not liable for the act does not apply. An examination of the authorities cited by counsel for defendant in support of the judgment sustaining the demurrer, shows that they relate wholly to the acts done under the police power of the city performed in an unlawful manner by the officer attempting to perform it. The rule applicable in such cases cannot be applied to the case at bar, and the court erred in sustaining the demurrer of the city to the declaration.

The contention that the demurrer of the plaintiff to the plea of misjoinder by defendant Wood was improperly overruled cannot be sustained for the reason that Wood was an officer acting for and on behalf of the city; his act was its act; and as its servant and while acting under the direction of the city he does not become personally liable and cannot be made a joint defendant with the city in an action against it. A misjoinder may he taken advantage of by plea, and the demurrer to the plea was properly overruled.

Reversed and remanded.


text:
    Minnie H. Dunham, Administratrix, Plaintiff in Error, v. Chicago & Alton Railroad Company, Defendant in Error.
    1. Negligence—when evidence does not tend to establish wilful. Held, that the evidence in this case did not tend to establish an injury wilfully or wantonly inflicted.
    2. Instructions—when peremptory should be given. A peremptory instruction should be given for the defendant in an action for personal injuries where the minds of all reasonable men could only arrive at but one conclusion, namely, that the plaintiff’s intestate was not in the exercise of due care and caution for his own safety at the time of his death.
    Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed October 20, 1911.
    Livingston & Bach and Frank T. Winslow, for plaintiff in error.
    Bracken & Young for defendant in error; Silas H. Strawn, of counsel.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This action is brought by plaintiff in error against defendant in error to recover for the death of her husband. John B. Dunham, the deceased, was killed while attempting to cross the defendant’s railroad tracks at a public street crossing in the city of Bloomington. Upon the close of the plaintiff’s evidence in the court below, the court sustained a motion to exclude the evidence and directed a verdict for the defendant; under the direction of the court, the jury returned a verdict finding the defendant not guilty and a judgment was rendered on that verdict. The canse is brought here upon a writ of error to reverse that judgment, contending that the court erred in sustaining the motion to exclude the evidence and in directing a verdict for the defendant and in rendering a judgment on the verdict so returned.

The record discloses that plaintiff’s intestate was a man of about seventy-five years of age and' hard of hearing and that his deafness was aggravated by a severe cold at that time; that he had been employed in defendant’s shops in the city of Bloomington for twenty years or more; that at the crossing where plaintiff’s intestate was killed numerous tracks were owned and operated by defendant; that in going to and from his work to his boarding house deceased crossed these tracks several times a day; that he was familiar with all of the surroundings at this location; that deceased was killed by a passenger train upon defendant’s right of way at this crossing while attempting to cross the tracks of defendant. The witnesses who testified upon behalf of plaintiff as to the speed of the train fixed its speed at anywhere from ten to twenty-five miles an hour. As this train approached this crossing it sounded its whistle at some considerable distance from the crossing; the evidence of this distance varies from three hundred to five hundred feet. As the train approached, the gates which defendant owned and operated at this crossing were closed and barred access to the tracks, both upon that portion of the street used for vehicles and also for pedestrians, so that in order to reach the tracks when these gates were lowered it was necessary to crawl either under or pass around the end of the gate; that the view of the track in the direction from which the train was approaching was unobstructed for several hundred feet; that the deceased passed the gates which obstructed the approach to this crossing after they had been lowered by the servant of defendant operating them. After he passed these gates he stood npon the sidewalk watching a freight train which was going over this crossing upon one of the tracks of the defendant; the freight train had not cleared the'crossing at the time when deceased started to cross the track upon which the passenger train was approaching. Several persons were standing near the railroad track waiting the passage of the passenger train as well as the freight train which had about cleared the crossing. As the deceased started to cross the tracks, the engine was then so close that the engineer, realizing the impossibility of stopping the train to avoid hitting the deceased, hallooed at him and at about this same time one of the persons standing upon the sidewalk made a grab at the deceased for the purpose of preventing him from going in front of the engine. This person' was unable to reach him and before any further action could be taken the deceased stepped so near to the track that he was struck by the pilot of the engine; he was thrown a considerable distance and killed almost instantly; the train was stopped within about two hundred feet after the accident.

Plaintiff in error insists that the crossing of this highway at the speed at which defendant’s train was running was gross and wilful negligence and that by reason of such wilful negligence plaintiff is not required to show the exercise of due care and caution on the part of the deceased. Plaintiff also contends that the question of due care is one of fact for the jury to determine and that it is not a question of law for the court, that under the facts in this case the court should have submitted the question of due care on the part of plaintiff’s intestate to the jury.

Plaintiff also insists that the question of the speed at which defendant’s train was being operated was a question of fact for the jury, that under the ordinance limiting the speed of passenger trains to ten miles per' hour and the evidence in this record as to the question of speed, it was a question for the jury to determine whether or not the accident was caused by reason of the alleged unlawful rate of speed at which defendant’s train was being operated. While plaintiff’s contention that the question of due care is ordinarily one of fact for the jury to determine from all the evidence and also the question of whether or not the train was violating the ordinance of the city of Bloomington in regard to speed and whether or not the violation of the ordinance was the cause of the death of the deceased, it is also a well established rule of law that although these questions are ordinarily for the determination of the jury, there must be sufficient evidence to submit the question to the jury, and if the evidence is such that upon its due consideration the minds of all reasonable men can only arrive at one conclusion' therefrom, and that upon its consideration it does not show due care upon the part of plaintiff’s intestate, then the question becomes one of law for the court to determine. Upon the contention that the defendant was-, guilty of gross and wilful negligence, the fact that the defendant constructed, owned, and operated gates at this crossing for the purpose of preventing persons from approaching the crossing at the time when trains were about to cross, the fact that the deceased was an old and long-time friend of the engineer of the train which caused his death, that he was seen standing by the side of the tract by this engineer as the train approached, with no indication that at the time the train would reach the crossing he would start across and go in front of the engine so that it would hit him, refutes any contention of wilful or gross negligence on the , part of the defendant. While the trial court is not permitted, upon the consideration of a motion of this character, to weigh the evidence, it becomes his duty to pass upon the motion and if the evidence is of such character, as heretofore stated, that the minds of all reasonable men can arrive at hut one conclusion thereon and that conclusion is that the deceased was not in the exercise of due care and caution, then it is the duty of the court to allow the motion and to direct a verdict; and after a careful consideration of all the evidence in this record, we are satisfied that the court committed no error in sustaining the motion and directing a verdict for the defendant.

The judgment is affirmed.

Affirmed.


author: Me. Peesiding Justice Philbeick

text:
    Coburn Swisher, Defendant in Error, v. Myron J. Carpenter, Receiver, Plaintiff in Error.
    1. Railroads—when not liable for failure to erect gate closing opening to right of way. If the party suing for death of cattle alleged to have been caused by the neglect charged, is shown to himself have undertaken to close such opening, he cannot recover in the absence of evidence of notice to the railroad company that the method employed to close such opening was insufficient.
    2. Judgments—when form immaterial. If a judgment is in form irregular the irregularity becomes immaterial upon an order of reversal being entered.
    Error to the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed with finding of fact.
    Opinion filed October 20, 1911.
    Charles Troup, for plaintiff in error; W. F. Peter, of counsel.
    Gr. W. Salmans, for defendant in error.
   Me. Peesiding Justice Philbeick

delivered the opinion of the court.

This is an action brought by plaintiff against defendant, as receiver of the Chicago Southern Railway Company, for damages occasioned by the death of one horse and one mule alleged to have been killed through negligence on the part of the Chicago Southern Railway Company and Myron J. Carpenter, receiver, in failing to properly build and construct a gate or bar along the right of way of the railroad company at an opening left by the railroad company across plaintiff’s farm. Trial below resulted in a verdict and judgment against the defendant receiver for $750.

The declaration in this case avers the construction and operation of a railroad across plaintiff’s farm and the fencing of the railroad right of way and also the construction of a farm crossing across the railroad right of way for the purpose, of giving access by plaintiff to a small part of his farm divided from the main body by reason of the construction of the railroad. The negligence averred and complained of consists in the failure of either the railroad company or the defendant receiver .to contract, build, keep or maintain a gate at this farm crossing.

The record discloses that no gate was ever placed at this farm crossing by the railroad company or the defendant receiver, but that in fencing its right of way a gap was left at the place where a gate or pair of bars should have been constructed. It further discloses that plaintiff herein placed or caused tó be placed across this opening strands of wires fastened at one end to a post, the other end of these wires being fastened to a stick or piece of timber, and which when drawn across the opening and this piece of timber attached to the post at the opposite side of the opening formed a barrier or gate for the purpose of keeping plaintiff’s horses in the portion of his farm thus divided from the main body. The record further discloses that plaintiff was in the habit of placing his horses and mules on this portion of the farm during the night to remain there until morning and these strands of wire were provided and placed in position by him for the purpose of keeping his horses and mules from entering upon the right of way of the railroad company. The record does not disclose that the plaintiff in any way demanded or requested that the railroad company or the defendant receiver should provide or furnish any other means than that provided by him for keeping his stock off of the right of way. In the night in question a heavy storm prevailed and by some means undisclosed by the record, the horses and mules upon that portion of plaintiff’s land became frightened and in their fright ran against and in some manner broke or released these wires so that the horses and mules were permitted to go upon the track of the railroad of which defendant Carpenter is receiver, and one horse and one mule were killed.

While it was the duty of the railroad company and the defendant receiver to place a gate at this opening, yet when plaintiff placed the wires at the opening, and after having done so, placed his horses and mules in that portion of his farm, he cannot be permitted to hold the railroad company or the defendant receiver liable for failure upon his part to erect a barrier that would properly and reasonably restrain his stock from going upon the right of way of the railroad company, without notice that the gate or barrier so erected by plaintiff is insufficient, and if the stock entered upon the railroad company’s right of way and were injured by reason of plaintiff’s failure to properly erect and place such barrier at such opening in the railroad company’s right of way, the defendant cannot be held liable for such failure on the part of the plaintiff. There is no evidence in the record that the railroad company or the defendant receiver knew or had any knowledge that plaintiff had erected a wire barrier at this crossing for the purpose of preventing his stock from entering upon this right of way or that they had any knowledge or information that such barrier or wire device was insufficient or defective. Where the plaintiff undertakes to perform the duty imposed on the defendant and does it in an insufficient or negligent manner the defendant is not liable. C. B. & Q. R. R. Co. v. Seirer, 60 Ill. 295; Hoverka v. M. & S. L. R. R. Co., 17 N. W. 376.

It is insisted that the judgment rendered by the court in this cause is erroneous because it is rendered against the defendant receiver without direction that it be paid by him as receiver. While this judgment is defective in form and should have been rendered against the receiver, to be paid by him as such receiver out of the funds held by him, in that capacity, in the due course of his administration (Malott v. Woods, 109 Ill. App. 512; McNulta v. Ensch, 134 Ill. 46), from the conclusion we have reached the error in the form of the judgment is immaterial.

The judgment, in our opinion, is contrary to the law and the evidence, and must be reversed. The clerk will enter in the judgment of this court the finding that the injury was caused by the negligence of the plaintiff.

The judgment is reversed with finding of fact.

Reversed with finding of fact.


text:
    The People of the State of Illinois, ex rel Charles H. Seeberger, Plaintiff in Error, v. James A. Rose, Secretary of State, Defendant in Error.
    1. Mandamus—what essential to maAntenamee of writ. Before a writ of mandamus will issue the petitioner must show a clear legal right to the writ, also that the person sought to be coerced is in duty bound to perform the act which it is sought to compel him to do.
    2. Mandamus—when does not lie. The object of a writ of mandamus is to compel the doing of some act which it is the duty of the person sought to be coerced to perform and which he refuses to perform. Where an officer or person required to perform an act has acted and completed the act which it was his duty to perform, mandamus will not lie to compel him to undo the act as performed and perform it in another manner, although the act should originally have been done in another manner.
    3. Secretary oe state—how records cannot he impeached. The record of the secretary of state which involves the existence or nonexistence of a bill cannot be impeached by parol evidence.
    Mandamus. Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed October 20, 1911.
    Millard R. Powers, George B. Gillespie and A. M. Fitzgerald, for plaintiff in error.
    W. H. Stead and Thomas C. Dempcy, for defendant in error.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

Charles H. Seeberger, relator and plaintiff in error, filed his petition for mandamus in the Circuit Court of Sangamon county against the Secretary of State, praying for a writ of mandamus to compel James A. Rose, as Secretary of State, to expunge from his records certain parts of a record made by him in his office, and to compel him as Secretary of State to add to that record certain matters set forth in the petition for mandamus.

The record complained of was made by the Secretary of State showing the filing of Senate Bill No. 286 relating to the incorporation of companies for profit, in the office of the Secretary of State by the Governor after the bill had been passed by both houses of the legislature, presented to the Governor for his consideration, and deposited by him in the office of the Secretary of State. The Circuit Court sustained a demurrer to the petition, denied the writ and rendered judgment against relator for costs.

The petition alleges that this bill known as Senate Bill No. 286 was duly passed by both houses of the General Assembly and sent to the Governor for his consideration, that the bill was received by the Governor on the fourth day of June, A. D. 1909, that being the day on which the Forty-sixth General Assembly adjourned sine die; that on the eleventh day of June, 1909, the Governor by his private Secretary filed the bill in the office of the Secretary of State where it was properly receipted for by one of the duly commissioned clerks in that office; that the bill was not then signed by the Governor and at that time the Governor filed no objections to, or veto with, the bill, but afterwards, on the twelfth day of June, 1909, the Governor filed in the office of the Secretary of State a paper signed by him purporting to be a veto of the bill; that this alleged veto was then placed with the bill by the Secretary of State as a veto of that bill, and marked as filed in his office as of the same time the bill was marked filed so that papers appeared on his records as one transaction.

The petition prays that the Secretary of State he required to expunge from the record thus made in his office the words, “together with the Governor’s veto of said hill,” and that in lieu thereof the Secretary of State shall be commanded to insert and place is said record the following: “ivithout objections to said hill hy the Governor.” The petition alleges that the record so made by the Secretary of State in relation to the filing of this bill in his office by the Governor is false and fraudulent and avers that, instead of said bill having been vetoed by the Governor and for that reason having failed to become a law, it was filed without a veto and without objections, and that by reason thereof said bill became a law by virtue of Section 16, Article 5 of the Constitution, which is as follows:

“If he approve it he shall sign it, thereupon it shall become a law; but if he does not approve it, he shall return it with his objections to the house from which it shall have originated.
“Any bill which shall not be returned by the Governor within ten days (Sunday excepted) after it shall have been presented to him, shall become a law in like manner as if he had signed it, unless the General Assembly shall, by their adjournment, prevent its return, in which case, it shall be filed with his objections in the office of the Secretary of State within ten days after such adjournment, or become a law.”

Section 5 Chapter 124 E. S. requires the Secretary of State to keep a fair record of all official acts of the Governor. The record made by the Secretary of State is as follows:

“June 11, 1909, received and filed this day, Senate Bill 286, relating to corporations organized for profit in this State and other states, together with the Governor’s veto of said bill.”

This record, the petition charges, is not a fair record of the official act of the Governor in connection with said Senate Bill 286, in that it appears by said record that said communication from the Governor was received with said bill on June 11, 1909, when, in fact, it was not so received; and the petitioner insists that the entry should be changed so as to correctly and fairly state the truth, namely; by striking out of said records the words, “together with the Governor’s veto of said bill,” and insert the following: “without objections to said bill by the Governor.”

The petition then avers: “That said Secretary of State has been requested to correct his said records so as to fairly and truthfully show that said act was deposited in his office on June 11; 1909, without objections thereto by the Governor, but said Secretary of-State wholly refused, and still refuses, to make such correction.”

The prayer of the petition is,

“Wherefore, your petitioner prays a writ of mandamus', directed to the said Secretary of State, James A. Bose, commanding him forthwith to strike out or erase the words ‘together with the Governor’s veto of said bill’ on page-21 of the hook kept in his office and designated ‘Executive Becord, Illinois 15 Secretary’s Office 1907’ and insert in lieu thereof the following: ‘without objections to said hill by the Governor;’ and if it was the duty of the Secretary of State to place any stamp or file marks or keep any record whatsoever, with respect to said communication from the Governor, that he be -required and commanded to forthwith strike out and erase from said communication the words ‘Filed June 11, 1909’ and to place thereon, ‘Filed June 12, 1909,’ or such other entry notation and certification as will properly record the facts, as herein set out, and that such other and further order he made in the premises as justice may require,” etc.

Petitioner does not seek to compel the Secretary of State to make a record of any official act of the Governor of which the Secretary has failed and refused to make a record or to compel the Secretary to act in a matter in which he has failed or refused to act; but on the contrary the petition shows affirmatively that the Secretary of State has acted on the very thing involved, that he made a record and that record is set out in the petition.

It is a familiar rule of law, that before a writ of mandamus will issue the petitioner must show a clear legal right to the writ, also that the persons sought to be coerced is in duty bound to perform the act which it is sought to compel him to do; mere mention of the rule is sufficient, without reference to authorities.

The object of a writ of mandamus is to compel the doing of some act-which it is the duty of the person sought to be coerced to perform and which he refuses to perform. Where an officer or person required to perform an act has acted and completed the act which • it was his duty to perform, mandamus will not lie to compel him to undo the act as performed and perform it in another manner, although the act should originally have been done in another manner,. People v. City of Chicago, 131 Ill. App. 266; Sweet v. Conley, 20 R. I. 381-85; Am. and Eng. Enc’y; 2d ed., 743; Ex parte Nash, 15 Q. B. 92; W. C. T. Co. v. Marshall, 49 Tenn. 121; Merrill on Mandamus, section 42.

The provisions under which an act of the Legislature may become a law have been wisely provided; and every step necessary to create it a law or defeat the act has been guarded by requirements that a complete record shall be kept thereof. It evidently was the intention of those who with so much wisdom provided for these requirements, that the record so made should be positive proof of the steps taken by the law and that upon that record the act should become a law or the act defeated. The wisdom of this requirement is manifest by the provision that a record shall be kept of every act introduced in the legislature, showing its course, 'step by step, from the time of its introduction in either house, through every channel it is required to pass until it is either defeated, or becomes a law of this state, and upon that record, when once made, the validity of the law must stand or fall. Field v. Clark, 143 N. S. 649; In re Gunn, 19 L. R. A. 559 (Kan.).

The law imposes upon the Secretary of State the duty of making a record of 'all acts of the Governor relating to all bills passed by the legislature which are placed before him for his approval or veto, and the record of the Secretary of State so made, is a part of his duty as an executive officer of the state and must be held to be a part of the record of the enactment or defeat of a bill. People v. Bowen, 21 N. Y. 517; Vol. 1, par. 60, Sutherland’s Statutory Construction, 2nd ed.

When the law requires that a public official or set of public officials shall make a record of certain acts or events and such official duties are not performed as required by law and no record of the events required to he recorded has been kept, our courts have, under certain conditions, held that parol evidence may be resorted to for the purpose of proving that the officers whose action was required to be recorded actually performed those duties, hut no record thereof was made, in order that the record required by law to be kept thereof may be properly placed upon the proper records, and while such resort to parol evidence is permitted to establish a record which does not exist, resort to parol evidence can never he had for the purpose of contradicting or disputing a record when once made in the perfomance of the official duties of the officer required to make it.

It is not contended that the Governor signed this hill or that he retained it in his possession such length of time that it became a law without his signature.

The adjournment of the legislature within ten days after the presentation of Senate Bill No. 286 to the Governor, prevented his returning it to the House in which it originated, and if he filed it in the office of the Secretary of State with his objections within ten days after the adjournment of the legislature, then it did not become a law.

The record made by the Secretary of State in his office with reference to the filing of that bill appears on page 21 of Becord 15 of the office of the Secretary of State, as follows: “June 11, 1909, received and filed this day Senate Bill No. 286 relating to corporations organized for profit in this and other states, together with the Governor’s veto of said hill.”

While upon questions which involve that record, inspection of the record may-he resorted to for the purpose of determining what it contains,, but upon the question of the accuracy of that record involving the validity or invalidity of an act of the legislature the record cannot be contradicted by parol testimony. It records the solemn and final action of the legislative and executive departments of the sovereign state necessary to create a law; the stability of the sovereignty demands that this record shall be conclusive of what it contains.

If the record in the office of the Secretary of State upon the question of whether an act passed by both houses of the legislature was vetoed by the Governor can be disputed by parol evidence, then the same rule must govern the record made upon the journals of either house. No one can seriously contend that a record made on roll call upon the passage of a hill in either house in an attempt to show that one or more members of such house did not vote as shown hv the journal of that house, can he disputed by parol evidence. It is necessary to insure the stability of personal rights, liberty and property that such records shall import absolute verity. The memory of man is so frail and transitory and frequently so self-serving to the party interested that under certain conditions it is wholly unreliable, and the result of relying thereon for proof of matters so vital to the government ,,or to citizens is fraught with such danger that the record must be held to be beyond contradiction, and parol evidence ought never to be received in contradiction of that record. To permit the truth of this record to be disputed by parol testimony would result in chaos and anarchy. Wabash R. R. Co. v. Hughes, 38 Ill. 174; Regan v. Lynch, 68 Ind. 516; Pacific R. R. Co. v. Governor, 23 Mo. 353; People v. McCullough, 210 Ill. 488.

The record made by the Secretary of State in his office as provided by section 5, chapter 124 of the Revised Statutes, shows the bill was filed in his office by the Governor within ten days after the final adjournment of the legislature, with the objections of the Governor thereto. This record imports absolute verity and cannot be impeached by parol. Weeks v. Smith, 81 Me. 538.

The petition upon its face discloses that in order to sustain the averments therein resort to parol testimony must be had, and the Circuit Court properly sustained- the demurrer and dismissed the petition at relator’s cost.

The judgment is affirmed.

Affirmed.


text:
    Nellie M. Pressley, Administratrix, Appellee, v. Kinloch=Bloomington Telephone Company et al., Appellants.
    1. Electricity—who liable for maintenance of wires in proper condition. Held, that it was a question of fact as to who owned and controlled and who was responsible for the maintenance in proper condition of the electric wires which resulted in the injury sued for.
    2. Appeals and errors—when judgment unit. If a judgment in tort is recovered as to two defendants, it is a unit and if it is erroneous as to one of such defendants a reversal will be ordered as to both.
    Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the May term, 1911.
    Reversed and remanded.
    Opinion filed October 20, 1911.
    Rehearing denied December 8, 1911.
    Sigmund Livingston, William E. Bach and Lillard & Williams, for appellants.
    Jacob P. Lindley and John E. Pollock, for appellee.
   Mr. Presiding Justice Philbrick

delivered the opinion of the court.

This action is brought by the plaintiff, as administratrix of the estate of her husband, to recover for his death, caused by coming in contact with an electric current of 2200 volts, while trimming a street light for the city of Bloomington on its lighting system. This cause was previously before this court (158 Ill. App. 220) and opinion filed reversing a former judgment. After reinstating the cause, another trial was had which resulted in a judgment for $9000, from which this appeal is prosecuted.

The declaration consists of thirteen counts, and in substance, the charge of negligence against defendants is that the Bloomington and Normal Railway and Light Company owned and operated a system of railways in Bloomington and Normal and operated, in connection therewith, an electric lighting system furnishing current to its customers; that the defendant, Kin-loch-Bloomington Telephone Company, owned and operated a telephone system in the city of Bloomington, and that each of said companies owned and controlled their respective wires which were strung upon poles along and upon the streets and alleys of the city of Bloomington. The negligence charged against the Bloomington and Normal Railway and Light Company, hereafter to be designated as the Railway Company, is that it owned and operated a wire upon Prairie street in the city of Bloomington, running north and south, extending past an alley located between Jefferson and Washington streets, that this wire carried a current of 2200 volts and was used for the purpose of supplying customers of that company with current for their lights, and that the railway company was negligent in not protecting the wire with insulation, guards or netting so that other wires lawfully placed upon the streets or alleys of the city of Bloomington could not come in contact therewith and thereby transmit the current to places where other persons might be injured thereby. The negligence charged against the Kinloch Bloomington Telephone Company, which shall hereafter be designated as the Telephone Company, is that it owned, controlled and operated certain wires strung upon poles along an alley extending east and west between Jefferson and Washington streets in the city of Bloomington, that the Telephone Company permitted this wire to become rusty, rotten and decayed so that it broke and fell across the wire alleged to have been owned, controlled and operated by the Railway Company at the point where the wire alleged to belong to the Railway Company extended north and south on Prairie street and where the telephone wire alleged to extend east and west in this alley above the Railway Company’s wire crossed at the junction of Prairie street and this alley. The declaration then avers that by reason of the wire of the Telephone Company falling and the wire of the Railway Company not being guarded and protected, the two wires came in contact and the current was transmitted from the wire owned by the Railway Company to an electric light wire passing north and south along Prairie street and owned by the city of Bloomington and used by it in connection with its lighting-system, and was then transmitted to a lamp owned by the city of Bloomington, located at the intersection of Mill and Gridley streets, at which point, deceased while trimming- the light, was killed.

When the case was before this court on the former hearing no pleas were on file by defendant except general issue, and this court held that by pleading only general issue the defendant admitted the ownership, control and operation of the wires in v question, and it was unnecessary for the plaintiff at that time to prove the ownership, control and operation of theso wires. After the cause was reinstated in the Circuit ■ Court, defendants by leave of the court filed special pleas, respectively denying the ownership, control or operation of these wires.

To these pleas plaintiff filed her replication. The second replication to the special plea of the Railway Company, instead of denying the allegations of the special plea of the Railway Company that it did not own, control or operate the wire which it was alleged in the declaration it owned, controlled, and operated, replied that the Railway Company manufactured and generated a current of electricity which it sold and delivered to the Union Gas and Electric Company which owned a lighting system in the city of Bloomington, and that it thereby became the duty of the Railway Company to see and know that said wire was protected and guarded and to keep and maintain it in proper condition to receive and carry said current without permitting the same to escape. To this replication the defendant Railway Company demurred and as a cause of demurrer insisted that the replication was a departure from the declaration and stated a new and different cause of action. The court overruled the demurrer and the Railway Company elected to abide by its demurrer and assigns as error the overruling of its demurrer. The averments of negligence in the declaration against the Railway Company were that it owned, controlled and operated this line of wire and that by reason of its ownership, control and operation it became its duty to see that it was properly insulated, guarded or protected so that the current of electricity could not escape or be transmitted from that wire to points where other parties might be injured thereby. The plea of the Railway Company denying the charge in the declaration that it owned, controlled and operated the wire, presented an issue as to whether it was its duty to keep and maintain this wire in proper condition, etc., upon the charges made in the declaration. The replication while not confessing or denying the allegations of ownership by the Union Gras & Electric Company in the plea, replied that by reason of the manufacture and sale of the electric current and the delivery of it over this wire under contract with the Union Gas & Electric Company that it thereby became its duty to keep and maintain the wire in such condition that the current of electricity so being conveyed over it could not escape. While this replication did not specifically follow the charge in the declaration as to the reasons or causes creatiug the duty of the defendant to guard, keep and maintain the wire in question but omitted the question of ownership of the wire and assigned other circumstances relating to the same wire which created the same duty owed to deceased regarding the same injury, it did not for that reason present or allege a new cause of action but contained additional averments which imposed the same duty upon the Railway Company as alleged in the declaration to guard, keep and maintain the wire in reasonably proper and safe condition. The replication is not a departure from the cause of action originally stated; it does not allege a new cause of action and the demurrer was properly overruled.

The evidence discloses that the defendant Railway Company did not own the wire over which the current was transmitted by the telephone wire to the electric light wire of the city of Bloomington, but that this wire was owned by the Union Gas and Electric Company. It is also disclosed by the evidence that the Railway Company did not use this wire for the purpose of transmitting any current of electricity to its customers, but that persons using the electric current from this wire were customers of the Union Gas and Electric Company and that the Union Gas and Electric Company purchased from the Railway Company the current so generated by the Railway Company and delivered over this wire; that the Railway Company was only the manufacturer of that current; and it is insisted by the Railway Company that by generating, selling and delivering this current it does not become liable for a failure to properly insulate, guard or protect the wires to which it made delivery of the current; that its liability as manufacturer or generator of the current ceased at the point of delivery which was at the power house of the Railway Company where the current was delivered through a meter. On the other hand, it is insisted by the plaintiff that by reason of the manufacture, generating and selling of so dangerous a current of electricity and under an agreement between the Railway Company and the Union Gas and Electric Company the Railway Company is held liable for the proper and safe condition of the wires by means of which current was conducted and in support of this contention upon the part of the plaintiff is cited the case of Thomas, Administrator v. Maysville, Gas and Electric Company, decided by the Kentucky Court of Appeals when first before that court, in 56 S. W. 153, and on the second) hearing in that court in 75 S. W. 1129, wherein that court has held that the manufacturer or generator of an element so dangerous and destructive of human life as a current of electricity consisting of five hundred or more volts is liable for the failure to see that the wires over which it delivers that current are properly insulated and guarded by baskets or netting so that there shall be no reasonable opportunity for the electric current to escape to the damage or injury of other parties. The same doctrine as held by the Court of Appeals of the State of Kentucky has been held to be the rule in the State of New York in the case of Schmeer v. Gas and Light Company, 147 N. Y. 529, wherein illuminating gas was attempted to be delivered by the gas company in a building through pipes which had been placed therein by an independent contractor, and which by reason of the defects thereof escaped to apartments in said building occupied by persons who had not requested to be furnished with it, by reason of which an explosion occurred and damage resulted and the gas company was held liable for the damage. This same doctrine is followed by the court of the State of New Jersey in the case of the Hoboken Land Improvement Company v. United Gas and Electric Company, reported in 58 Atlantic, 1082. Contending that the doctrine laid down by these authorities is not supported by the current weight of authority and is not sound, defendant insists upon the law as laid down by the Supreme Court of Tennessee in the case of Memphis Consolidated Gas and Electric Company v. Speers, 113 Tenn. 83, wherein that Court declined to follow the rule laid down by the courts of Kentucky, New Jersey and New York. The Court of Appeals of Colorado, in the case of National Fire Insurance Company v. Denver Consolidated Gas Company, 16 Colo. Appeals, 86, follows the rule laid down by the Supreme Court of Tennessee. This rule has also been followed by the Federal Court for the District of Minneapolis in the case of Minneapolis Electric Company v. Cronan, reported in 166 Federal Reporter, 651. The Supreme Court of California, in the case of Abrahams v. California Gunpowder Works, 8 L. R. A. 378, also declined to follow the doctrine of the Courts of Kentucky, New Jersey and New York, and aheres to the rule laid down by the Supreme Court of Tennessee.

The courts of these various states seem to be utterly in conflict upon the rule governing this question, hut upon the conditions shown to exist by this record it is unnecessary for us to determine which of these courts has adopted the correct rule, for the reason that in this record the evidence discloses that a corporation known as the Bloomington Electric Light Company entered into a contract with the Union Gas and Electric Company to furnish it an electric current over the wire which is now alleged to belong to the Railway Company and that the Bloomington Electric Light Company was afterwards consolidated with other corporations and that the defendant Railway Company succeeded to all of their properties and to this contract, and that thereafter the Railway Company furnished the current under that contract to the Union Gas and Electric Company and while this contract provides that the Union Gas and Electric Company should keep and maintain its wires over which the current was furnished in good and proper and sufficient condition therefor, this provision, although binding as between the parties to the contract, is not conclusive proof as to other parties as to whose duty it was to keep that wire in proper and safe condition, and the evidence of the former president of the Bloomington Electric Light Company and the superintendent of the Railway Company is that it was the duty of the Railway Company and they were expected to keep and maintain those wires in proper and safe condition. The evidence discloses that the Railway Company did keep and maintain these wires for the transmission of this current, but it is insisted by them that the Union Gas and Electric Company paid them for any work done thereon, and that by reason thereof the Railway Company is relieved from any liability for damage occasioned by reason of these wires not being in proper condition. The evidence in this record presented a question of fact, to be determined from all the evidence in the case, whose duty it was to see that this wire was properly insulated, guarded, protected and kept and maintained in proper condition. It was also a question of fact for the jury to determine whether or not the wire carrying the electric current of 2,200 volts was properly insulated, guarded or protected.

Upon the question as to the liability of the Kinloch-Bloomington Telephone Company, the evidence in this record fails to show that it was the owner of or controlled or operated the line of telephone wire which fell and in falling came in contact with the wire alleged to belong to the Railway Company and the light wire of the city of Bloomington and transmitted the current from the alleged Railway Company’s wire to the light wire of the city of Bloomington by means of which it was conducted to the lamp where plaintiff’s intestate was killed. The record does not disclose, however, that the telephone wire belonged to and was one of the wires of the McLean County Telephone Company; this wire was designated as number 5 upon a pole located near the junction of the alley with Prairie street. The McLean County Telephone Company owned other pairs of wires upon this pole and number 5 was one of these wires. There is evidence in the record that that wire extended to and was connected with a cable which entered the telephone exchange of the McLean County Telephone Company which was located a block or more from the telephone exchange of the Kinloch-Bloomington Telephone Company; this wire was upon the top cross-arm of that pole. The Kinloch Bloomington Telephone Company owned wires upon the second cross-arm and these wires extended to and were connected with a cable which entered the telephone exchange of the defendant telephone company.

There being no proof in this record that the defendant Telephone Company owned, controlled, operated or was in any manner responsible for the condition of the telephone wire complained of, the verdict of the jury as to that company is clearly and manifestly against the evidence, and as to it must be reversed. The jury by its verdict, however, found the defendant Railway Company guilty of the charges of negligence alleged against it. We cannot say, upon this record, that their verdict, is unwarranted. Criticism is made of the instructions to the jury by the court, but upon a careful examination we do not find any prejudicial error in these instructions. The jury were fairly instructed upon all questions involved in this case, and the instructions which it is alleged were improperly refused contain no propositions which are not properly submitted by the given instructions, and there was no error in refusing the instructions offered.

Plaintiff having elected to sue defendants jointly and having recovered a judgment against both defendants, if it is necessary to reverse the judgment by reason of there being no liability shown as against one defendant, it is necessary that the judgment shall be reversed as to both defendants. Jansen v. Varnum, 89 Ill. 100; Chaflin v. Dunne, 129 Ill. 241; Maxwell v. Habel, 92 Ill. App. 510.

The judgment is reversed and the cause remanded.

Reversed and remanded.