text:
    Frank J. Laibe, Plaintiff in Error, v. Paul Smolikowski, Defendant in Error.
    Gen. No. 15,348.
    1. Pleading—how decree relied upon should he set up. If a decree is relied upon, the same, or the portion thereof in question, should be set out either in haeo verb a in the pleading or else its substance should be averred.
    2. Injunctions-—effect to release errors in proceedings at law enjoined. It is not the institution of the suit to enjoin the collection of a judgment at law, but the granting of such an injunction, that operates to release errors in the proceedings at law resulting in the judgment enjoined.
    Assumpsit. Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1908.
    Demurrer sustained.
    Opinion filed December 23, 1909.
    Statement by the Court. This is a writ of error to review a judgment of the Circuit Court for $1,255.75, in favor of defendant in error and against plaintiff in. error, rendered May 15, 1906. To the writ the defendant in error has filed four pleas. The first avers that the plaintiff in the judgment assigned the same to The Congregation of the Resurrection, a corporation; that at the “special instance of - said plaintiff in error, and by way of cross bill to the suit of said assignee, The Congregation of the Resurrection, the said judgment so as aforesaid sought to be reviewed by the said writ of error herein, was by the said Circuit Court of Cook County, by its decree duly entered therein, on to-wit, the 3rd day of June, A. D. 1908, set aside, and said cause of Paul Smolikowski versus Frank J. Laibe, (being the same cause referred to in the supposed record on file herein) was thereupon reinstated and restored as a pending cause upon the records and dockets of said court, to-wit, at the county of Cook, to-wit, in the district aforesaid; And this the said defendant in error is ready to verify; Wherefore the said defendant in error prays judgment whether or not the said plaintiff in error ought to have or maintain his said writ of error against him, etc.”
    The second avers the assignment of the judgment as stated in the first plea, and proceeds as follows: “that the said plaintiff in error waived and released all errors, if any, appearing in the record and in the rendition of said judgment in favor of defendant in error and against said plaintiff in error, by instituting and prosecuting, in the said Circuit Court of said Cook County, in a certain suit or proceeding on the Chancery side of said court, entitled The Congregation of the Resurrection versus Frank J. Laibe by way of cross-bill therein, a proceeding to set aside said judgment and to enjoin the execution thereof; and such proceedings were had thereon that the execution of said judgment was in substance and in effect then and there, to-wit, on the 3rd day of June, A. D. 1908, the same being then and there prior to the suing out of the writ of error herein, enjoined and restrained until a new trial was had therein; and therefore defendant in error says that the plaintiff in error hath thereby released and waived all errors herein assigned,” and concludes like the first. The third and fourth pleas are set out in the opinion. Plaintiff in error demurred to the first, second and fourth pleas, and to the third filed a replication, to which defendant in error demurred.
    J. W. Suttoet, for plaintiff in error.
    Thomas J. O’Hare, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

In a very early case, Oxford’s Case, 1 Ch. Rep. 1, the right of a court of equity to enjoin the defendant from enforcing a judgment which he had improperly obtained in a court of law, was established, and the doctrine of Oxford’s case as stated by Lord Chancellor Ellesmere has been the law ever since. “In the exercise of this power courts of equity proceed, not upon any claim of right to interfere with or control the course of proceedings in other tribunals, or to prevent them from adjudicating on the rights of parties when drawn in controversy and duly presented for their determination. But the jurisdiction is founded on the clear authority vested in courts of equity over persons within the limits of their jurisdiction, and amenable to process, to restrain them from doing acts which will work wrong and injury to others, and are therefore contrary to equity and good conscience. * # * The decree of the court in such cases is pointed solely at the party, and does not extend to the tribunal where the suit or proceeding is pending.” A court of equity, under the jurisdiction established in Oxford’s case, has no right to interfere directly with the judgment or other proceedings in a court at law. It has only the right to act on the parties to such a judgment at law. In a proper case a court of equity may decree that unless the plaintiff in_the judgment consent to a new trial, he be enjoined from proceeding to enforce his judgment at law. “Injunction is the remedy which, above all others, necessarily operates in personam.” Pomeroy’s Eq. Jurisprudence, Sec. 1360. The court of equity had no power to interfere with the record of the suit at law, or directly to order that the judgment at law be vacated, but its remedy was to be directed to the parties only. The pleas all relate to an order or decree in a cause in chancery in the Circuit Court, in which the assignee of the judgment was complainant and the defendant in the judgment, defendant. No one of the pleas sets out the cross-bill or any other pleading in the cause.

The first plea avers that the judgment sought to be reviewed in this case was, by the decree of the Circuit Court in said cause in equity, “set aside,” and the cause in which said judgment was rendered “was thereupon reinstated and. restored as a pending cause,” etc. The plea does not purport to set out any part or provision of the decree, either in terms or in substance, but only states what the pleader deems the legal effect of the decree. This is but stating the conclusion of the pleader. The plea should set out the provisions of the decree relied on as constituting a decree that the judgment be “set aside,” so that this court may determine the legal effect of such provisions and what was thereby ordered or decreed. The plea is in our opinion insufficient, and the demurrer to it will be sustained.

The second plea does not purport to set out the decree, or any part of it, but avers that such proceedings were had in said cause in equity, “that the execution of said judgment was in substance and effect * * * enjoined and restrained until a new trial was had therein, and therefore that plaintiff in error hath released and waived all errors herein assigned.” This is only the statement of the legal conclusion of the pleader that in “substance and effect,” by a decree, the terms and provisions of which are not stated, the execution of the judgment was enjoined, and that thereby plaintiff in error released all errors, etc. What has been said as to the first plea applies with equal force to the second. The plea is clearly insufficient, and the demurrer to it will be sustained.

The third plea avers the assignment of the judgment, and then proceeds as follows: “That thereafter and before the suing out of the writ of error in this behalf the said plaintiff in error elected to institute and prosecute a certain proceeding in equity in the Circuit Court of Cook County on the Chancery side thereof, for the purpose of opening, vacating and setting aside said judgment, and therein procured a deV cree, prior to the suing out of the writ of error in this behalf, vacating and setting aside said judgment, and restoring the said cause of Paul Smolikowski versus Frank J. Laibe, as a pending cause; wherefore this, defendant in error says that said plaintiff in error by his aforesaid actings and doings in the premises, and by his election to so proceed as aforesaid, estopped and concluded himself,” and concludes like the first two pleas. The plea does not state who were the parties to the proceedings in equity in the Circuit Court, nor in what manner nor against whom plaintiff in error elected to institute such proceedings in equity to open or vacate the judgment, nor that such proceedings were pending either when the writ of error was sued out, or when the plea was pleaded. The plea does not purport to set out the provisions of the decree, and only states the pleader’s legal conclusion that plaintiff in error, in the cause mentioned in the plea, procured a decree “vacating and setting aside the judgment” and restoring said cause as a pending cause. What has been said as to the other pleas is applicable to the third plea.

Our statute in relation to injunctions to stay proceedings at law-provides that, “Every injunction, when granted, shall operate as a release of all errors in the proceedings at law that are prayed to be enjoined.” By the express provisions of the statute it is the granting of the injunction, not the institution of proceedings to obtain such injunction, that operates to release errors. We think that the third plea is also insufficient. The demurrer to the replication to the third plea will be carried back to the plea and sustained as a demurrer to that plea.

The fourth plea, omitting the formal conclusion, is as follows: “And for a further plea in this behalf the said defendant in error says, that the said plaintiff in error ought not to have or maintain his aforesaid writ of error in this behalf against him, the said defendant in error, because he says, that after the rendition of said judgment, and before the suing out of the writ of error, on, to-wit, the 3rd day of June, A. D. 1908, the said judgment was set aside by decree of the said Circuit Court of Cook County; and this the said defendant in error is ready to verify.” This plea, for the reasons heretofore.stated, must be held bad and the demurrer thereto sustained.

Section 109 of the Practice Act of 1907 provides that a plea of release of errors, though adjudged bad, shall not deprive the defendant in error of the right to join in error. The demurrers to the first, second and fourth pleas will be sustained. The demurrer to the replication to the third plea will be carried back to that plea and sustained as a demurrer to the plea, and leave is given to the defendant in error to join in error if he shall be so advised, and in that event, to file his brief and argument by the first day of the next term. Demurrer sustained.

Demurrer sustained.


source: Caselaw Access Project

author: Mr. Justice Freeman

license: Public Domain

text:
    Laura L. Arthur, Plaintiff in Error, v. John J. Doyle et al., Defendants in Error.
    Gen. No. 14,789.

      Bonds—right to recover upon successive appeal bonds. If there have been several appeals from different judgments rendered by different courts in an action of forcible detainer, upon each of which appeals bonds have been given, with different sureties upon each, a recovery upon one of such bonds, although not for the full amount thereof, will not bar an action upon the second bond for additional damages for the unlawful withholding of the premises in question accruing after it had been given.
    Bakes, J., dissenting.
    Action of debt. Error to the Municipal Court of Chicago; the Hon. Fbebman K. Blake, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed December 23, 1909.
    Rehearing denied January 10, 1909.
    Statement by the. Court. This is an action by plaintiff in error to recover from defendants as principal and sureties upon an appeal bond. The bond upon which this action was brought is the second of two appeal bonds given in the same forcible entry and detainer suit. The first was a bond in the penal sum of $1,000 given upon appeal to the Circuit Court from the judgment of a justice of the peace. The second is a bond in the penal sum of $1,500 given upon appeal to the Appellate Court from the judgment of the Circuit Court. The condition of the first bond was substantially the same as the condition of the second bond, which in part is as follows: that “if the said John J. Doyle shall prosecute said appeal with effect and pay all the rent then due or that may become due before the final determination of the suit, and also all damages and loss which the plaintiff may sustain by reason of the withholding of the premises in controversy and by reason of any injury done thereto during such withholding until the restitution thereof to the plaintiff, together with all costs that may accrue in case the judgment from which the appeal is taken is affirmed or appeal dismissed then the above obligation to be void.” The sureties on this second bond of $1,500 are Peter Doyle and William H. Griffin; the only surety on the first bond was Peter Doyle.
    The defendant, John J. Doyle, remained in possession of the premises until September 30, 1906, the lease having expired by its terms October 31, 1905. The rent under the lease is stated to have been “payable in monthly installments of $100 each,” and no rents were paid after October 31, 1905. It is averred the value of the use and occupation from that date to September 30, 1906, was $1,350, and the costs were $150. On January 21, 1907, the Appellate Court affirmed the judgment of the Circuit Court (Doyle v. Arthur, 132 Ill. App. 131) in the forcible entry and detainer suit.
    February, 7, 1907, the plaintiff brought a separate suit upon each of the said appeal bonds in the Municipal Court. Upon the 20th of April judgment was rendered in the suit upon the first bond taken upon the appeal from the judgment of the justice of the peace, said judgment being for $1,000 debt and $289.52 damages, the debt to be discharged upon payment of the damages, and costs. This judgment was paid and satisfied. Subsequently the present suit upon the second bond in the penal sum of $1,500 came on to be heard in the Municipal Court, and a jury returned a verdict in favor of plaintiffs for $1,500 debt and $1,200 damages. A motion for a new trial was however granted, and upon the second trial the court directed a verdict assessing the plaintiff’s damages at $8, an item of costs admitted by the defendants. The trial court held that plaintiff was barred from recovering on this second appeal bond by the recovery and payment of the judgment for $289.52 damages in the suit on the first appeal bond.
    From the judgment rendered accordingly this appeal is taken.
    Steele & Thompson, for plaintiff in error.
    G-eabon & GIeabon, for defendants in error.
   Mr. Justice Freeman

delivered the opinion of the court.

The theory upon which the cause was disposed of by the Municipal Court is said to have been that the plaintiff is estopped from recovery on the second appeal bond by payment of a prior judgment on the first appeal bond; that plaintiff’s damages had all accrued when the separate suits were brought on the bonds, and when the judgment was rendered on the first; that plaintiff’s claim consisted of a single indivisible item of damages against a tort feasor, and that by splitting her claim, plaintiff released the defendants from all liability oh the second bond.

On the other hand it is urged in behalf of plaintiff that the appeal bonds were cumulative and that payment of damages recovered upon the first appeal bond is not a bar to recovery of other damages in the suit upon the second bond given to secure payment of damages sustained by reason of a second appeal to the Appellate Court, where as in this case the sureties upon the second bond are not the same as upon the first bond upon which judgment has been rendered and satisfied. In Met. W. S. El. R. R. Co. v. McDonough, 87 Ill. App. 31, it was said: “It is quite well settled that the securities thus given by the two successive bonds are cumulative in effect and that the giving of the second does not discharge the former. Becker v. The People, 164 Ill. 267;" and it is further said that “neither the first nor the second of the-appeal bonds was wholly discharged and each remained to that extent enforceable against defendants in error.” In McCall v. Moss, 100 Ill. 461, cited in Becker v. The People, supra, p. 270, it was held that in case of an affirmance by the Supreme Court of the judgment of the Appellate Court, “the appeal bond given on the appeal from the trial court would stand as security for the decree rendered in that court, and that as the appeal bond given on the second appeal was sufficient in amount to cover the costs” in the Supreme Court, that was all that was required. To the same'effect are Ennor v. G. and S. W. Rd. Co., 104 Ill. 103. It would seem to follow that recovery can be had upon both the appeal bonds to the extent of the damages thereby secured.

It is contended in plaintiff’s behalf, that even assuming “damages for the tortious withholding of the premises for the entire period” constituted a single item, plaintiff could still maintain separate suits for the reason that the cause of action had been voluntarily split by the defendants in giving two bonds, thus waiving any right to urge such objection. In McDole v. McDole, 106 Ill. 452-458, it is said that “a party cannot split an entire cause of action and bring two or more suits to recover different portions of the same debt.” In the case at bar the penal sum of the first bond given on appeal was $1,000, and of the second bond $1,500. Apparently neither bond is regarded by plaintiff as sufficient to cover her damages for use and occupation of the premises described in the original forcible entry and detainer suit. The bonds were taken by the respective courts and if neither of them alone covers the full amount the plaintiff is entitled to recover, it is not because the plaintiff ‘1 split an entire cause of action,” but such “splitting,” if any there was, was involuntary on her part. In McCarthy v. Chimney Construction Co., 219 Ill. 616-624, it is said: “Appellee’s consent to the execution of the bond was not required, so that the giving of the bond was not in any sense the act of appellee.” It is said however that plaintiff might have proved damages in her suit on the first bond up to $1,000, but instead of so doing took judgment for only $289.52, which the defendant promptly paid. The cause of action was not split by plaintiff when suit was begun on both bonds, and if it be true that the evidence of damages for use and occupation or other damages claimed, which was introduced in the first suit, covered only damages caused by the first appeal, secured by the first bond, it would appear that such items of damages constituted a distinct cause of action from such as may have been suffered by reason of the second appeal secured by the second bond. It may well be that such items of damages were distinct and separate and easily divisible. Especially may this be true as to the use and occupation. If the demands were “capable of division into two separate and distinct causes of action” (McDole case, supra, p. 458), then the judgment on the first bond would not bar the suit on the second. In People v. Compher, 14 Ill. 446-455, an action brought in 1850 under the statute then in force and cited in the McDole case, supra (p. 450), it was expressly held that any breach of the conditions of the bond for which damages have not already been assessed forms the proper subject-matter of a new assignment and assessment.” We are of opinion upon principle that damages not assessed on the first bond might properly be recovered on the second against different defendants. What the facts are as to the damages so recovered on the first bond, and whether the damages sought to be recovered on the second bond were included in the first recovery, can only be determined from the evidence. It is however apparent from the evidence that the judgment recovered on the first bond was inadequate to cover the loss of rent and damages suffered by the plaintiff, because of the defendants’ unlawful withholding the demised premises, pending the final determination of the appeal. In Chicago Opera House v. Paquin, 70 Ill. App. 596-598, a somewhat similar question arising out of a suit in forcible entry and detainer was involved. It was held that a finding for defendant upon the plea of former recovery was erroneous, that “the fact that the Opera House Company in its suit upon the appeal bond recovered for rents up to the amount of the bond, $500, did not debar it from recovering in a suit against Paquin alone for the $391 additional rent. It is absurd to say that having elected to sue on the bond for rents it thereby elected to abandon all further claim against Paquin.” It is claimed by defendants’ attorneys that case is not in point because the plaintiff recovered in the first suit the full amount of the bond, whereas in the case at bar plaintiff recovered in the first suit only $289.52 damages when she might have recovered up to $1,000. We are unable to see why upon principle the plaintiff should be estopped from recovering on the second bond against different sureties any damages otherwise recoverable on that bond, merely because she did not recover in the first suit against other sureties all that she ought to have recovered in that action, up to the full penalty of the first bond. If her damages recovered had exhausted the full amount of the first bond, and she could then recover further damages on the second, it is difficult to see why she cannot recover such damages even though she did not fully exhaust in the first suit the amount of the first bond. Plaintiff suggests that if she had introduced upon the trial on the first bond evidence of all damages which had accrued and had recovered the full sum of $1,000 she might then have been estopped from submitting any of the same*evidence in the suit upon the second bond; but urges that having submitted entirely new evidence of damages on the trial of the issues on the second bond, she is entitled to recover whatever damages the evidence warranted. In Alexander v. Loeb, 230. Ill. 454, appellees recovered on an appeal bond given in a case of forcible entry and detainer conditioned as in the case at bar, and subsequently recovered a second judgment in an action of debt to recover double rent under the statute and (R. S., chap. 80, sec. 2) upon a covenant of the lease providing for payment of $20 for each day the tenant should hold over. The court said: “The parties to this suit are not the same as to the suit on the appeal bond. There only one of the appellants and his bondsman, Loeffler, were parties defendant. Under the conditions of the appeal bond appellees could not have recovered in that case for double rent or for $20 per day liquidated damages.” It was held that “Under the authorities cited and upon principle, the suit on the appeal bond and the payment of the judgment therein cannot be held to have merged this suit in that judgment or to act as a bar to recovery herein.” As in that case, so in this, it is we think “manifest that in accepting the payment of damages” on the first appeal bond plaintiff did not intend to waive the claim for any remainder of her damages.

It is urged that the judgment on the first bond is res adjicdicata as to damages the plaintiff was entitled to recover. While as said in Hanna v. Read, 102 Ill. 596-604, notwithstanding the parties to the former and present suits are not the same, it is sufficient for the purposes of the rule relating to a former adjudication when relied on as an estoppel, that the parties be substantially the same, we are of opinion nevertheless that the case at bar is not within the meaning of that rule. There is a third party defendant, an additional surety upon the second bond, so that the second bond is not only given to secure damages occasioned by a separate appeal, but is executed by an additional surety whose liabilities or rights were in no way involved in the suit upon the first bond.

While the actual question here involved does not seem to have been directly adjudicated in any of the cases cited by counsel, we are nevertheless of the opinion that the plaintiff is entitled to maintain this action for the recovery of such additional damages, if any, as the evidence may justify, crediting the defendants with the amount recovered in the former suit.

The judgment of the Municipal Court will therefore be reversed and the cause remanded.

Reversed and remanded.

Me. Justice Bakee dissenting.


text:
    In Re Estate of George F. Pfeiffer et al., Minors, William C. H. Pfeiffer, Appellee, v. Rosina Pfeiffer, Appellant.
    Gen. No. 14,802.
    1. Administration oe estates—effect of appeal from, settlement of guardian’s account. Upon an appeal from a settlement of a guardian’s account the whole matter is up for hearing de novo in the Circuit Court. Such court may approve the guardian’s account as filed or can require the statement of a new account.
    2. Trial—when error to call jury. Upon an appeal from an order of the court of probate settling a guardian’s account, it is error to proceed by the intervention of a jury.
    3. Practice—when motion to dismiss comes too late. After a trial and verdict a motion to dismiss based upon acquiescence in the judgment appealed from comes too late, but after reversal and remandment such a motion may be made.
    Objections to guardian’s report. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Ttjthill, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed December 23, 1909.
    Statement by the Court. By the terms of the will of one Chris Pfeiffer, appellant, his widow, was given during her lifetime while she remained unmarried all his estate, real and personal, the estate in case of her death or marriage to be divided in equal shares among his children and the descendants of any deceased child. Appellant was by the will appointed executrix, such appointment to end in ease of her remarriage. She was given full power by her last will and testament to make a reasonable provision ont of the estate for any of the children disabled or unable to support themselves. She was also given full power to make reasonable advances to any of the daughters upon the marriage or to the 11 sons as they start in business,” such advances not to lessen or endanger the distributive share of the other children. It is provided that “should any of my children be disrespectful or disobedient to their mother, my said wife, she shall have full power by her last will and testament to direct that the whole of the distributive share of my estate which would otherwise go to said child or such part of my estate as she may direct shall go equally to my other children. ’ ’ The will was probated February 20,1902.
    Appellant qualified as executrix and in May, 1902, having been appointed guardian of the three minor children, one of whom was the appellee, she filed a petition in the Probate Court of Cook county asking leave to sell certain real estate. Leave to sell the interest of the minors having been granted, two lots were sold, subject to appellant’s life estate. The sale was confirmed and a deed given to the purchaser by appellant as guardian, for the minors’ interest. There were six children then living and the share of the three minors in the purchase price was, it is said, $12,500.
    The question now involved, according to appellant’s attorneys, is what amount, if any, is due appellee from appellant as his guardian. December 24, 1907, the minors having come of age, appellant as guardian submitted a report, in which she credited herself with certain payments to appellee, several of which are disputed by the latter. It is argued that some of these payments were advances made by the appellant, not as guardian but under the authority of the will, and not therefore to be credited to appellant’s account as guardian. Upon a hearing before the Probate Court a number of the items with which the guardian asked to be credited were not allowed. The guardian thereupon filed a sworn statement of account in accord apparently with the views of the Probate Court, which in her affidavit she declared to be “true in substance and in fact as affiant verily believes.” This account was approved by the court December 24,1907.
    Notwithstanding she had sworn to this account appellant prayed an appeal to the Circuit Court from the order of the Probate Court as follows: “This day came Bosina Pfeiffer, Guardian of the estate of the above named minors, and presented to the Court an account as to William C. H. Pfeiffer, one of said wards, in conformity with the findings of this Court. Such guardian refuses to accept said account as and for her account as guardian of said ward, whereupon the Court states said account and approves the same as the final account of said guardian as to said William C. H. Pfeiffer and it is ordered that the same be recorded and that said guardian pay over the balance due said ward amounting to $2,862.34 within five days from this date. From which said order said Guardian, Bosina Pfeiffer, prays an appeal to the Circuit Court of Cook County, Illinois,” which appeal was granted.
    When the case came on for hearing in the Circuit Court, that Court submitted the matter to a jury, which returned a verdict “finding the issues in favor of William C. H. Pfeiffer and against Bosina Pfeiffer for $5,303.61.” A motion for a new trial was overruled and the Circuit Court entered judgment on the verdict. From that judgment this appeal is prosecuted.
    Edward J. Queeny and W. J. Lacey, for appellant.
    Elmer W. Adkinson, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

The only question before the Circuit Court on this appeal was whether the action of the Probate Court upon the guardian’s report should be approved or modified. Under the statute, by the appeal to the Circuit Court the whole case was carried up and was to be tried de novo. R. S., chap. 37, sec. 226; Hazelrigg v. Pursley, 69 Ill. App. 467-469. It was said in Miller v. Miller, 82 Ill. 463-471, which was a case involving the approval of a widow’s award, that “when the case came to the Circuit Court by appeal, the Circuit Court could not properly exercise any power in the case save that which the County Court could and should have done. The Circuit Court properly could only have ordered the estimate of the appraisers to be set aside or have refused to make such order.” In the case at bar the Circuit Court, exercising the power and for the time being the functions of the Probate Court, could approve the account filed by the guardian in the Probate Court, or could direct a new account to be stated as the evidence warranted. Under the statute, probate courts have original jurisdiction in “the appointment of guardians and conservators and settlement of their accounts.” R. S., chap. 37, sec. 220. By the appeal jurisdiction to settle the guardian’s account was vested in the Circuit Court to be exercised de novo. The statute does not provide for a jury trial. The Circuit Court however submitted the matter to a jury. In Schofield v. Thomas, 231 Ill. 114, 119, an appeal from the Probate Court, the question of the probate of a will had been submitted to a jury in the Circuit Court, and the reviewing tribunal said: “The submission was improper, since the statute does not provide for a jury trial and the question was solely for the court. (Moody v. Found, 208 Ill. 78.) There was no judicial determination by the court that the instrument was the last will and testament of Jane Ottman, but the court ordered that the will be admitted to probate.” In the case cited (Moody v. Found) it was said in effect that the jurisdiction to admit wills to probate was never a part of the common law jurisdiction of common law courts, and therefore the constitutional provision that “the right of trial by jury as heretofore enjoyed shall remain inviolate,” was not “intended to introduce the jury system into those special summary jurisdictions which were unknown to the common law.” In the case at bar, the submission to the jury was improper, and it was error to enter judgment against appellant as was done upon the verdict.

Appellant’s attorneys moved to dismiss her appeal to the Circuit Court after the trial and verdict there, and before proceeding to argue a motion for a new trial. The motion to dismiss was not we think made in apt time and was therefore properly denied. Steamboat Delta v. Walker, 24 Ill. 233-235. If appellant should again move to dismiss the appeal after the cause is reinstated in the Circuit Court, of course it may be done.

For the reasons indicated, the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    Emily B. Hopkins, Defendant in Error, v. Marie L. Sobra, Plaintiff in Error.
    Gen. No. 14,808.
    1. Recoupment—when for damage occasioned by bursting of water pipes not sustained. In an action for rent recoupment of damages arising from the bursting of water pipes will not be allowed unless it is shown that the pipes burst because of the negligence of the landlord—the doctrine res ipsa loquitur does not apply.
    2. Landlobd and tenant—when provision of lease exempting landlord from liability valid. A provision of a lease exempting the landlord from liability for the bursting of water pipes is valid.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed December 23, 1908.
    Emil A. Meyer, for plaintiff in error.
    Leon S. Alschuler, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

This is a suit to recover rent upon a written lease expiring the 30th of April, 1900. The defendant testified that she had not paid the rent for the months of February, March and April, 1900. The defense is that by the bursting of a frozen water pipe in the basement of the building containing the demised premises, property of the defendant was damaged and she seeks to recoup such damages. There is testimony tending to show also that a water pipe burst between the ceiling of the defendant’s store and the floor above, but as to the cause of such alleged break, or as to who controlled the pipes where it occurred the testimony is silent.

The lease describes the demised premises as “the store No. 664 North Clark street to be occupied for dressmaking and ladies’ tailoring,” and contains a provision that the lessor “shall not be liable for any damage done or occasioned by or from plumbing, gas, water, steam or other pipes or sewerage or the bursting, leaking or running of cistern, tank, washstand, water, closet or waste pipe above, upon or about the building or premises.” In February, 1900, a frozen water pipe burst at night in a room of the basement of the building, which room was at the time used by the defendant for a workroom. It was not a part of the premises mentioned in the lease, but defendant had been allowed to use it as a workroom and at the time of the accident had “dresses and goods” there on a table. From this workroom defendant’s employes had access to a water closet under the sidewalk, and it is said this was the main reason why permission was given defendant to use it.

At the conclusion of the evidence the court struck out the testimony as to the breaking of the pipe and directed a verdict for the plaintiff for the amount of rent claimed to be due under the lease. It is urged in defendant’s behalf that the landlord is liable for injuries caused by negligence of himself or his agents. We find however no evidence of such negligence in this record. The burden of proof was upon the tenant to establish all the essential elements of her cause of action, where it is sought to recoup damages as a defense to the landlord’s claim for rent. Such recoupment is in the nature of a cross action. Mendel v. Fink, 8 Ill. App. 378-381. It is not a case of res ipsa loquitur. There is no evidence tending to show that under the circumstances the accident was such as in the ordinary course of things would not happen if the landlord and his agents used proper care. There was no evidence tending to show any defect in construction or use of the water pipes, beyond the fact that the pipes were frozen up and burst on that account. Whose was the fault, if any there was, which caused the pipes to freeze, does not appear.

It is said by defendant’s attorney that the clause in the lease exempting the lessor from liability for damage occasioned by the bursting of water pipes, is void on grounds of public policy. No authorities are cited and no reasons given in support of this assertion. Among cases in which provisions of a lease exempting the lessor from liability are approved, are Taylor v. Bailey, 74 Ill. 178-182; Fera v. Child, 115 Mass. 32-36; Griswold v. Ill. Cent. Ry. Co., 90 Iowa 265-268; Stephens v. Southern Pacific Co., 109 Cal. 86-88; Hartford Fire Ins. Co. v. Chicago, M. & St. P. Ry. Co., 70 Fed. Rep. 201-206; Greenwich Ins. Co. v. Louisville & N. R. Co., 50 L. R. A. 479 (Ky). Most of these cases hold that such provisions are not opposed to public policy.

The judgment of the Municipal Court will be affirmed.

Affirmed.


author: Mr. Justice Freemah

text:
    C. Quinlan, Defendant in Error, v. Gus Thompson, Plaintiff in Error.
    Gen. No. 14,819.
    Statute of Limitations—what promise to pay sufficient to remove bar. An unqualified promise to pay a debt, accompanied by a statement of inability then to pay, is sufficient to arrest the running of the statute.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Mazzini Slusser, Judge presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed December 23, 1909.
    Chatty Bros. & Jarvis and Charles S. Khttosor, for plaintiff in error.
    P. F. Murray, for defendant in error; John T. Murray, of counsel.
   Mr. Justice Freemah

delivered the opinion of the court.

This is a suit to recover an alleged balance of $130 claimed by the plaintiff to be due on an open account for merchandise. The suit was begun May 29, 1908, and the last payment on the account was made June 23,1902, over five years intervening after the cause of action is said to have accrued.

The defendant does not deny the correctness of the original account and that the balance claimed has not been paid, but contends that the claim is barred by the statute of limitations. The only question involved is whether the defendant acknowledged the debt and by an alleged promise to pay since the last payment on account was made and within five years before the suit was begun has taken the debt out of the bar of the statute.

The evidence introduced on the part of the plaintiff is that of the plaintiff’s bookkeeper. He testified that the balance due upon the account on June 23, 1902, when the last payment by the defendant was made, was $130; that in 1903 the defendant called on the plaintiff at the latter’s place of business and in the presence of the witness said that he expected to get into business in a few months and that "he would pay just as soon as he was able,” or that "if he did not get started in business and get regular employment, that he would then pay just as soon as he could get the money;” that defendant did not dispute the account and was shown a statement of it. The witness further testifies that in 1905 in response to a letter from plaintiff, the defendant again came in and saw the plaintiff, and told him in presence of the witness, that he, the defendant, “could not pay then but that he would pay as soon as he was able or got employment; that he need not be afraid of the account, but that he would pay it when he could; that the account was correct,” and that defendant was shown a statement of the account.

The defendant admitted that he did receive letters from the plaintiff, one in 1903, and another in 1905, and that he called on plaintiff both times; but testifies that he did not make the statements ascribed to him by plaintiff’s witness, but "told Quinlan the first time in 1903 that I could not pay and did not know when I could, as-1 was hard up and my family needed all the money I could give them;” that he never told plaintiff at any time “that the account was correct and that I would pay when I got employment or got started in business or when I was able.”

The Municipal Court found the issues of fact in favor of the plaintiff and gave judgment against the defendant for the amount claimed.

It is contended in behalf of the defendant that “a promise to pay when the promisor is able or on a named contingency, is a conditional promise and there can be no recovery without proof that the contingency has happened. ’ ’ The cases are not harmonious on this question, but it must be regarded as settled in this state. In Walker v. Freeman, 209 Ill. 17-23, the court says: “There is no force in the arguments that the statements by appellant in substance, in his letters that he will pay when he is able, and that he expects soon to have an increase in his salary and that he had other indebtedness to which he felt it his duty to give preference and which he would first pay before paying the note in question, made the promise conditional. Such promises are to be performed in the future.” It was held that the letters referred to constituted “an unqualified promise to pay the debt, thereby removing the bar of the statute.”

Among the cases cited in support of the views expressed in that case is Horner v. Starkey, 27 Ill. 13. In that case it was held that a statement of the debtor that “he was not in condition then to pay * * * but that when he made a raise he would do so,” was “a direct promise to pay” the debt, “not then, it is true, but in the future.”

These views are decisive of the case before us. The judgment of the Municipal Court must be affirmed.

Affirmed.


text:
    Erie & Michigan Railway & Navigation Company, Appellee, v. Central Railway Equipment Company, Appellant.
    Gen. No. 15,725.
    1. Corporations—when foreign cannot maintain action in this state. A contract made in this state by a corporation, without having complied with the laws of this state as to foreign corporations doing business in this state, cannot be sued on in this state, even though after the making of such contract and before the institution of suit thereon or with respect thereto such corporation has complied with such laws.
    2. Corporations—when foreign cannot maintain action in this state. A foreign corporation authorized to transact business in this state at the time it institutes its action cannot maintain an action for an injunction to prevent the prosecution of a suit at law upon the ground that it is predicated upon a contract obtained by fraud, if such contract was made by such corporation in this state at a time when it had no power to make such a contract or to sue in this state.
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed.
    Opinion filed December 23, 1909.
    Statement t>y the Court. This is an appeal from an interlocutory order of the Circuit Court enjoining appellant from prosecuting an action brought by it against the appellee in the Municipal Court of Chicago until the further action of the court.
    The suit in the Municipal Court, the further prosecution of which is enjoined, was brought to collect rent alleged to be due under a written proposition dated December 22, 1906, made by appellee to the appellant, then known as the Sipp Railway Equipment Co., and accepted by the latter in writing. By the terms of this instrument the appellant agreed to lease to appellee for a period of five years 300 box cars conforming to certain conditions therein described. As rental for such cars appellee agreed to pay an amount specified in the agreement at certain fixed times; and further agreed to redeliver the cars to appellant at the end of the period of the lease free of all expense. There are other provisions in the instrument, not material to the consideration of the questions now in controversy. The performance of the lease is guaranteed by the United States Gypsum Company, a New Jersey corporation authorized to do business in the States of Illinois and Michigan.
    The bill of complaint under which the injunction in question was issued alleges that complainant, appellee herein, is a Michigan corporation, authorized to do business in Illinois. It appears however from affidavits offered and read by appellant at the hearing in the Circuit Court, and is apparently not disputed, that prior to and at the time of the execution of the said lease, appellee was a foreign corporation for profit, not licensed to do business in Ulinois; that it was not an insurance company nor a building and loan company nor a surety company; that it was organized and existing under the laws of the State of Michigan; that it had never acquired, constructed nor operated a railroad in the State of Illinois; “that during the time of all the transactions and occurrences covered by and mentioned in said bill of complaint, said complainant was exercising corporate powers and transacting business, not interstate commerce, in the State of Illinois; that from and after July 1, 1905, to the present time said complainant has constantly maintained its general and principal offices in Illinois and in the city of Chicago;” that during the time of the transactions in controversy appellee maintained its bank accounts in Illinois, which were three in number, consisting of a pay roll account, a dividend account and a general account ; and that it had no other bank account in any bank outside of Illinois. The affidavit sets out at considerable length a number of business transactions of appellee in the State of Illinois tending to show that while still a foreign corporation which had not qualified to transact business in Ulinois nor to exercise any corporate powers in the state, and which had not complied with an “Act to regulate the admission of foreign corporations for profit to do business in the State of Illinois,” in force July 1,1905, appellee had carried on extensive business transactions in the state, involving the continued exercise of corporate powers; and further that prior to October 2, 1908, appellee had never made the application to the Secretary of State of Illinois provided for in section 2 of said Act, and the Secretary of State had never issued any certificate authorizing said corporation to transact any business in this state. Appellee was licensed to transact business in Illinois on the 14th of January, 1909. The bill of complaint was filed March 9, 1909.
    Material allegations of the bill setting up equities upon which appellee relies, are to the effect that appellee, complainant herein, is and for some years has been owning and operating a railroad from East Tawas to Alabaster, both in Michigan, freight steamers upon the Great Lakes and docks in Alabaster; that O. B. Englisch at the time of the transactions in question and until January 16,1909, was a director of complainant and was until October 2,1908, complainant’s vice-president and general manager, from which offices he was removed on the dates mentioned; that as vice-president and general manager of complainant he had, subject to the supervision of the directors, the management and control of complainant’s business, and that from complainant’s incorporation until October 2, 1908, he controlled its corporate acts; that as such officer and director it was not in his power to make any contracts in which he had or could have any personal interest except as a stockholder; that in 1906 it was necessary for complainant to secure for use in its business a large number of box freight cars, and Englisch as such officer and subject to the approval of complainant’s directors was charged with procuring such cars upon the most favorable terms possible; that one B._ P. Sipp, a dealer or broker in railway equipment, having learned that the Illinois Central Railroad Company, an Illinois corporation, had box freight cars for sale, undertook for Ms own profit to find a purchaser therefor; that he proposed to Englisch as complainant’s vice-president and general manager, that complainant buy said cars for substantially $150 a car, and that thereupon Englisch formed the fraudulent design of buying the cars without complainant’s knowledge and leasing them to complainant at a price which would secure him a great profit at complainant’s expense; that he informed Sipp that either complainant or he for complainant’s benefit would purchase the cars, but for complainant’s convenience would cause the title to said cars to be held by an independent corporation for complainant’s benefit; that he proposed to Sipp that such corporation should be organized under the name of the Sipp Bailway Equipment Company, and that Sipp be paid a commission for procuring the sale of the cars in stock of said proposed corporation, and that Sipp accepted this proposition.
    It is alleged that about this time, December 22,1906, said Englisch reported to complainant that he could lease for complainant from the Sipp Bailway Equipment Company, which he represented to be an Illinois corporation, 300 box cars of a capacity of 50,000 pounds each, upon advantageous terms for complainant and that it would cost complainant between $200,000 and $400,000 to buy a like number of cars; that believing, such representations complainant requested Englisch to procure the cars; that the cars so represented to belong to the Sipp. Bailway Equipment Company were in fact the cars of the Illinois Central Bailroad Company, and that there was at that time no such firm, association or corporation as the Sipp Bailway Equipment Company in existence, but the name was used to cause complainant to believe it was entering into a valid contract with an existing corporation by a pretended lease, which was however a mere device to enable Englisch to profit at complainant’s expense.
    Upon December 22,1906, the alleged pretended lease was executed in complainant’s name “By O. B. Englisch, Vice President & Geni. Mgr.;” and below such signature was an endorsement, “Accepted, Sipp Railway Equipment Co. by B. F. Sipp, President.”
    It is further alleged that Englisch while -still an officer and agent of complainant authorized Sipp to purchase said 300 cars from the Illinois Central Railroad Co., for $150 per car, the seller to expend not to exceed $25 a car in repairs on each car, and Sipp made such an agreement in his own name; but it is charged, for and on behalf of complainant. It is alleged on information and belief that Englisch furnished the money to purchase the cars and paid the Illinois Central Railroad Co. $45,000 for the cars and $14,122.67 for repairs on them, and that all of these acts of Englisch and of Sipp in connection therewith were in fact and law done by them as agents of complainant.
    As a further part of his scheme to defraud complainant, it is charged that after the execution of said pretended lease Englisch caused a corporation to be formed under the laws of Illinois, with the name ‘ ‘ Sipp Railway Equipment Company,” having a capital stock of $5,000, which was in January, 1907, increased to $200,000, all of which stock, it is charged on information and belief, Englisch owned or controlled, except a small percentage issued to Sipp as .commissions for the purchase of the cars; that Englisch controlled and has always controlled said corporation; that in September, 1907, Sipp severed his connection with and surrendered his interest in said Sipp Railway Equipment Company, and the name was changed to the Central Railway Equipment Company.
    It is charged that said last named corporation, the appellant herein, while ostensibly organized to manufacture and deal in railway equipment and supplies, was in reality organized as one step in a scheme to defraud complainant, and that by placing the apparent ownership of said cars in said corporation Englisch was enabled to and did conceal from complainant his personal interest in said Equipment Company which claimed to be the owner of said cars, and that said pretended lease was in reality a lease between Englisch and complainant; that thereby Englisch has been enabled to receive as pretended rental for the cars, a sum out of all proportion to their value, which sum had up to August 1,1908, amounted to upwards of $48,900, although the cars cost but $59,000, and that all the dealings of Englisch as an officer and agent of appellee with said Sipp corporation amounted in law and fact to dealings with himself as an individual and were frauds upon complainant; that all of said acts in procuring said cars should be decreed to be for the benefit of complainant; that the pretended lease should be declared void and Englisch should be required to account to complainant for all moneys and property received by him or said corporation formed by him.
    The bill further details circumstances relating to the delivery of the cars, their capacity and condition, and shows that Englisch caused complainant to pay the rentals under the pretended lease until September, 1908, when complainant refused to make further payments, having learned for the first time the true state of facts relating to the transactions in controversy; that thereupon notice was served upon the appellant that said lease was procured by fraud and that appellee would pay no further rent for said cars; but complainant offered to pay the difference between the rentals already paid and the purchase price of the cars as paid to the Illinois Central Bailroad Company. October 2, 1908, Englisch was removed from the office of vice-president and general manager of appellee, and on January 16,1909, from the office ,of director.
    It is alleged that at the time of the purchase of the cars, Englisch represented to said Illinois Central Bail-road Company that the cars were purchased for complainant; that at the time of the execution of the alleged lease by Englisch, he was second vice-president of the said United States Gypsum Company, and that by'his representations to both complainant and said Gypsum Company he procured the latter to guarantee the performance of the lease.
    It is further shown that since complainant’s refusal to pay any more rent under the pretended lease, the appellant, for the purpose of enforcing said alleged fraudulent contract, has caused an action at law to be instituted in the Municipal Court of Chicago against appellee, and an action also against the United States Gypsum Company upon its said guaranty; that demurrers to pleas of the defendants in said suits have been sustained, and that it will be impossible for said defendants to obtain adequate relief in the premises in said Municipal Court or in any court of law.
    Affidavits in behalf of appellee tending to support the averments of the bill and other affidavits in behalf of appellant tending to show that appellee at the time of the transactions in controversy was a foreign corporation, without authority to do business in this state, were read upon the hearing.
    Before the injunction issued the complainant dismissed the bill as to Engiisch.
    Israel Shrimski, for appellant.
    Scott, Bancroft & Stephens, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

It is said in behalf of appellant that having been dismissed as to the defendant Q. B. Engiisch, the bill is fatally defective; that it is apparent that he is an indispensable party. Appellee states that “Engiisch was dismissed as a party because the lower court announced and the Equipment Company had claimed that the attempt to obtain relief against Engiisch proved the action was not merely defensive, but was an affirmative proceeding for an accounting; ’ ’ that the remedy sought by appellee “is an injunction against a suit upon a contract, the execution of which by it was procured by fraud,” and that “the only thing it was granted by the lower court and which is the only question for determination here is the right to avail itself of an equitable defense against a claim based solely upon the fraudulent contract.” The interlocutory decree appealed from merely restrains appellant from further prosecuting its action against appellee in the Municipal Court. We regard the bill as sufficient on its face to this extent.

Appellant’s main contentions are that at the time of the transactions out of which appellee’s claim to relief arises, the latter was a foreign corporation transacting business and exercising corporate powers in this state in violation of law, without having complied with the requirements of the Act of 1905, regulating “the admission of foreign corporations for profit to do business in the State of Illinoisthat it cannot therefore maintain this suit nor any suit upon any cause of action arising out of such transactions; that it could not at that time enter into any valid contract in this state, and that neither directly nor as an alleged cestui que trust can it take any benefit flowing from contracts which it was incapable of making. A further contention is that no equity appears in the bill.

It is not questioned that as a matter of fact the lease in controversy was executed and all the transactions relating thereto set forth in the bill occurred at a time when appellee, a foreign corporation for profit, organized and existing under the laws of Michigan, had not complied with the requirements of the said Act of 1905 regulating the admission of foreign corporations to do business in Illinois. The first section of that Act (R. S., chap. 32, sec. 67b) provides that before any such “foreign corporation for profit shall be permitted or allowed to transact any business or exercise any of its corporate powers in the State of Illinois,” such corporation 1 ‘ shall be required to comply with the provisions of this Act and shall be subject to all of the regulations prescribed herein, as well as all other regulations, limitations and restrictions applying to corporations of like character organized under the laws of this state.” The sixth section of the Act provides certain penalties for failure to comply therewith and that “in addition to such penalty, if after this Act shall take effect, any foreign corporation shall fail to comply herewith, no suit may be maintained either at law or in equity upon any claim, legal or equitable, whether arising out of contract or tort in any court in this state.” In United Lead Co. v. Reedy Elevator Manf’g Co., 222 Ill. 199-201, a provision of a statute then in force (R. S. 1903, chap. 32, sections 67b and 67d) similar to that from the Act of 1905 last above quoted was under consideration. The court said: “The contract upon which this suit was brought having been entered into in this state when appellant was not permitted to transact business in this state, is in violation of the plain provisions of the statute, and is therefore null and void, and no action can be maintained thereon at any time even if the corporation should at some time after the making of the contract qualify itself to transact business in this state by a compliance with our laws in reference to foreign corporations that desire to engage in business here.” So in the case at bar, the fact that appellee has, since the transactions now in question, complied with the requirements of the Act of 1905 and been licensed to transact business in Illinois does not relieve it from the prohibition of the statute, so as to enable it to maintain at any time any action upon any contracts which it entered into in this state prior to January 14, 1909, the date when it was licensed. All such contracts, including the lease in controversy, are, in the language of the Supreme Court, null and void.

In so far as the bill by its averments and its prayer seeks affirmative relief other than that granted by the injunction (which merely restrains the prosecution of a suit upon the lease in the Municipal Court), it is difficult to see upon what ground it can be maintained. It prays for an injunction not only restraining appellant from prosecuting the suit at law, but also from selling, transferring, encumbering or disposing of the cars mentioned in the lease and from interfering with appellee’s possession or use of the cars pending an ac - counting by the court and its determination of the real ownership of the ears. In appellee’s brief it is said that “appellee’s ownership need not he adjudicated” at this time, that the “contention therefore is not solely or necessarily, did the appellee become the owner, hut is primarily, is it not sufficient to show that appellant is not the owner. Unless this is answered in the negative, the other question is not material.” It is clear therefore that appellee seeks by its hill to maintain an equitable claim for affirmative relief upon transactions which by the statute were forbidden to it as a foreign corporation not licensed to do business in the state at the time, and which transactions were and are therefore to be deemed null and void. It asks the court to determine the question of ownership of the cars and having done this then to grant affirmative relief by injunction. The statute forbids to appellee the maintenance of such a suit.

It is urged however that the foreign corporation Act does not prevent a corporation from defending in the courts of this state; that the scope of the injunction “goes no further than a mere defense of the pending aqtion in the Municipal Court,” that it is the injunction order and “not the prayer of the bill that is hereby reviewed,” that such order “merely held that a bill could be maintained in so far as it set up in chancery facts to defeat an action at law which must otherwise succeed;” that “the question for this court to consider is whether or not the legislature intended to bar foreign corporations from defending in this state, and second, whether if that defense is equitable, the legislature intended by the use of the words ‘maintaining a suit upon any claim legal or equitable,’ to include a suit wherein the sole relief consisted in enjoining a pending law action in which the corporation had already been made a party, for the purpose of setting up an equitable defense to that action and preventing a judgment being entered therein.” The intention of the legislature is to be determined from the Act itself. In United Lead Co. v. Reedy Elevator Mfg. Co. supra the language of the court in Cincinnati v. Rosenthal, 55 Ill. 85, is approved as follows: “When the legislature prohibits an act or declares that it shall be unlawful to perform it, every rule of interpretation must say that the legislature intended to interpose its power to prevent the act, and as one of the means of its prevention that the courts shall hold it void. This is as manifest as if the statute had declared that it should be void.” It is true that the language of the Act does not in terms prohibit a foreign corporation from defending a suit brought against it, but only from maintaining such suit. We are however unable to concur in appellee’s contention that the question for us to consider is “whether or not the legislature intended to bar foreign corporations from defending in this state.” The question is whether appellee, a foreign corporation now authorized to transact business in this state and to sue and defend in its courts, can maintain a suit for relief from the consequences of a contract made in this state which it had then no power to make and upon which it had not then and has not now the right to maintain any suit “either at law or in equity.”

Appellee’s counsel urge that “a foreign corporation may maintain an action founded upon rights involuntarily conferred upon it by operation of law, provided it is licensed at the time it institutes its action;” that appellee is not seeking to enforce a contract, but to have the court decree that the lease of December, 1906, was procured through fraud and is void, and that the acts of business said to have been done by appellee in Illinois in violation of the foreign corporation Act were “all unauthorized acts of O. B. Englisch, the owner of appellant, who is now seeking to set them up for his own benefit.” The lease being void for want of power on the part of appellee to execute it, it is clear appellee cannot maintain its bill so far as it seeks affirmative relief on such void contract. The question whether unauthorized acts done by an agent in the name of a foreign corporation are business transactions of the latter done in the state in violation of law, is not now before us. As to that we express no opinion. Appellee’s argument is that appellant acquired under the lease “no real rights against appellee,” that on its face “being executed by the parties, it would appear valid in a court of law, where appellee’s defense is not available, and hence must be set up in chancery; that while a suit upon the contract could not be maintained by appellee, in view of its disability when the contract was made, yet that its bill in this case is not founded upon a contract, but its cause of action is involuntary on its part, and that in such case the test applied is whether the corporation was licensed at the time the suit was instituted,” that appellee having been licensed at the time it filed its bill is entitled to maintain the action. In support of this contention we are referred to Thompson v. Whitehed, 185 Ill. 454-465, where it was said the rights of the corporation “are to be determined (at the latest) as of the date of the levy of the writ;” and also to McCarthy v. Chimney Construction Co., 219 Ill. 616-625, where it is said that the corporation’s “rights are to be determined as of the date of the beginning of the suit.” In these cases the language cited is not we think open to the construction sought to be given it. In the first of them a foreign corporation had sued out an attachment writ in this state, before it had complied with the requirements of the foreign corporation Act. The court held that it had no right then to invoke the aid of the courts of this state and therefore did not by levy of the attachment writ secure a lien upon the property in dispute; that the fact it subsequently complied with the Act and received a certificate of compliance from the Secretary of State did not make the void writ valid, and that the corporation’s rights in that respect were to be determined as of the date of the levy; in other words that having no right when it began the suit and having acquired no lien under the attachment writ, it acquired none by subsequent compliance with the law. The McCarthy case was a suit by a foreign corporation on an appeal bond. It was held that the execution of the appeal bond by the appellant to obtain a review of the case in an upper court did not constitute a “transaction of business” on the part of the appellee, whose consent to the execution of the appeal bond was not required; that inasmuch as the pleas alleged only that the appellee had not complied with the statute at the time of the execution of the appeal bond, which “was involuntary on the part of appellee,” and did not allege that appellee had not complied with the statute at the time of beginning its suit on the appeal bond, “its rights were to be determined as of the date of the beginning of the suit,” and not as of the date when the appeal bond was executed without its consent by another party. In the case at bar, while it is contended that the execution of the lease in controversy was a fraud on appellee, the latter did nevertheless in fact execute the lease by its then authorized officer. Such execution was not involuntary on its part. The fact that the suit in the Municipal Court which the chancellor has enjoined was without appellee’s consént, does not make “the cause of action involuntary on the corporation’s part.” We cannot concur in appellee’s contention that the test “is whether the corporation (appellee) was licensed at the time the suit was instituted.” If there was any room for doubt, that question was settled by the Supreme Court in United Lead Co. v. Reedy Elevator Co. supra.

It is further said in appellee’s behalf that the word “claim” as used in the statute does not include “defense,” and that where, as here, appellee does not sue on nor seek to enforce a contract, but has an equitable defense, it may maintain an “independent bill for the sole purpose of setting up that defense;” that the foreign corporation Act does not deprive a foreign “corporation when sued of the right to defend on equitable grounds.” In Catholic Bishop v. Chiniquy, 74 Ill. 317, which was likewise a suit in equity to enjoin an action at law, the language of the court is very much in point as to whether the relief sought by the bill in the case at bar and granted by the injunction under consideration, constitutes an “equitable claim” in the sense in which those words are used in the foreign corporation Act above quoted. The court (p. 318) says: “The application to equity necessarily concedes the legal right and it is upon the ground that such legal right which is sought to be enforced by the action at law is subservient to an equitable claim which the defendant at law cannot set up there, that the court takes jurisdiction.” And it is further said (p. 319): “Where the application is properly made, the defendant at law virtually says to the plaintiff, ‘I do not controvert your legal right, but I have a claim in respect of that right which in conscience and good faith ought to control you in the exercise of it; and inasmuch as you have brought me into a forum where you can establish and enforce that right, while by the rules of that forum I am precluded from establishing my claim, I will therefore transfer the controversy to another forum, where, admitting your legal right, I shall seek, and be allowed, if I can, to establish my claim, and by doing so, control the exercise of your legal right’." See also County of Cook v. City of Chicago, 158 Ill. 524-531.

It is difficult to perceive any legitimate distinction between maintaining a suit upon an equitable claim and a bill which seeks to establish such claim. The former is forbidden to an unlicensed foreign corporation by the statute; and the prohibition must be deemed to include the latter also. We are of the opinion that such is the meaning and effect of the statute. The language is broad and we think is open to no other construction, where as here the bill does “not controvert” the defendant’s legal right in the suit at law, but seeks to establish affirmatively “a claim in respect of that right” which it alleges ought in conscience and good faith to control the defendant in the exercise of that right. This is, we think, seeking to maintain a suit in equity upon an equitable claim; and where the complainant was an unlicensed foreign corporation transacting business in this state in violation of the law at the time of the transactions upon which its equitable claim is based, is within the prohibition of the statute.

We are compelled to the conclusion that the interlocutory injunction complained of is erroneous. It must therefore be reversed.

Reversed.


author: Mr. Presiding Justice Chytraus

text:
    Ed Weidle et al., Appellees, v. Elgin, Joliet & Eastern Railway Company, Appellant.
    Gen. No. 14,546.
    1. Liens—when subcontractor barred as against railway company. The lien of a subcontractor being dependent upon service of notice, as required by statute, absence of such notice bars the right to the lien.
    2. Liens—when subcontractor barred as against railway company. The law does not give a lien to the subcontractor against a railway company until notice is served; all payments to the original contractor up to the service of such notice are rightful; if at the time the notice is served nothing is due the original contractor, and nothing thereafter accrues to him, no recovery can be had by the subcontractor of the railway company.
    3. Liens—what essential to subcontractor’s right to. Liens of subcontractors can exist only upon the basis of the contract between the owner and the original contractor, and hence, can have no existence, and cannot be decreed when inconsistent with that contract.
    4. Deoeees—when service by publication does not justify. A personal decree cannot be rendered predicated upon substituted service.
    5. Pleading—when petition multifarious. Subcontractors having separate and distinct claims cannot join in a single petition to enforce their liens, but answering such a petition waives the point. The proper practice is for a single subcontractor to file a petition and the remainder intervene in the proceeding so instituted.
    Mechanic’s lien. Appeal from the City Court of Chicago Heights; the Hon. Homes Abbott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.
    Reversed.
    Opinion filed January 18, 1910.
    Statement by the Court. This is a proceeding originating in a petition in the City Court of Chicago Heights, filed, jointly, by seventy-two parties to establish a lien upon all the property, real, personal and mixed, of the defendant railway company, under the provisions of “An Act to protect contractors, sub-contractors and laborers in their claims against railroad companies, or corporations, contractors, or sub-contractors.” The petition was filed on September 5, 1906. The act in question is found in chapter 82 of the Revised Statutes. The railway company was constructing an additional track along its line between Dyer, Indiana, and Matteson, Illinois, and, on April 28, 1906, entered into a contract with Thomas P. Mc-Donough and Howard M. Lloyd, whereby McDonough and Lloyd undertook to “construct and finish,” on or before July 10, 1906, the grading, that is, all excavations and embankments for the formation of the roadbed, ditching, diversions of roads and streams, foundation pits, and all similar work connected with or pertaining to the construction of the additional railway track, its side tracks and station grounds. McDonough and Lloyd thus became and will be referred to herein as the original contractors for this grading. They were made parties defendant to the petition but were only served by publication and were defaulted because they did not appear. The contract for the grading provided that payments of 85% were to be made on the fifteenth day of each month, for the work done during the preceding month, upon estimates of the company’s engineer. The remaining 15% was to be retained until after the complete performance of the work under the contract.
    On October 26, 1907, the court rendered a decree establishing liens in favor of fifty-three of the petitioners, severally, for various amounts aggregating over $3,000, and decreeing that McDonough, Lloyd and the railway company pay these fifty-three petitioners, severally, the amounts for which liens were allowed. The railway company prosecutes this appeal to reverse that decree.
    According to a stipulation of the parties who appeared in the cause we find that the original contractors began work on April 30, 1906,. and, on June 26, 1906, after having moved 16,675 cubic yards of material, quit work and thereafter did no work under their contract; that on July 10, 1906, the original contractors abandoned the performance of the contract; that, thereafter, on July 10 or 11,1906, the railway company, itself, took up the work and, after having moved 26,650 cubic yards of material, completed the contract work by October 1, 1906; that a price per cubic yard of material moved was the measure of compensation under the contract; that the railway company had paid $3,841.92 and furnished material for $36.80 to the original contractors when they quit and, thereafter, the company expended $10,890.25 more in completing the work under the contract, so that it cost the railway company $2,854.43 more than the contract called for to have the contract work completed; and, that, after allowing all just credits and set-offs, this latter amount is due and owing from the original contractors to the railway company, on account of the original contractors ’ breach of contract.
    According to the engineer’s estimate it appears that when the original contractors quit, more material had been moved than the original contractors had been paid for to the amount of $707.07. This was due to the 15% reservation.
    The numerous petitioners severally claim either as subcontractors, workmen or furnishers of material, under verbal agreements with the original contractors.
    The notices required to be served, under section 3 of the act of the legislature now in question, by subcontractors, material men and laborers, in order to acquire a lien, were served by various claimants at various times during the period beginning with July 16, 1906, and continuing until September 11, 1906.
    Knapp, Haynie & Campbell and Mark Breeden, Jr , for appellant.

      Craig A. Hood, for appellees; Charles H. Robinson, of counsel.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Section 2 of the act under which the petition herein is prosecuted, speaking in a general way, provides that subcontractors, material men or laborers, who shall furnish material or do work, in conformity with any of the terms of any contract, express or implied, which an original contractor may have made with the railway company, shall have a lien. The section contains a proviso as follows: “Provided, such subcontractor, material man or laborer shall have complied with the provisions of this act; but the aggregate of all liens hereby authorized shall not, in any case, exceed the price agreed upon in the original contract to be paid by such corporation to the original contractor.”

Section 3 provides that such subcontractor, material man or laborer shall give notice to the railway company of his employment, or that he has furnished materials and that the notice must be served “within twenty days after the completion of such subcontract or such labor.” This section has the following proviso, viz.: “Provided, that no lien shall attach in favor of any person performing such labor or furnishing material until such notice shall have been served as above. ’ ’

After June 26, 1906, the subcontractors, material men and laborers now before the court as petitioners furnished nothing and did no work in conformity with the original contract, so far as we can perceive from the record. Indeed the evidence, aside from the stipulation, rather indicates that nothing was furnished and no work was done by them after June 23, 1906. Manifestly, so far as there was any completion of subcontracts or labor by these petitioners, such completion occurred on or before June 26, 1906, when work was stopped under the McDonough-Lloyd contract. Petitioners have adduced no evidence and do not contend that they then left incomplete any subcontracts c»r engagements for labor. So far as any reason is concerned, why they then respectively quit, the record is silent. Assuming, therefore, completion on that date of the subcontracts and engagements for labor of the several petitioners, it became incumbent upon such of them as desired liens upon the railway company’s property to “attach” in their favor, to serve notices within twenty days of June 26,1906. Those who failed to serve notices within that time are absolutely barred merely by that failure. By the stipulation it is only agreed that McDonough and Lloyd quit work on June 26 and, in reality, there is nothing in the record to exclude the thought that some or all of the petitioners may have quit work long before that date, except, possibly, the testimony of the company’s engineer and a letter written by McDonough some time after August 10, 1906. The engineer’s testimony indicates no one worked after June 23, but he rather qualifies this, later, by saying it might have been as late as June 26 or 27. McDonough’s letter, which, under the circumstances, can serve only as an admission against himself, says the original contractors abandoned work on June 23, 1906. The petitioners, perhaps, all failed to establish evidence of essential facts going to show that they served notices in such seasonable time as to have liens attach.

As to those of the petitioners who served notices on July 16,1906, we prefer, however, in view of the stipulation, to place our decision on a ground other than the lack of service of notice in due time. The statute specifically provides that no lien shall attach in favor of any person performing labor until he shall serve notice. Consequently, owing to failure to serve notice earlier, no lien could here attach in favor of any of these petitioners prior to July 16, 1906, the day on which notices were served. Whether any lien attached on that date depends upon the then situation under the original contract. The act involved provides, speaking accurately, for the acquisition of liens upon the service of notice by the persons specified. The statute does not establish the lien without the service of a notice upon the railway company. Although the statute provides for the acquisition of liens, yet it remains entirely optional with subcontractors, material men and laborers whether, by the service of notice, they will acquire liens or not. A particular subcontractor, material man or laborer may or may not desire a lien. He has the privilege. Unless and until he chooses to serve a notice he has no lien. All payments made by the railway company to the original contractor prior to service of notice are, so far as these possible lienors are concerned, both rightful and lawful payments. Such prior payments, made in good faith, are in contravention of no legal or equitable right of a subcontractor, material man or laborer. No language in this statute giving this special privilege to these subcontractors, material men and laborers, enlarges that special privilege by expressly or impliedly inhibiting the making of payments provided for by the original contract, prior to service of notice. To hold such inhibition to exist would be to enlarge the special privilege given. We cannot change the statute or enlarge the privilege by judicial legislation. This statute.is in derogation of the common law, and its effectiveness must not be extended by inference or implication. On July 16, when the notices were served, the original contractors were entitled to nothing and there was nothing earned or owing under the original contract. The original contractors had then abandoned the work and their contract, and the railway company took up and completed the abandoned work at a cost and expense to itself of $2,854.43 more than the cost would have been had the original contractors completed the work, On July 16 only 16,675.6 cubic yards of material had been moved which, at the contract price, amounted to $4,585.79. Of this amount $3,878.72 had been rightfully paid out to the original contractors by the company. Petitioners, as shown, are, under this statute, entitled to no lien as to the money paid ont before notice served.

There is nothing in the act to indicate that where a company has failed to observe no provision thereof the railway company should be required to pay, substantially, twice what it has contracted to pay for work done. Payment twice would be, practically, the result of now requiring the company to pay to these petitioners over three thousand dollars, in addition to the amount paid the original contractors. Had petitioners served notices in season instead of trusting alone to the credit of the original contractors, the situation we are now dealing with would not have arisen. Section 2 of the act, which provides that when the liens authorized aggregate in excess of the original contract price the company shall, nevertheless, not be required to pay more than that contract price, indicates, to a slight extent, that when the company itself in nowise fails to observe the law it shall not be required to pay more than the contract price. We shall presently come to the $707.07 difference between the $3,878.72 and $4,585.79.

When the original contractors abandoned the contract work but little more than one-third of the grading fyad been done. We cannot indulge in the absurd supposition that the law-making powers intended, by the act involved, to allow these petitioners, who quit work with the original contractors, a lien as to, or for, the cost of doing the grading undone when the original contractor abandoned the contract. Certainly no such intention should be inferred when it appears, as here, that the doing the work left undone by the original contractors cost not less but more than the contract price, so that a shortage resulted which the company was obliged to make good.

Of the total contract price out of which, only, liens should be awarded to be paid where the company has not failed to observe the law, we have already considered the amount paid out to the original contractors and the cost of the portion of the grading left undone; there remains, of the contract price to be considered, the $707.07, representing the 15% held in reserve until the completion of the contract work. This reserve was not earned by the original contractors when they quit and, as events developed, never became due to them, under the contract. The original contract contained a provision, substantially, that if the original contractors should neglect to prosecute the work with sufficient force for its completion within the specified time, then the railway company “may proceed to take possession of and use in completing the work all tools supplied, and materials on the work or prepared for it and to employ such additional workmen, laborers, teams and overseers, as may, in the opinion of the said engineer, be necessary to insure the completion of the work within the time specified, or as soon thereafter as practicable, at such prices and wages as the said party of the first part may find necessary or expedient to give; and charge the amount so expended for labor and materials to the parties of the second part, as for so much money paid to the parties of the second part on this contract.” The original contractors certainly neglected to prosecute the work with sufficient force when they quit work entirely. The 15% reserve can be considered as earned and owing only after it has been made to appear that it would not become necessary, under the provisions of the contract, to expend it in the completion of the contract work. Here it appears that it became necessary to expend the reserved amount, and more, in the completion of the work. To require the 15% reserved, or any part thereof, to be devoted to the payment of the claims of the petitioners would be inconsistent with the terms of the original contract.

It must be said of the kind of lien here contended for as was said of mechanic’s liens in Williams v. Rittenhouse & Embree Co., 198 Ill. 602, 611, “The lien is in derogation of the common law, is opposed to common right, and cannot be given except when authorized by the provisions of a statute strictly construed.”

In the case of Von Platen v. Winterbotham, 203 Ill. 198, 205, it was said that where the contract with the owner is sufficient to create a mechanic’s lien it may well be implied that the owner, through the agency of the contractor, assents to the subcontractor’s liens by the employment of labor and procuring material to carry out the contract, but if the contract with the owner is inconsistent with the existence of a lien the creation of a subcontractor’s lien can rest on no such assumption and, it was further said, that no reason was apparent why subcontractors should be permitted to establish liens inconsistent with the original contract or in violation of its terms. The like reasoning is applicable in the case at bar. It would be inconsistent with the provisions of the contract involved to require the company to pay the claims of these petitioners, or any part thereof, in addition to the amounts it has already expended.

In view of the tardiness of these petitioners in not serving notices until everything earned under the contract had been rightfully paid out to the original contractors, the lien act involved does not require further payment by the railway company and, not only that, but, under the circumstances of this case it would be exceedingly unjust and inequitable to require it to pay the claims made. We do not mean thereby that it would be unjust that petitioners should be paid, but that it would be unjust now to require the railway company to furnish the money with which to pay them.

The record discloses another reason why the decree before us should be reversed. The only service upon McDonough and Lloyd was by publication and they did not appear. Yet a personal decree against them was rendered requiring them to pay the amounts of the several claims. Further, the decree, so far as they are concerned, was rendered upon a stipulation between the solicitors for the petitioners and the solicitors for the railway company and without any evidence being adduced against-McDonough and Lloyd in respect of material facts. The counsel not representing a party cannot so stipulate away his rights. Were the decree properly rendered it would be res adjudicata between the original contractors and the railway company.

The several petitioners who joined in the petition filed had no joint right against the defendants. Their contracts were several and independent each of the other. The petition was, therefore, multifarious. The point was raised in the court below and is raised here. Had defendant^ stood by their position in that regard in the court below it would undoubtedly have resulted fatally to the petitioners’ claims. But, by answering, the railway company waived the point. The better procedure for petitioners would have been to have filed a petition on behalf of one of the petitioners and therein, in addition to the facts material and pertinent only to himself, to have stated, fully and at large, all the general facts common to all the lien claimants; then, that being done, all the other lien claimants could have come in by their several short intervening petitions wherein each would have adopted from the original petitions, by reference, the general facts common to all and then, in addition, have stated fully the facts material and pertinent to himself alone. As there are several distinct issues raised as to different petitioners this record would, by such procedure, have been materially simplified. It is now in a very disordered state. As to some of the petitioners—those whose claims were disallowed below—there has been no formal final disposition of the case. Other errors of more or less materiality also appear.

For the reasons herein indicated the decree will be reversed and the cause will not be remanded.

Reversed.