text:
    Margaret A. Bonney, Defendant in Error, v. Charles L. Bonney, Plaintiff in Error.
    Gen. No. 14,595.
    1. Appeals and ebbobs—what not subject to consideration. The validity of the record or the validity of a judgment thereon in a former appeal cannot be questioned in a writ of error proceeding to review a further judgment or decree based thereon.
    2. Appeals and ebbobs—when diminution of record should be suggested. If an omission appears in the transcript as filed a party is in no position to complain thereof if he has failed to suggest a diminution and thus had the omission supplied.
    3. Appeals and ebkobS'—when motion to strike supplemental record denied. A motion to strike a supplemental record will be denied if such record contain matters which were before the trial court at the hearing and which 'should have been contained in the original transcript.
    4. Contempt—when order of commitment not erroneous. An order of commitment made for the purpose of compelling obedience to an order providing for the payment of alimony is not erroneous in failing to fix a definite term of imprisonment or in limiting such term “until discharged according to law.”
    Attachment. Error to the Circuit Court of Cook county; the Hon. Mubbay F. Tuley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed October 29, 1909.
    Charles L, Bobthby, pro se.

      Thomas S. McClelland, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

Plaintiff in error seeks by this proceeding to reverse a decree entered by the Circuit Court on March 10, 1905, directing an attachment to issue against the plaintiff in error for his failure and refusal to pay the defendant in error the sum of $5000 alimony, as provided in the decree of that court entered in the cause December 19,1899:

It appears from the record that defendant in error obtained a decree of divorce from plaintiff in error on December 19, 1899: The subjects of the care and custody of their children, alimony, etc., were by the decree reserved for further consideration. Later, on the same day, the parties again appeared before the court and a decree was entered granting the defendant in error alimony. December 29, 1900, defendant in error filed her petition in the Circuit Court in the divorce proceeding, alleging that plaintiff in error had failed and refused to pay to defendant in error $5000 for alimony as provided in the decree, and praying that plaintiff in error be ruled to answer the petition, and to show cause why he should not be attached for contempt, etc. The Circuit Court, on motion of the petitioner to re-docket the cause and for a rule as prayed by her petition, overruled the motion and dismissed the petition on the ground that her remedy was by an action at law on certain notes mentioned in the alimony decree. Defendant in error prosecuted an appeal from that order to this court and the decree was reversed and the cause remanded with directions. Bonney v. Bonney, 98 Ill. App. 129.

Upon the cause being redocketed in the Circuit Court plaintiff in error was ruled to answer the petition and to show cause why he should not pay the alimony. Plaintiff in error filed his answer December 13, 1901, and also his cross-petition which, on motion, was stricken from the files December 31,1901.

Defendant in error filed exceptions to the answer of plaintiff in error to her petition, and on March 4,1902, her exceptions were sustained by the court, and on March 10, 1905, the court entered the decree which this writ of error is prosecuted to reverse.

It is urged that the true and genuine decree of the Circuit Court was not taken before and presented to this court on the former appeal, but only a “mutilated and bogus” copy thereof was included in the record, and therefore the Circuit Court erred in redocketing the cause and entering the rule to show cause.

This point cannot be raised on this appeal. The validity of the record before this court or the validity of its judgment thereon in a former appeal of this cause cannot be questioned or challenged on this writ of error. The writ now before the court requires us to examine the record of the Circuit Court in this cause, not the record of this court on a former appeal or writ of error. An appellate court has no power to review its own judgments except on a petition for rehearing, presented in accordance with the rules established for that purpose. Reed v. West et al., 70 Ill. 479; Ogden v. Larrabee, Admr., 70 id. 510; Boggs v. Willard, 70 id. 315.

The decision of this court on the former appeal is res adjudicata of most of the assignments of error on this record, and the contentions of plaintiff in error in support thereof. Amongst other things it settles and determines the legal effect of the alimony decree in the cause adversely to the contentions of plaintiff in error on this record. It also determined the right of defendant in error to proceed against plaintiff in error by the summary process of attachment for the nonpayment of the notes mentioned in the decree, instead of resorting to a suit at law thereon.

The contention is that the record filed in this court in the first appeal, omitted the word “the” before the word “notes” in the decretal part of the alimony decree. That is to say, the decree as certified by the clerk of the Circuit Court to this court read:

“It is therefore ordered, adjudged and decreed by the court, that the complainant have and take the said money, and the proceeds of said real estate and notes, executed by the defendant,” etc., instead of reading:

“It is therefore ordered, adjudged and decreed by the court that the complainant have and take the said money, and the proceeds of said real estate and the notes, executed by the defendant,” etc.

This omission of the word “the” is the basis of the charge of “fraud” and of the claim that the decree as incorporated in the record on the first appeal, made the decree “fictitious,” “bogus,” “fraudulent” and “not genuine.”

We think, in the first place, that if the word “the” was material to the construction and meaning of the decree, the appellee, in that appeal, should have suggested a diminution of the record and had the omitted word supplied. He did not pursue his obvious remedy and must abide by the consequences. ■

Secondly, the omission of the word did not change the meaning or the legal effect of the decree. It was a consent decree in the language and terms of the parties, and considering the whole decree and the obvious intention of the parties émploying the language used, it is clear, we - think, that that intent is expressed, and the -same intent is expressed, whether the word “the” be used before the word “notes,” or is omitted.

It is urged that the decree of March 10, 1905, is defective and erroneous in that it does not fix a definite term of commitment, and does not provide for a commitment “until discharged according to law,” or by words of like effect. Plaintiff in error cites in support of this proposition Billingsley v. The People, 86 Ill. App. 233; McDonald v. The People, 86 id. 558; and Kahlbon v. The People, 101 id. 567.

The imprisonment in this decree is inflicted clearly as a means to compel plaintiff in error to pay the alimony . provided for in the alimony decree, and not as a punishment for contempt of court. Rapalje' on Contempts, sec. 129, says that although the authorities are not uniform upon the question, yet “the better opinion seems to be that the order of commitment should name a definite term of imprisonment in all cases when the imprisonment is inflicted as a punishment for the contempt, and not as a means to compel the party to do some act required of him by the court.” This distinction, based upon the purpose of the order, is recognized by the authorities; and in Czarra v. Czarra, 124 Ill. App. 622, this court pointed out the reason why the cases cited by plaintiff in error were inapplicable to the decree under review, which like the decree now before us, was a civil contempt to enforce payment of overdue alimony. As said in that case: “In cases like the present, in which the imprisonment is merely for the purpose of requiring a party to do something which he has been ordered by the court to do, the fixing a definite term of imprisonment might defeat the purpose intended, as the party might prefer to serve the specified term, rather than obey the order. ’ ’

We are not impressed with the contention that the time of imprisonment provided in the order before us should be limited by the words, “until discharged according to law,” or words of like import, and that the failure to so qualify the imprisonment makes the order erroneous. We have not overlooked what is said on this point in the Billingsley and McDonald eases, supra. In the McDonald case a fine was imposed and imprisonment in default of payment, and this court properly held that the order should be definite and clear in all its terms.

As to the omission from the order of the words “until discharged according to law,” or words of like import, we think they would not have added anything to the order, and that their omission, therefore, did not change or affect the legal effect of the order. As held by this court, Mr. Presiding Justice Waterman speaking for the court, in Kanter v. Clerk of the Circuit Court, 108 Ill. App. 287, at page 304 of the opinion: “As no persea can be imprisoned if ‘discharged according to law,’ it is not apparent how the words, ‘until he is discharged according to law,’ can affect, add to or take from the order of commitment. ’ ’

Speaking of this clause frequently added to commitment orders, the Missouri Court of Appeals, In the Matter of Clark, 126 Mo. App. 391, at page 403 of the opinion, say: “This clause is entirely unnecessary to entitle the party committed to his discharge from jail on compliance with the statute in respect to the discharge of insolvent persons confined in jail for nonpayment of fines and costs or either. These statutes are not put in operation by any commitment or any order of the court, nor can they be suspended at the whim of the court.”

We have searched for the reason and authority for this supposed essential and saving clause to commitment orders, but without success. We can conceive of no valid reason for it, nor can we understand how it saves any rights to the person committed. As suggested by the language quoted from the: Clark case, supra, the clause does not put in operation any provisions of law either statutory or common law. The omission of the clause does not repeal or suspend any such provisions. The right to be released from custody upon purging himself of the contempt by any process and upon any ground known to the law is assured to plaintiff in error under this order as fully and perfectly as if such right had been stated at large in the order.

In our opinion the Circuit Court had jurisdiction of the subject-matter and of the parties in the proceedings before us. Plaintiff in error did not .show cause in response to the rule laid upon him. Confessedly the alimony was due and unpaid, and no legal excuse was shown why it should not he paid by plaintiff in error. Having carefully read and considered all the evidence, which it would serve no useful purpose or end to discuss in detail, our conclusion is that it justifies and warrants the findings of the decree, and the order for attachment, and the decree must be affirmed.

A motion was made by plaintiff in error to strike from the files the supplemental record filed herein by defendant in error on November 10, 1908, together with the supplemental abstract and brief of defendant in error filed herein. This motion was taken with the cause.

The matters shown in the supplemental record relate to the same matters involved in the decree sought to be reversed and set aside by this proceeding. The record contains affidavits and other matters which were before the court on the hearing and upon which the decree was entered. They should have been shown in the original record. The motion to strike is therefore denied.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    The Billboard Publishing Company, Appellee, v. F. C. McCarahan, Appellant.
    Gen. No. 14,896.
    1. Injunctions—what not considered upon appeal involving temporary. In an appeal from an order of the court involving the propriety of a temporary injunction, the merits of the pending controversy will not be considered, as the same question cannot be pending in the trial and appellate courts at the same time.
    2. Injunctions—when refusal to dissolve not disturbed. The action of the chancellor in denying a motion to dissolve will not be disturbed on review unless the so-und discretion of such chancellor has been abused.

      3. Accounting—when equity will take jurisdiction. If it is clear that the remedy at law is inadequate to a full and fair investigation of the accounts between the parties on the facts charged in the bill of complaint, equity will take jurisdiction.
    4. Fraud—when equity will take jurisdiction. If conspiracy to defraud in connection with an accounting by one holding a fiduciary relation to the complainant is charged, equity will take jurisdiction.
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Oscab E. Heabd, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed July 9, 1909.
    Rehearing denied October 5, 1909.
    J. S. McClure, for appellant.
    Simmons, Mitchell & Irving, for appelle
   Mr. Justice Smith

delivered the opinion of the court.

This case comes to this court on an appeal from an order of the Circuit Court of Cook county overruling the motion of appellant to dissolve the temporary injunction granted whereby appellant was enjoined from prosecuting his suit in assumpsit on the law side of said court, or any other suit involving the same matters, against appellee.

Appellee, The Billboard Publishing Company, filed its bill in the Circuit Court against appellant, setting up that it is the owner and publisher of “The Billboard,” a weekly newspaper devoted to the amusement profession, and in connection therewith prints and publishes advertisements by manufacturers of amusement devices of every character, booking agencies who provide employment for talent or make engagements for amusement productions. The paper, it is averred, has a circulation of 27,000 copies weekly, and circulates in every country where the English language is spoken. It has many subscribers and many thousands of advertisers use its columns.

The bill states that on or about May 1,1907, it entered1 into an arrangement with F. C. McCarahan, by which he was appointed its Chicago representative to solicit advertising orders for the publication above referred to and transmit the same to the complainant in Cincinnati, Ohio, for acceptance, and to perform such other duties as were required in publishing such orders as were accepted by the complainant. He was to take charge of subscriptions and prepare a weekly news letter covering general advertisements of interest to readers of “The Billboard,” and such editorial matter as might be from time to time directed by the complainant, and as compensation for such services the defendant was to be paid fifteen per centum on the amount of money received by the complainant, when the same should be paid by the advertiser on all orders for advertising accepted by the complainant and which should be fully executed or published during the term while the defendant was connected with the complainant as its Chicago representative. Such percentage was to be in full for all services performed by the defendant and out of which he was also to pay all the costs of maintenance, purveying, extension and further increasing of the efficacy of the Chicago office, and it was provided that said employment of the defendant should continue only so long as desired by the complainant and he should be. notified of the termination of his service.

It was further averred that the defendant entered upon his employment on or about the first day of May, 1907, and continued therein until on or about the sixteenth day of November, 1907, when complainant notified him that his services would be no longer required, and he thereupon ceased to have any further connection with complainant and left its employ.

The bill is voluminous and sets up in great detail the complications of the accounts between the complainant and the defendant which arose during the progress of the employment. The complicated and difficult nature of the accounts grows out of the large number of orders sent by the defendant to the complainant, based upon contracts made with customers for advertising. It is averred that there were 2400 orders made, bearing separate numbers, upon nearly 200 separate contracts, some of which were oral and others were in writing, amounting to $25,000 worth of advertising, and there are a large number of items upon which the complainant claims that discounts of varying percentages were agreed upon during the term of the agency of the defendant, and that claims for •commissions on between eight hundred and a thousand items were made by the defendant. These items, or many of them, are specified and set out in the bill specifically.

The bill shows that the defendant was placed in charge of its Chicago office and was to pay the expenses thereof, that the stating of an account will require an examination of many thousands of orders for advertisements, of entries and receipts for money for advertisements and of contracts and orders providing for the different percentages of discount on the orders which were executed and published; that these accounts are scattered through many books, checks, correspondence and other documents; that numerous remittances were made to the defendant by chicks and drafts; that he kept an account in a Chicago bank in which he deposited remittances from advertisers' and money received from complainant against which he .drew checks and made payments for alleged expenses which are averred in the bill not to be proper charges; that soon after the defendant was discharged the Chicago office which he had occupied was broken open and all the records there were abstracted, destroyed or stolen by some one unknown to the complainant; that the accounts generally are alleged to be complicated and that complainant is unable to make a defense in a court of law, and a court of law cannot properly examine into and give adequate relief; that an accounting will show that there is nothing dne defendant, and complainant offers to pay whatever may be found to be due defendant upon an accounting.

It is further averred that the accounts are complicated because the defendant claims he is entitled to commissions on contracts and orders secured by his predecessor before his term of employment, and also on contracts or orders secured before the end of his employment, but which were not to be executed or published until after he ceased his employment with complainant.

The bill further alleges that the accounts are complicated and difficult of proof, for the reason that the entries made in complainant’s books were made by a bookkeeper, one McGohan, who has since been discharged, and who, it is alleged, conspired with the defendant to make false entries and false statements; and it appears from the bill that said McGohan, the bookkeeper, entered into a conspiracy with the defendant to cheat and defraud complainant; that the collusion of complainant’s bookkeeper with the defendant was without the knowledge of the complainant or any of its officers, and that upon its discovery the bookkeeper was immediately discharged by the complainant.

The bill avers that the bookkeeper issued two statements of the accounts between complainant and defendant and delivered them to the defendant on different dates, and that neither of said statements is correct.

The bill sets up that the defendant has brought suit in assumpsit against the complainant, in which action at law he seeks to recover the sum of $1475.13 on items and orders and transactions growing out of the contract between the complainant and the defendant set forth in the bill, and he also seeks to recover in the action at law a certain percentage on the amount of $10,384.04, made up of 801,000 different items or orders for advertising, and upon an equal number of items of money alleged to have been received by the complainant from said advertisements and certain alleged disbursements and expenses in the transaction' of the business. The prayer of the bill is that the defendant be required to answer, without oath, the averments of the bill and to make answer to certain interrogatories which are .propounded in the bill, and that an accounting be had between the complainant and the defendant of the business and transactions of the defendant, and that the defendant be directed to pay the complainant what, if anything, shall appear upon such accounting to be due from bim to the complainant, and that an injunction issue, restraining the ■ defendant, his agents and attorneys, from prosecuting the suit at law or instituting or prosecuting any other suit at law against the complainant founded upon the matters and things in said suit at law set forth or any of the matters and things growing out of the transactions set forth in the complainant’s bill of complaint.

The complainant’s motion for a temporary restraining order was referred to a master in chancery, and upon the recommendation of the master it was ordered May 12, 1908, that a temporary injunction issue to stay the prosecution of the defendant’s suit at law.

On May 29, 1908, the defendant filed a motion to dissolve the injunction, upon the following grounds: first, that there is no equity on the face of the bill; second, the material allegations of the bill are denied by the defendant’s answer and the affidavits filed with the motion; and, third, that the suit pending on the law side of the court furnishes an adequate remedy for the adjustment of the difference between the parties.

On June 1, 1908, the defendant filed his answer andón June 29 an amendment to the bill was filed by leave of court and affidavits in support thereof were filed, and the defendant filed an answer thereto by leave, and a replication was filed.

The defendant in his answer admits entering into an arrangement with the complainant by which the defendant was appointed the Chicago representative of complainant to solicit advertising orders and contracts for complainant for said publication and perform such other duties as were required in publishing such orders as were accepted by complainant, and admits in substance the contract as stated in the bill in many particulars, and denying the contract in other particulars.

The defendant admits in his answer the volume of business transacted by him as set forth in the bill in substance.

The answer challenges the relief prayed for in the bill, denies that equity has any jurisdiction in the matter, and avers that a court of law is competent to settle the issues between the parties, denies that he entered into any conspiracy with the bookkeeper of the complainant to defraud complainant, and denies generally the right of the complainant to any relief.

The merits of the controversy are now before the Circuit Court for adjudication, and cannot possibly come before this court until that court has entered a final decree thereon. The same question cannot be pending for decision in this court and in the Circuit Court in the same case and at the same time. Elgin Lumber Co. v. Langman, 23 Ill. App. 250; Smith v. Chytraus, 152 Ill. 664; Elliott on Civil Procedure, sec. 541. The sole question, therefore, before us on this appeal is, whether the lower court erred in refusing to dissolve the injunction.

In our opinion the bill presents three grounds for equity jurisdiction: first, the intricate and involved state of accounts between the parties; second, the fiduciary relation of the defendant to the complainant whereby a duty rests upon the defendant to render a true and accurate account of the moneys and property in his hands as manager of complainant’s business at its Chicago office; and third, the fraud and mistake shown in the bill.

Regarding the first ground named, it is clear that the remedy at law is inadequate to the full and complete investigation of the accounts between the parties on the facts charged in the bill of complaint, and that justice requires the employment of methods of investigation peculiar to courts of equity. As held in Crown Coal & Tow Co. v. Thomas, 177 Ill. 534, 540 : “Where the state of accounts between the parties is complicated and intricate, where the state of accounts between the parties is involved with third parties, where to do justice requires the employment of methods of investigation peculiar to courts of equity, and where it would be very difficult for a jury to unravel the numerous transactions, are conditions usually held to be sufficient to give a court of equity jurisdiction. The jurisdiction in equity does not, in such cases, depend upon the absence of a remedy at law, but upon its adequacy or practicability and upon the discretion of the court. This case is sufficiently involved, complicated and intricate to justify a court of equity in taking jurisdiction of it.”

In Smith v. Bates Machine Co., 79 Ill. App. 519, 526, the court say: “The jurisdiction in equity attaches, unless the legal remedy, both in the respect to the final relief and the mode of obtaining it, is as efficient as the remedy which equity would afford under the same circumstances. Gormley v. Clark, 134 U. S. 338; Kilbourne v. Sunderland, 130 id. 505. ’ ’ See also Gleason & B. Mfg. Co. v. Hoffman, 168 Ill. 25.

It is clear, we think, that the subject-matter of the bill, if proven, establishes a fiduciary relation between the parties to the controversy, and that there exists a duty on the part of the defendant to render an account to the complainant which, according to the averments of the bill, the defendant has failed and refused to render. Equity has jurisdiction in all such cases. Gleason & B. Mfg. Co. v. Hoffman, supra; James T. Hair Co. v. Daily, 161 Ill. 379; Bispham’s Equity, 7 Ed., see. 237, p. 362.

The bill alleges positively and with sufficient circumstances and details that the defendant, appellant, conspired"with McCohan, complainant’s bookkeeper, to obtain commissions not provided for in the contract between complainant and defendant; and that by the aid of McG-ohan, who made false and untrue statements, defendant was enabled by means of the statements so made out to collect commissions to which he was not entitled under his contract. This, if true, was a fraud upon complainant.

It is said in 1 Storey’s Equity Jurisprudence, pr. 187: “Fraud, indeed, in the sense of a court of equity, properly includes all acts, omissions and concealments which involve a breach of legal or equitable duty, trust or confidence, justly imposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another.” We think the facts set out in the bill come within this definition, and if proven, complainant will be entitled to relief in this case.

The injunction in this case is merely ancillary. It merely restrains suits at law based upon the matters embraced in the bill. The action of the learned chancellor in denying the motion to dissolve the injunction will not be disturbed by this court unless the sound discretion of the court below has been abused. Pfohl v. Sampson et al., 59 N. Y. 174; Buffington v. Harvey, 95 U. S. 99. Upon the averments of the bill and the proofs in the record in support thereof, we find no error in refusing to dissolve the injunction. The order is affirmed.

Affirmed.

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


text:
    Dominick J. Lavin, Defendant in Error, v. Board of Commissioners of Cook County et al., Plaintiffs in Error.
    Gen. No. 15,325.
    1. Appeals and errors—effect of absence of certificate of evidence. If there is no certificate of evidence contained in the transcript, a decree in chancery must be sustained, if at all, upon the findings appearing on the face of the decree. A general finding that the material allegations of the bill of complaint are true must be ignored as valueless.
    2. Fees and salaries—how statutes relating to public offices construed. All statutes relating to public offices must be read in pari materia with the other statutes providing for compensation and fees for the incumbents of such public offices, and in so considering the various statutes relating to public offices and the compensation of the incumbents, the courts will not close their eyes to the effect of provisions intended to give public officers reasonable compensation for their services.
    3. Fees and salaries—status of special state’s attorney. A special state’s attorney duly appointed, so long as he may continue in office is to be placed upon the same footing with regard to fees and salaries as is the state’s attorney regularly elected.
    Bill for injunction. Error to the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in the.Branch Appellate Court at the March term, 1909.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed October 29, 1909.
    Horace K. Tenney, Albert M. Kales, Harry A. Lewis and Wm. F. Struckmann, for plaintiffs in error.
    H. M. Ashton, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

It appears from the record that plaintiff in error, Frank J. Loesch was, by the Criminal Court of Cook county, under the provisions of section 6, chapter 14 of the Revised Statutes of Illinois, appointed special state’s attorney to prosecute offenders against the primary law of 1908. The appointment was made upon the finding and theory that John J. Healy, then state’s attorney of Cook county was disqualified within the meaning of said section 16 from prosecuting certain offenses as state’s attorney.

After the appointment of Mr. Loesch was made, the Board of County Commissioners of Cook county adopted a report of their finance committee which recommended that the sum of $19,500 he set aside and appropriated out of the fund for miscellaneous purposes for the purpose of paying the salaries and expenses of Mr. Loesch as such special state’s attorney in connection with the investigation and prosecution of offenses under the Primary Election Law in force July 1, 1908, authorizing said Frank J. Loesch as special state’s attorney to draw requisitions against said fund for the payment of all salaries and expenses in connection with said investigation.

Thereafter Dominick J. Lavin, defendant in error, a taxpayer, filed this hill against the Board of County Commissioners of Cook county, the Comptroller of Cook county, the Treasurer of Cook county and said Loesch, to restrain the county officials from paying out of the county treasury any sum of money on account of fees or salary, or both, to Frank J. Loesch for his personal services as special state’s attorney of Cook county.

The hill also prayed for an injunction restraining the county officials from paying any sum or sums out of the certain fund of $19,500 to the assistants and employes of said Loesch as.special state’s attorney.

All the defendants answered the hill, setting up in their añswer that the amounts appropriated in the annual appropriation bill, so-called, for the payment of salaries of county officials and employes, contained a sum sufficient only to pay the salaries of officials and employes therein specifically named or enumerated, and that in said fund there is no money with which to pay the salaries or expenses in connection with the investigation of certain frauds alleged to have been committed during the primary election of August 8, 1908.

The answer sets up that John J. Healy, state’s attorney of Cook county, on September 22, 1908, filed in the Criminal Court of Cook county a petition, the contents of which is fully set forth but which may be stated in substance as follows: That the said state’s attorney was a candidate for nomination on the' Republican ticket for the office of state’s attorney, to be voted upon at the next general election held in November, 1908, and that at the said primary election of August 8, 1908, one John E. W. Wayman arid one Edward Litzinger were opposing candidates for the nomination for state’s attorney on the Republican ticket, and by the returns of the canvassing board made on August 24, 1908, it appeared that John E. W. Wayman received more ballots in Cook county for the office of state’s attorney than either John J. Healy or Edward Litzinger; that immediately after the primary gross frauds were committed in many of the polling places which affected the legality of the vote for and against him, and that he thereupon instituted an investigation, and as a result thereof filed a petition in the County Court of Cook county on August 29, 1908, wherein he made said Wayman defendant and set forth therein that he had been duly nominated for the office of state’s attorney, notwithstanding the count of the ballots and the return of the canvassing board, and asked that the evidence of frauds charged to have been committed be heard and that all fraudulent votes cast be stricken out and that he be declared the successful candidate; that he had discovered that many persons in Chicaigo were guilty of misdemeanors and felonies punishable by the primary election law, that certain judges and clerks in certain election precincts where said primary election was held, and other persons co-operating with them, were guilty of conspiracy to do illegal. acts injurious to the administration of public justice and in violation of the primary election law; that by reason of his personal interest in said contest that was pending in the County Court, and by reason of the fact that a large part of the evidence at hand had been obtained by him for his personal use and benefit, it was inexpedient that he take any action as a prosecutor and as state’s attorney of this county in bringing to justice those who had violated the primary election law by acts committed on August 8, 1908, so long as the said contest was pending. And the petition prayed for the appointment of some competent attorney to investigate and inquire into all violations of the primary law alleged to have been committed in the city of Chicago on August 8, 1908, and to prosecute such persons as the person so appointed should consider to have been guilty of criminal acts appertaining and incident to the said primary election; that the person so appointed should be clothed with all necessary authority to act as such special state’s attorney in accordance with the statute in such case made and provided.

The answer further sets out that said petition was considered by the Criminal Court and on September 30, 1908, it entered an order finding the allegations of the petition true, and that state’s attorney Healy was interested in the contest before the returning hoard, and was affected by the frauds and crimes alleged to have been committed, and ordered that Frank J. Loesch be appointed special state’s attorney to investigate and prosecute any and all persons against whom there shall appear to be just and reasonable grounds to establish guilt of criminal offenses committed in violation of the primary election law in force July 1, 1908, at a primary held in Cook county on August 8, 1908, and giving said Loesch full authority to act in the place and stead of John J. Healy, the state’s attorney, in the premises, in so far as it should be necessary in the full performance of his duties as such special state’s attorney and as to justice should appertain.

The answer further sets out that the order of the Criminal Court is still in effect, and that said Frank J. Loesch is acting as special state’s attorney for the purpose of making investigation and performing duties in said order mentioned, and that a special grand jury is in session, called by the Criminal Court of Cook county upon the motion of said Frank J. Loesch.

The answer further sets out that said Frank J. Loesch has drawn requisitions against said fund of $19,500 for the payment of salary for himself and for his assistants employed by him and for other expenses incurred by him during the month of October, 1908, and that said requisitions had been referred to the Public Service Committee of the Board and that said committee has recommended that they be honored and that warrants be drawn in favor of the bills rendered.

A replication was filed to the answer, and upon a hearing of the cause upon answer and replication and the evidence both oral and documentary, a decree was entered November 18, 1908, finding that Loesch is not entitled to receive any compensation as special state’s attorney of Cook county, that the expenses connected with the investigation of certain frauds alleged to have been committed during the primary election of August, 1908, the salaries of the duly appointed assistants of the said special state’s attorney are a legal charge against Cook county, and enjoining perpetually the Board of County Commissioners, its president, and the Comptroller, and the County Treasurer from issuing, approving or paying any sum or sums of money whatsoever in payment of any salaries or fees to Frank J. Loesch as such special state’s attorney for services rendered by him personally in connection with the investigation of certain frauds alleged to have been committed during the primary election of August 8, 1908.

On November 23,1908, the complainant, Dominick J. Lavin, appeared by his solicitor and waived all rights of appeal from the decree and waived all errors. The defendants to the bill prosecute this writ of error from the decree. Frank J. Loeseh, special state’s attorney, has assigned errors and brings before this court for review, by his assignment of errors, so much of the decree as finds that he is not entitled to receive any compensation as special state’s attorney, and enjoining the Board of County Commissioners, its president, and the County Comptroller, and John B. Thompson, Treasurer, and each of them, from issuing, approving or paying any sum or sums of money whatever in payment of any salary or fees to said Loeseh as special state’s attorney.

No certificate of evidence appears in the record. Under a familiar rule, therefore, the decree must be sustained, if at all, only upon the findings appearing on the face of the decree. The general finding that the material allegations of said bill of complaint are true must be ignored as valueless. Harlem v. Suburban Railroad Co., 202 Ill. 301; Torsell v. Eiffert, 207 Ill. 621.

The findings of the decree make it clear that the injunction granted in the decree did not run against the payment of fees or salary to Loeseh because he was not de jure special state’s attorney under his original appointment. The decree specifically finds that he was lawfully appointed. The ground upon which the decree was entered appears to be, from the findings of the decree, that notwithstanding the fact that Loeseh was a de jure special state’s attorney at the time the bill was filed, there was no legislative authority existing by which any payment for compensation by fees or salary could be made to him as special state’s attorney by the county of Cook. This, we think, is the chief, if not the only, question presented by the assignments of error and by the briefs of counsel.

It is clear that the office of special state’s attorney is created by the statutes of this State. No question is made in the briefs and arguments in regard to the creation of the office. The acts of the Legislature by which the office is created do not provide for any compensation for the fulfillment of the duties of the office, but, as is usually the case in this State, it is left to be provided for in an act called the Fees and Salaries Act, which attempts to fix compensation of all offices created by the statutes of the State. In our opinion all statutes relating to public offices must be read in pari materia with the other statutes providing for compensation and fees for the incumbents of such public offices, and that in so considering the various statutes relating to public offices and the compensation of the incumbents, the courts will by no means close their eyes to the effect of provisions intended to give public officers reasonable compensation for their services.

The office of state’s attorney of Cook county is created by the constitution and the incumbent’s duties are defined by the State’s Attorney’s Act of 1874 (R. S. 1874, ch. 14). This act contains no suggestion of compensation for the state’s attorney. This is true of many other public offices. The act which creates the office seldom, if ever, says anything about compensation or emoluments thereof. In the Fees and Salaries Act we find several provisions for compensation for state’s attorneys. Section 7 of the Fees and Salaries Act of 1872 appearing in Revised Statutes of 1874, Chapter 53, is still in force. We need not copy its provisions here.

Section 8 of the same act reads as follows: “State’s Attorneys shall be entitled to the following fees. .

This was amended and re-enacted1 in 1907. (Laws of 1907, page 329.) The above language remained the same, the amended act simply raising the amount of the fee.

Until July 1,1907, the state’s attorney of Cook county was legally entitled to all fees provided by said section 8 of the Fees and Salaries Act of 1872, and also a salary of $400 a year from the State, and also an additional salary from Cook county of $6,600 by the act of 1871 appearing in R. S. 1874, ch. 53, sec. 61. The act of 1907 raised the amount specified in the act of 1871 to $10,000 and cut off the fees.

It is clear from the statute, we think, that the special state’s attorney, appointed under the circumstances provided for in the statute, is as much the state’s attorney of the county in which the appointment is made, within the scope of his duties, as is the state’s attorney of that county, and that under the appointment under consideration, Mr. Loesch was to all intents and purposes the state’s attorney of Cook county for the purpose of investigating and prosecuting the election frauds mentioned in the order appointing him. We see no reason in the provisions of the statute why both the state’s attorney and the special state’s attorney may not act at the same time and discharge their respective duties without reference to each other, and in our opinion they may do so; and in their respective spheres, they were such state’s attorneys, with full powers as such under the statutes and the order appointing the special state’s attorney. The statute indeed provides: 1 ‘ The attorney so appointed shall have the same powers and authority in relation to such cause or proceeding as the attorney-general or state’s attorney would have had if present and attending to the same.”

We see no reason in the provisions of the statute, or in the nature of the objects to be obtained under tho provisions of the statute, why there should be any difference between the special state’s attorney and the regular state’s attorney except that the special state’s attorney would be entitled to compensation only so long as his appointment lasted, or he was actually engaged in the discharge of his duties.

In arriving at this conclusion we regard the language of the statute providing for the compensation of state’s attorney of Cook county in the act of 1907, as sufficiently broad to cover the compensation of the special state’s attorney appointed under the provisions of the statute. The word “the” used before “state’s attorney” in the act of 1907, or in the other acts relating to the state’s attorneys, must be read, we think, in the sense of “any” and not in the sense that it points out or refers to a state’s attorney of Cook county or any other county, elected by the people. This is the secondary meaning given to it in the Century Dictionary, Volume 8, pages 62 to 68. See also Noyes et al. v. Childrens Aid Society, 70 N. Y. 481.

We think the legislative object as appears from the various expressions in the acts referring to the several state’s attorneys is broad enough to cover all state’s attorneys in the State, whether elected or whether specially appointed; and we think that the plaintiff in error must be placed upon the same footing with regard to fees and salaries as the state’s attorney regularly elected. Furthermore, by virtue of its general power to manage the affairs of the county, the county board had authority to provide for the local administration of justice, including the enforcement of the criminal laws. Nye v. Foreman, 215 Ill. 285. Therefore, the decree in so far as it is based upon the theory that there is no legislative authority for the action of the Board of County Commissioners in providing for the payment of salary or compensation to special state’s attorney Frank J. Loesch, must be regarded as erroneous.

It is contended, however, on behalf of the Board of Commissioners of Cook county, and the other plaintiffs in error, that the right of an officer to compensation does not rest upon equitable considerations, but the right rests entirely upon the statute which is to be strictly construed against the officer, and unless it is clear that the statute allows it, no compensation can be recovered, and the case of Foreman v. The People, 209 Ill. 567, is cited. We do not find any ground in this proceeding for the application of the rule contended for, nor do we think the case of Foreman v. The People has any application to the question before the court. That case arose upon a widely different state of facts and called for the application of different principles from the case before us.

We do not find it necessary on this record to determine precisely what compensation Mr. Loesch is entitled to receive, or whether it shall be in the form of fees or a salary. That question we do not regard as before us on this record, although it is argued to some extent in the briefs of counsel.

It follows from the views above expressed that the decree is erroneous in respect to the finding that Frank J. Loesch as special state’s attorney is not entitled to any compensation, and in perpetually enjoining the County Board and its officers from making payment of any compensation to said Loesch as state’s attorney. The part of the decree containing the finding above referred to, and the injunction, is therefore reversed and the cause is remanded with directions to modify the decree in said cause in accordance with the views herein expressed.

Affirmed in part, reversed in part and remanded with directions.

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


text:
    Caesar Dal Pino, Appellant, v. Board of Commissioners of Cook County et al., Appellees.
    Gen. No. 15,390.
    1. Injunctions—when consideration of uncontroverted facts not erroneous. Weld, that it was not error for the court to consider uncontroverted evidence of facts not set up in the bill of complaint upon a motion to grant a temporary injunction and a cross motion to dismiss.

      2. Injunctions—when dismissal of bill proper. When it appears upon a motion for a temporary injunction and a cross motion to dismiss the bill for want of equity that the bill cannot be maintained on final hearing, a dismissal of such bill .may properly be ordered.
    3. Res judicata—when proceeding by one taxpayer concludes another. An adjudication upon a bill filed by one taxpayer in behalf of all taxpayers is conclusive against a later bill filed by another taxpayer on behalf of all taxpayers.
    Bill for injunction. Appeal from the Superior Court of Cook County; the Hon. Fablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed October 29, 1909.
    David K. Tone, for appellant.
    Harry A. Lewis and Vi. F. Struckmann, for appellees.
   Mr. Justice Smith

delivered the opinion of the court.

On December 21,1908, appellant filed his bill of complaint in the Superior Court of Cook county in behalf of himself and of other taxpayers of said county against the Board of Commissioners of Cook county, Joseph F. Haas, Comptroller of said county, John R. Thompson, Treasurer of said county, and Frank J. Loesch, defendants.

The hill alleged that the defendant Frank J. Loesch was pretending to act as special state’s attorney of Cook county; that the other defendants above named had paid out certain sums of money as the salary and expenses of said defendant Loesch as such alleged special state’s attorney, and that the said defendants were about to cause to be paid to said defendant Loesch various other sums of money on account of the salary and expenses of said Loesch as such alleged special state’s attorney of Cook county.

The hill further averred that on August 8, 1908, an alleged primary for the nomination of officers to be elected on the first Tuesday of November, 1908, was held in the city of Chicago, and that one John J. Healy and John E. W. Wayman were upon the primary ballot as candidates for the Republican nomination for the office of state’s attorney for Cook county, and that said Healy was defeated for said nomination; that in the month of September, 1908, said Healy contested the return made by the canvassing board at said primary, and in said contest charged that certain alleged frauds and irregularities-were committed at said primary; that while the said contest was pending in the County Court of Cook county, said Healy, who was at that time the state’s attorney for Cook county, filed a petition in the Criminal Court of said county, which petition prayed that some person be appointed by said Criminal Court to act as special state’s attorney for Cook county instead of said Healy, for the purpose of investigating the alleged frauds claimed to have been committed at said primary held on August 8,1908.

Said petition is set forth in haec verba in said bill of complaint, the material allegations in said petition being that many fraudulent and illegal ballots were cast at said primary, and that many qualified voters were prevented from voting by unlawful means, and that said conduct constituted criminal offenses under the laws of the State of Illinois.

The petition further averred that said Healy had instituted a contest in respect to said primary election against said Wayman in the County Court of Cook county, which contest was then pending and undetermined, and that by means of said contest said Healy was interested in the subject-matter of the crimes alleged to have been committed at said primary.

The petition prayed that the court appoint some competent attorney to investigate all violations of said primary law and prosecute those considered guilty.

The bill further averred that on September 30,1908, the Criminal Court entered an order upon said petition finding that John J. Healy, the state’s attorney, was interested in the suhject-matter of the alleged crimes against said primary law, and appointed Frank J. Loesch special state’s attorney to investigate and prosecute any and all persons against .whom there should appear to be just and reasonable grounds to establish guilt of criminal offenses committed in violation of the primary election law at said August primary.

The bill further averred that at the time the said alleged appointment was made there was no cause or proceeding of any kind or description pending in the Criminal Court of Cook county, or before any court in Cook county with respect to said alleged primary frauds; that said alleged frauds had not then been investigated by any grand jury of said Cook county; that on the 3d day of October, 1908, said contest between said Healy and said "Wayman was decided in favor of said Wayman; that said Healy did then elect to abide by the decision in favor of said Wayman, and that if said.Healy was ever interested in the subject-matter of said alleged primary frauds, said interest ceased on the said 3d day of October, 1908.

The bill further alleged that on October 9, 1908, said Loesch took a pretended oath of office as such pretended special state’s attorney; that on October 28-th the grand jury was called by one of the judges of the Criminal Court upon the motion of said Loesch; that from November 4,1908, to the latter part of the same month said special grand jury, so convened on the motion of said Loesch, was continuously in session investigating the said alleged primary frauds, and returned numerous indictments for crimes alleged to have been committed at said primary; that on December 7,1908, said Wayman appeared before the Criminal Court of Cook county and contested the right of said Loesch to act as special state’s attorney, and then informed the presiding judge of said court that he, said Wayman, was the state’s attorney for Cook county and that he was charged with the responsibility of prosecuting all violations of the criminal law, and said Wayman then and there offered to appoint said Loesch as assistant state’s attorney at a salary of $5,'50'0:, and offered to furnish said Loesch with a suite of rooms and with stenographers and investigators, but that said Loesch declined to accept such appointment; that said Loesch thereafter pretended to act as special state’s attorney and occupied a suite of rooms in the Criminal Court building of said county separate from the one occupied by the state’s attorney; that said Loesch had a separate corps of stenographers, investigators, assistants and employes, and claimed to be conducting a special state’s attorney’s office independent of and separate and distinct from the office conducted by said Wayman; that the Board of Commissioners of Cook county, at the request of said Loesch, had ordered an appropriation of $19,500 in payment of the salary and expenses of said Loesch and his said alleged assistants and employes, and that out of said appropriation and upon the warrants of said comptroller said treasurer had already paid over $9,000; that on-December 14, 1908, said Loesch sent a communication to the comptroller of Cook county asking that there be appropriated for the running of the office of said Loesch, as special state’s attorney, the sum of $54,620; that in addition to the foregoing appropriation said Loesch was claiming compensation for himself as said special state’s attorney at the rate of $100 a day.

The bill further charged that said state’s attorney Wayman had, ever since he assumed the duties of his office, been ready, able and willing to prosecute all of the said alleged primary frauds; that said Wayman had a corps of assistants, investigators, stenographers and other employes amply sufficient to take charge of and handle all of the business connected with the investigation and prosecution of said alleged primary frauds; that the appropriation and payment from the treasury of Cook county of the above expenses of said Loesch as said alleged special state’s attorney was unnecessary and constituted an illegal diversion of public money.

The bill sought to enjoin the County Board from appropriating money by way of special fund or generally for the salary, fees and expenses of Loesch as special state’s attorney, or for the payment of his assistants or employes, or for any other purpose connected with Loesch’s duties as special state’s attorney, and to enjoin the County Board, comptroller and treasurer from paying any sum or sums to the said Loesch as special state’s attorney, or to his assistants or employes on account of any fees, salaries or expenses.

The defendant Loesch filed, with leave of court, three double pleas.

The first plea went to so much of the bill as sought' to restrain the payment of any compensation to Loesch as special state’s attorney. It set up-the proceedings and decree in the case of Dominick J. Lavin v. The Board of Commissioners of Cook County et al., in the Circuit Court of Cook county, as-showing that full relief had been had in this respect.

The second plea went to so much of said bill as sought to restrain payments to Loesch’s assistants and employes by reason of the fact that Loesch was not a de jure officer. It set up the fact that Loesch was a de facto special state’s attorney at least, and that théremedy against him at law was adequate by quo warranto.

The third plea went to so much of the bill as sought to restrain the payment of money for the salaries of employes and assistants for Loesch as special state’s attorney. It set up the record in the Lavin suit as res adjudicata.

To the residue of complainant’s bill the defendant Loesch demurred.

The cause came on for hearing upon the complainant’s motion for a temporary injunction and the defendants’ cross-motion to dismiss the bill for want of equity. The defendants put in evidence the record in the Lavin suit and the record of proceedings in the Criminal Court subsequent to Loesch’s appointment. This evidence was not only not controverted, but was conceded to be true.

The court having heard the arguments of counsel and considered the evidence and the allegations on the face of the bill, then rendered its decree refusing a temporary injunction, and ordering that the bill, being for injunction only, should be dismissed for want of equity.

The evidence introduced and not set forth in the allegations of the bill was preserved by the findings of the decree. Some evidence, together with other matter, was preserved by a certificate of evidence.

From this decree appellant prosecutes this appeal, and assigns error in the proceedings of the court below in that the cause was finally disposed of on motion for a preliminary injunction and the cross-motion of Loesch to dismiss the bill, without any final hearing of the cause upon the issues formed by the pleadings, and that the court erred in sustaining a demurrer of Loesch to a part of complainant’s bill of complaint, and that the decree is erroneous and contrary to law and equity.

As to the practice followed by the court of considering uncontroverted evidence of facts not set up in the bill of complaint upon a motion to grant temporary injunction and a cross-motion to dismiss, we are of the opinion that it constituted no material error. When a cause comes on for hearing upon a motion for a temporary injunction and a cross-motion to dismiss the bill for want of equity, the defendant has two courses open to him. He may simply resist the motion for an injunction upon the face of the bill alone, or he may controvert facts set up in the bill, or avoid them by new facts not appearing upon the face of the bill. If ' the latter course is pursued it is ordinary practice to introduce evidence by affidavit or by the testimony of witnesses produced in open court, although the’ defendant may have no answer or plea on file. Collins v. Weigselbaum, 126 Ill. App. 158-164.

The better practice, and the one pursued in this case, is to have an answer or plea on file which will present an issue under which the evidence introduced would be relevant at a final hearing on the issues duly made up. The defendant in this case filed his pleas for the purpose of raising an issue upon the final hearing at which the evidence introduced upon the motion for an injunction and cross-motion to dismiss would have been proper and relevant, and at the same time he laid the foundation in his pleadings for presenting uncontroverted facts not set up in the bill of complaint for the purpose of the hearing on the motion for the temporary injunction and the cross-motion to dismiss.

We are of the opinion that when it appears upon a motion for temporary injunction and a cross-motion to dismiss the bill for want of equity by uncontroverted evidence of record, that the bill cannot be maintained on final hearing, the law does not require the absurd and dilatory practice to be pursued which confines the court to merely denying a motion for the injunction and overruling the motion to dismiss the bill simply because the case is not brought on for final hearing, and.that the court shall thereafter set the case or the pleas filed therein down for final hearing after having heard fully the same matters on motions. If it appears upon the motion for an injunction in a bill purely for injunction that the issues involved in the bill have been adjudicated, the court, we think, is not bound to set the case for final hearing and go over the same matters the second time. Therefore, the court, in pursuing the practice which was pursued in this case, did not commit error in disposing of the bill upon the motions made.

The record in the Lavin suit set out in the pleas filed, in our opinion, showed a res adjudicate/, of the issues in this suit. In the first place the parties complainant in the Lavin suit and in this suit are the same. In the Lavin suit the hill was filed by Lavin as a taxpayer in his own behalf and “in behalf of all other property-owners and taxpayers similarly situated who may join in the bill.” The authorities are numerous and conclusive to the effect that the parties complainant in a bill in behalf of all taxpayers by one taxpayer is a bill by the same party complainant as a bill by another taxpayer on behalf of all taxpayers. Harmon v. Auditor, 123 Ill. 122; Sabin v. Sherman, 28 Kan. 205; Terry v. Town of Waterbury, 35 Conn. 526; State ex rel. Brown v. C. & L. R. R., 13 S. C. 290; Stallcup v. Tacoma, 13 Wash. 141; Dady v. G. & A. Ry., 112 Fed. 838.

The Lavin suit and this suit are against the same parties defendant.

The material facts upon which relief is prayed are the same in both suits; and the relief prayed for in both cases is substantially the same. We are, therefore, of the opinion that the decree in the Lavin case is res adjudicata of the issues in this case. It follows that the decree of the Superior Court in this case is correct and must be affirmed.

Affirmed.


author: Mr. Presiding Justice

text:
    City of Chicago, Plaintiff in Error, v. Dunham Towing & Wrecking Company, Defendant in Error.
    Gen. No. 14,625.
    1. Municipal cobpoeations—character of ownership of bridge. A city holds title to a bridge erected and maintained by public taxation in its public and not in its private capacity.
    2. Statute of Limitations—when defense to action by city. The statute of limitations is a defense to an action by a city to recover for damage done to a bridge held by it in its public capacity. Fbeeman J., dissenting.

      Tort. Error to the Municipal Court of Chicago; the Hon. William N. Cottbell, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed November 8, 1909.
    Edward J. Brundage, Charles M. Hays and E-mil C. Wetten, for plaintff in error.
    Michael F. Sullivan, for defendant in error.
   Mr. Presiding Justice

Holdom delivered the opinion of the court.

The only question involved in the cause before us is whether the Statute of Limitations can be invoked as a defense to the action of the city. It is claimed that the steamer “Pearson” while in tow of a tug of defendant August 17, 1901, ran into the Fullerton avenue bridge which crosses the Chicago river at Fullerton avenue, and damaged the bridge. This suit, instituted for the purpose of recovering such damage, was commenced November 19, 1907. The trial court held that the statute applied and gave judgment for defendant.

The controversial question is covered by an agreed statement of facts, in which it is conceded that the city of Chicago is a municipal corporation and that defendant is incorporated under the laws of this State.; that the bridge crosses a navigable stream and is the connecting link of the highway oh each side of the Chicago river known as Fullerton avenue; that the property damaged, for which the city seeks compensation, formed a part of the bridge; that the bridge was built and maintained out of funds derived solely from general taxation of property lying within the limits of the city, and that the city derives no income or financial benefit from the maintenance of the bridge.

The court held as a matter of law that the city held the title to Fullerton avenue, including the bridge, in trust for the sole use and benefit of the public, and that the same constituted a 'part of the public streets of Chicago.

We are of the opinion that Fullerton avenue bridge is a part of the public highway and that the city holds title thereto in its public and not its private- capacity for the use of the public generally, that as to its title and ownership and the right to maintain and operate the bridge the Statute of Limitations would be unavailing. Such a plea could not be successfully interposed against any such right. The contentions of the city in this regard are well taken, but we think the difficulty of the contention lies in the application of the legal principle to the particular facts of this case. The city sues for compensation for an injury to this particular bridge. In a recovery the general public of the State is in no wise interested. Whatever sum might be recovered would be paid into the treasury of the city and would not in that way benefit the public at large. Neither would the public be affected by a failure to recover. We cannot see that the People v. Brown, 67 Ill. 435, is in any way analogous. Byrne v. Chicago General Ry., 169 til. 75, does not involve the principle in dispute. In that case a stockholder sought to enjoin the collection of a license fee imposed upon the company by the city council in an ordinance granting the right to the company to operate its cars in certain streets of the city. This ordinance had been accepted by the company, and the court not only held that the city had a right to impose upon the company the payment of a license fee for each of its cars, but that the stockholder had no standing to enjoin its payment; and while it is true that the court did say that “It follows that any contribution from any street railway company to the government of the city inures to the support of a public agency, exercising public functions and deriving its authority from the general sovereignty vested in the-people of the State at large. It cannot be true, therefore, as claimed by counsel for appellant, that a contribution from the appellee company to the support of the municipal government of Chicago is not in the interest of the public,” still these observations related solely to the power of the city council, in the exercise of its governmental functions, to impose the license fee upon the car company as a condition of its being permitted to operate its cars in the city streets over which the city had exclusive jurisdiction and control.

City of DeKalb v. Luney, 193 Ill. 18'5, is inapplicable to the facts of the case at bar, and in no sense an authority supporting the city’s contention. Luney had taken possession of a portion of the city street and annexed it to his adjoining lot. The city held the title to such street for the use of the public generally, and Luney therefore was in no position to invoke any limitation statute against the city in an attempt to thwart its regaining possession of the street so unlawfully attempted to be appropriated by Luney. The title of the bridge in the ease at bar is not involved in this litigation. There is no attempt made to interfere in the remotest manner with the right of the city in the Fullerton avenue bridge. Compensation alone is sought for damage to the bridge resulting from defendant’s claimed negligence in so towing the “Pearson” that it came into collision with the bridge and damaged it. No right of the general public is involved. The right to maintain an action for such damage is a private right only and, as held in Brown v. School Trustees, 224 Ill. 184, the Statute of Limitations is invokable in the same manner and to the same extent as against individuals. Board of Supervisors v. City of Lincoln, 81 Ill. 156; County of Piatt v. Goodell, 97 ibid. 84; People ex rel. v. Town of Oran, 121 ibid. 650; Greenwood v. Town of LaSalle, 137 ibid. 225.

Believing that the Statute of Limitations was invokable against the city, the judgment of the Municipal Court is affirmed.

Affirmed.

Mr. Justice Freeman dissenting.


author: Mr. Presiding Justice Holdom

text:
    W. D. Hurford et al., Defendants in Error, v. Leo Shafton et al., Plaintiffs in Error.
    Gen. No. 14,633.
    1. Appeals and errors—when wit of error does not lie. A writ of error does not lie by one party to a judgment which is joint as against himself and another.
    2. Garnishment—when garnishee subject to jurisdiction. If garnishees appear in person and by counsel and urge their defense upon the trial of the cause they are thereby subject to the jurisdiction of the court and a personal judgment may he rendered against them.
    3. Municipal Court—propriety of judgment in garnishment. The Municipal Court has power in rendering a judgment in" a garnishment proceeding to make a just and equitable disposition of the rights of the parties before the court.
    Attachment. Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed November 8, 1909.
    John W. Burdette and Nicholas J. Pritzeer, for plaintiffs in error.
    Henry M. Shabad, for defendants in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The record discloses that the original cause was an attachment suit in which W. D. Hurford & Company was plaintiff and J. Burmestrovitz and J. Weinstein, doing business as “National Laundry,” were defendants. It also appears that Sterne & Son Company, a corporation, and the Troy Laundry Machine Company sued the same defendants in the Municipal Court in similar actions about the same time. The common law record, however, reveals nothing in relation to these last two attachments until the order of consolidation recited in the final judgments against the garnishees sought to be reversed, which were entered in one final order April 18,1908, nimc pro tunc, as of January 4,1908. On October 31,1907, on motion of defendants in the Hurford suit it was dismissed for want of prosecution. On the following day, on notice to P'ritzker, attorney, and J. J. Sankstone, one of the garnishees, the order of dismissal was vacated. Samuel Sankstone, J. J. Sankstone, A. Belinsky, Katie Pike and Leo Shafton were summoned as garnishees. On November 16, 1907, a judgment in the Hurford case was entered against the defendants Burmestrovitz and Weinstein for $134.01 and costs taxed at $22.60. We do not find in the record any judgments against defendants in either of the two other attachment suits. The remainder of the proceedings relates to the garnishees solely.

Many objections are made on behalf of' the garnishees Leo Shafton and Samuel Sankstone, the only plaintiffs in error now before the court; hut we shall take notice of such only as we deem in point to sustain the conclusion to which we have arrived, in affirming the judgment of the Municipal Court.

Many irregularities both in this and the Municipal Court have intervened. The three judgments in favor of the several plaintiffs against the garnishees in the attachment suits are entered in the same order. No judgment is shown to have been entered in two of the suits against the defendants, but as they are not here complaining and no one can be heard to complain for them, wé are not called upon to consider such irregularity. Clark v. Marfield, 77 Ill. 259.

Belinsky sues out a writ of error on a joint judgment against himself and Katie Pike. This is irregular and contrary to practice. Belinsky, after joining in error with Shafton and Sankstone, on the motion of the latter wag eliminated from the cause by an order of severance. This was another irregularity, as there can be no severance after joinder in error. If a motion to dismiss for such irregularities had been made, it would have been allowed. No such motion has been made. Neither is the point raised in argument. We have consequently determined to look to the merits alone as a basis of our decision.

Whatever may be said concerning the irregularity of the order reinstating the cause the day following its dismissal, defendants have abided the action of the court without complaint, and the garnishees before us, Sankstone and Shafton, submitted themselves to the jurisdiction of the court by appearing in person and by counsel and urging their defenses upon the final trial of the cause against them. By so doing they vested the court with jurisdiction to render judgment in personam against them. They urge lack of notice, but the only function a notice of such character serves is to bring the party before the court. They were before the court. It is hot important how they were brought into the jurisdiction of the court; the fact remains they were in court by participating in the trial, submitting themselves to its jurisdiction.

It appears from the facts in the record that Samuel Sankstone bought of Pike and Belinsky a laundry for $2300. Certain sums were paid to Pike and Belinsky on account of such purchase, and other sums were retained by Sankstone with which to pay certain of Pike and Belinsky’s creditors. At the time of the service of the garnishee summons upon Samuel Sankstone he owed Pike and Belinsky $243.95 of the purchase price of the laundry after crediting him with all payments made by him on account of such purchase price. This amount due Pike and Belinsky was owing by them to defendants Burmestrovitz and Weinstein at the time of such service. Leo Shafton recovered in his own name, but really for the use of Burmestrovitz and Weinstein, in the Municipal Court on March 15, 1907, a judgment for $260.19 against Pike and Belinsky. The Municipal Court ordered Shafton to assign that judgment to a receiver which the court appointed for that purpose, but Shafton failed to obey that order and did not make the assignment, for the disobedience of which order Shafton was held to be in contempt of court. The court found that Shafton had no title, right or interest in that judgment, but held the same for the defendants in the attachment, Burmestrovitz and Weinstein. Judgment was given against Samuel Sankstone for $243.95, the amount due from him to Pike and Belinsky, and by the latter to Burmestrovitz and Weinstein, and against Leo Shafton for $231.16, the amount of the judgment obtained by him in the Municipal Court against Pike and Belinsky, less some credits, the defendants Burmestrovitz and Weinstein being in fact the beneficial owners of said judgment. This appears to be an equitable and just disposition of the rights of the parties before the court upon the merits, of which, aside from the irregularities in procedure mentioned, no party has any just cause of complaint.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Republic Manufacturing Company, Plaintiff in Error, v. Albert Fuchs, Defendant in Error.
    Gen. No. 14,642.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Contracts—what sufficient consideration to support guaranty. The acceptance of an order for the payment of money and the payment of money which was not obligatory, are sufficient consideration to support a contract of guaranty.
    Freeman, J., dissenting.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. Max Ebebhardt, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed November 8, 1909.
    Rehearing denied, opinion modified and refiled November 22, 1909.

      Dunn & Hates, for plaintiff in error.
    B. M. Shaffner, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The plaintiff, Republic Manufacturing Company, brought suit against defendant, Albert Fuchs, to recover a balance of $300 due upon a promissory note of $500, made by defendant to plaintiff and payable in five monthly instalments of one hundred dollars each. Defendant claimed a set-off for money expended in repairing defects in the work on his building installed by Redmond, the plumber, under the following guaranty:

“June 4, 1907.

“Albert Fuchs, Esq.

Dear Sir: In consideration of the payment made on account of contracts made with R. S. Redmond for plumbing on the Chateau, corner Clarendon Ave. and Sheridan Road, we hereby guarantee the plumbing, etc., described in said contract for the terms set forth therein and to make good upon notice from you any defects therein. Republic Mfg. Co.,

W. R. Ratcliffs, Prest.”

The issues were tried before the court with a jury, a verdict rendered for defendant, upon which a judgment of nil capiat was entered, and plaintiff seeks this review and argues for reversal that the judgment is contrary to the weight of the evidence, that the guaranty is without consideration and void, and that no notice of defects was given.

A careful reading of the evidence demonstrates that it is in sharp conflict. Defendant’s proofs, standing alone, are of sufficient probative force to sustain a finding in his favor. The conflict in the proof was the burden of the jury to harmonize and by their verdict to say on which side of the controversy the evidence preponderated. They found by their verdict that defendant had maintained his affirmative defense by the greater weight of the proof. Being unable to say that such finding is manifestly contrary to the weight of the evidence, we have no right to interfere with the judgment, rendered on such verdict, unless some other reason exists for so doing.

Defendant made contracts for the erection of an apartment house named the “Chateau,” among which was a contract with one Redmond for plumbing. Plaintiff sold considerable plumbing supplies to Redmond, which Redmond installed in the building of defendant. For these supplies plaintiff had a claim against Redmond. The payment of such claim was no concern of defendant; for it he was in no way personally responsible to plaintiff, although his building might, in certain circumstances, be subjected to a mechanic’s lien. Redmond seems to have been a person of questionable financial responsibility; at least plaintiff seemingly had some fear concerning its ability to get payment from Redmond.

On April 8,1907, Redmond gave to plaintiff an order on defendant for $2085. Defendant had a loan with Peabody, Houghteling & Co., and on June 4,1907, gave a certificate as follows :

“This is to certify that the Republic Mfg. Co. (A. Redmond act.), contractor for the plumbing and gas fitting of The Chateau (both contracts), are entitled to a payment of five hundred and eighty-five.......... dollars by the terms of contract, which please pay and charge to my account. A blc of four hundred and fifteen dollars will be paid by me to- R. A. Redmond or his assigns, etc., and this is to settle all claims on both sides except the keeping in order of the work as per contract for two years. Albert Fuchs,

Owner. ’ ’

A settlement was had on that day and the amount of the Redmond order on defendant, less $85 which was for extras which plaintiff abated, paid by defendant to plaintiff. Defendant was neither obligated to accept nor pay the order or the $2000 which he paid to plaintiff, and in consideration of that payment plaintiff gave to defendant the guaranty of June 4, 1907, above set out. These were concurrent acts and a sufficient consideration for the guaranty then given. Moreover, the guaranty recites a consideration which was sufficient in itself to cast the burden upon plaintiff to rebut by proof. Cook v. Murphy, 70 Ill. 96. The conditions of settlement were threefold: On the part of the defendant to pay the amount of the Redmond order, less $85, which he was not in law obligated to pay, and on ' the part of plaintiff the rebating of the $85 for extras and giving the guaranty above recited. The money so paid was Redmond’s debt and the guaranty given was the assumption of that condition in Redmond’s contract.

If notice to plaintiff of defects in Redmond’s work was necessary to fix a liability upon plaintiff under the terms of the guaranty, there is evidence in the record sufficient to warrant the conclusion of the jury that such notice was given.

While the theories in dispute are not altogether free from doubt, we are satisfied that the judgment metes out substantial justice between the parties.

The judgment of the Municipal Court is affirmed.

Affirmed.

Mr. Justice Freeman dissenting.


author: Me. Presiding Justice Holdom

text:
    Henry Wolf, Plaintiff in Error, v. Thomas F. Scully et al., Defendants in Error.
    Gen. No. 14,647.
    Appeals and errors—when finding t>y court set aside as against the evidence. The finding of a court will he set aside as against the evidence if manifestly against its weight.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and judgment here.
    Opinion filed November 8, 1909.
    Rehearing denied November 22, 1909.

      William A. Schonfeld, for plaintiff in error.
    William A. Cunnea, for defendants in error.
   Me. Presiding Justice Holdom

delivered the opinion of the court.

For the second time this cause is before the court for review on a judgment against plaintiff in error for $510, the amount of the first judgment, which this court reversed, as being contrary to the manifest weight of the evidence, being for the same amount. Wolf v. Scully, 137 Ill. App. 87. The first trial was before the court with a jury, and the judgment in the cause before us was rendered by the court without the intervention of a jury. Plaintiffs’ claim is for commissons on the sale of certain real estate of defendant, of which sale they insist they were the efficient and procuring cause.

In the first instance it devolved upon plaintiffs to prove by a preponderance of the evidence that they were authorized to act as agents of defendant in the sale of his property. As between Silverstein and defendant, who swear in diametrical opposition to each other, there cannot be said to be any preponderance one way or the other, nor are there any facts or circumstances in proof which lend, on this point, any corroboration or support to Silverstein. On the other hand there are several circumstances, developed by the evidence, which tend to sustain defendant’s denial. Plaintiffs make no pretense that they personally took any part either in the way of procuring authority to act for defendant or in conducting any negotiations looking toward a sale. Whatever was done was through the witness Silverstein, who, it is contended, was acting as plaintiffs’ representative. Neither plaintiffs nor Silverstein had any knowledge of the sale until after it was made, and all the parties directly interested deny that Silverstein at any time called their attention to the property or offered to sell it to them, or told them that it could be bought. Neither Goldberg nor Miller. the purchasers, are financially interested in the result of the suit, but plaintiffs and Silverstein are interested for the reason that whatever amount can be recovered will be shared between them. So it is plain that Goldberg and Miller are disinterested, while Silverstein is directly interested. Consequently no reason exists for crediting Silverstein and discrediting defendant’s disinterested witnesses.

The questions here involved are all of fact. Have plaintiffs made out their case by a preponderance of the proofs, is the crucial and decisive question. On careful consideration of all the evidence we have concluded, as on the first review, that this primal requisite to warrant a recovery is lacking, and that the judgment is against the manifest weight of the proofs. It therefore becomes our duty to reverse the judgment of the Municipal Court and, responding to the mandate of the Municipal Court Act, we enter the judgment here which, in our opinion, the court below should have entered, which is a finding and judgment for the plaintiff in error, the defendant below.

The judgment of the Municipal Court is reversed and a finding and judgment for defendant is entered here.

Reversed and judgment here.


text:
    City of Chicago, Defendant in Error, v. Harriet A. Hook, Plaintiff in Error.
    Gen. No. 14,653.
    Breach of peace—what does not constitute. A person who upon a peaceful errand enters the house of another with the consent of an occupant thereof, conducts herself quietly and seeks to leave when she finds her presence objectionable, is not, even though partially disguised, guilty of a breach of the peace or of any offens'e which justifies her arrest.

      Error to the Municipal Court of Chicago; the Hon. Oscab M. Tobeison, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and defendant discharged.
    Opinion filed November 9, 1909.
    A. Humphrey, for plaintiff in error.
    George H. White,- for defendant in error; Henry M. Seligman, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

On the sworn complaint of Ben M. Giroux that Harriet A. Hook on March 12, 1908, at Chicago, did make, aid, countenance and assist in making an improper noise, riot, disturbance, breach of the peace and diversion tending to a breach of the peace, in violation of section 1454 of the Revised Municipal Code, a warrant was issued and she was arrested and in due course tried before a judge of the Municipal Court after waiving her constitutional right of trial by jury, found guilty and fined $10, together with the costs of the prosecution. From the judgment so rendered this review of the record is sought and a reversal of the judgment and the discharge of defendant asked.

It appears from the evidence that defendant had some interest or curiosity about the physical condition of a son of the complaining witness. Defendant was personally known to both complaining witness and his wife. They did not regard defendant with favor; why is immaterial. This attitude of the boy’s parents was evidently known to, or at least suspected by, defendant. To satisfy her interest or curiosity, whichever impulse dominated at the time, she proceeded to the Giroux residence and, suspecting that when recognized she would not be admitted, she attempted to disguise herself by donning a black wig. On arriving at the residence she rang the bell, in response to which the door was opened by Charles Renaud, whom she asked if Mrs. Giroux was at home, saying that she was a newspaper reporter. This was about 6:30 in the evening. Defendant entered the house and awaited the return of Mr. and Mrs. Giroux. Mrs. Giroux arrived home at about 7:30- and her husband half an hour later in response to his wife’s summons by telephone. There is no evidence of any act or conduct on the part of defendant, either before or after the arrival of Mrs. Giroux and her husband to which any exception could be justly taken. She made no disturbance and used no language calculated to incite any sane person to a breach of the peace. From the first moment she discovered that her presence inflamed the temper of Mrs. Giroux she tried quietly to leave the house. Both Mr. and Mrs. Giroux acted with unseemly and unwarranted violence toward defendant, and against her will and protest detained her in the house and restrained her, unlawfully, of her liberty for upwards of three hours, when Giroux caused her to be arrested outside of the house by a policeman, for whom he had telephoned while detaining defendant in the house. All the witnesses, both for-the prosecution and defense, testify to the quiet conduct of defendant while in the Giroux house, and both Mr. and Mrs. Giroux admit that they were excited, talked loud and threatened defendant and detained her contrary to her will and against her protest. So violent were the actions of Mr. Giroux that he admits some men present told him to keep quiet. So unwarranted was the arrest of defendant that Mrs. Giroux, amid all her excitement and feeling of antagonism toward defendant, objected to the arrest of defendant and pleaded with her husband not to proceed to such an extremity.

Aside from legal technicality and the juggling with definitions as to what is “a diversion tending to a breach of the peace,” it is plain on the evidence for the prosecution that defendant has been more sinned against than sinning in this particular case. It was indiscreet for her to take the chances of exciting the Girouxs by going to their house at all, much less wearing a black wig, which plainly was not a disguise, for Mrs. Giroux exclaimed upon sight of her, “You are Doctor Harriet A. Hook with a black wig on.” Yet she went on a peaceful errand and conducted herself with propriety and decorum, and immediately on discovering that her presence was objectionable to Mrs. Giroux attempted to withdraw from Mrs. Giroux’s house and presence. Nothing in the conduct of defendant justified the treatment to which she was subjected on that occasion. Even had defendant suspected that her presence might tend to excite the Girouxs, still she was not for that reason alone guilty of a crime when her conduct in other respects was unobjectionable, coupled with her immediate attempt to peaceably withdraw. Certainly there was no provocation for forcibly detaining defendant against her will until eleven o ’clock at night and then delivering her into the custody of a police officer upon the street, following her release from such forced detention.

When applied to the facts of this case there is neither by legal interpretation nor the construction of lexicographers anything from which can be imputed to defendant a violation of section 1454, supra. Defendant did nothing which would tend to a breach of the peace by ordinarily intelligent, fairly well balanced persons. This is clearly the situation, especially in view of the admitted fact that defendant was quiet, orderly and peaceable, and voluntarily and at once not only offered but attempted to peaceably withdraw from the Giroux home. There was no occasion for loud, excited talk, the calling of the police, or the detention of defendant. When a person is willing to go at once from the house or presence of another, voluntarily, there is no principle of law which permits of violence or arrest where the presence of such person is guileless of felonious intent.

The judgment of the Municipal Court does violence to justice and right, and is reversed, and the plaintiff in error, Harriet A. Hook, is discharged.

Reversed and defendant discharged.


author: Mr. Justice Baker

text:
    Guiseppe Rizzo, Defendant in Error, v. Elgin, Joliet & Eastern Railway Company, Plaintiff in Error.
    Gen. No. 14,615.

      Negligence—what essential to establish. Held, in this case, that in order to entitle the plaintiff to recover, the burden was upon him to show that the turning over of a rail by hand was not reasonably safe, and that he was, when injured, in the exercise of reasonable care for his own safety, and that such burden was not successfully carried.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed with finding of facts.
    Opinion filed November 8, 1909.
    Knapp, Haynib i& Campbell and William Beyb, for plaintiff in error.
    Bernard P. Babasa, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

In an action of the fourth class in the Municipal Court, brought by defendant in error against plaintiff in error, for personal injuries, plaintiff had judgment for $500, to reverse which defendant prosecutes this writ of error.

Plaintiff was a laborer in the service of the defendant. A gondola car of defendant loaded with iron rails ran off the track at a crossing in such a way as to foul the track of the other company. In order to replace the car on the track it was necessary to unload it. A flat car was placed on another track near to the gondola car, and rails were transferred from the gondola car to that car. The men employed in that work transferred a number of rails on to the flat car, went on that car and piled those rails; then transferred more rails on to the flat car and again went on the flat car and piled those rails, and so transferred and piled several lots of rails. A rail may be considered as consisting of three parts; the base, the head and the web. The rails of the first tier were placed on the floor of the flat car side by side on their bases. The width of the base of a rail was much greater than the thickness of the head or web, so that when the rails were so placed the space between the heads and webs of two contiguous rails was sufficient to permit a rail to be placed, head down, between such rails. When so placed the base of the inverted rail rested on the heads of such contiguous rails. A second tier of rails was then piled on the first tier, heads down, in the space between two contiguous rails of the first tier. A third tier was then placed on the second, bases down, the bases resting on the bases of the inverted rails of the second tier, and of course leaving the same space between the heads of two contiguous rails as in the first tier. The men then proceeded to pile a fourth tier, heads down, on the third'tier, in the sáme manner that the second tier was piled on the first. To so pile a rail in the fourth tier it was lifted by the men to the top of the third tier and placed, base down, near to the space between two contiguous rails into which it was to go. To pile such rail it was necessary to turn it upside down so that the head of the rail would pass between the heads of the two contiguous rails between which it was to go.

The testimony for the plaintiff consisted of his own testimony and that of one witness called by him. Their testimony tended to show that plaintiff had. never loaded rails on a flat car before the day of the accident; that thirty or forty rails had been piled on the flat car before plaintiff was called to assist in the work of transferring rails; that in piling such rails, tongs, a rail fork and a bar had been used to turn over a rail; that plaintiff had helped to throw six or eight-rails from the gondola car to the flat car, when the men were ordered by their foreman to go on the flat car, and ordered to turn over the rails with their hands; that plaintiff assisted in turning over two rails by hand, and in turning over the third rail, two of his fingers were caught and so injured that they had to be amputated ; that about twenty men had hold of the rail, either pulling or pushing, to turn it over; that plaintiff stood in front of the rail pulling on it to turn it over towards him; that his fingers were caught between the rail which he had hold of and the rail alongside of which that rail went. The statement of the plaintiff’s claim in the praecipe was that he was injured by the negligence of the defendant in failing to furnish a sufficient number of men and in failing to furnish suitable tools and appliances with which to work in unloading rails from one car to another, and also by negligently ordering said work to be done in a hurried, unskillful and careless manner.

The men furnished by the defendant were able to lift the rail and place it in.proper position alongside of the space into which it was to' go, and were able to turn the rail over. There is no evidence tending to sustain the claim that the defendant failed to furnish a sufficient number of men.

The great preponderance of the evidence is that no tongs, bar or fork were used to turn over any rail which had been piled prior to the accident; but if such tools, or any of them, had been used for that purpose, the failure to use them after plaintiff went on the car is* not evidence from which the jury might properly find that the failure to use such tools, or any of them, constituted or was negligence. If the method of turning over rails by hand in piling them in the manner above described, was reasonably safe, then the defendant was not bound to furnish or use tools for that purpose. So as to the alleged negligent order. If the method of turning over rails by hand was reasonably safe, the order to the plaintiff and the men with him to turn the rails over by hand did not constitute negligence.

To entitle him to recover the burden was on the plaintiff to show that the turning over of a rail by hand was not reasonably safe, and that he was, when injured, in the exercise of reasonable care for his own safety. Plaintiff was pulling on the rail to turn it over towards him. The space into which the head of the rail was to go was between him and the rail on which he was pulling. He was injured by his fingers being caught between the rail he was assisting to turn over and the head of the rail on the side of the space above mentioned on which plaintiff was. He was in no danger of injury unless, when the rail he was assisting to turn over was turned so nearly upside down that its head came near to the head of the rail alongside of which it must pass, he kept his hand, or some part of it, in such position that it would be caught between the two rails.

We do not think that from the evidence the jury could properly find that the turning over of the rails by hand, under the circumstances shown by the evidence, was not reasonably safe. The danger of injury to plaintiff if he permitted his hand to be between the rails as they came together, was so obvious and apparent to any one, however inexperienced in the work, that no warning of such danger, no instruction to keep his hands from between the rails, was required of the defendant.

In our opinion the jury could not, from the evidence in this record, properly find, either that the defendant was guilty of negligence, or that the plaintiff was in the exercise of reasonable care for his own safety.

The judgment will therefore be reversed with a finding of facts, and the cause will not he remanded.

■Reversed with -finding of facts.