author: Me. Presiding Justice Baldwin

text:
    John D. Casey, Administrator, Appellee, v. The J. W. Reedy Elevator Mfg. Company, Appellant.
    Gen. No. 15,939.
    1. Res judicata — to what extent former judgment binding. Held, that the judgment upon one appeal was not res judicata as to the entire cause but that such judgment was binding upon the Appellate Court to the extent of holding that the case was one which should properly be submitted to the jury, and one upon which a verdict might be found against the defendant.
    2. Master and servant — when doctrine of assumed rislc does not apply. ‘ ‘ It is those risks alone, which cannot be obviated by the adoption of reasonable measures of precaution by the master, that the servant assumes.''
    3. Evidence — right of witness to explain answer given upon former trial. A witness is entitled to explain why his answer to a particular question appeared to be different on the first trial from what it was on the second. JSeld, in this ease, that the manner of explanation employed did not constitute reversible error.
    4. Evidence — when rejection will not reverse. A court of review will not reverse a judgment because of the exclusion of evidence unless it is made affirmatively to appear by the bill of exceptions what the proposed evidence was and that it was material and competent.
    5. Instructions — practice of giving excessive number. The practice of giving an unnecessarily large number of instructions is vicious and should not be encouraged.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate court at the October term, 1909.
    Affirmed.
    Opinion filed January 16, 1912.
    Rehearing denied January 30, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Statement by the Court. This is an action on the case brought by the administrator of the estate of Carl J. Hokum against appellant, The J. W. Eeedy Elevator Company, for having, as alleged, wrongfully caused the death of said Hokum. The first trial of the cause resulted in a judgment for $5,000 in favor of plaintiff, which judgment was, by this court, reversed (142 Ill. App. 126), because of tbe improper admission of certain evidence, and tbe cause was remanded. Upon tbe last trial, tbe plaintiff recovered a judgment for $10,000, and tbe defendant again appealed to this court.
    It appears that on October 5, 1903, tbe Elevator Company was engaged in installing new elevator equipment in a seven story building (then known as tbe Mansure Building) at 74 Michigan avenue, in tbe city of Chicago. The height of tbe building bad just been increased from five stories to seven, and tbe Elevator Company extended the elevator shaft from tbe fifth to tbe seventh floor, and installed a new electric appliance with which to operate tbe elevator. On tbe day iu question, tbe strips or guides between which tbe elevator was to run above tbe fifth floor, having been previously put in place, and tbe necessary beams, pulleys, etc. at tbe seventh floor having also been put in •and connected with tbe new elevator cables, tbe platform freight elevator, which bad theretofore been operated by steam power, was run up to tbe fifth floor by means of tbe old machinery, and temporarily fastened there, and tbe old cables taken off. Tbe men engaged in this work for tbe Elevator Company bad come up on tbe elevator, bringing with them tbe ropes, block tackle, etc., which was afterwards used in tbe attempt to hoist tbe elevator from tbe fifth to tbe seventh floor, where it was to be connected with tbe new cables. One Fred W. 'Johnson, alleged by tbe plaintiff to have been tbe foreman in charge of tbe work, went up to the seventh floor with one Moork, a helper, where they tied to tbe overhead beam on this floor a 1 inch rope, to which was attached tbe upper book of a chain and tackle. Plaintiff’s intestate, Kokum, went upon tbe top of tbe elevator, which was then at tbe fifth floor, and tied a 1% inch rope around tbe cross-beam above the car to which the lifting device was to be attached, wrapping tbe rope twice around tbe beam; the lower hook of the chain and tackle referred to, was then hooked into the loop of this 1% inch rope. Johnson and Moork, who were working at the elevator shaft above, then started to raise the elevator by means of the rope and tackle, while Kokum remained standing upon it. After the elevator was raised about three feet, it stopped, either because there was some solid obstruction in its way, or because for some reason it bound between the guide strips between which it was running. When they attempted to raise the car farther, the rope broke at the point where it was wrapped around the elevator beam, and the car fell five stories with Kokum on top of it, he receiving such injuries as to result in his immediate death.
    In brief, appellant was charged with negligence in two particulars; first, — it was claimed that Johnson, as foreman, had knowledge that one of the lag screws, which was to hold in place one of the guide strips, between which the elevator car was to be operated above the fifth floor, had, the day before, been left protruding to the extent of about one-quarter of an inch from the surface of the strip, so that when the iron shoe on the end of the elevator cross-beam reached this lag screw, it was unable to pass — the car could go no farther ; that the deceased had no knowledge that the lag screw was thus protruding, and that when Johnson and one Moork, a helper, made greater efforts to raise the elevator past this obstruction, by means of- additional pulling upon the strong chain and tackle, the increased strain caused the rope to break at the point where it was wrapped about the elevator cross-beam, and the car was precipitated to the bottom of the shaft, with Kokum upon it, by means of which he lost his life. Second, — it is also claimed as negligence against appellant, that while the elevator, in its upward course, after having been lifted about three feet, appeared to be stuck between the guide strips, from whatever cause, the foreman, Johnson, ordered it to be pulled farther up, without ascertaining the cause of such sticking, and that, in the effort to thus pull it up, notwithstanding the sticking, the rope, wrapped around the crossbeam, was broken, and the car fell.
    Appellant contends that plaintiff cannot recover in this case because of the contributory negligence of his intestate; first, — in that he was unnecessarily standing upon the elevator car while it was being raised, and without being directed to do so; second, — because he had directly contributed to the accident by failing to properly fasten the rope around the beam of the car, in that he failed to put any waste or packing between the rope and the sharp edges of the metal beam; and also in not discovering and reporting the projecting lag screw, if any there was, when the elevator began to stick. Appellant also urges that the court below should have instructed the jury, at the close of plaintiff’s evidence, and at the close of all the evidence, to find for the defendant; and that the court erred in admitting and rejecting evidence, and in refusing to give instructions submitted by it, and in overruling the appellant’s motion for a new trial.
    Eastman, Eastman & White, for appellant.
    Edward J. Green and Charles C. Spencer, for ap-pellee. •
   Me. Presiding Justice Baldwin

delivered the opinion of the court.

At the outset, we are asked to pass upon the effect of the judgment of this court when this case was previously here, and when it was reversed and remanded. (142 Ill. App. 126.) We cannot go to the length urged by the appellee and hold that such decision constitutes res judicata as to the entire case. That decision is now binding upon us to the extent of holding that the case was one which should properly be submitted to tbe jury, and one upon which a verdict might be found against the defendant; therefore, we do not regard these questions as open for our consideration, upon this appeal. See Turck, Adm’r v. Chicago, R. I. & P. Ry. Co., 152 Ill. App. 488.

“The decision and judgment that the case be remanded was necessarily an adjudication by this court that it did not appear from the evidence, either that the defendant was not guilty of the negligence alleged in the declaration, or that the plaintiff was guilty of contributory negligence, and that on the evidence in the record a jury might properly find the defendant guilty. The evidence on the second trial is the same as on the first, the parties and the issues are the same. Whether from the evidence the jury might properly find the defendant guilty was a question of law, decided by this court on the former appeal, and the decision on that appeal, that from 'the evidence the jury might properly find the defendant guilty, is the law of the case on this appeal.”

It is quite clear that in this case, appellee relies for a recovery upon showing to the satisfaction of the jury, that Johnson was a foreman over deceased, and in charge of the work; and that on the day previous to the accident, while the elevator shaft, from the fifth to the seventh floor, was being prepared for use, one of the lag screws, with which one of the guide strips was fastened, was left projecting beyond the surface of the guide strip about one-quarter of an inch, and that, with knowledge of that fact on the part of Johnson, but without knowledge on the part of the deceased, the elevator was raised from the fifth floor about three feet, until it struck this lag screw, and that in applying stronger pressure to continue to elevate it, the rope around the elevator crossbeam was caused to break and the elevator to fall; or, that while the elevator, after having been lifted about three feet was stuck fast in the shaft, whether because of the contact with t'he lag screw, or for some other reason, Johnson, the foreman, negligently, and without ascertaining the cause of the obstruction, ordered it to he hoisted, in the attempt to do which, additional power was applied, — the rope broke ai the elevator fell.

We have examined, with cane, the abstracts and briefs filed in this case, and have verified them in many particulars from the original record. We think the testimony sufficient to warrant the jury in finding that Johnson was a foreman over deceased, and was actually in charge of the work for the Company. As to whether the lag screw had been left projecting beyond the face of one of the guide strips in the elevator shaft, and if it had, whether Johnson knew, or should have known, that; or whether the car was stuck between these guide strips from some other cause, so that it was negligence on the part of Johnson, in either case, to cause the application of further power to continue raising the elevator, without ascertaining the cause of the obstruction; and whether these conditions caused the breaking of the rope, which the deceased had wrapped about the metal cross-beam above the elevator car, and whether such breaking was due to the large additional strain thus put upon it, or was due to the inherent weakness in the rope caused by being tied directly about this metal beam without waste or packing between the metal and the rope, — these are questions upon which the evidence is in direct conflict and hopelessly irreconcilable. That Johnson was the foreman, and had charge of the work, was testified to by three witnesses and admitted by Johnson himself; that the lag screw had been left projecting in the elevator shaft is testified to directly by one Moork, who claims that he himself was working at that part of the job with Johnson on the day before the accident, and that he himself left the lag screw projecting because of his inability to screw it clear in with the wrench he then had, and that, with Johnson’s knowledge, and by Johnson’s directions, it was left in this condition nntil the time of the accident. There is also direct evidence to the effect that Moork and Johnson, who were located at the elevator shaft opening on the seventh floor, at the time of the accident, had started to hoist the elevator by means of the chain and tackle, and after it had been hoisted about three feet, the further upward passage appeared to be obstructed, and the car stuck, and that by Johnson’s directions, deceased was handed a wrench, and endeavored to loosen the grip, but failed to find the real obstruction, whereupon Johnson gave the order to go ahead and continue hoisting the elevator; that, thereupon, they hoisted three or four times upon the powerful chain and tackle, when the rope around the cross-beam of the elevator parted and the car went down, taking Kokum with it; and Moork further testified that the top of the car, at the time of the accident, was right at the place where the lag screw had been left by him and Johnson the day before. In many particulars, his testimony is corroborated by one Grady.

Appellant’s counsel strongly insists that the car had not reached the point where the lag screw was said to be projecting. We have carefully gone over the drawings in the record and the measurements, and the elaborate arguments of counsel in relation to this phase of the controversy, and we are unable to reach the conclusion that the contact between the shoe on the elevator beam and the lag screw was impossible. In any event, it is fairly clear that after this car had been raised several feet, it did stick from some cause, and that there was certainly additional power applied upon this chain and tackle to attempt to lift the elevator car farther.

While it is true that Johnson denies there was any projecting lag screw, in the light of the testimony of Moork, it was clearly a question for the jury to determine, and we cannot say that the jury were clearly wrong in the conclusion they must have reached.

Perhaps the most difficult question in the case is whether appellee’s intestate was guilty of contributory negligence, proximately inducing the injury, in wrapping the rope around the metal beam of the car without protection from its sharp edges. Appellant vigorously insists that it was the duty of deceased to have placed waste or packing of some sort between the rope and the edges of the metal, and that his failure to do so, directly caused the rope to part and the elevator to fall. However, the jury had before it, on behalf of the appellee, testimony tending to show that the tensile strength of the rope, tied around this piece of iron in the manner it was shown to be, without protection between the rope and the metal, was such that it would carry from 3000 to 3500 pounds; while the elevator, with Hokum standing upon it, weighed not exceeding 1600 pounds. It is also apparent from the conceded facts in the case that the rope, wrapped about the beam as it was, had, in fact, sustained the load of the elevator, with Hokum standing upon it, while the elevator was being lifted for several feet, and it was not until for some reason the further upward passage of the car was obstructed, and additional power, through the means of the strong chain and tackle, was applied, that the rope broke.

Appellant also claims that the deceased was guilty of contributory negligence, directly contributing to the injury, in that he was standing on the top of the elevator. There was evidence before the jury, from which it might well have concluded that he was there in the discharge of his duties, preparing to receive and attach the new elevator cables whenever the elevator should be sufficiently raised to permit it. At least one witness testified that the deceased was standing on the car, taking in the slack of the rope on which he was pulling, and which was attached to the beam at the top of the car, as it was coming up. Another testified that at the moment the car fell, Kokum had the rope tackle fast to the new cable, and one end of it fastened to the car, and had it turned around the timber to take up the slack of the cable and hitch on the oar when it came near enough. Johnson, himself, testified that the deceased stayed on the elevator, taking in slack, and it appears, from Johnson’s testimony, that Johnson was, with Moork, a helper, on a scaffold on the sixth floor, working the chain block, raising the elevator. It appeared also from the testimony that there was no obstruction to prevent Johnson seeing, through the few feet between him and the top of the elevator, and knowing just how the rope was tied around the metal cross-beam. There was also testimony to the effect that just before the accident, Johnson gave orders to deceased to “slack the shoe off.” As this could be done only by some one on the car, the jury would be justified in finding from this evidence, if credited, that the deceased was properly in that position, and that his foreman recognized it by giving him orders to do work which could best be done from that point. It is true that one witness, Swanson, testified for appellant that he told Kokum he should not ride upon the top of the car, but one witness for ap-pellee, G-rady, who claimed to have been standing within two or three feet, with no obstruction between him and Swanson, denies any such conversation. All these questions were properly submitted to the jury, and their verdict thereon must stand, unless we find that the verdict is clearly against the manifest weight of the evidence. This we do not, and cannot so find.

■ It is strenuously argued that Kokum should have placed some material, waste or packing, under the rope to protect it from the sharp edges of the metal beam; but it does not appear that the employer provided or furnished him any material for this purpose. It does appear that there was some waste in the basement, nsed by the machinists, and it further appears that there was some'burlap in the building which belonged to the tenants, but the basement was several stories below the place of the accident, and the burlap belonged to the owners or tenants of the building, but not to appellant. There was also evidence before the jury that Kokum’s relation to the work was merely that of a “helper,” and his duties were such as that term indicates. The superintendent of appellant testified that “Kokum was a helper to wait on and help the mechanics, go errands, bring tools, do heavy work of lifting and carry things. He was not a mechanic,” and the same witness testified that it was not within Kokum’s province to know about the conditions under which the rope would break or cut.

We do not think that the doctrine of assumed risk urged here by appellant applies to this case. Our Supreme Court has said, “It is these risks alone, which cannot be obviated by the adoption of reasonable measures of precaution by the master, that the servant assumes.” Western Stone Co. v. Musical, 196 Ill. 382. Nor do we think the court erred in refusing to sustain appellant’s motion in arrest of judgment. It is well settled that a motion in arrest of judgment will not be sustained because of a defective count if there are others that are sufficient; and the other ground upon which it is urged before us, that the motion should have been sustained, we do not consider tenable.

Appellant complains of the action of the court in improperly admitting evidence. Upon the trial of the cause, a witness, Moork, testified that at the time the elevator stuck in the shaft, Johnson, the foreman, said, “Go ahead and hoist it up. Hoist on the cable.” Moork further testified concerning the same time, “We got our orders from Johnson to go ahead. Tes, I got orders from Johnson. * * * Yes, Johnson told me to pull away.” For the purpose of showing that Moork had given contradictory testimony at the previous trial of the cause, appellant’s counsel asked Moork, “Were you not asked this question? £Who was it that you heard say hoist away?’ and did you not answer by simply saying, ‘Mr. Johnson was below’?” Upon re-direct examination, counsel for appellee, referring to the question just above quoted, put this question: “Immediately following the question Mr. Eastman asked you a while ago, didn’t I ask you this question, ‘Can’t you answer, or can you answer, the question directly, who was it you heard say “hoist,” and didn’t Judge Gibbons then interrupt me by saying,_ ‘He has already stated Mr. Johnson gave him the order?’ ” To this question the witness answered, “Yes, sir.” The witness was entitled to explain why his answer to the question appeared to be different on the first trial from what it was on the second; and, while we think the explanation should have been made in some other manner, we are unable to say that the court committed reversible error in allowing counsel to put the question the way he did.

Appellant complains of the action of the court in rejecting certain testimony offered by it; but, upon examination, we do not find the record to show, by offers of proof or otherwise, what counsel expected to show by answers to the questions objected to; and the law is well settled that a court of review will not reverse a judgment because of the exclusion of evidence, unless it is made to affirmatively appear by the bill of exceptions what the proposed evidence was and that it was material and competent. See Ittner Brick Co. v. Ashby, 198 Ill. 562.

Appellant complains of the action of the court in refusing to give certain instructions offered by it, and giving two instructions requested by appellee. We have carefully gone over the matter of instructions, both those given and refused, and we find that in addi■tion to the peremptory instructions, and instructions relating to individual counts, comprising thirteen in number, requested by appellant, the court was requested by appellant to give forty-seven additional instructions, of which number, the court actually gave twenty-six. This court has heretofore criticised an apparent tendency, especially on the part of the defense in personal injury cases, to submit to the trial court an unnecessarily large number of instructions, sometimes amounting to a series of after-trial pleadings, — tending to confuse the court, and, if given, to mislead the jury, and not calculated to aid in reaching a just decision of the matters involved.

In this case no good reason appears why so large a number of instructions, some of which were quite lengthy, was necessary; and, after careful consideration of all the instructions, including those given and those refused, we think the court below did not commit reversible error in relation thereto, and that the jury was, on the whole, fairly instructed as to the law applicable to this case.

Finding no reversible error, the judgment of the court below will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Clark

license: Public Domain

text:
    In re Petition of Orlando Rex, arrested at suit of W. L. Parker. Orlando Rex, Appellant, v. People of the State of Illinois, Appellee.
    Gen. No. 16,047.
    1. Municipal Court — character of court. The Municipal Court of Chicago is a court of record.
    2. Municipal Court — how determined whether malice is gist of action. Whether malice is of the gist of an action which has resulted in the judgment of the Municipal Court, is to he determined from an examination of the record and particularly from the statement of claim filed in such action.
    Appeal from the County Court of Cook county; the Hon. Lewis Binaker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed January 16, 1912.
    EdmuND P. Kelly, for appellant.
    Stein, Mayer & Stein, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

Orlando Rex, the appellant, filed his petition in the County Court of Cook county, under chapter 72 of the Revised Statutes of Illinois, known as the Insolvent Debtors Act, seeking to he released from jail, wherein he had theretofore been incarcerated under a capias ad satisfaciendum issued upon a judgment entered in favor of W. L. Parker in the Municipal Court of Chicago.

The statement of claim filed in that case sets forth that the appellant obtained from Parker $500 from the sale to him of twenty shares of the capital stock of the Eex Chemical Company, a corporation, and that the appellant bad represented to Parker tbat tbe net assets of tbe company amounted to $12,500; tbat in point of fact tbe company bad “no assets of any value of any amount.” It further sets forth tbat tbe representation so mbde by said appellant Rex was false and untrue at tbe time it was made, and known to be so by tbe appellant.

The verdict of tbe jury in tbe Municipal Court was:

“We tbe jury find tbe defendant guilty and tbat tbe defendant, with tbe intent to cheat and defraud tbe plaintiff, wrongfully and maliciously obtained and converted to bis own use tbe property of tbe said plaintiff, to-wit: tbe sum of five hundred dollars lawful money of tbe United States of America, and assess tbe plaintiff’s damages at tbe sum of five hundred dollars in trover.”

The petition so filed in the County Court for the release of appellant was denied and the appellant was remanded into the custody of the sheriff.

The points relied upon for reversal are, that the County Court erred in finding that malice was and is the gist of the action in the suit in the Municipal Court; that it erred in its construction of the record of that court; and that it erred in refusing to admit and consider proper and competent evidence offered by the appellant.

As we understand the argument of the appellant, it is that because the case was what is known as a fourth class case in tbe Municipal Court — in which class of cases written pleadings are not required — the same rule will govern as would control in a similar case beard by a justice of the peace. The case of Edgerton v. C. R. I. & P. Ry. Co., 240 Ill. 311, is cited as controlling upon us in that respect. In that case the question was whether the action was on contract or in tort, and the court held that it being a case of the fourth class in the Municipal Court, and pleadings not being required, the same rule will govern as controls the form of action before justices of the peace j that while the suit was against several and the judgment taken against one only, the judgment might be upheld as an action of tort, although the action in tort appears to have been made in form as if it were an action on contract. In our opinion this case is not authority for the proposition that the Municipal Court of the City of Chicago is not a court of record as to all classes of cases. In Gorra v. Sobra, 151 Ill. App. 288, it was held that “the Municipal Court is a court of record, and its jurisdiction as defined by statute is far from making it ‘a court of like jurisdiction’ with a justice court. This is too plain for argument.” It also has been frequently held by this court, as well as by the Supreme Court of the state, that where malice is the gist of the action the court must look to the record only. Beckman v. Menge, 82 Ill. App. 228; Masterson v. Furman, 89 Ill. App. 291; Forsyth v. Vehmeyer, 176 Ill. 359. The statement of claim filed in the Municipal Court clearly shows that fraud is the gist of the action. This is also shown by the verdict of the jury, heretofore set forth.

The appellant sought to prove what the testimony was in the Municipal Court by offering in evidence a bill of exceptions filed in the case in that court. The County Court allowed the bill of exceptions to be filed, but from the record it would appear that it was disregarded in the decision of the case. In the case of Illinois Central R. R. Co. v. Ashline, 171 Ill. 313, it was held that a bill of exceptions is not admissible for the purpose of proving what is testified to on a former trial between the same parties, reaffirming the rule laid down in Roth v. Smith, 54 Ill. 431, and Stern v. People, 102 id. 540. The substance of the testimony contained in the bill of exceptions is not set out in the abstract filed in this court. We have, however, examined the testimony ‘as shown by the bill of exceptions as it is contained in the record, and are of the opinion that it sustains the verdict of the jury in the Municipal Court and the judgment of the court entered upon that verdict. It is corroborative also of the statement of claim and the verdict of the jury in the establishment of the fact that malice, in a legal sense, was the gist of the action.

We think no injury has been done the appellant, and the judgment of the County Court is affirmed.

Judgment affirmed.


text:
    Chicago Title & Trust Company, Trustee, Appellant, v. James N. Tilton et al., Appellees.
    Gen. No. 16,065.

      Decrees — how order dismissing can he set aside. If a cause be duly consolidated with another which other is subsequently dismissed while the merged cause is retained upon the docket for some undisclosed reason, an order cannot after the lapse of the term, without notice to the complainants in the consolidated cause so dismissed, thereafter be entered in the merged cause setting aside the dismissal of the consolidated cause and likewise setting aside the order of consolidation.
    Foreclosure. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Beversed and remanded with directions.
    Opinion filed January 16, 1912.
    Rehearing denied January 30, 1912.
    Castle, Williams, Lokg & Castle, for appellant.
    Charles L. Bartlett and ShermaN C. Spitzer, of counsel; A. N. Tagert, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

A bill of foreclosure was filed by the appellant, as trustee in bankruptcy, upon a trust deed given by James N. Tilton to Frank C. Kuhn as trustee, dated March. 25, 1893, as security for a loan evidenced by a note made by the said Tilton to himself as payee, dated March 25, 1893, for the sum of $2,500, and payable five years after its date. The bill was filed in the Superior Court of Cook county on December 18, 1906, and made as defendants James N. Tilton, Frank C. Kuhn, trustee, John C. Spengler, successor in trust', S. Wheelock Company, Nellie Kingsley and others, under the usual allegations that the defendants claimed some interest in the mortgaged premises, etc. To the bill an answer was filed by the defendants James N. Tilton and Nellie Kingsley, in which it was averred that the said Nellie Kingsley had obtained title to the property in question on a sale made in a suit to foreclose a mechanic’s lien, it being alleged that by said foreclosure of said mechanic’s lien the rights of the parties claiming under the said trust deed had been adjudicated and foreclosed.

On March- 23, 1907, an amendment to the bill was filed, setting up that prior to the filing of the bill said James N. Tilton’s first wife, Julia C. Tilton, had died, and that he had subsequently married the said Nellie Kingsley. Answers to the original bill were ordered to stand as answers to the amended bill, and upon replications being filed to the said answers the cause was referred to a master in chancery. After the reference to a master in chancery was had a cross-bill was filed by James N. Tilton and Nellie Kingsley Til-ton, his wife, asserting the right of homestead and seeking to have the trust deed canceled and removed of record as a cloud upon the title. An answer was filed by the appellant to the cross-bill, asserting that said Superior Court had lost jurisdiction of the said mechanic’s lien proceeding by dismissal, and that no jurisdiction had been acquired therein over Lydia R. Hicks, who owned and held the notes at the time of the commencement of that suit, or over the appellant, who had succeeded to the title of Lydia R. Hicks by operation of law pending the suit, and that neither appellant nor said Hicks had been made defendants to the cause or given any notice thereof. Replication being filed to said answer, the said cross-bill was also referred to the master for proofs and report. The master reported, finding the facts, and recommending that a decree be entered in accordance with the prayer of the bill and the findings of the report, and also recommending that the cross-bill be dismissed as without equity. Objections to the master’s report were filed by the appellees James N. Tilton and Nellie Kingsley Til-ton, which were made exceptions before the court. The court entered a final decree finding that the defendants’ exceptions to the master’s report were well taken, and ordered that the complainant’s amended bill be dismissed at complainant’s costs for want of equity.

The proof taken before the master in chancery shows substantially the following: that on or about March 25, 1893, the appellee, James N. Tilton, negotiated a' loan of $2,500 from Kuhn Brothers and Spengler, a partnership composed of Adolph A. Kuhn, Prank C. Kuhn and John C. Spengler, then engaged in business at Chicago as loan brokers; that he gave as security the trust deed heretofore referred to, and executed the notes secured thereby; that on May 24, 1893, Kuhn Brothers and Spengler sold the principal and interest notes and delivered same, together with the trust deed, to one of their clients, Lydia R. Hicks, who then and there paid therefor the principal and accrued interest due thereon; that on May 27, 1893, the S. Wheelock Company filed a bill in the Circuit Court of Cook county, as general number 115,803, making as defendants Charles E. Ashton and the said James N. Tilton, Frank C. Kuhn, Adolph A. Kuhn and John C. Spengler, to foreclose a mechanic’s lien for an alleged balance of $399.66, claimed to be due for lumber furnislied in the construction of a building upon the premises in the trust deed mentioned; that summons was issued in the mechanic’s lien suit, and served upon Ashton May 31, 1893, upon Adolph A. Kuhn and James N. Tilton June 1, 1893, and upon Frank C. Kuhn and John C. Spengler June 8, 1893; that Lydia R. Hicks was not made a party defendant, nor was Frank C. Kuhn as trustee; that no “unknown owners” were made parties to the suit; that on April 20, 1898, a default was entered against Frank C. and Adolph A. Kuhn and John C. Spengler for failure to comply with a rule, theretofore entered requiring them to answer the amended bill; that on December 28, 1898, the said Lydia R. Hicks sold and delivered the principal note and trust deed for the amount then due thereon to Adolph A. and Frank C. Kuhn, who then constituted the firm of Kuhn Brothers, Spengler prior to that time having withdrawn from the firm; that Kuhn Brothers thereafter continued to own and hold the principal note until declared bankrupts; that on June 21, 1899, Charles S. Cutting, as the alleged legal holder of said notes, and Frank C. Kuhn as trustee, filed their bill in chancery in the Superior Court of C.ook county, as case general number 199,701, to foreclose, making James N. Tilton, Julia C. Tilton and Nellie Kingsley (among others) parties defendant; that they appeared and filed their answer therein; that by their answer an issue was raised as to the real ownership of the notes; that on March 10, 1900, a petition was filed 'in the United States District Court to have Kuhn Brothers declared bankrupts, and they were so adjudicated May 7, 1900; that on June 8, 1900, the appellant, Chicago Title & Trust Company, was appointed trustee by the creditors, and qualified; that on April 24, 1901, an order was entered in the mechanic’s lien case of Wheelock v. Ashton et al., Circuit Court general number 115,803, transferring the cause to the Superior Court for the purpose of being consolidated with the case of Cutting v. Tilton, heretofore referred to; that on May 2, 1901, an order was entered in the Superior Court in the case of Cutting v. Tilton, general number 199,701, reciting the terms of the order of April 24, 1901, entered in the Circuit Court, and ordering that case number 115,803, transferred as aforesaid from the Circuit Court, be consolidated with case number 199,701; that the files in the mechanic’s lien suit were transferred from the office of the Clerk of the Circuit Court to the office of the Clerk of the Superior Court, but were filed in the Superior Court as a separate suit under general number 213,931; that no action was taken in the suit known as general number 199,701 until May 19, 1903, when in the course of a general call the cause was dismissed for want of prosecution, with leave to reinstate on good cause shown; that this cause, number 199,701, was never reinstated; that on June 1, 1903, an order appears to have been entered in the Superior Court in cause number 213,931 as follows:

“This cause coming on this day to be heard on motion of the complainant therein, to set aside the order of this court of May 19, 1903, dismissing said cause, and to set aside a previous order herein, consolidating said cause with the case of Cutting v. Tilton, general number 199,701, in this court, it is ordered by the court that the order of dismissal, entered in the above entitled cause, on May 19; 1903, be, and the same is, hereby set aside and annulled, and the previous order of this court, consolidating the above entitled cause, is also hereby set aside and vacated.”

That the record does not show any notice given to Charles S. Cutting and Frank C. Kuhn, as trustees, or to their solicitors, of the motion for setting aside the order of May 19, 1903; that on August 6, 1903, a decree by default was entered in the cause numbered 213,931, finding all the material allegations contained in the bill of complaint as amended to be supported by the proofs, and finding a lien in favor of the complainant for $399.65, and finding also as follows:

“That the defendants Frank C. Kuhn, Adolph A. Kuhn and John C. Spengler were, at the filing of the bill of complaint in this cause, and at the time of the service of summons herein, the owners of the notes secured by a certain incumbrance on said real estate, to wit: a note made by James N. Tilton, dated March 25,1893, for the sum of $2,500 and due five years after said date, and secured by a trust deed to Frank C. Kuhn, a defendant herein, of even date with said note; that said defendants have been duly defaulted in this cause, and that the complainant is entitled to a lien upon the real estate aforesaid, in accordance with the statute in such case made and provided, prior and superior to the lien of said trust deed and to the rights and interests of said defendants thereunder.”

That on September 26, 1903, an order was entered in the same cause, approving the master’s report of sale, and on September 6, 1906, a master’s deed was issued to said Nellie Kingsley, which was recorded October 24, 1906, in which it was recited that the premises in question were sold September 26, 1903, to the complainant, S. Wheelock Company, pursuant to decree of August 6, 1903, for $667.18, and that a certificate of sale was thereupon issued to said Wheelock Company, which certificate was thereafter assigned to Nellie Kingsley, then the wife of James N. Tilton. The certificate of sale apparently was not offered in evidence, nor the assignment of it.

The points relied upon by the appellant for a reversal of the decree which we are considering are, first, that neither the appellant nor Lydia K. Hicks, assignor of the notes and trust deed to Kuhn Brothers, was made a party to the suit for the foreclosure of the alleged mechanic’s lien; second, because the mechanic’s lien suit having been consolidated with the suit for the foreclosure of the trust deed, and the consolidated suit dismissed, the court lost jurisdiction over Kuhn Brothers which never 'was regained; third, because the alleged priority of the alleged mechanic’s lien over the trust deed was a matter that could not have been litigated in the suit for the foreclosure of the mechanic’s lien under the pleadings filed therein; fourth, because appellant succeeded to the title of Kuhn Brothers by operation of law and not by voluntary transfer pending the lien suit; fifth, because at the time appellant acquired said notes and trust deed the mechanic’s lien suit failed to disclose sufficient facts to bring appellant under the doctrine of Us pendens; sixth, because the force of the lis pendens of said lien suit was lost as to said Kuhn Brothers and appellant by laches of the complainant, S. Whee-lock Company, in the prosecution of the lien suit; seventh, that the court erred in dismissing appellant’s bill for want of equity, without granting it a personal decree against Tilton for the amount due on the notes in question.

It will be noticed from the foregoing statement of facts appearing of record that Kuhn Brothers and Spengler sold the principal and interest notes and the trust deed sought to be foreclosed in this proceeding to Lydia R. Hicks on May 24, 1893, and that three days subsequent to that time the mechanic’s lien suit was brought by S. Wheelock Company.

Without considering at this time the situation of the parties after the dismissal of the consolidated case, we take up the first point, namely, that no decree binding upon Lydia R. Hicks or any other persons who became lawfully entitled to the possession and control of the principal and interest notes and the trust deed could properly be entered which would cut them off from the right to foreclose unless they at least were made parties to the proceeding. It is true that Frank C. Kuhn in his individual capacity was made a defendant, but lie was not at tie time the owner of the notes, and lie was not made a defendant in his capacity as trustee. At that time he was a member of the firm of Kuhn Brothers and Spengler. At the time, however, that the principal note and trust deed were purchased by Kuhn Brothers the partnership had been changed, and whatever right Kuhn Brothers possessed in the principal note and the trust deed passed to the appellant in this proceeding through the bankruptcy court.

The mechanic’s lien suit, as heretofore stated, was brought in the Circuit Court of Cook county, and by agreement transferred to the Superior Court, where an- order was entered to consolidate it with the suit theretofore brought for the foreclosure of the trust deed. The general number of that case was 199,701. This consolidated case was subsequently dismissed for want of prosecution. The mechanic’s lien case was retained on the docket, for some reason not apparent in the record, as general number 213,931. In the case last mentioned, namely general number 213,931, there appears to have been an order entered setting aside the nrder dismissing case number 199,701, and an order vacating the order of consolidation. We agree with counsel for appellant that the order entered in the cause entitled Wheelock Company v. Ashton et al., general number 213,931, could not operate to set aside an order entered in the cause entitled Cutting v. Tilton, general number 199,701. No notice was given to the complainants in the suit last mentioned, or their solicitors, and the order was entered at a term subsequent to that in which the order of dismissal was entered. The objection raised is fatal. Smith v. Wilson, 26 Ill. 187.

The master found in his report that the Chicago-Title & Trust Company, as trustee in bankruptcy of Kuhn Brothers, complainant, is entitled to a first, prior and existing lien upon all the .premises described, in accordance with the prayer of the bill, and recommended that a decree be entered in accordance with snob prayer.

Without further discussing the points raised in the brief, we announce it as our opinion that the finding of the master was correct. The decree of the Superior Court will therefore be reversed and the cause remanded with instructions to overrule the exceptions filed to the master’s report and to enter a decree in conformity therewith.

Decree reversed and cause remanded ioith directions.


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    Ida Thompson, Appellee, v. The Northern Hotel Company, Appellant.
    Gen. No. 16,127.
    1. Master and servant — who not fellow-servants. An employe connected with a toilet room and an elevator operator in a hotel, are not fellow-servants.
    2. Verdicts — when not excessive. Held, in an action on the case for personal injuries, that a verdict for $5000 was not excessive where it appeared that the plaintiff earned about $20 a month, had suffered severely for 18 months after the accident and was afflicted so that disability would continue for an indefinite period in the future.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed January 16, 1912.
    F. J. OaNty and E. J. FoloNie, for appellant.
    FeaNcis J. Woolley, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

The appellee was injured while in the act of hoarding an elevator in the hotel of appellant.

The declaration was in one connt and alleged that the defendant’ “so carelessly and negligently ran, managed, operated and controlled said elevator and the operating machinery and power controlling same that the said elevator was thereby cansed to be suddenly started, whereby the plaintiff was then and there cansed to trip and fall upon the floor of said elevator.” A plea of the general issue was filed. There was a trial before the court and a jury, and a verdict of $5,000 and judgment entered thereon.

The points insisted upon as grounds for the reversal of the judgment are, that the court erred in refusing to direct a verdict in favor of the defendant; also in denying motion for a new trial, and entering judgment; also in its rulings upon evidence, and in its action upon instructions.

The evidence tended to show that the plaintiff was a colored woman, thirty-six years of age, employed in the ladies’ toilet room of the defendant, and had been so employed some months preceding the accident. In the basement of the building there were entrances to two elevators, which were separated from each other by a stone or tile wall. The one into which the plaintiff attempted to enter was the south elevator, on the east side of the hallway. This elevator was about two feet above the basement floor, and was reached by two steps, each about nine inches in height. The opening was three or three and one-half feet in width, and the operating device by which the elevator was started or stopped was north of this opening or entrance. There was no door at the entrance, and the entrance was never at any time closed. There was one other employe of the Hotel Company besides the operator in the elevator when the elevator reached the basement, and a third one who is spoken of as a plumber, entered the elevator ahead of the plaintiff, the plaintiff being a very short distance behind him. The plumber was able to get into the elevator before it started, but just as the plaintiff was about to enter, or as she was entering, the elevator started to rise and she was thrown into the car upon her stomach, her feet protruding from the elevator. The testimony of the plaintiff was that the elevator started just as she went to put her foot in the elevator. The accident resulted in the breaking of both of the plaintiff’s legs, the fractures being described as compound comminuted. The muscles were pealed from the bones. At the time of the trial, which was eighteen months after the accident, the plaintiff was still obliged to walk on crutches.

The first point argued by the appellant is that the evidence does not tend to establish the negligence claimed in the plaintiff’s declaration. It is said that the question raised is not one of variance, but that taking all of the plaintiff’s evidence and the conditions together, the suddenness with which the elevator was started was not shown to be the cause of plaintiff’s injury.

On cross-examination, as heretofore stated, the plaintiff testified that just as she went to put her foot in the elevator it started. It would seem that the person who entered the elevator just ahead of her was not injured, and had just turned around in the elevator and was facing the opening when he noticed her trying to get on, at which time the elevator was started. ■

We think that the evidence established the charge of negligence as contained in the declaration, and that it was the proximate cause of the plaintiff’s injury. We do not think that plaintiff was shown to have been guilty of contributory negligence. In aúy event, both questions were properly left to the jury to determine.

The principal argument of the appellant seems to rest on the proposition that the operator of the elevator and the plaintiff, appellee, were fellow servants. In onr opinion, so to hold would he in direct conflict with the authorities by which this court must he governed. Spry Lumber Co. v. Duggan, 182 Ill. 218; Duffy v. Kivilin, 195 Ill. 630; C. & A. R. R. Co. v. Wise, 206 Ill. 453; Indiana, Illinois and Iowa R. R. Co. v. Otstot, 212 Ill. 429. See also Cullen v. Higgins, 138 Ill. App. 168. In the ease last mentioned this court held, in an opinion by Mr. Justice Adams, that a waitress employed in the hotel was not a fellow servant of an elevator boy employed in the same hotel.

It is asserted that the verdict is excessive. The earnings of the plaintiff, as testified to by her, seem to have averaged about $20 per month. Whether she was furnished with her meals at the hotel in addition to this does not appear. The record would indicate that she had suffered greatly for eighteen months after the accident and that there would be future disability, the extent of which cannot be accurately estimated. We do not think the verdict should be disturbed on account of the amount.

Complaint is made of certain instructions given on behalf of appellee, and as to the refusal of certain others tendered by the appellant. Twelve instructions offered by the appellee were given, and twenty-four as tendered by the appellant, one of the latter being slightly modified. We think the jury were fully and fairly instructed, and that no error was committed by the trial court in the giving, refusing or modifying of any instruction.

As we find no error in the record, the judgment will be affirmed.

Judgment affirmed.


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    William Schmidt et al., Appellees, v. William M. Johnson et al., Appellants.
    Gen. No. 18,092.
    This ease is controlled by the decision in Schmidt v. Johnson, post, p. 623.
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. C. M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 16, 1912.
    Rehearing denied January 30, 1912.
    Bither, G-off & Francis, for appellant.
    Helmer, MoultoN & WhitmaN and Lloyd C. Whitman, for appellees.
   Mr. Justice Clark

delivered the opinion of the court.

There is brought up for review by this appeal and by the one which follows it, No. 18093, the action of the Circuit Court of Cook County, in chancery, in appointing a receiver of the Fidelity Amusement Company and also a receiver of the Riverview Park Company.

The two appeals were heard together in this court, and for convenience the facts hearing upon the case are more fully considered in the opinion rendered this day in the case last mentioned, being on the appeal of the Riverview Park Company. (Post, p. 623.) For the reasons stated in that opinion, we think no error was committed by the chancellor in appointing a receiver of the Fidelity Amusement Company, and his action in that respect is approved and the order affirmed.

Order affirmed.


text:
    William Schmidt et al., Appellees, v. William M. Johnson et al., Appellants.
    Gen. No. 18,093.
    1. Amendments and jeofails — when amendment of order appointing receiver proper. Within the term of entry a misprision in an order appointing a receiver may properly be corrected.
    2. Receiverships — what approval of bond. The mere signing by a judge of his name upon a bond 'without the word "approved” and without the entry of an order of approval, is a sufficient approval.
    3. Receiverships — when irregularity does not vitiate bond given upon appointment. Held, that a material omission in the condition of a bond given' upon the appointment of a receiver, will not affect the validity of the appointment as upon application the court would undoubtedly require a corrected bond to be given.
    4. Receiverships — appointment for solvent corporation. A receiver of a solvent corporation should not be appointed in a suit brought by minority stockholders claiming mismanagement by the officers who were the majority stockholders, except in rare cases. Held, however, in this case, that the facts justified the appointment made.
    5. Receiverships — when appointment should not be without notice. A receiver should not be appointed without notice unless there appear absolute necessity for so doing in order to protect the complainant’s rights.
    Rill in chancery. Interlocutory appeal from the Circuit Court of Cook county; the Hon. C. M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 16, 1912.
    McEwen, WEISSENBACH, Shrimski & Meloan, for appellant, Riverview Park Company.
    Helmer, Moulton & Whitman and Lloyd C. Whitman, for appellees.
   Mr. Justice Clark

delivered the opinion of the court.

A bill in chancery was filed by the appellees herein against the appellant, together with the Fidelity Amusement Company, "William M. Johnson, and others, seeking the appointment of a receiver of the appellant, Riverview Park Company, and also a receiver of the Fidelity Amusement Company, together with other relief against these and the other defendants. Upon application for the appointment of a receiver of the two corporations, the matter was referred to a master in chancery, who recommended that a receiver he appointed for each of the corporations. Thereupon an order was entered making such appointment, without notice to the defendants. The order was based entirely upon the hill of complaint sworn to by William Schmidt, one of the complainants, and no reference is made in it to the report of the master in chancery. The order appointing the receiver of the two corporations was entered October 10, 1911, and is in the following form:

“This cause coming on now upon the bill of complaint herein of said complainants, the affidavit of William Schmidt thereto presented and this day filed herein, and the motion of complainants for the appointment forthwith, and without notice to the defendants, or any of them, pendente lite of a receiver of the property and assets of the said Riverview Park Company and said Fidelity Amusement Company, and the court having considered and being fully advised in the premises.
£ ‘ The court finds that it is necessary in order to preserve the assets and property of said Riverview Park Company that a receiver pendente lite be forthwith and without notice to defendants appointed herein with the usual powers of receivers in such cases, to take immediate possession of all the property, including all records, books of account, equitable interest, things in action and effects of every kind belonging to said Riverview Park Company and said Fidelity Amusement Company or either of them.
“It is further ordered that Howard Hews, of Chicago, said County, be, and he is hereby appointed receiver herein, with the usual rights and powers of receivers in chancery in such cases, to receive, take and hold until the further order of the court herein, possession of all the property, including all records, books of account, equitable interest, things in action and effects of every kind belonging to said Fidelity Amusement Company, upon his filing herein two bonds in the penal sum each of Seventy-five Hundred and no-100 Dollars with sufficient surety to be approved by the court, conditioned for the faithful performance of his duties as such receiver, provided that complainants shall first give bonds herein, one payable to said River view Park Company, the other to said Fidelity Amusement Company, both in the penal sum of Seventy-five Hundred and no-100 ($7,500.00) Dollars with good and sufficient security to be approved by the court, conditioned to pay all damages, including reasonable attorney’s fees sustained by reason of the appointment and acts of such receiver in case the appointment of such receiver is revoked and set aside.
“ And it is further ordered that upon filing and approval of said receiver’s bond and said complainant’s bonds, as aforesaid, the receiver herein proceed forthwith, to take possession of all the property, including all records, books of account, equitable interest, things in action and effects of every kind and hold the same subject to the further order of this court.”

' It will be noticed that this order while it recites that a receiver should be appointed for the Riverview Park Company and also the Fidelity Amusement Company, and later provides for a separate bond to be given by the receiver as such for each of the two companies, in one portion of it would seem to make him receiver merely of the Fidelity Amusement Company. On the following day, October 11th, another order was entered in which, it is recited that by inadvertence the words “Riverview Park Company and said” were omitted from the draft of the order as the order was actually made and directed by the court, and that these words should appear properly to express the order as actually directed and made by the court, and it was ordered that the record be amended so as to include these words and thus correctly recite the order as it was intended to be and as it actually was directed.

It is urged upon us that the order appointing the receiver of the Riverview Park Company should be set aside on the ground that, as entered on October 10th, it was inoperative as to that company. We must take judicial notice of the fact that October 11th was in the same term of court as October 10th. The court during the term had full power to correct its records so as to make the same speak the truth. In our opinion, therefore, no error was committed in making the correction.

The next objection is that the bonds were not approved by the court. The bonds, as shown by the abstract of record, bear upon them the words “C. M. Walker, Judge,” underneath the words “Sealed and delivered in the presence of.” It is asserted by the appellants that this does not constitute an approval. We cannot agree with them in this regard. In Illinois Central Railroad Company v. Johnson, 40 Ill. 35, it was held that where the court below, in granting an appeal, prescribes the penalty in which the bond shall be given, within what time it shall be filed, and the name of the security, and these requirements are complied with, the bond requires no further approval. In the case before us the penalty in each of the bonds was fixed, and the bonds themselves bear the signature of the judge. We do not think that the word “approved” need necessarily have been inserted before the judge’s name. If the appellants were dissatisfied with, the bonds a motion might have been made to require new ones and that course is still open to the appellants if they desire to avail themselves of it. There is no question, in our opinion, but that recovery could be had upon the bonds if it should appear later that the order appointing the receiver was improvidently or improperly granted, or if upon a full hearing the allegations of the bill were found to be unsupported by the evidence in the case, and the appointment of the receiver thereafter set aside for that reason. The bonds to which we have just referred are bonds given by the complainants to the two corporations by virtue of the provisions of paragraph 53 of chapter 23 of the Revised Statutes, which state that bond shall be given to the adverse party in such penalty as the court or judge may order, and with security to be approved by the court or judge, conditioned to pay all damages, including reasonable attorney’s fees, sustained by reason of the appointment and acts of the receiver, in case the appointment of such receiver is revoked or set aside. It is to be noted that two bonds were made by the receiver, one as receiver of the Riverview Park Company and one as receiver of the Fidelity Amusement Company, and these bonds were approved on October 10th and filed on that day. It is quite evident, in our opinion, that the chancellor by placing his name upon the two bonds given by the complainants intended thereby to approve the same, and did thereby so approve them.

In the case of the bond issued by the complainants in the matter of the appointment of a receiver of the Fidelity Amusement Company, the words “Riverview Park Company” appear in the condition instead of “Fidelity Amusement Company;” and it is claimed that- therefore no bond was given by the complainants for the protection of the Fidelity Amusement Company. The bond was approved by the court, and it is quite apparent from the other provisions that it was intended to indemnify the Fidelity Amusement Company. It recites the filing of the hill of complaint against the Fidelity Amusement Company and others, praying among other things for the appointment of a receiver of that company. We do not think the informality of the bond should cause a reversal of the order appointing the receiver of the Fidelity Amusement Company, if upon examination of the whole ease, as made by the bill of complaint, the appointment of such receiver is found to have been justified. The court could, and undoubtedly will, if called upon to do so by the Fidelity Amusement Company, require the complainants to file another bond in which the condition is correctly expressed.

We come next to consider whether the court was justified by the allegations of the bill of complaint in appointing a receiver of each of the two companies without notice. From the bill of complaint it would appear that the four appellees, who were the complainants below, were the holders of 355 out of a total of 1,000 shares of the capital stock of the Eiverview Park Company; that the remainder of such stock, namely 645 shares, was held by the three individual defendants, Pañi W. Cooper, Nicholas P. Valerius and William M. Johnson; that the three persons mentioned, together with two of the complainants, namely William Schmidt and George Goldmann, constituted the board of directors of that company; that Cooper was president and general managing officer of the company, Valerius its vice-president, and Johnson its secretary; that these three defendants since September 15, 1905; have controlled and voted their stock as a single block of stock owned by one person, and it is asserted on information and belief, that they will continue in the future to so vote it; that in 1906 at the instance and suggestion of these three defendants, a resolution was passed by the directors of the company creating an executive committee of the hoard of directors, consisting of these three defendants, and that since October, 1905, the three defendants have been in control of and managing all of the business affairs of the Park Company; that they own and control a majority of the capital stock, control the election of a majority of the directors, and through them the election of all the officers; that in addition to its business of constructing and operating an amusement park, the Park Company furnishes the public for a fee paid by them with amusements in the character of riding devices, etc., displays and exhibitions of various character and description; that some of these amusement features are provided directly by the Park Company, but a large part of them by third parties, known as concessionaires, upon property adjoining and opening only upon the grounds of the Park Company; that these concessionaires charge the public an additional fee; that the Park Company secures its revenue in part from the exaction and receipt from the concessionaires, in return for the privileges in operating their amusement features. This is paid either in lump sums or by percentages of the receipts of the concessionaires.

The bill then charges that on or about September 15, 1905, the defendants, Cooper, Valerius and Johnson, entered into an unlawful conspiracy for the purpose of depriving the stockholders of the Biverview Park Company other than themselves of their right as such stockholders, by fraudulently and unlawfully exploiting the Park Company and converting its funds and assets, etc., to their own use, and also to acquire and convert to their own use the good will of the business of the Park Company.

The bill then proceeds to give in detail the acts of the said three defendants claimed to have been committed in pursuance of the alleged conspiracy.

Among other things, it is stated that one of the concessionaires, the Monitor and Merrimae Company, made an offer to the defendants to pay the Park Company as compensation for this concession 35 or 40% of the gross receipts of the concessionaire in the operation of the concession, hut that the defendants refused to accept this offer and made a counter proposition whereby the Monitor and Merrimae Company was to pay the Park Company 10% of its receipts, and in addition thereto, after it had been paid its original investment, the Monitor and Merrimae Company should pay to the said three defendants one-half of the net profits realized from the operation of the concession; that thereafter the said defendants made an arrangement with the Monitor and Merrimae Company whereby that company delivered to them a one half interest in the assets and profits; that while the agreement was that this payment should be made to the Park Company, as a matter of fact the defendants converted this one half interest to their own use, thus cheating and defrauding the Park Company. The bill further alleges that for a period of four- years prior to the filing of the bill the profits of the Monitor and Merrimae Company were more than $150*000, and that one half of this amount was turned over to the defendants, who concealed from the complainants their acts in this regard.

A similar state of facts is alleged to have existed in respect to a company known as the Creation Company, whereby it is alleged the defendants received $40,000 individually which should have been paid over to the Park Company.

The charge is made that the three defendants named negotiated with a man named Browning for the operation upon the grounds of the Park Company of certain miniature railways; that a contract was entered into in the name of the Park Company with Browning, whereby the Park Company was to receive 25% of the gross receipts from the operation of the railways; bat that the said defendants, simultaneously with entering into this contract with Browning, entered into a second contract with Browning whereby he agreed to pay them, the said defendants, one half of the profits realized by him; that the amount received by the said defendants from this source, which properly belongs to the Park Company, was $12,500; that' contracts were also made by the three defendants named on behalf of the Park Company with a firm known as Phelps and Cloher,'whereby that firm was given the privilege of operating a large number of minor concessions; that the Park Company should receive $500 from each concession, but that Phelps and Cloher should divide with the defendants the net profits resulting from the operation of these concessions. The bill alleges that the said defendants in this way realized prior to the filing of the bill upwards of $40,000, which they have, retained and used for their own benefit.

The bill further alleges that in order to enhance their illegal gains, the defendants Johnson, Cooper and Valerius during the year 1911 and prior thereto caused a large number of free passes to the Park Company’s grounds to be issued; that thereby the income of the Park Company was lessened, and the illegal profits acquired by the defendants increased because of the large percentage obtained by the said three defendants from the concessionaires.

The bill further alleges that in pursuance of the alleged conspiracy of the defendants, Cooper, Valerius and Johnson, there was caused to be incorporated the defendant Fidelity Amusement Company under the laws of the State of Arizona, with a nominal capital of $100,000; that in or about February, 1908, the three defendants named caused the corporation to qualify, or pretendedly qualify, under the laws of the State of Illinois; that the objects and purposes for which it so qualified were to acquire, construct, lease, own and operate amusement parks, and to acquire, build, license, own, operate, sell and deal generally in amusement devices; that all the directorships and offices of the Fidelity Amusement Company are held by the three named defendants and Charles E. Francis, a lawyer; that Charles E. Francis, as complainants are informed and, believe, is not interested in the Fidelity Amusement Company but is simply acting for the three defendants, Cooper, Valerius and Johnson; that all of the capital stock stands in the names of the said three defendants, unless it be that a small part of it stands in the name of Francis, who, it is alleged, is acting for the three said defendants. The bill alleges that said defendant Fidelity Amusement Company has no property or assets other than.moneys or property, or proceeds of money or property, fraudulently derived by the three defendants pursuant to the conspiracy from the Eiverview Park Company, and that the three defendants, under the name of the Fidelity Amusement Company have converted and appropriated to their use and benefit the property so held in the name of the Amusement Company; that the Amusement Company began doing business in Chicago about January 23,1907, under the complete control and domination of the three defendants.

The bill then avers that the three defendants received illegally and fraudulently and converted to their own use. a large amount of money realized. from the operation of a riding device known as the “Aerostat”; that this device cost about $6,500, and was operated by the three defendants in 1906; that they made a nominal contract with the Park Company whereby the Park Company was to receive 10% of the gross receipts ; that the net proceeds from said device during the year 1906, so fraudulently converted to their own use by the three defendants, was not less than $7,000; that in April, 1907, the three defendants represented to the other directors of the Part Company that the “Aerostat” had been constructed at an actual cost of $10,500, and the Park Company at that time purchased the device from the Fidelity Amusement Company at a price fixed at $10,500, which the bill alleges the three defendants thereupon fraudulently converted to their own use.

The charge is made in the bill that by similar deceit and conspiracy the defendants realized from a riding device known as the “Chutes” a large amount of money, and arranged an ostensible purchase by the Park Company from the Amusement Company at a sum of $45,000 the device which had cost not to exceed $25,000; that in the year 1907 the defendants realized from the operation of the Chutes a sum not less than $32,000, which they fraudulently converted to their own use.

Similar conspiracy and deceit are alleged with reference to a riding device known as the “Velvet Coaster”, and another known as the “Thousand Islands”. From the former device the three defendants are alleged to have appropriated to themselves not less than $25,000 per season for four years, and in the latter not less than $10,000 for each of the four years.

It is also alleged that the defendant Frank Johnson has realized improperly out of what is known as the “soft drink privilege” a profit of more than $100,000, which properly belonged to the Park Company but which pursuant to a conspiracy among the three defendants named, the said defendant Johnson has converted to his own use.

The bill alleges that the complainants did not learn until July 1, 1911, of the conspiracy or wrongs which are alleged in the bill to have been perpetrated by the said three defendants, who used the Fidelity Amusement Company as a shield to coyer the various illegal transactions.

The hill then alleges that out of the moneys so fraudulently claimed to have been taken from the defendant, Eiverview Park Company, by the three defendants, Cooper, Valerius and Johnson, real estate had been purchased, and that title to a portion of same stands in the name of defendant, Joseph B. Cloher; another portion in the name of the defendant, Helen J. Cooper; another portion in the name of Tillie Valerius, the wife of the defendant, Nicholas P. Valerius; some in the name of the defendant, Zoe E. Johnson, the wife of the defendant, William M. Johnson; and some in the name of Mary Frawley; that' title to none of the real estate was taken in the name of any of the three defendants, Cooper, Valerius and Johnson.

The bill then alleges that the title to 35 acres of land stands in the name of the Fidelity Amusement Company, all of which it is alleged was purchased with the money and proceeds of property of the Park Company fraudulently converted by the three defendants to their own use; that this 35 acres has been acquired pursuant to the conspiracy; that upon it are located many of the large amusement features operated in connection with the park; that the land is so located that it almost surrounds the real estate upon which the principal portion of the amusement features of the Park Company are located; that the Park Company has a written lease which' expires December 31, 1914; that with the exception of three and one half acres the Park Company has no lease of any portion of the 35 acres standing in the name of the Fidelity Amusement Company; that the use of the 35 acres is necessary to the successful financial operation of the park, and that by depriving the Park Company of the use of certain portions of the 35 acres the three named defendants can at any time seriously cripple the financial operation of the Park Company’s affairs. The bill charges that the purpose of placing the title to the 35 acres in the Fidelity Amusement Company was to convert to the use of the three defendants the good will of the Park Company, and, as an incident and means to that end to put the Fidelity Amusement Company in a position to gain control for amusement park purposes of the immediate neighborhood of the park, and to use such control to secure to the Amusement Company the advantages in respect to the operation of an amusement park now held by the Park Company.

The hill further alleges that the three defendants have so manipulated the affairs of the Park Company that during the season of 1911 its business showed a loss of upwards of $3,000, although the general attendance was larger than during any season of the existence of the park; that because of the issuance of so many free passes the actual gate receipts were many thousands of dollars less than for any preceding year.

The bill further alleges that of the 645 shares of the capital stock of the Park Company now owned by the three defendants, or some of them, 418 shares were purchased almost, if not entirely, with the moneys fraudulently taken by the three defendants, denominated conspirators, from the moneys and properties belonging to the Riverview Park Company, as theretofore set forth; and that the real estate standing in the name of the Fidelity Amusement Company or the other defendant's, has, so far as it has ever been paid for, been paid for with the funds of the Riverview Park Company so fraudulently converted to the use of the three defendants; that in equity the property standing in the name of the Fidelity Amusement Company and in the names of the other defendants heretofore referred to belongs to the Biverview Park Company.

Other charges of conspiracy and frand are made, but we think the contents of the bill have been sufficiently detailed to show their general character.

For the purpose of this appeal the allegations of the bill must be taken as confessed by the appellants. We agree fully with appellants that a receiver of a solvent corporation should not be appointed in a suit brought by minority stockholders claiming mismanagement by the officers, who are the majority stockholders, except in rare cases. We also agree with them that a receiver should not be appointed without notice, unless there appear absolute necessity for so doing in order to protect the complainants ’ rights. The question then to be determined is whether the evidence in the case before us indicates such an exceptional state of things with respect to the two corporations made defendants as warranted the Circuit Court in appointing a receiver, having in view this conceded statement of the rule which should have governed its action.

In our opinion the allegations of the bill, which in their consideration of this 'appeal must, as heretofore stated, be taken to be true, disclose the utmost disregard by the three defendants, holding a majority of the stock of the Biverview Park Company, of the rights of their fellow stockholders. These three men are shown to have had absolute control over the affairs of the company, by reason of their ownership of a majority of the stock, and the fact that they, in their own persons, formed a majority of the board of directors, composed the executive committee of the board of directors, and were the managing officers of the corporation.

In exhaustive examination of reported cases of a similar character, in which receivers have been appointed, we have been unable to find any wherein the facts seemed to warrant more clearly the interposition of a court of equity than the one now under consideration.

In so far as the defendant, Fidelity Amusement Company, is concerned, it would appear that that corporation was incorporated under a foreign law by the three defendants, Cooper, Valerius and Johnson, and caused to he empowered by them with the right to do business in this state, merely for the purpose of forming a vehicle by which their fraudulent and unlawful acts might be carried. It is a corporation formed under the laws of Arizona, apparently with no expectation that it would carry on business in any other place than the city of Chicago.

The appointment of a receiver of these two corporations is not based upon section 25 of the Corporation Act, and the purpose of the bill is not for the winding up of the two corporations, but for their management and control. The appointment of a receiver if justifiable, therefore, must be justified under the general power of a court of equity to grant relief under the circumstances. The rules which should govern a court of equity we think are properly stated in 1 Morawetz on Private Corporations, 2nd ed., section 281, which is as follows:

“The courts will not interfere unnecessarily with the Management of a Corporation. — A court of equity will grant all relief to a shareholder which the nature of his case may require. But it has always been a settled principle, that no interference with the management of a corporation can be justified, unless such interference be absolutely necessary to the attainment of justice.
‘4 The reason of this rule is obvious. The officers of a corporation are generally elected by vote of the shareholders. Every shareholder has a voice in their appointment, and may insist that they shall represent the corporation when duly appointed. If an officer is guilty of a breach of duty, he may in many cases be removed by act of the corporation; bnt no minority of the shareholders have any authority to restrain his action, or remove him and appoint another officer in his place. Nor can a court of chancery interfere at the suit of a portion of the shareholders and remove an offending officer, or even enjoin him generally'from acting for the corporation, unless this be essential to the protection of the corporate rights; as, for example, where the directors have conspired to defraud the corporation, or have otherwise shown themselves to be totally unfit to be entrusted any longer with the management of the company’s affairs. The court must ordinarily confine its remedy to the redress of the specific wrongs which have been charged.
“The appointment of a receiver or manager of a solvent corporation must therefore be considered a strong remedy, which can be justified only in a strong case; and the management of the corporation should be restored to its shareholders as soon as this can be done with safety. Thus, in Featherstone v. Cooke, Vice-Chancellor Maline appointed a receiver for a company because disputes had arisen between its managing agents, which caused a stoppage of the business and threatened to entail great loss upon the shareholders; but he discharged the receiver as soon as a general meeting of the shareholders had 'been called and new officers had been chosen.” (Featherstone v. Cooke, L. R. 16 Eq. 298.)

See also Stevens v. Davidson, 18 Gratt. 819; Waterbury v. Merchants’ Union Exp. Co., 50 Barb. 158; s. c. 3 Abb. Pr. N. S. 163; Belmont v. Erie Ry. Co., 52 Barb. 637; Lawrence v. Greenwich Fire Ins. Co., 1 Paige, 587; Merrifield v. Burrows, 153 Ill. App. 523.

We think the facts as disclosed by the bill warranted the master in chancery in making his recommendation that a receiver of the property of each of the two corporations be appointed, and that the court was justified, ■ following this recommendation, in appointing a receiver. The order of the Circuit Court is affirmed.

Order affirmed.


author: Mr. Justice Smith

text:
    Henry M. Bascom, Appellant, v. Luta E. Fox et al., Appellees.
    Gen. No. 15,956.
    1. Judgments—when action of court in opening, not preserved for review. In the absence of an exception preserved by bill of exceptions an order of court opening a judgment and granting leave to plead is not preserved for review.
    2. Suretyship—when surety discharged. If a conveyance of real estate is made and the grantee assumes and agrees to pay the indebtedness mentioned in a note and mortgage on said real estate, the grantors become sureties upon the obligation and a release of the lien of the mortgage without the consent of such surety, operates to discharge his personal liability.
    Judgment by confession. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed January 16, 1912.
    Edward F. Comstock and Rector C. Hitt, for appellant; Jesse Wilcox, of counsel.
    James A. Peterson, for appellees.
   Mr. Justice Smith

delivered the opinion of thle court.

A confession of judgment in favor of appellant, Henry M. Baseom, and against Luta E. Fox and Frank W. Fox, appellees, was entered in the Superior Court of Cook county, on February 10, 1902, for $2,233 and costs.

On April 20, 1908, on motion of appellees, defendants, the court opened the judgment and gave the defendants leave to plead within fifteen days, the judgment to stand as security; and the cause was reinstated upon the docket and the calendar of the court. The defendants pleaded the general issue and special pleas setting forth that to secure the note declared on the defendants executed and delivered a certain trust deed of the same date, which was duly recorded in the office of the recorder of deeds of Cook county, Illinois, conveying to Lyman E. Baird, as trustee, lot 6 and the southeasterly ten feet of lot 5 in block 4 in Norwood Park; that the defendants conveyed the real estate above described to Frank J. Stanley by warranty deed, dated August 23, 1895, reciting in the conveyance that it was made subject to the trust deed of $2,000, and setting forth various mesne conveyances by which the title to the property on June 13, 1899, was vested in William Worthy, and that William Worthy and his wife conveyed the real estate described to Sidney O. Nicholson by warranty deed, dated March 15, 1891, which was duly recorded, and which deéd recited that the said conveyance was subject to an encumbrance of $2,000 and interest, which the said grantee assumed and agreed to pay. The plea further sets forth conveyances from said Nicholson to G-eorge Q. Nicholson, and from G-eorge Q. Nicholson to Laurene G-. Blackman, and that Blackman on or about November 15, 1901, conveyed the above described real estate to Charles F. Marsh, subject to the trust deed above described, in consideration of one dollar; and that the real consideration was one hundred dollars, which was paid by Baird & Warner as the agents of appellant, Henry M. B'aseom, and that Marsh paid nothing for the conveyance, and only accepted the same as trustee for Bascom, and for Baird & Warner, his agents; and that thereafter on the 17th day of August, 1906, Marsh and wife conveyed the property above described to Neis Jansson, which deed was also duly recorded, and on August 16, 1906, the said Lyman Baird, as trustee, made and executed a release deed releasing unto appellees the above described property.

Beplications were filed to the pleas of the defendants, and on trial the jury rendered a verdict for the defendants, appellees. A motion for a new trial was overruled, and judgment was entered on the verdict. From this judgment appellant prosecutes this appeal.

In appellant’s brief his contentions are stated as follows:

“Appellant contends that the court should not have opened up the judgment of February 10,1902, and that it was not a proper case for a jury; that the judgment is not sustained by the evidence; that if there were proper credits the judgment should have been reduced and not set aside; that the judgment of the court should have been that there be endorsed $1,533.51 paid as of July 27, 1906, on said judgment, and that the judgment as thus reduced stands.”

In the brief of appellant it is urged that due diligence is required of an applicant in opening a judgment. Such application should be made at the earliest opportunity, and it was not necessary to set aside the judgment if it was too large, but it should have been reduced, so as to stand for the sum due 'after deducting any credits.

The record shows that appellant attended court and resisted the motion to open the judgment, and that no exception was preserved to the order of the court opening the judgment and granting the defendants leave to plead. We are of the opinion that the point was not preserved Tby the record, 'and that appellant waived and cannot urge here as error the opening of the judgment and the granting leave to plead. Prall v. Hunt, 41 Ill. App. 140.

Relative to the defense to the action shown by the record, it appears that appellant, Bascom, became the owner of the note shortly after the note and trust deed to secure the same were given; and it further appears that appellant became the owner of the property upon the conveyance to Marsh above mentioned. Marsh was a mere holder of the title to the property, as trustee, without any duties to perform, and Bascom became thereby the owner of the fee as well as the owner of the note and mortgage, Marsh being a mere naked trustee. There was, therefore, a merger of the mortgage and the fee, and by the release of the debt by the trustee without the knowledge and consent of appellees, the debt evidenced by the note was thereby discharged. Witham v. Brooner, 63 Ill. 344; Ward v. Armstrong, 84 Ill. 151; Forthman v. Deters, 206 Ill. 159, 171.

It further appears from the. evidence in the record that in the conveyance from William Worthy and wife to Sidney 0. Nicholson, above mentioned, the grantee assumed and agreed to pay the indebtedness mentioned in the note. Appellees from that time forth were sureties for the payment of the note, and the property itself was the primary fund out of which the note in suit was to be paid. By the release of the property from the lien of the trust deed, without the consent of appellees, appellant discharged appellees from their personal liability on the note. Lilly v. Palmer, 51 Ill. 331; Donk v. St. Louis G. Co., 17 Ill. App. 369; Jones on Mortgages, 1226.

We are of the opinion, therefore, that the evidence in the case shows a discharge of the indebtedness against appellees, and the release of all personal liability on their part for the indebtedness evidenced by the note, and that a complete defense was shown to the note sued on.

The record is without error, and the judgment is accordingly affirmed.

Affirmed.


text:
    Leonard G. Quackenboss, Appellee, v. John F. Devine, Administrator, Appellant.
    Gen. No. 15,972.
    Statute op limitations—when defense not established. Seld, under the evidence, that the defense of the Statute of Limitations was not established.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed January 16, 1912.
    Rehearing denied January 30, 1912.
    Charles S. Babcock, for appellant.
    Gartside & Hudson, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This action was brought in the Circuit Court by appellee, Leonard G-. Quackenboss, an architect, against George W. Higgins, now dece'ased, to recover compensation for work alleged to have been done at the request of Higgins, in making plans and drawings for buildings which were never built, and a small item for an alleged proposed alteration in a building, which was never made.

The cause was tried before a court and jury, and a verdict was rendered in favor of the plaintiff for $1,-.395 and judgment was entered thereon.

The verdict and judgment include services for plans made for an improvement on Milwaukee avenue and Cornelia street in Chicago, amounting to $357.50, also for work on California avenue on a proposed building to be located at California avenue, Stave street and George’s court, amounting to $997.50, and also for plans made for changing the front of a building on North avenue, $40.

To the first item above mentioned the defense of the Statute of Limitations is set up in the pleas, and it is urged that the evidence shows that in 1897 the plaintiff was retained by George Higgins to prepare plans for the improvement of the Cornelia street property. The evidence shows with reference to this item that a set of plans was drawn and specifications were prepared in the early part of 1898; and that bids were solicited by the plaintiff for the several parts of the work. The sum total of the bids was greater than the amount that Mr. Higgins was willing to spend upon the property, and the actual construction of the building was deferred. Later, on various occasions, one Solomon Abelson, who had a saloon on the opposite corner from the property in question, asked Mr. Higgins to modify the plans prepared for his proposed building, so as to include a dance hall in the rear, with the understanding that Abelson would rent the property if the construction was changed as suggested by him: Thereupon, at the request , of Higgins, the plaintiff made the required alterations' in the plans, and subsequently Higgins changed his mind and requested plans for flats on the ground floor instead of stores and a dance hall; and the plans were again altered to correspond with Mr. Higgins’ changed purposes in regard to the building, but the time for actually constructing the building was postponed. These changes continued from time to time until 1904. It appears therefore from the evidence that the matter of the preparation of the plans for the Cornelia street property was continually under consideration from 1898 to 1904, and that during that time the plan and purpose of Mr. Higgins to improve the property was not abandoned, nor were the plans at any time rejected, nor was the retainer ended.

The case was tried upon that theory, before the court and jury, and the jury upon the evidence found in favor of the plaintiff as to that item.

We think under the evidence shown in the case that the Statute of Limitations cannot be applied to the case and that there was no defense made out thereunder. Walker v. Goodrich, 16 Ill. 341; O’Brien v. Sexton, 140 Ill. 517; Ennis v. Pullman Palace Car Company, 165 Ill. 161.

The evidence does not show that there was at any time any settlement or payment made by Higgins for the plans for the Cornelia street property or the other items above mentioned, or any settlement or adjustment of either of the claims for work done upon the plans for the improvement of the properties described above.

It appears from the record that when Higgins received the plaintiff’s bill for the services recovered for in this action, he made no complaint in regard to the same, but said to the messenger who presented the bill that he would attend to the bills, or be down to see Mr. Quaekenboss, appellee.

Without discussing the evidence in detail, we are of the opinion that it sustains the verdict and judgment.

We have examined the instructions complained of by appellant, and we find no reversible error therein. The instructions, we think, fairly submitted the case to the jury. There was nothing misleading or improper in them which should invalidate the judgment.

The amount of the verdict and judgment appears to us to be justified by the evidence in the case; and it can be distinctly and specifically itemized in the claims above set forth and the amounts thereof, so that the judgment is warranted by the facts proven, and is in every respect reasonable and just as it appears to us. The judgment of the trial court is therefore affirmed. The cost of the additional abstract of record should be taxed against appellant.

Affirmed.