text:
    The People’s Gas Light and Coke Company, Appellant. v. Harry R. Gibbons, County Treasurer, Appellee.
    Gen. No. 25,427.
    1. Costs, § 3

      —When allowance of costs is erroneous. Hurd’s Rev. St. ch. 33, secs. 7, 17 and 18 (J. & A. Iflf 2721, 2731, 2732), in relation to costs, and chapter 34, secs. 33, 34 (J. & A. jfjf 2780, 2781), in relation to counties making it the duty of county boards to take measures for prosecuting and defending suits for oí against counties, and chapter 36, sec. 35 [Callaghan’s 1916 Stat. If 2920(19).], being that portion of the County Treasurer’s Act applicable to Cook county, in force July 1, 1915, considered in an equity case against the Cook county treasurer to enjoin the collection of taxes in excess of a stated amount, in which judgment for costs against the treasurer in his official capacity was denied; and held that the court abused the discretion vested in it by virtue of said section 18 of the Costs Act in not awarding costs to complainant, where the facts. disclosed that complainant was compelled to pay master’s fees and other costs in order to be relieved from an arbitrary, excessive and fraudulent assessment made by the State Board of Equalization.
    2. Counties, § 66*—when county is liable for expenses of treasurer. The word “expenses” in Hurd’s Rev. St. ch. 36, sec. 35 [Callaghan’s 1916 Stat. rj[ 2920(19)], being that portion of the County Treasurer’s Act applicable to Cook county, in force July 1, 1915, wherein it is provided that all reasonable expenses incurred by the county treasurer in prosecuting or defending suits brought by him in any official capacity shall be paid out of the county treasury, when read in connection with the second clause of chapter 34, sec. 33 (J. & A. 1i 2780), was broad enough to include costs involved in a chancery case against the Cook county treasurer in his official capacity, for relief against an arbitrary, excessive and fraudulent assessment made by the State Board of Equalization.
    3. Costs, § 4*—what is nature of discretion in allowing costs. The discretion of the chancellor in taxing or apportioning costs is a legal discretion, to be exercised according to equitable principles, otherwise it is a subject for review.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Reversed and remanded with directions.
    Opinion filed October 13, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    Cooke, Sullivan & Ricks, for appellant; Edwin Hedrick and Homer D. Dines, of counsel.
    Maclay Hoyne and W. W. DeArmond, for appellee; At,bred S. Austrian, of counsel.

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

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

   Mr. Justice Gridley

delivered the opinion of the court.

This is an appeal from an order or decree of the circuit court of Cook county denying appellant’s motion for a judgment for costs against appellee, in his official capacity, in the sum of $20,249.90.

The State Board of Equalization in 1909 assessed the capital stock of The People’s Gas Light & Coke Company, appellant, at $12,314,226, upon which valuation a tax of $550,445.90 was extended. On February 28, 1910, appellant filed its bill of complaint in the circuit court of Cook county against John R. Thompson, then County Treasurer of Cook county and Ex-officio Collector of the Town of South Chicago, to enjoin the collection of all of this tax in excess of $300,000, upon the ground that the assessment was fraudulent, excessive and not uniform with the assessment of other property throughout the State. A temporary injunction in accordance with the prayer of the bill was granted upon payment of $300,000 to the treasurer. An answer was filed denying that appellant was entitled to the relief demanded. Subsequently, the term of office of John R. Thompson having expired, his successor, William L. O’Connell, was substituted as defendant, and the cause was referred to a master in chancery who afterwards made a report recommending . a decree making the temporary injunction permanent, and that the costs of the proceeding be taxed in favor of the appellant. The master’s certificate of charges discloses that the evidence taken before him covered 34,133 folios and that he devoted 170 days to the hearing of the evidence and in the consideration of the case. For his services and those of a stenographer the court allowed the master $20,239.90, which appellant was obliged to advance and pay, and did pay, before it could obtain a hearing by the court, and which, with the fee paid to the clerk of the court upon the filing of the bill, made a total of $20,249.90, costs. On August 20, 1917, the court overruled most of the defendant’s exceptions to the master’s findings of fact, and partially sustained others, but sustained exceptions to the legal conclusions and entered a final decree dismissing appellant’s bill for want of equity. In the meantime Henry Stuckart had been substituted as defendant in lieu of William L. O’Connell, whom he succeeded in office. Before said final decree was entered, Stuckart, defendant, by a solicitor in the employ of the County of Cook, filed suggestions of damages, claiming that by reason of the wrongful suing out of the temporary injunction the County of Cook had sustained damages in the total sum of $122,364.87, and praying that said damages might be assessed to him, Stuckart, for the benefit of said County of Cook, against appellant. Upon the hearing on said suggestions there was testimony given by said solicitor to the effect that the County of Cook had paid him the sum of $14,722, for his services in defending the cause on its merits before the master, but that no part of it was for services in obtaining a dissolution of the temporary injunction. The court found on said final decree that “The Board of County Commissioners of Cook County” had employed said solicitor to represent said defendant, “the County Treasurer and Ex-officio County Collector of Cook County,” and that said board had paid to said solicitor the sum of $14,722 for legal services rendered in said proceedings, but the court further found that the defendant was not • entitled to recover from appellant any of the damages claimed.

From said decree dismissing its bill for want of equity, appellant appealed to the Supreme Court of Illinois. That court reversed the decree and remanded the cause to the circuit court with directions to enter a decree in conformity with the prayer of the bill. (People’s Gas Light & Coke Co. v. Stuckart, 286 Ill. 164, 179.) In the opinion of the Supreme Court, filed December 18, 1918, it is said (p 177):

“The State Board of Equalization has the duty of equalizing the valuation of property as listed and assessed in the different counties of the State in accordance with the provisions of the Revenue Act. It is also an assessing body, whose duty it is to assess, among other things, the capital stock of certain corporations, and it has the power to adopt rules for that purpose, which it is bound to adhere to 'and faithfully apply in all cases where they are applicable. An assessment arbitrarily made by the board in. disregard of its own rules for ascertaining the value of the capital stock of corporations cannot be sustained. * * * The board of equalization which made this assessment was bound to make it according to law and the rules which it had promulgated for assessing the capital stock of corporations. It did not do so but knowingly and intentionally disregarded its rules completely, making no pretense of applying them in the great majority of cases and making its valuations in the individual cases according to its will without reference to the rules, instead of according to its judgment with, reference to the rules. The appellant was knowingly and intentionally discriminated against and the result was a fraud upon it. The assessment cannot be sustained.”

After the mandate of the Supreme Court had been filed in the circuit court, Harry R. Gribbons, as County Treasurer and Ex-officio Collector, was, by order of the circuit court,'entered March 10, 1919, substituted as defendant in lieu of Henry Stuckart, whose term of office had expired. Subsequently appellant moved the court for a decree in accordance with said mandate, and also for judgment in its favor and against Harry R. Gribbons, “County Treasurer of Cook County and Ex-officio Collector of the Town of South Chicago,” for the costs expended by it in said sum of $20',249.90, and on May 22, 1919, the court entered a decree perpetually enjoining the collection of the “balance of the said taxes extended upon the assessment made by the said State Board of Equalization against the complainant on account of its capital stock, including franchise, the said balance of said taxes remaining unpaid being the sum of $250,445.90,” but the court denied appellant’s motion for judgment for said costs, although the court found that the suit was defended by the defendant, Harry R Gibbons, in his official capacity as County Treasurer and Ex-officio Collector as aforesaid, and that counsel representing the County Treasurer in defending said suit were employed by said County of Cook. From the order and decree denying its motion for judgment for costs, appellant prayed and perfected this appeal.

The sole question here presented is whether the circuit court erred in not adjudging said costs against the appellee, as County Treasurer of Cook County, Illinois, and Ex-officio Collector of the Town of South Chicago. Counsel for appellant do not contend that appellee, as an individual, should be required to pay said costs, but that a judgment therefor should have been rendered against him in his official capacity, and the burden thereby be imposed upon the County of Cook, where, as counsel argue, it rightfully belongs.

In Goudy v. Mayberry, 272 Ill. 54, 58, it is said:

“At common law costs were unknown. Their allowance and recovery rest entirely upon statutory provisions, and no liability for costs exists in the absence of statutory -authorization. * * * Judgments for costs resting on statutes cannot be awarded unless they have been authorized in this State by the legislature. * * * Under the authorities in this State even a court of chancery has no general power to award costs unless authorized, by statute. * * * Unless the statute clearly gives the authority to tax costs they will not be allowed, as such statutes, are penal in their nature and have always been strictly construed. ’ ’■

It is provided in sections 7, 17 and 18 of the Acts in relation to costs (chapter 33, Hurd’s Rev. St., J. & A. flff 2721, 2731, 2732) as follows:

“Sec. 7. If any person shall sue in any court of this State in any action, real, personal or mixed, or upon any statute, for any offense or wrong immediately personal to the plaintiff, and shall recover any debt or damage in such action, then the plaintiff or defendant shall have judgment to recover costs against the defendant, to be taxed, and the same shall be recovered, together with the debt or damages^ by execution, except in cases hereinafter mentioned.”
‘ ‘ Sec. 17¡. In all suits and actions commenced or to be commenced for and on behalf of the People of this State, or the G-ovemor thereof, or for or on behalf of any county of this State, or in the name of any person for the use of the People of this State, or any county, then and in every such case, if the plaintiff shall recover any debt or damages in such action or suit, the plaintiff shall recover costs as any other person in like cases; but if such plaintiff suffer a discontinuance, or be nonsuited or non-pros’d, or verdict pass against such plaintiff, the defendant shall not recover any costs whatever. Nothing in this section contained shall extend to any popular action, nor to any action to be prosecuted by any person in behalf of himself and the People or a county, upon any penal statute.
“Sec. 18. Upon the complainant dismissing his bill in equity, or the defendant dismissing the same for want of prosecution, the defendant shall recover against the complainant full costs; and in all other cases in chancery, not otherwise directed by law, it shall be in the discretion of the court to award costs or not; and the payment of costs, whemawarded, may be compelled by execution.”

It is provided in sections 33 and 34 of the Act in relation to counties (chap. 34, Hurd’s Rev. St., J. & A. fifí 2780, 2781) as follows:

" Sec. 33. It shall be the duty of the county boards of each of the counties of this State to take? and order suitable and proper measures for the prosecuting and defending of all suits to be brought by or against their respective counties, and all suits which it may become necessary to prosecute or defend to enforce the collection of all taxes charged on the State assessment.
“Sec. 34. Execution shall not, in any case, issue against the lands or other property of a county; but when judgment is rendered against a county, the county board shall direct an order to be drawn on the county treasurer for the amount of the judgment and costs, which orders shall be paid as other county debts.”

Counsel for appellant contend that, inasmuch as the costs here in question accrued in a chancery case, and as by the second clause of section 18 of the Costs Act there is statutory authority for the awarding of said costs in the court’s discretion, the court abused its discretion in not adjudging said costs against appellee in his official capacity. Counsel cite the case of Keller v. Badmg, 169 Ill. 152, where the claim asserted by defendants rendered the filing of the bill necessary, and defendants actively contested the right of complainants to have the decree which was finally entered, and the costs were taxed against defendants; also the case of Babcock v. Farwell, 199 Ill. App. 512, 515, where it is said: “We think the observations in 11 Cyc. 35, are peculiarly pertinent to this case, viz.: ‘The general rule that costs follow the result of the suit will not be departed from where the conduct of the losing party has been the chief cause of a large accumulation of costs. ’ ”

Counsel for appellant argue, in substance, that the record discloses that the County Treasurer defended the present action for and on behalf of the County of Cook, or, to be more accurate, the County Treasurer was the nominal defendant and the County of Cook in fact defended the suit; that by various statutes it is contemplated that a county shall pay the costs of a suit the same as an individual where it makes an unsuccessful defense thereto, although, under section 17 of the Costs Act, above set forth, it is not liable for costs where it is defeated in a suit brought by it or for or on its behalf; that, when the bill in the present case was filed, it was the duty of the County of Cook, under the provisions of said section 33 of the Act in relation to counties, to take whatever steps were necessary to defend the action; that it necessarily follows that for ail expenses incurred in taking such steps through the County Treasurer, in his official capacity, the County of Cook is liable; and that, the County Treasurer having unsuccessfully defended the action, a judgment for the costs in question should have been rendered against him in his official capacity, and it then would have been the duty of the county board, under the provisions of sections 33 and 34 of said Act in relation to counties, to provide for the satisfaction of said judgment.- In support of their argument counsel cite the cases of Drake v. Phillips, 40 Ill. 388; People ex rel. Commissioners of Highways v. Board of Supervisors, 23 Ill. App. 386 (affirmed 125 Ill. 334), and Christian County v. Rockwell, 25 Ill. App. 20.

In the Drake case, a bill for an injunction was brought by taxpayers against the town collector,. Drake, and the Town of Delevan to restrain the collection of an illegal tax, which had been levied in pursuance of a resolution passed at a town meeting, and which had been extended on the collector’s books, and he was about to proceed to collect the same. A temporary injunction was granted and on the hearing the injunction was made perpetual and a judgment for costs was rendered against the collector and the town. The Supreme Court sustained the injunction but modified the judgment as to costs, saying (p. 395): “Inasmuch as the collector has done no act for which he should be compelled to pay costs, he should not be decreed to pay such as had accrued in this proceeding. He was simply the ministerial officer of the town to whom the warrant was' directed, regular on its face, and which he was to collect or not at his peril. Until he enforced collection under his warrant he had donei no act injurious to the taxpayers of the town. The decree of the court below making the injunction perpetual is affirmed, as well as that portion of the decree which requires the costs to be taxed against the town; but it is modified so as to relieve the collector from the payment of costs.” In the case of People ex rel. Commissioners of Highways v. Board of Supervisors, supra, the commissioners of, highways of a town filed a petition, in the name of the People, for a mandamus against the Board of Supervisors of Madison County to compel the members of the board to make an appropriation of money to aid in the building of a bridge. Upon the trial the jury, by direction of the court, returned a verdict in favor of the respondents, and judgment for costs was rendered against the People. The Appellate Court of the Fourth District said (23 Ill. App. 395): “The judgment is, however,«erroneous in awarding costs against the people and ordering execution to issue therefor. The judgment will be affirmed and relators, in their official capacity, required to pay the costs.” The Supreme Court, on appeal from said Appellate Court, affirmed the judgment, saying (125 Ill. 347): “The modification, by the Appellate Court, of the judgment of the circuit court in respect to costs, was clearly correct. The proceeding was begun and conducted by appellants, not as individuals, but in their official character of commissioners of highways, and appellee’s costs, for which it was entitled to judgment, were properly made a charge upon relators in the capacity in which they sued.” Counsel for appellee argue that this last-mentioned case is to be distinguished from the present case, for the reason that by section 6 of article 5 of the Act in relation to township organization (Hurd’s Rev. St. ch. 139, J. & A. 11282) there was statutory authorization for the recovery of the costs there involved. Said section 6 provides: “In all suits or proceedings prosecuted by or against town officers, in their name of office, costs shall be recovered as in like cases between individuals. Judgments recovered against a town or against town officers, in actions prosecuted by or against them, in their name of office, shall be a town charge, and when collected shall be paid to the person or persons to whom the same shall have been adjudged. ’ ’ In reply, counsel for appellant cite section 35 of chapter 36 (Hurd’s Eev. St., Callaghan’s 1916 Stat. j[ 2920[19]), being that portion of the County Treasurer’s Act applicable to Cpok county, in force July 1, 1915, wherein it is provided that “all reasonable expenses incurred by the county treasurer in prosecuting or defending suits or actions brought by or against him in any official capacity shall be paid out of the county treasury. ’ ’ It would seem that the word “expenses” as here used, when read in connection with the second clause of section 33 of chapter 34 ( act in relation to counties )¿ above set forth, is broad enough to include the costs here involved, in a litigation based, as it is, upon an arbitrary, excessive and fraudulent, assessment made by the State Board of Equalization. In the case of Christian County v. Rockwell, supra, cited by counsel for appellant, suit was brought against the county to recover for professional services rendered by plaintiff, as surgeon to an alleged pauper. There was a judgment for plaintiff for $50 and costs, which was affirmed by the Appellate Court for the Third District, the court saying in its opinion (25 Ill. App. 22): “It is objected that it was error to render a judgment against the county for costs. The section cited in support of this proposition, section 17, eh. 33, and the case referred to in the same connection, Would be in point if this were an action in which the county sues as plaintiff. Where, however, the county is sued as defendant it is within the terms of section 7, and if the plaintiff recovers his debt or damages, he will also recover costs of suit.”

Counsel for appellee, in commenting upon the provisions of sections 7, 17 and 18 of the Costs Act, argue that “statutes awarding costs in general terms do not include municipal corporations or officers when prosecuting or defending as State .agencies” and, in support of their argument, cite the cases of People v. Pierce, 6 Ill. (1 Gilm.) 553; Attorney General v. Illinois Agricultural College, 85 Ill. 516; Ward v. City of Alton, 23 Ill. App. 475. An examination of these cases discloses the fact that in none of them was the State or county defending an action; they were all cases where the State, or some one in its behalf, or a county, or some one in its behalf, prosecuted the action, and, under the provisions of section 17 of the Costs Act, upon an unsuccessful' prosecution, there could be no recovery of costs. Counsel for appellee also cite a quotation from 5 Encyclopedia of Pleading and Practice, page 151, contained in the opinion of the Supreme Court in Deneen v. Unverzagt, 225 Ill. 378, 381, as follows: “At common law the rule was that the king should neither pay nor receive costs, as the former was considered his prerogative and the latter beneath his dignity; and the general terms of statutes giving costs did not include the sovereign. The same principle has been applied in this country in suits, either civil or criminal, in which the federal or State governments, including municipal corporations when acting as a State agency, are parties; and thus they are liable only in the event of express statutory provision, which however, is now quite general.” In this TJnverzagt case, supra, a judgment was rendered in the circuit court against a commission, created by act of the legislature to acquire property for the use of the State, for costs and attorneys’ fees in a condemnation proceeding,—the commission having elected not to take the property condemned. The judgment was affirmed. It was argued that the judgment could not properly be rendered against the commission as it was in effect a judgment against the State, but the court held that there was no constitutional prohibition against a judgment being rendered against the State for costs and that the State was in effect the petitioner in the condemnation proceeding and subject to the same liabilities as private parties seeking to take property under the Eminent Domain Act.

Our conclusions are that there is sufficient statutory authority warranting the taxing of the costs here in question against the County Treasurer, etc., in h,is official capacity; that under all the facts disclosed by this record the appellant was equitably entitled to recover back said costs which it was compelled to expend in order to be relieved from the burdens imposed by an arbitrary, excessive and fraudulent assessment made by the State Board of Equalization; and that the circuit court abused the discretion vested in it by virtue of the provisions of section 18 of the Costs Act in not awarding said costs to appellant. In Highley v. Deane, 168 Ill. 266, 271, it is said: “The discretion of the chancellor in taxing or apportioning costs is a legal discretion, to be exercised according to equitable principles, otherwise it is a subject for review.” (See also, Hollingsworth v. Koon, 117 Ill. 511, 521; Rogers v. Tyley, 144 Ill. 652, 666.)

Accordingly, that portion.of the decree of the circuit court wherein the recovery by appellant of $20,249.90, as costs, was denied, is reversed, and the cause is remanded to the circuit court with directions to render a judgment or decree, in favor of appellant, against Harry R. Gibbons, as County Treasurer of C'ook County, and Ex-officio Collector of the Town of South Chicago for $20,249.90, costs of suit.

Reversed and remanded with directions.

Barnes, P. J. and Hatchett, J., concur.


source: Caselaw Access Project

author: Mr. Justice Gridley

license: Public Domain

text:
    Florence Wain, formerly Florence Barnay, Appellee, v. John M. Barnay, Appellant.
    Gen. No. 25,530.
    1. Divorce, g 110

      —when modification of decree is improper. A divorce decree entered in 1905, granting the custody of the,children, but making no mention of alimony, could not be amended in 1919 so as to award over $7,000 as alimony, on the basis of $10 per week, which was the amount awarded as temporary alimony during the pendency of the suit; and particularly so in the absence of proof that defendant’s financial condition was such that he could pay the sum awarded or any part thereof within the 30 days fixed for its payment.
    2. Divorce, § 90*—what is effect of order for temporary alimony. An order for temporary alimony continues only during the pend-ency of the action and until the entry of the divorce decree.
    3. Divorce, § 110*—what modifications of decree are proper. Although under section 18 of the Divorce Act (J. & A. H 4233), relating to alterations in the allowance of alimony, a decree for alimony may be modified after the entry of the divorce decree, a decree making no mention of alimony was not so subject to amendment after the term.
    4. Divorce, § 110*—what is not basis for modification of decree. A colloquy relating to the amount of the temporary qlimony and as to the defendant’s whereabouts, between the court and complainant’s counsel occurring at the hearing of a divorce case and 7 days before the entry of the decree for divorce, could not be made the basis of an allowance of permanent alimony nearly 14 years thereafter, where no mention was made for alimony in the decree, and in the absence of showing that the chancellor made any minute or memoranda or that the clerk made’ any mistake, and where, even assuming that a mistake was probably made, the record containéd nothing which would form a basis for the amendment.
    Appeal from the Circuit Court of Cook county;- the Hon. David M. Brothers, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Reversed.
    Opinion filed October 13, 1920.
    Lyle, Harrold, Hoover & Devitt, for appellant.

      Paul A. Neuffer, for appellee; O. A. Arnston, of counsel.

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

   Mr. Justice Gridley

delivered the opinion of the court.

This is an appeal from an order or decree of the circuit court of Cook county, entered May 10, 1919, amending nunc pro tunc, on petition and motion filed, a decree of divorce entered September 29, 1905, in favor of complainant; finding that under said decree, as amended, there is due complainant from defendant, John M. Barnay, as permanent alimony, the sum of $7,090, and adjudging that said defendant pay said sum to complainant, or her solicitor, within 30 days.

The bill for divorce, on which the original decree was based, was filed April 3,1905, and charged defendant with cruelty. Defendant filed an answer denying the charges, but on the hearing which was had on September 22,1905, defendant was not present and no evidence in his behalf was heard. On behalf of complainant, she and two witnesses testified. Their testimony related almost entirely to the alleged acts of cruelty. S,he stated that she desired to resume her maiden name and to be awarded the custody of the two minor children. The only references to alimony made by her were the statements that at one time during their married life the defendant “was getting $150 a month,” and that if she could have an allowance of alimony" “it would help me.” As appears from the certificate of evidence of said hearing (filed September 29, 1905, —the same day the original decree was entered), after said three witnesses had testified, the following colloquy was had between the court and complainant’s counsel:

“The Court: Where is he now?
“Counsel: I don’t know. We have an alimony , order on him that was obtained right after the suit was begun, and we have heard nothing from him since that time. * * * Now, what about the amount of alimony, your Honor?
“The Court: That is why I asked the question, to ascertain what he is getting if she knew.
‘‘ Counsel : There is an affidavit on file to the effect that he was getting $60 a month when the temporary order for alimony was made.
“The Court: Well, let that order stand for the present; but if you find that he is getting more than that you can come in.
‘‘ Counsel : That order was for $10 a week alimony. ’ ’

Seven days later the original divorce decree was signed by the chancellor and duly entered of record. It was adjudged that the bonds of matrimony theretofore existing between the parties be dissolved, that the care and custody of the two children be awarded to the complainant until the further order of the court, and that the complainant be allowed to resume her maiden name of Florence Wain. No mention was made as to any sum to be allowed complainant as permanent alimony; nor was there any reservation that the question of permanent alimony might be subsequently considered. The last paragraph of the decree is as follows :

“It is further ordered, adjudged and decreed that the defendant pay the costs of this suit and that execution issue therefor.”

After the expiration of more than 13 years, on March 21, 1919, upon notice, complainant filed in said court a sworn petition and -a motion, supported by her affidavit, asking that an order or decree be entered requiring the defendant to pay alimony, in addition to the payments already required to be made by previous orders of the court, and that “existing orders and decrees be changed and reformed so as to provide for such additional payments as to the court may seem fit and equitable.” On April 4, 1919, defendant filed a sworn answer to said petition, and, on April 9, 1919, a sworn answer to said motion, in both of which he questioned the jurisdiction of the court, inasmuch as no provision was made for the payment of any alimony in said final decree of September 29, 1905, to enter any order changing or modifying the terms of said decree, and in which last mentioned answer he denied many of the allegations contained in complainant’s petition and affidavit, and stated, in substance, that he did not own any real or personal estate, had no money due him, was not in prosperous circumstances, had recently been able only to make a bare living for himself, was working in Chicago for a New York corporation upon a commission basis, and that his financial condition had not materially changed from’that existing when said final decree was entered.

A hearing was held on complainant’s said petition and motion on May 9, 1919, before a chancellor other than the one who entered the original divorce decree. It appears from the certificate of evidence that on said hearing there was read to the court complainant’s motion, her affidavit in support thereof, defendant’s sworn answers to the petition and motion, the original divorce decree of September 29, 1905, and the certificate of evidence that day filed; that the only testimony heard was that of defendant, who, in response to questions asked by complainant’s solicitor, testified to the effect x that he left Chicago on April 13, 1905, that he had not been in Chicago thereafter until December 16, 1918, when he returned with the intention of remaining; that defendant’s solicitor argued that the court was without jurisdiction in this proceeding to amend the original decree as respects the payment of any permanent alimony; and that the court finally said: “I think this woman has been so badly treated that she ought not to be required to go up upon it. If anybody is going up, he ought to go up. This decree ought to be rectified. * * * I am going to enter a judgment now for $10 per week from the time of the hearing of this case up to this time, upon this certificate of evidence.”

On the following day, May 10,1919, the court entered the order or decree appealed from. After recitals, it is ordered and decreed that

“The decree heretofore entered in this cause, on, to wit, September 29, 1905, shall be and the same is hereby amended, nunc fro tunc as of September 29, 1905, by inserting and including in the last paragraph thereof after the word ‘defendant,’ the following*:

“ ‘shall pay to the complainant the sum of ten dollars ($10) per week, the first payment to be made this day, and a like sum each week hereafter, until the further order of this court, as permanent alimony, and also that the defendant * * *’
“And.the court further finds that there is due and unpaid under said decree, as so amended, the sum of $7090, which sum the defendant, John M. Barnay, is hereby ordered, adjudged and decreed to pay to said complainant, or her solicitor for her, within thirty (30) days from the date of the entry hereof.”

■ It is provided in section 18 of pur Divorce Act (J. & A. jf 4233) as follows:

“When a divorce shall be decreed the court may make such order touching the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just; ■* * * And the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance, for the care, custody and support of the children, as shall appear reasonable and proper.”

By virtue of the provisions of this statute, it has frequently been held that a decree for alimony is subject to modification by the court from time to time, even after the lapse of the term at which the decree was entered. (Welty v. Welty, 195 Ill. 335, 337; Barclay v. Barclay, 184 Ill. 375, 376 ; Cole v. Cole, 142 Ill. 19, 23.) In the case last cited it is said:

“The application for an alteration or modification of the decree is always addressed to the judicial dis.cretion of the chancellor, and, ordinarily, in the absence of fraud in procuring the decree, the inquiry is, in all cases, whether sufficient cause has intervened since the decree to authorize or require the court, applying equitable rules and principles, to change the allowance. The cases cited, and others in this court, construe the statute as authorizing the interposition of the court where the circumstances of the parties have changed since the former order, and as giving the court power, for causes accruing subsequently, to alter and modify the allowance to meet the changed conditions of the party. It is not intended to continue the right to alter or modify the allowance upon the state óf case existing when the decree was entered, or to review the action of the chancellor therein. The parties had their day in court, with the right of appeal if the decree was deemed erroneous, and it cannot be supposed that it was intended that the court should sit in review of its own decrees, or that the same or some succeeding chancellor presiding in the same court should, after the lapse of indefinite time, have power to reverse, alter or modify a decree for alimony upon the facts existing at the time of its entry. This we understand to be the uniform holding in this State and elsewhere. Bishop (Marriage and Divorce, vol. 2, sec. 429) says: ‘The application for change is founded upon new facts which have occurred since the decree was originally made, and in the absence of new facts the original decree is deemed to be res adjudicaba between the parties, which, like any other judgment, is not to be disturbed on a further hearing.’ ”

In Stein v. Meyers, 253 Ill. 199, 205, it is said:

“A court has no right to enter a judgment nunc pro tunc at a subsequent term unless the judgment was, in fact, rendered at a previous term and was not entered of record through some fault, neglect or oversight. In such case, the fact that the court did give judgment at the previous term can only be proved by some memorial paper or minute in the case made at such former term. The judgments and records of courts cannot rest in parol or upon so uncertain a foundation as a personal recollection of the judge or any other person, and the fact that a judgment is rendered at a former term cannot be determined from the memory of witnesses or the personal recollection of the judge himself. Where there is no minute or memorial paper in the records of the court to show that judgment was, in fact, pronounced, it cannot be so entered.” (Citing Coughran v. Gutcheus, 18 Ill. 390; Tynan v. Weinhard, 153 Ill. 598, 604, and other cases.)

In Hubbard v. People, 197 Ill. 15,17, it is said :

“The record in a criminal case may be amended after the term at which it is made has elapsed, by an order of court entered nunc pro time, when by reason of a clerical misprision it does not speak the truth.”

The same rules are to be applied in chancery cases. (Lilly v. Shaw, 59 Ill. 72, 76; Moore v. Shook, 276 Ill. 47, 52; Ernst Tosetti Brewing Co. v. Koehler, 200 Ill. 369, 372.) In the case last cited it is said:

“After a term has elapsed a decree may be corrected, on motion, in matters of form or mere clerical errors or misprisions of the clerk, but the court is then without power to change the decision, or to set aside, vacate, modify or annul a decree. No error of law of any kind will justify revising or annulling a decree at a subsequent term in a summary way on a motion, but relief against it must be obtained by appeal or writ of error if the error is apparent on the face of the record, and if not, by bill of review or bill to impeach the decree for fraud or other sufficient cause.”

Under the facts of the present ease, and under the principles above set forth, we are of the opinion that the court erred in entering the decree of May 10, 1919, amending the divorce decree of September 29, 1905, in the manner mentioned, and adjudging that defendant pay within 30 days the sum of $7,090, as permanent alimony due. In the divorce decree no permanent alimony was allowed and there was no mention or reservation made therein in respect thereto. As to alimony there was nothing to change or modify. It appears that during the pendency of the action, and prior to the entry of the divorce decree, the court had ordered that defendant pay complainant solicitor’s fees and $10 per week as “temporary” alimony. But this order as to temporary alimony continued only during the pendency of the action and until the entry of said divorce decree. (1 Ruling Case Law, p. 895, sec. 39.) Counsel for complainant here argues, in substance, that it appears from the original certificate of evidence that during the hearing had on September 22, 1905, the colloquy (above set forth) between the chancellor' and complainant’s counsel as to alimony occurred; that clearly it was the intention of the chancellor and said counsel that the decree for divorce when entered should contain a provision for the payment of $10 per week as permanent alimony; that the chancellor in effect said that he would allow said amount per week as permanent alimony; that presumably a mistake was made in not incorporating in the decree a provision for permanent alimony; that the colloquy contained in said certificate of evidence constitutes a sufficient memorandum on which to base the amendment; and that, therefore, the decree appealed from should be affirmed. Except the fact that it appears that such a colloquy occurred, we cannot agree with any of counsel’s premises or with his conclusion. The amendment to the original decree is one of substance. The original decree was signed and entered of record 7 days after said colloquy occurred. Presumably complainant’s solicitor drafted the decree. On its face it apparently is complete. In addition to granting the divorce, it provided for the custody of the children, the right of complainant to. resume her maiden name, and for the payment of costs by defendant. It does not appear that on the day the decree was entered the chancellor made any minute or memorandum, or that the clerk made any mistake. Even on the theory that presumably a mistake was made, there is nothing contained in the record of any actions at the time the decree was entered that would form a basis for the amendment made. Furthermore, on the hearing had on May 9, 1919, there was no proof made that defendant’s financial condition was such that he could pay within 30 days the sum, or any substantial part thereof, decreed to be paid.

The order or decree of the circuit court entered May 10, 1919, is reversed.

Reversed.

Barhes, P. J. and Matchett, J., concur.


text:
    Kate E. Knickerbocker, Appellant, v. Fort Dearborn Trust & Savings Bank, Appellee.
    Gen. No. 25,545.
    1. Appeal and error, § 806

      —what instruments must be embodied in bill of exceptions. Copies of instruments sued on are not part of the record, unless made so by being embodied in a bill of exceptions.
    2. Appeal and erbob, § 806*—when mortgage is not part of record. A mortgage deed of trust filed .as plaintiff’s bill of particulars was not part of the record, and could not be made part thereof by the certificate of the clerk and the stipulation of the parties entered into after the filing of the appeal bond and the signing of the bill of exceptions.
    3. Bonds—when cause of action against trustee for inadequacy of security not stated. A statement of claim in an action by a railroad bondholder against the trustee in the mortgage trust deed securing such bond failed to state a cause of action either upon a guaranty or upon an implied warranty where it alleged that by the meaning of such trust deed and by necessary implication defendant promised and agreed and it became its duty to exercise reasonable care and diligence to acquire a trust estate sufficient to secure said bond, and not to certify or issue any bond without having first obtained such property, and alleging a breach by defendant and consequent loss by plaintiff.
    4. Bonds—when trustee in trust deed is not liable for loss. A trustee in a railroad mortgage trust deed, which merely certified that the bond in question was the bond described in such deed, was not liable to the purchaser of such bond who sustained loss, either as guarantor or upon any implied warranty of the adequacy or sufficiency of the security.
    Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed October 13, 1920.
    Andrew R. Sheriff, for appellant.
    Ringer & Wilhartz, for appellee; William Wilhartz and Edward I. Rothbart, of counsel.

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

   Mr. Justice Gridley

delivered the opinion of the court.

Kate E. Knickerbocker, the plaintiff, having commenced in the municipal court of Chicago an action of the first class in contract against the defendant, Fort Dearborn Trust & Savings Bank, she, on December 24,1918, filed a second amended statement of claim, in which the averments were, in substance, as follows:

That (1) on or about December 1,1913, the Southern Illinois & St. Louis Railway Company, a corporation, duly executed a certain “mortgage deed of trust,” by which it purported to convey to the def endant, as trustee, a large amount of real and personal property, rights, contracts, privileges, franchises, and other things of value, as security for its bonds to be issued under said mortgage; that (2) thereupon said Railway Company delivered said instrument to the defendant, and the defendant accepted it in writing, and the undertakings, conveyances, covenants and obligations thereby established, as grantee and trustee, for and on behalf of all persons who should then or thereafter purchase any of the bonds of said Railway Company issued under and in compliance with the terms of said mortgage, which terms required that said bonds should be authenticated and certified by defendant before becoming valid and before being issued; that (3) thereby, “by the meaning of said instrument and by necessary implication,” the defendant “promised, undertook and agreed” to" and with the purchaser of each and every bond, then or thereafter certified and issued by defendant under said mortgage, that (a) defendant had obtained or would obtain under said mortgage a “substantial” amount of the property of the kinds therein described and of sufficient value in its judgment to be “reasonable security” for each and all of the bonds at the time of their certification and issue, and that (b) defendant “expressly and by necessary implication warranted” to each of said purchasers that it had exercised or would exercise reasonable care and diligence to obtain such security, and that (c) defendant had exercised or would exercise on behalf of each of the purchasers of said bonds at least the same degree of care to obtain reasonable and reliable security therefor which a prudent man would deem to be necessary for the protection of his own interests; that (4) thereby also, “by the meaning of said instrument and by necessary implications,” it became defendant’s duty, before certifying or authenticating any of said bonds, to investigate and ascertain whether or not any property existed which had been conveyed to it by said Railway Company, and not to certify or issue any bond without first having obtained some property of the kind described in said mortgage, and of such substantial amount as to be reasonable security at the time of such certification and issue; that (5) at the time when and place where said instrument was made and accepted, and ever since, it was the “general custom and practice” of all persons and corporations engaged in the business of accepting and performing trusts of the same general nature as the trust described, upon acceptance thereof, (a) “to obtain, or make sure there would be obtained, ’ ’ under such mortgage, a substantial amount of property of the kinds therein described, of sufficient value in the judgment of such trustee to be reasonable security for each and all of the bonds to be certified and issued, and (b) “to withhold such bonds from issue” until a reasonable and sufficient amount of security therefor was known to be actually in existence under and available for the purpose of such mortgage, and (c) to exercise reasonable care and diligence to obtain suéh security for such bonds, and (d) to exercise, for the protection of the purchasers of such bonds and before their issuance át least the same degree of care to obtain reasonable and reliable security therefor, which- a prudent man would deem, to be necessary for the protection of his own interests; that (6) thereafter defendant duly certified, validated and issued a series of the bonds of said Railway Company, purporting to be secured by said mortgage, by placing upon each bond its certificate, as follows: f ‘ This bond is one of the bonds described in the within mentioned mortgage deed of trust,' dated the 1st day of December, 1913. Fort Dearborn Trust & Savings Bank, by E. C. Glenny, Secretary and Trust .Officer”; that (7) “thereby the defendant became bound,” to every person who should thereafter purchase for value any of such bonds so certified, “by the representations, promises, duties, terms, covenants and warranties” set forth in said mortgage, “or necessarily implied therein or by the nature of the transactions,” and “by all the promises, duties, undertakings, agreements, and customs in relation thereto, express and implied, as hereinabove set forth”; that (8) thereafter, on November 6, 1916,, plaintiff, “relying upon the aforesaid representations, promises, duties, terms, covenants and warranties, express and implied” of the defendant and the “aforesaid customs pertaining to its business,” and “believing said bond to be well secured and worth its face value,” purchased in the open market, for $890,'one bond of the aforesaid series, being Number “M. 1001” thereof, of the face value of $1,000, in words and figures substantially identical with the bond set out in said mortgage, and bearing thereon the certification of defendant as aforesaid and having been by it issued for circulation and sale, and “thereby plaintiff accepted and became entitled to all the benefits, protection, and advantages” of the aforesaid representations, promises, etc., pertaining to said bond and the value and security thereof; that (9) defendant did not at any time receive, or seek to obtain, or use reasonable care to obtain, any property, rights or things of “substantial” value, purported by said mortgage to be conveyed to it as security for said bond; that defendant has hot had at any time any “substantial” security, under said mortgage or otherwise, for any of said bonds so certified; that defendant certified and issued the bond purchased by plaintiff without having, or seeking or exercising reasonable care to have, any “substantial” security for it; that defendant never has had, or sought, or exercised reasonable diligence to obtain, any “substantial” security for said bond; that said Railway Company is insolvent; wherefore, the bond purchased by plaintiff is and always has been worthless. By reason whereof defendant “has violated and breached each and all of its aforesaid duties, representations, promises, undertakings, contracts, covenants, warranties and customs by which it was bound to plaintiff.” To the damage of plaintiff, etc.

The “prcscipe” record before us discloses that on January 10, 1919, the defendant moved the court to strike said statement of claim from the files, which motion was entered and continued; that on January 25, 1919, before said motion had been disposed of, the court, on the further motion of deféndant, ordered that plaintiff file “a copy of the instrument sued on”; that on February 15, 1919, the plaintiff moved that said order of January 25 be vacated and set aside, but the court denied the motion, and- plaintiff was given time in which to file a bill of exceptions. On February 17, 1919, the plaintiff presented a bill of exceptions, and the same was signed and sealed by the judge and filed. This bill of exceptions discloses that, in compliance with said order of January 25, the plaintiff placed on file “a printed copy consisting of 76 printed pages (same having been produced by plaintiff) of the ‘mortgage deed of trust’ mentioned in the second amended statement of claim herein”; that plaintiff contended that “said order is erroneous, and improperly imposed on the plaintiff, and in violation of her rights”; that plaintiff moved the court to vacate and set aside said order and withdraw said copy from the •files and restore same to the possession of plaintiff’s counsel; but that the court, after argument, denied said motion. No copy of said “mortgage deed of trust” is contained in this bill of exceptions.

The “prcecipe” record further discloses that on April 11, 1919, defendant’s motion to strike plaintiff’s said amended statement of claim from the files was finally disposed of by the court sustaining the motion; that, plaintiff electing to stand by said statement of claim, the court further ordered that the suit be dismissed and entered judgment against the plaintiff for costs; that from this judgment plaintiff prayed an appeal, which was allowed upon her filing a bond within '30 days, and that she was allowed 60 days in which to file a bill of exceptions; that on May 8, 1919, she presented her appeal bond and the same was approved and filed; and that on May 12, 1919, she presented a second bill of exceptions, which was on that day signed and sealed by the judge, nunc pro tunc as of May 9, 1919. This bill of exceptions discloses that on April 11, 1919, the court after argument sustained said motion of defendant to strike plaintiff’s said statement of claim from the files “because it was insufficient in law”; that plaintiff elected to stand by said statement of claim and not plead over; that thereupon the court ordered, “because the plaintiff was relying on a cause of action clearly unfounded in law,” that judgment be entered in favor of defendant for costs; and that during all the time that the suit was pending a certain rule of the municipal court was in force, as follows:

“Rule 21. Demurrers Abolished.—No demurrer shall be allowed, but the court may, on motion, order any pleading to be stricken out on the ground that it is insufficient in law or does not comply with the rules of this court, or the court may order a more specific or amended pleading to be filed.
“If it appears that the party filing a pleading is relying on a cause of action or defense that is clearly unfounded in law, the court may order the same stricken out and the action to be dismissed or judgment to be entered accordingly as may be just.”

No copy of said “mortgage deed of trust” is contained in this bill of exceptions.

Accompanying the “prcscipe” record, but as a separate document, is a so-called “additional” record, from which it appears that on September 29, 1919 (more than 4 months after plaintiff’s appeal bond had been approved and filed in the municipal court and plaintiff’s said second bill of exceptions had been signed by the judge and filed), a certain draft order, signed by the judge and “0. K’d” by the attorneys for the respective parties, was entered, as follows :

“Whereas, the court having considered the transcript of record prepared for the appeal to the Appellate Court, * * * heretofore prayed and taken, * * * and the assignment of errors therein, and being of the opinion that an inspection of the printed copy of the ‘mortgage deed of trust, ’ placed on file herein on January 25, 1919, and so marked and identified, is important to a correct decision of the case in the Appellate Court, and the parties hereto by their respective attorneys having stipulated in open court that same may be transmitted to said court and considered by it in all respects the same as though incorporated and bound with the said transcript of record, therefore, it is, with the consent of both parties hereto by their respective attorneys, hereby ordered, that the clerk of this court shall transmit said document, with said transcript of record and a certified copy of this order, to the clerk of said Appellate Court, who shall safely keep said document for the use of said court, so long as said appeal may be there pending and undisposed of,” etc.

Then follows a printed pamphlet of 76 pages, entitled “Mortgage Deed of Trust,” and then follows the certificate of the clerk of the municipal court, certifying that said order was entered of record, in said cause and also certifying to said “Mortgage Deed of Trust” as having been filed in said court “on the- 25th day of January, 1919.”'

The main question presented for our determination is: Does plaintiff’s second amended statement of claim, the substance of which is above set forth, state a good cause of action?

It is our opinion that, in determining this question, we cannot properly consider the said document, “Mortgage Deed of Trust.” We must decide the question on the record before us. It is well settled that “copies of instruments sued upon * * # are not parts of the record, unless so made by being embodied in a bill of exceptions.” (Garrity v. Lozano, 83 Ill. 597, 599; Thompson v. Kimball, 55 Ill. App. 249, 250; Boyles v. Chytraus, 175 Ill. 370, 374.) In the Boyles case it is said: “The copy of the instrument sued upon, or the bill of particulars, indorsed on the declaration, being no part thereof, is no part of the record; and a bill of exceptions can alone inform us of what it is. ’ ’ In the present case said document is not contained in either one of plaintiff’s bills of exceptions. Furthermore, a reviewing court “passes upon alleged errors of courts, which errors must be shown by their records, and cannot be made^ to appear by stipulation of parties.” (Mosher v. Scofield, 55 Ill. App. 271, 274; Charles v. Remick, 50 Ill. App. 534, 535; Stock Quotation Tel. Co. v. Chicago Board of Trade, 144 Ill. 370, 372; Lane v. Dorman, 4 Ill. [3 Scam.] 238, 240.) In the Charles case it is said: “The parties themselves cannot stipulate as to what occurred on the trial below. If that were to be done it would be within the power of the parties to bring up on appeal an entirely different case from the one heard below.” In the Lane case it is said: “Certified papers, not in the case, * * * have been presented to this court, with an assent of the parties, that such papers should be taken into consideration with the record. We feel clear that the court has no authority to consider those papers in an examination of the case.”

Looking, therefore, to plaintiff’s said amended statement of claim itself, it will be observed that, after stating the execution of a certain “mortgage deed of trust” conveying to defendant, as trustee, certain property, etc., as security for certain bonds, and the acceptance by defendant of said trust, the pleader proceeds to state, not the obligations of defendant as they are set forth in the deed from which alone they must be ascertained, but merely the conclusion and inferences of the pleader as to what they are.' The averment contained in paragraph 3 is that “thereby * * * by the meaning of said instrument and by necessary implication, the defendant promised, undertook and agreed,” etc., and the averment contained in paragraph 4 is that “thereby, also, * * # by the meaning of said instrument and by necessary implication, it became defendant’s duty,” etc. We do not think that the legal effect of the instrument can be determined from what the pleader thinks it means. And some of the subsequent averments are seemingly based on the false assumption that the pleader had previously set forth, in substance, the covenants, etc., and the legal effect of the deed. As to the “general custom and practice,” which is pleaded in paragraph 5, manifestly this cannot prevail against the terms of the deed itself. (Gilbert & Co. v. McGinnis, 114 Ill. 28.) And so far as the pleading rests upon any obligation arising from the fact of the certification of the bonds, as set forth in paragraph 6, what is said in Jones on Corporate Bonds and Mortgages (3rd Ed.), sec. 287a, is, we think, applicable:

“The limited and guarded terms of a trustee’s certificate cannot be lawfully held to embrace a representation or guaranty of the truthfulness of the description of the obligations as made by the obligor. Trustees act for a comparatively trifling consideration, limiting their liability to their own acts of negligence and misconduct, and it would be unfair to put so serious a burden as a guaranty upon them. So far as appears, there is not a single adjudication extending their liability to even an implied guaranty of the securities whose mere identity they have authenticated.”

In the cases of Ainsa v. Mercantile Trust Co., 174 Cal. 504; Bauernschmidt v. Maryland Trust Co., 89 Md. 507; Tschetinian v. City Trust Co., 186 N. Y. 432, the holdings are to the effect that, where the certificate of the trustee merely certifies the bond as being one of the bonds issued by the corporation purporting to issue them, such certification does not operate as a guaranty of the sufficiency or adequateness of the security. In said paragraph 6 plaintiff avers that the certificate was: “This bond is one of the bonds described in the within mentioned mortgaged deed of trust, dated the 1st day of December, ,1913.”

In his reply brief here filed plaintiff’s, counsel contends, in substance,. that plaintiff, in her said statement of claim, does not seek to hold the defendant trustee liable as a guarantor but does seek to recover from it damages for the breach of its implied icarranty that, at the time it certified plaintiff’s bond, it had exercised or would exercise reasonable care and diligence to acquire a trust estate sufficient to secure said bond.

In view of the averments contained in said statement of claim and the language of defendant’s certificate on the bonds as averred, and in the light of the authorities above cited, we are of the opinion that said statement of claim did not state a good cause of action, either on the theory of defendant’s liability as a guarantor or defendant’s breach of an implied warranty, and that the court properly struck the same from the files. And could we properly consider as requested, said “mortgage deed of trust” we would reach the same conclusion.

The judgment of the municipal court is affirmed.

Affirmed.

Barnes, P. J. and Hatchett, J. concur.


text:
    Rothschild & Company, Appellee, v. Boston Store of Chicago, Appellant. Rothschild & Company, Appellee, v. Boston Store of Chicago. Mayo Friedberg, Appellant.
    Gen. No. 25,583.
    Gen. No. 25,584.
    1. Injunction, § 250

      —when order is not violated. A department store corporation, which advertised by placards that it was selling one Louis J. Rothschild’s entire stock of millinery at 50 cents on the dollar, was not guilty of contempt of an injunctional order granted without notice under a bill filed by a competing department store widely known as “Rothschilds/ ” restraining the use by the defendant of advertisements in such a manner as to hold out or induce the belief that defendant was selling complainant’s millinery stock, where the placards, which defendant continued to display for some hours after the.service of the order, contained information, legible at a reasonable distance, showing that the stock was that formerly owned by one Louis J. Rothschild of St. Paul, Minnesota, although the word “Rothschild’s” was in somewhat larger type than the other words.

      2. Injunction, § 249

      —-when complainant m^ist show injury because of violation of injunction. In a proceeding to punish a party for the breach of an injunction, the complaining party must not only show a breach, but must also show that he has in some way been injured thereby.
    3. Appeal and error, § 1813*—what need not be recited in reversing order. A proceeding to punish for violating an injunction being in the naturk of a chancery proceeding, it was not necessary for the Appellate Court, in reversing, to recite in its final order or judgment the facts as found, although, as Indicated in the opinion, different in part from the finding of the trial court.
    Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Reversed.
    Opinion filed October 13, 1920.
    John A. Bloomingston, for appellants.
    Judah, Willard, Wolf & Reichmann, for appellee.

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

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

   Mr. Justice Gridley

delivered the opinion of the court.

These are separate appeals from orders entered by the circuit court of Cook county on May 12,1919—one adjudging the Boston Store of Chicago guilty of contempt of court in violating a preliminary injunction, granted without notice upon the bill of complaint of Rothschild & Company, and imposing a fine upon the Boston Store of $100, and the other adjudging Mayo Friedberg (advertising manager of the Boston Store) guilty of contempt of court in violating said injunction and imposing a fine upon him of $25, and committing him to the county jail for a period of 2 days. By stipulation the appellants filed one certificate of evidence and the separate appeals were here consolidated for hearing.

In complainant’s bill, filed March 25, 1919, it is alleged, in substance, that it is an Illinois corporation doing a large general department store business in its building located on the east side of State street in Chicago, and extending north from Van Burén street to a point approximately 50 feet south of the intersection of Jackson boulevard and State street, and having entrances on Van F aren and State streets and on Jackson boulevard; that it has a large millinery department where trimmed and untrimmed hats, flowers, featl ars, etc., are sold at retail to the public; that it has expended large sums in advertising in the daily and Sunday newspapers in Chicago and has acquired a valuable good will; that its department store is widely known and generally referred to by the public as “Rothschilds’”; that for many years it has been in the habit of using the name “Rothschilds’ ” interchangeably with the words “Rothschild & Company” in its advertisements; that the defendant, Boston Store, is an Illinois corporation, also doing a large department store business in its building fronting on State, Madison and Dearborn streets in Chicago; that it also has a large millinery department, in which it sells hats, trimmings, etc., at retail to the public, in competition with complainant; that it also advertises its merchandise, including millinery, in the daily and Sunday newspapers in Chicago; that said defendant, for the purpose of injuring complainant’s business and diverting intending purchasers from its store and ■particularly from its millinery department, caused to be inserted in the Sunday, March 23, 1919, editions of two Chicago newspapers a full page advertisement (copy attached, marked “Exhibit A”); that the intent and effect of said advertisement was to lead complainant’s customers and the public to believe that the stock of millinery therein mentioned and offered for sale was the stock of complainant; that the name “Rothschild’s” was printed in parts of the advertisement in big, black letters, at one time preceded by the words “Louis J.” in small letters, and at other times without said words; that said Louis J. Rothschild referred to was a dealer in millinery at St. Paul, Minnesota, and whose business was entirely unknown to the trading public of Chicago; that it was stated in the advertisement that the stock of millinery was “Rothschild’s entire $23,500 stock,” which statement was misleading, in that said stock had cost the defendant only about the sum of $5,000, and intending purchasers and the public generally were induced to believe that complainant had sold its entire stock of millinery, hats, flowers, etc., to defendant and had discontinued its millinery department; that defendant has also displayed, and is now displaying, in the windows of its store, signs and placards, containing in large, black type the words “Rothschild’s entire $23,500 stock trimmed and untrimmed hats and flowers, feathers, etc., at 55$ on the $,” and containing in small words over the word “Rothschild’s” the words “Louis J.,” and underneath the word “Rothschild’s,” in small letters, in parenthesis, the words “355 Jackson St., St. Paul,” which signs and placards are calculated to deceive intending purchasers and the public generally, and to induce in their minds the belief that defendant is selling the entire stock of millinery, etc., of complainant at 55 cents on the dollar; that defendant is also displaying on its counters and show cases, and in other prominent locations in its store, other signs,i containing in large letters the words “Rothschild’s Stock,” with the words “St. Paul” underneath in small letters, which said signs are likewise calculated to mislead intending purchasers and the public as aforesaid; that said stock of millinery, etc., so advertised and offered for sale, is not and never was the property of complainant; that defendant is threatening to continue placing similar advertisements in the daily newspapers, and similar placards and signs in its store; that complainant has been damaged and will be further damaged unless the unlawful acts of defendant are enjoined; and that an injunction should issue without notice, etc. The order for the preliminary injunction, entered March 25,1919, is in accord with the prayer of the bill, and is in part that the Boston Store of Chicago, its officers, employees, agents and attorneys be enjoined and restrained

“from publishing, circulating or displaying, or causing to be published, circulated or displayed, any advertisement, announcement, sign or placard bearing the name ‘Rothschild’s’ displayed in connection with any advertisement or announcement of said defendant, Boston Store of Chicago, in such manner as or by the use of such words or phrases, or group or combination of words or phrases, thereby to represent, hold out or induce the belief that said defendant * * * has for sale, is selling, or is intending or offering for sale, merchandise formerly the property of the complainant,'and particularly from publishing # * * any advertisement similar to that alleged and attached to the bill of complaint herein as ‘Exhibit A,’ or any advertisement of the same character or containing similar language, and from representing or stating to intending customers or purchasers, or to the public, that said defendant * * * is selling or offering for sale any millinery, hats, flowers, feathers, etc., formerly sold by or a part of the stock of the complainant,. * *

The injunction writ was served on the defendant about 11:50 o’clock a. m. on Tuesday, March 25. At that time there was on exhibition in a conspicuous show window of the store of defendant a sign or placard, marked “Exhibit 1,” and in another window another sign or placard, marked ‘ ‘ Exhibit 2.” On tables, where the hats, millinery, etc., were being sold, there were 23 smaller signs or placards. All of the placards were removed at about 2 o’clock p. m. on said day, and at about 3 o’clock p. m. placards, somewhat changed and marked, respectively, “Exhibit 1 A” and “Exhibit 2 A,” were placed in the show windows where Exhibits 1 and 2 had been.. At about the same time the 23 smaller placards, only changed by adding above the words “Rothschild’s Stock” the letters “L. J.,” and being similar to “Exhibit 3,” were replaced upon the tables. Said Exhibits “1 A” and “2 A” remained in the show windows, and the 23 smaller placards, similar to “Exhibit 3,” remained on the tables until about 6:30 p. m., on the evening of the same day, March 25, when they were all removed at the suggestion of the attorney for the Boston Store. On March 26, the complainant filed its petition, supported by affidavits, for a rule on the Boston Store, and R. C. Mangold and Mary McGrath, respectively, superintendent and manager of the millinery department of said Boston Store, to show- cause why they severally should not be punished for contempt for neglect and refusal to comply with said injunctional order. On April 3 this petition was amended by making Mayo Friedberg,. advertising manager of said Boston Store, and Charles Netcher, its vice president, additional parties defendant thereto, and the court entered the rule. Subsequently the sworn answers of the Boston Store and Mayo Friedberg, supported by affidavits, were filed, and a lengthy hearing was had, resulting in the court discharging the rule as to R. C. Mangold, Mary McGrath and Charles Netcher, but adjudging that said Boston Store and said Mayo Friedberg were guilty of contempt of court and imposing the penalties on them, severally, as aforesaid.

In the order adjudging the Boston Store guilty of contempt the court finds that, since the entry of the injunctional order of March 25, 1919, and after knowledge by it through its officers and employees of said order, the Boston Store, caused to be displayed in its show windows and on certain of its counters announcements, signs and placards bearing the name “Rothschild’s”; that said name was written in large, heavy and prominent type on a separate line, preceded by the words, “Louis J.” or “L. J.,” in smaller and less prominent type and on a different line; that said announcements, signs and placards

“were worded in such a manner and the words and phrases and type used therein were so grouped, combined and arranged as to hold out and represent to intending customers and purchasers and the public and induce them to believe that said Boston Store * * * was selling or offering for sale merchandise, millinery, hats, flowers, feathers, etc., formerly the property of or part of the stock of the complainant, Rothschild & Company; that said announcements, signs and placards * * * were, in respect to the size, prominence of type and the grouping and combination thereof and arrangement of the words, ‘Rothschild’s’ and ‘Louis J.,’ similar to and of the same character as the advertisement, alleged and attached to the bill of complaint in said cause as ‘Exhibit A’; that said announcements, signs and placards # * * were intended, designed and calculated to and had the effect of inducing the belief on the part of intending customers and purchasers and the public generally that the stock of merchandise thereby offered for sale was the stock formerly the property of the complainant, Rothschild & Company; and that by causing said announcements, signs and placards to be displayed as aforesaid said defendant * * * knowingly, wilfully and intentionally, after knowledge thereof, violated said in junctional order of this court and the writ of injunction issued in pursuance thereof.”

In the order adjudging Mayo Friedberg guilty of contempt the court finds that after knowledge by him of the entry of said injunctional order he caused to be displayed in the show windows of the Boston Store said announcements, signs and placards. The other findings are substantially the same as in the order as to the Boston Store.

The stock of millinery, etc., which the Boston Store was advertising for sale prior to the entry of said injunctional order, by means of newspaper advertisements and by the use of Exhibits 1, 2 and 3 (Exhibit 3 then not having thereon the letters “L. J.”), and which the Boston Store advertised for sale for about 31/2 hours after the service of the injunction writ, by the use of the placards Exhibits 1 A, 2 A and 3 (Exhibit 3 then having thereon the letters “L. J.”), was a stock formerly the property of Louis J. Bothschild, St. Paul, Minnesota. The Boston Store had purchased the stock for $5,300 in cash, and the stock was worth at its wholesale value from $20,000 to $23,000. Because of financial difficulties Louis J. Bothschild sold the stock at the price named. He had been engaged in the wholesale and retail millinery business at 355 Jackson Street, St. Paul, for a considerable period of time. His wholesale department was advertised as “Louis J. Bothschild, red seal brand,” and his retail department as “Bothschild’s Millinery,” and both were well known in St. Paul. On merchandise sold by bim there was a red shield, or label, bearing his name and other descriptive matter.

The 23 placards (of which Exhibit 3 is one) were each approximately 11 inches long and 7 inches high. Each bore at the top the words, in red letters, “Louis J. Bothschild’s Stock (St. Paul).” Below in larger black figures was a price mark. In the upper left-hand comer was a red shield, upon which were embossed, in gilt letters, the words “Louis J. Bothschild, St. Paul’s New Wholesale House of Millinery Specialties. Bed Seal Brand.” These placards stood on standards which were placed in the center of round tables in the millinery department of the Boston Store. The signs differed only in respect to the price mark which was on them severally—said price mark indicating the amount for which the articles on the several tables would be sold. As the signs stood upon the standards upon the tables each sign was approximately 3 feet away from the eyes of a person standing close to and facing the table. The placard, Exhibit 1A, was approximately 11 inches wide by 17 inches high, and it replaced Exhibit 1 in one of the show windows on State street of said Boston Store. The width of this show window ivas 6 feet and its depth about 7 feet, and its glass front was about 12 feet in height. The placard had thereon the words and figures “Louis J. Rothschild’s Entire Stock Trimmed and Untrimmed Hats and Flowers, Feathers, etc., at 55$ on the $, Second Floor, State St.” All the words were in black letters except the words and figures “at 55$ on the which were in red. The letters “Louis J.” were above the word “Rothschild’s” and of slightly smaller size. The placard, “Exhibit 2A,” was approximately 15 inches wide by 22 inches high, and it replaced Exhibit 2 in a larger show window, also on State street. It differed from Exhibit 1A in the size of the lettering, and in that, underneath the word “Rothschild’s” were the words and figures, in considerably smaller size “(355 Jackson St., St. Paul),” and the size of the letters “Louis J.” above the word “Rothschild’s” was considerably smaller than the letters of said word. Both Exhibits 1A and 2A were placed at about the middle of each show window and at a distance of about 18 inches back from the window glass. Said original Exhibits, 1A, 2A and 3 have been certified and transferred to this Appellate Court. They have been carefully viewed from different distances. On Exhibits 1A and 2A the letters “Louis J.” can be easily seen at a distance of 20 feet, as can be, on Exhibit 2A, the words and figures “(355 Jackson St., St. Paul).” On Exhibit 3 the letters “L. J.” and the word “(St. Paul) ” are as easily discernible from different distances as are the words “Rothschild’s Stock.”

The printed briefs and arguments here filed are voluminous. And we have been assisted by able oral arguments by respective counsel. During the arguments counsel for appellee stated, in substance, that he did not claim that there had been any violation of the injunction, after the service of the writ, as regards any advertisement in any newspaper, or in the placing on the 'tables of the 23 placards similar to Exhibit 3, but that he relied solely on the placing or causing to be placed by appellants of the placards, Exhibits 1A and 2A, in the show windows, after the service of the writ, as grounds for sustaining the court’s several orders. The injunctional order, in substance, enjoined appellants from publishing or displaying, or causing to be published or displayed, any advertisement, announcement, sign or placard, bearing the name Rothschild’s, displayed in connection with any advertisement or announcement of said defendant, Boston Store “m such a manner as or by the use of such words or phrases, or group or combination of words or phrases, thereby to represent, hold out or induce the belief that said defendant * * * has for sale', is selling, or is intending or offering for sale, merchandise formerly the property of the complainant, * * * and from representing or stating to intending customers or purchasers, or to the public, that said defendant * * * is selling or offering for sale any millinery, hats, flowers, feathers, etc., formerly sold by or a part of the stock of the complainant.” After a careful examination of said Exhibits 1A and 2A, we cannot agree .with the findings,of the trial court, as stated in the several orders appealed from, that said announcements, signs and placards “were worded in such a manner and the words and phrases and type used thereon were so grouped, combined and arranged as to hold out and represent to intending customers and purchasers and the public and induce them to believe that said * * ' * Boston store was selling or offering for sale merchandise, millinery, hats, flowers, ■ feathers, etc., formerly the property of or part of the stock of the complainant, Rothschild & Company.” We do not think that said exhibits had such an effect or would induce such a belief in the minds of intending customers or purchasers or the public. A person standing at a distance of 20 feet, or less, from either placard could plainly see the letters “Louis J.” above the word “Rothschild’s,” and on the placard, Exhibit 2A, could also plainly see the words and figures “(355 Jackson St., St. Paul)” underneath the word “Rothschild’s.” Furthermore, the transcript before us does not disclose that any witness testified that said placards, Exhibits 1A and 2A, had such an effect upon him or induced in him such a belief. Neither is there any testimony in the record that the complainant, Rothschild & Company, was in any way injured by the acts of the appellants in causing said placards to be so displayed. We understand it to be the law that in a proceeding to punish a party for the breach of an injunction, the party complaining must not only show a breach, but he must also show that he has in some way been injured thereby. (People v. Diedrich, 141 Ill. 665, 671.)

Our conclusions are that the trial court, under the evidence, was not warranted in making the findings of fact, last above quoted, in the several orders appealed from, and in finding that each of the appellants violated the said injunctional order, and that the court erred in adjudging them guilty of contempt of court and in imposing the penalties above mentioned severally upon them. For the reasons indicated the several orders or judgments of the circuit 'court are reversed. This being in the nature of a chancery proceeding (People v. Diedrich, 141 Ill. 665, 670), it is unnecessary for this Appellate Court to recite in its final order or judgment the facts as found, which are different in part as above indicated from the findings of the trial court. (Section 120, Practice Act, J. & A. 8657.)

Reversed.

Barnes, P. J. and Hatchett, J., concur.


author: Mr. Presiding Justice Taylor

text:
    William W. Rice, Appellant, v. Frank J. Petru, Appellee.
    Gen. No. 25,075.
    1. Alteration of instruments, § 22

      —who must prove alterations. A bill to declare a contract for the sale of realty void because of alterations was improperly dismissed on the ground that complainant had failed to sustain the burden of proving the alterations, the rule being that the party claiming the benefit of the alterations had the burden of proof.
    2. Alteration of instruments, § 22*—when burden of proof shifts as to alterations. Under the general rule, where an alteration is established either by inspection of the instrument itself or the alteration is admitted, the burden of proof shifts to the person claiming the benefit of the instrument as altered to show that the alteration was made under circumstances rendering it lawful.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded.
    Opinion filed November 4, 1920.
    Pratt & Zeiss, for appellant.
    Joseph Kohn, for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

The plaintiff Rice, having filed a petition for a rehearing, and Ms motion thereon having been allowed, this opinion is rendered supplanting, in substance, the former opinion of tMs court in the instant case. By the petition for rehearing our attention was called to a very recent case, Waggoner v. Clark, 293 Ill. 256, which has been handed down since our opinion has been filed. In that case, which was a suit to remove an interlineation or alteration from a deed as a cloud upon the title conveyed by it, it was held that where an alteration is established either by inspection of the instrument itself or is admitted to have been made, he who claims the benefit of the instrument in its altered condition must prove that the alteration was made under circumstances rendering it lawful; and that the interlineation or alteration in the instrument does not, in itself, create any presumption at law either for or against the validity of the instrument but “is a question of fact, and the party producing such instrument is called upon to explain the alteration.” In that case the Supreme Court used the following language: “As was said in Hutchison v. Kelly, 276 Ill. 438, the party claiming the benefit of the instrument must explain the alteration, and if not satisfactorily explained a conclusion of fact follows against it. The plaintiff in error seeks to claim the benefit of .the alteration in the instrument. Under the general rule, where the alteration is established either by inspection of the instrument itself or the alteration is admitted, the burden of proof shifts to the person claiming the benefit of the instrument as altered to show that the alteration was made under circumstances rendering it lawful. * * * In this case, it having been shown there was, in fact, an alteration, the burden rested on plaintiff in error, who seeks the benefit of the instrument as altered, to show that the alteration was made prior to the execution and delivery of the instrument. ’ ’ In the instant case, as was said in our former opinion, the chancellor dismissed the bill of complaint because he was not satisfied that the evidence sufficiently proved that, when complainant signed the contract in question, it contained the names of the Wentworths. We further stated in that opinion that: “It may be that Petru changed the name of the grantor. As with the chancellor, so with us, we do not know.” Obviously, applying the principle of Waggoner v. Clark, supra, the burden of introducing evidence to show that the alteration was made before the instrument was signed fell upon the defendant and it became necessary for him to establish that fact by a preponderance of the evidence. We are of the opinion that he failed to accomplish that result, and, therefore, that the decree of the chancellor must be reversed.

The decree is, therefore, reversed and the cause remanded that a new^ trial may be had and the evidence that has already been taken be reconsidered, together with whatever additional evidence the parties may see fit to introduce.

Reversed and remanded.

O’Connob, J. and Thomson, J., concur.