author: Mr. Justice Jett,

text:
    In re Petition of S. C. Whellock et al., Petitioners. Frederick E. Will et al., Complainants, v. City of Zion et al., Defendants. Wilbur Glenn Voliva, Cross Complainant, v. Frederick E. Will et al., Cross Defendants. Appeal of S. C. Whellock et al., Appellants.
    Gen. No. 8,395.

      Opinion filed March 25, 1933.
    John B. Bills, Charles E. Mason and Bichard S. Folsom, for appellants; James Hamilton Lewis, of counsel.
    Felsenthal, Struckmann, Miller & Bosenbprg, for appellees; A. B. Miller, of counsel.
   Mr. Justice Jett,

delivered the opinion of the court.

The record discloses that Frederick E. Will et al., filed a bill in this cause on behalf of themselves and all others similarly situated and alleged that they were residents, citizens and taxpayers of the City of Zion, county of Lake and State of Illinois; that said Frederick E. Will was lessee from John Alexander Dowie and Jane Bowie, his wife, for term ending January 1st, A. B. 3000, of certain real estate described in the bill and located in the said City of Zion; that the other complainants were owners of particularly described real estate as lessees or as owners in fee simple located in said City of Zion.

The object and purpose of the bill of the said Frederick E. Will et al., was to restrain the defendant, Wilbur Glenn Voliva, from claiming title in himself to various parks and boulevards in the City of Zion, and with a view of having the parks and boulevards to become and be known as public parks and boulevards.

Wilbur Glenn Voliva, a defendant in the original bill, filed an answer and subsequently on, to wit: July 13, 1922, filed a cross-bill and on November 12, 1927, filed an amended and supplemental cross-bill in which almost 100 additional parties were named as parties defendant and personal service had upon them. In his amended and supplemental cross-bill Voliva alleged that he was the owner in fee simple of the various pieces of property which the bill of complaint alleged to be public parks and boulevards and sought a decree establishing title in himself, namely, in Wilbur Glenn Voliva.

In the amended and supplemental cross-bill it was alleged that there were between 6,200 and 6,300 inhabitants in the City of Zion who might claim to have some easement or other right as members of the public in and to said various parcels of land mentioned and described in the pleadings, and that there were between 1,500 and 1,800 owners of lots in fee simple or lessees for a term of 1,000 years, who might claim some privilege or easement thereto; that these parties were so numerous it would be impossible or impracticable to bring them all before the court and that all such persons were in the same position as complainants and cross defendants specifically named, and that the amended and supplemental cross-bill was brought against such complainants and cross defendants for themselves and as representatives of members of the public, residents, property owners and taxpayers of the City of Zion and of all others similarly situated.

On December 3, 1927, a decree was entered by the circuit court of Lake county, finding that Wilbur Glenn Yoliva was the owner in fee simple of a number of the parcels of land in dispute free and clear of any claims of easement or other right by any person or persons whomsoever, and that the rest of the parcels of land in dispute (being a large number), were held by said Wilbur Glenn Yoliva for the use and benefit of all of the residents of the City of Zion, subject to such rules and regulations as said Wilbur Glenn Yoliva or his successors in title might from time to time make, and further decreeing that said Yoliva and his successors in title should not have any right to sell or incumber any of the said parcels.

It appears that on October 6, 1930, almost three years after the decree was entered, certain petitioners who are the appellants in this cause, namely: S. C. Whellock, Florence L. Whellock, George Liddle, Elizabeth Liddle and John R. Bills, presented a petition to the said circuit court of Lake county alleging that they had not been specifically named as parties defendant in the suit of Frederick E. Will et al., against Wilbur Glenn Yoliva et al., but were bound by said decree by representation; that the decree was obtained by agreement and without a contest; that some of the testimony introduced upon the hearing was false and colored, and that no witnesses were called on behalf of the original complainants in said case. Petitioners prayed that they might be permitted to answer the complainant’s bill and the cross-bill filed by Wilbur Glenn Yoliva, and that such proceedings might be had as though the petitioners had appeared in due season and no decree had been entered in said cause. The petitioners, who will be referred to hereinafter as appellants, seek to have the decree opened up by virtue of the provisions of section 19 of the Chancery Act, Cahill’s St. 1929, ch. 22, U 19. On the hearing the circuit court of Lake county held that the appellants (petitioners below), not having been named as parties defendant in the original proceeding, and being bound only by representation, and having been bound by representation in the original bill of complaint, were not proper persons, under section 19 of chapter 22, to file such petition. This appeal is brought to this court to have reviewed the order of the circuit court of Lake county denying leave to file said petition and striking the same from the records.

It is the contention of the appellants that they were proper parties to seek relief by virtue of section 19 of the Chancery Act, Cahill’s St. 1929, ch. 22, fí 19. It is their position that while they were not actually named defendants to the cross-bill of Voliva, they were constructive defendants bound by the decree and as such should be recognized as actual defendants for the purpose of the relief afforded under section 19 of said Chancery Act.

It is also the contention of the appellants that Voliva, by naming 100 defendants in his cross-bill and naming them defendants in their own capacity and as representatives of 6,000 other defendants, thereby created a situation whereby the 6,000 other defendants, bound by the decree entered against them as constructive defendants, through representation, are entitled to the remedy provided in said section 19, and that the petitioners are entitled to this relief on two theories: First, that they can show good title in the public to all the parks mentioned in the litigation, and in which they have a direct interest through property they own in the neighborhood of such parks and thereby are entitled to relief under section 19 as a matter of right, and second, that they can show that the public and the petitioners have been defrauded by property rights, depriving them of park properties to which they are entitled, setting forth that Voliva obtained said decree by fraud and conspiracy and petitioners are entitled to relief under section 19 by a showing of such fraud.

In our view there is but one question involved in this proceeding, namely: Is section 19 of the Chancery Act intended to apply to persons who have not been made parties to a cross-bill of complaint in chancery, but who are bound by the decree therein on the doctrine of representation?

In order to pass upon the question it becomes neces-. sary to examine the statute in question. It is reasonable to say that all sections of the Act must be construed together in order to determine the meaning of any particular section. It will be observed that the first six sections of the Chancery Act have to do with the jurisdiction of the courts of chancery, rules of the court, the venue of chancery suits, the method of beginning a suit, and the filing of suits by conservators and guardians ad litem. The seventh section provides for making unknown persons parties to the suit and obtaining jurisdiction of them by publication. Sections eight, nine, ten and eleven provide the method of serving summons upon persons who have been named as defendants. Section twelve provides for notice by publication to defendants who reside outside of the State, or who on due inquiry cannot be found within the State. The language of the statute is, “Whenever . . . any defendant resides or hath gone out of this State ... so that process cannot be served upon him, ’ ’ then that defendant may be summoned by publication. It is very evident from the language of this section that it refers only to a defendant who has been named in the bill of complaint. Section fourteen makes provision for service upon “any defendant residing or being without this State” by copy of bill and notice • of the commencement of the suit. This too only has reference to a defendant who has been named in the bill of complaint. Section sixteen provides that “every defendant who shall be summoned, served ivith a copy of the bill or petition, or notified as required in this Act” shall be held to except, demur, plead or answer on the return day of the summons. In other words, section 16 goes back to the previous sections of the Act and requires an answer from all defendants who have been served in one of the three ways previously described by the Act. As we have seen above the previous sections of the Act provide for three methods of service upon defendants who, in the bill of complaint, have been named as defendants, either by their own names or as “unknown owners.” It will be observed from an examination of section 19 that it is in some respects almost identical with the language of section 16 that “when any final decree shall be entered against any defendant who shall not have been summoned or been served with a copy of the bill or received the notice required to be sent him by mail,” Cahill’s St. 1929, ch. 22, If 19, such defendant may appear in court at any time within three years after the entry of the decree and petition to be heard with reference thereto. Section 16 provides that when any defendant has been served in one of the three ways previously mentioned he must plead, answer or demur or be defaulted. Section 19, using almost the identical words of section 16, says that when any such defendant has not been served in any one of the three ways previously mentioned, he may come in within three years and petition for leave to be heard. It is quite evident, therefore, that section 19, as section 16, refers only to defendants who have been actually named either by their own names or as unknown owners in the bill of complaint, and who have not been served in one of the three ways previously mentioned by the Act. It would seem, therefore, that section 19 itself does not contemplate and was not intended to cover persons belonging to a class who have been bound by the decree on the doctrine of representation, inasmuch as such persons have not been named as defendants in the bill of complaint, either in their own proper name or as unknown owners.

It will be seen from an examination of the record that Wilbur G-lenn Yoliva, cross complainant, did not make any unknown owners parties defendant to his amended or supplemental cross-bill, and no publication was had as to any defendants. It will further be seen that the appellants were not named in the cross-bill as defendants thereto.

It must be kept in mind that the bill of complaint filed by Frederick E. Will et al., contains the allegation “that the complainants begin this suit in behalf of themselves and all others similarly situated.” It will readily be seen that Frederick E. Will et al., filed their bill of complaint in a representative capacity, and that appellants who allege that they were situated similarly to Frederick E. Will et al., complainants, would have been bound by the decree (assuming that no cross-bill had been filed) by the doctrine of representation, inasmuch as complainants represented that class.

If, therefore, the decree bound the appellants by the doctrine of representation, as complainants, it is evident that they cannot avail themselves of section 19 of the Chancery Act which specifically provides that it is intended to be for the benefit of “any defendant who shall not have been summoned,” etc.

The filing of the cross-bill by Yoliva does not alter the situation in so far as appellants herein are concerned. If they were original parties to the suit, as complainants by representation, the cross-bill has not changed their status.

In Northern Trust Co. v. Sanford, 308 Ill. 381, a bill was filed to foreclose a mortgage and a cross-bill was filed to foreclose a second mortgage. The former owners of the property, who were nonresidents, were made defendants to the original bill for foreclosure but were not served except by publication. When the cross-bill was filed, an attempt was made to notify them of the pendency of the suit by serving them with a copy of the cross-bill. Subsequently these defendants filed a petition under section 19, claiming that although they were parties to the bill of complaint they had not received the notice required by section 19. The answer was made that they had received notice by being served with a copy of the cross-bill. The court held that the status of those defendants was not altered by the filing' of the cross-bill and that section 19 gave no authority for notifying any such defendants by a copy of the cross-bill. At page 391 the court said: “An original bill and cross-bill constitute but one suit, as the cross-bill is a mere adjunct to the original bill, and the statute does not require any process thereunder to issue against any parties to the original bill. (Fleece v. Russell, 13 Ill. 31.) Besides, in this case the cross-bill to foreclose the second trust deed was not at all necessary.” Furthermore, it appears that in Northern Trust Co. v. Sanford, supra, section 19 of the Chancery Act has no application whatever to a cross-bill but is intended merely to cover persons named as defendants in the original bill of complaint. It will be seen that section 19 uses the following language: “When any final decree shall be entered against any defendant who shall not have been summoned or been served with a copy of the bill,” etc. Cahill’s St. 1929, ch. 22, ft 19. The case of Northern Trust Co. v. Sanford shows that this means a defendant who has not been summoned or been served with a copy of the original bill, and has nothing to do with a defendant who has not been served with a copy of the cross-bill.

From an examination of the record it will be seen that the appellants were not named as parties, either by the bill of complaint or by the cross-bill. The fact that they are bound by the decree by the doctrine of representation does not make them defendants or parties to the suit as is contended by appellants. Their contention is based upon an erroneous view of the doctrine of representation. The true intention of this doctrine is that where the subject matter affects so many persons that it would be oppressive and burdensome to make them all parties and bring them before the court, then, on proper showing, the court will excuse the complainant from bringing such parties into court as defendants, but will bind them, nevertheless because their interests are the same as the interests of the persons who are actually before the court as parties defendant.

In 21 Corpus Juris 284, it is said: “This doctrine, tersely stated, is to the effect that where it appears that a particular party, although not before the court in person, is so far represented by others who are before the court that his interests receive actual and efficient protection, his actual joinder may be dispensed with, and the decree may be held to be binding upon him.”

In Farmers’ Loan Trust Co. v. Lake Street Elevated R. Co., 173 Ill. 439, at 457, the following rule is announced: “Third — It is further contended on the part of the appellant, that the court below erred in entering the decree appealed from without requiring all the bondholders to be made parties to the suit. We think that, under the circumstances of this case, this contention is without force. It is true as a general rule that all parties interested in the subject matter of the suit should be made parties, and that, when foreclosure is sought of a mortgage or trust deed, the cestuis que trustent, as well as the trustee, should be made parties, but there are two well established exceptions to this rule. The first is, that, where the absent parties are properly represented it is sufficient to make such representatives parties to the suit. In Hale v. Hale, 146 Ill. 227, we said (page 257): ‘When it appears that a particular party, though not before the court in person, is so far represented by others that his interests receive actual and efficient protection, the decree may be held to be binding upon him.’ Jones, on Corporate Bonds and Mortgages (sec. 398) - says: ‘A trustee for bondholders represents their interests, and, when made a party to a suit affecting their interests, they are as much bound by the decree rendered in the suit as if they were individually made parties to the suit. ’

“Another exception to the rule is, that, where the beneficiaries are very numerous, so that the delay and expense of bringing them in becomes oppressive and burdensome, they will not be deemed necessary parties, where the trustee or trustees representing them are made parties. In Chicago, etc. Land Co. v. Peck, 112 Ill. 408, we said (p. 435): ‘Objection is taken that there were other necessary parties not made parties to the several bills, — that all the cestuis que trust, to-wit: the bondholders under the Jewett trust deed, should have been made parties by name. The general rule is, that all persons interested in the subject matter of the suit are to be made parties, and that the cestuis que trust, as well as the trustee, should be made parties to a foreclosure proceeding; but there is an established exception to this rule where the beneficiaries are very numerous, and certain parties to the suit are entitled to be deemed their full representatives. It has been laid down by Lord Bedesdale as a general rule, that where any persons are made trustees for the payment of debts and legacies, they may sustain a suit, either as plaintiffs or as defendants, without bringing before the court the creditors or legatees for whom they are trustees, which in many cases would be impossible. Indeed, the impracticability of making the other persons parties would seem of itself a sufficient ground for dispensing with them. . . . We regard the present as a clear case within the exception to the general rule of equity pleading, that all persons interested in the subject matter of the suit must be made parties to the bill.’”

It is urged by the appellants that the principles of equity and ‘ ‘ of our free institutions ’ ’ give them a remedy under section 19, Any remedy granted -by section 19 is a statutory one and is available only to those who bring themselves clearly within the provisions of the statute. The fact that certain persons such as those who are bound by the doctrine of representation do not come within that statute is no great hardship upon them, since they still have adequate remedies by way of bill of review or by writ of error. That no hardship has been done the appellants we desire to refer to the record which shows that the bill of complaint by Frederick E. Will et al., was filed on July 14, 1921, and that the decree sought to be opened up under section 19 of the Chancery Act was not entered until December 3, 1927, almost six and one-half years later. Appellants having been made parties complainant by representation had all this time within which to intervene in the case as parties complainant. In addition thereto, they had two years ’ time thereafter to come in by way of bill of review or writ of error. It is evident, therefore, that no principles of justice are violated in this cause by denying appellants the remedy under section 19.

The contentions of appellants that "the decree was obtained by fraud and that they have a good defense to the cross-bill of complaint have nothing to do with the question at issue, inasmuch as a person’s right to appear under section 19 does not depend upon the presence of any fraud.

We conclude, therefore, that the only question involved in this proceeding is as to whether or not a person who has not been made a party defendant to a cross-bill of complaint, either by name or as an unknown owner, who is, in fact, a complainant by the doctrine of representation, can avail himself of the right to open up a decree under section 19. We hold that section 19 when construed in connection with the other sections of the Act preceding, specifically limits the remedy to persons who have actually been made parties defendant by name or as unknown owners; that in no event is this remedy applicable to defendants to a cross-bill of complaint, as distinguished from the original bill of complaint; that where a party has become bound by a decree under the doctrine of representation as a complainant, he cannot avail himself of the remedies of that section; that the appellants were bound by the decree under the doctrine of representation as parties complainant; and that no hardship is imposed upon them by denying the remedies under this section, inasmuch as they had a right, in the proper time, to get in by way of bill of review or writ of error.

On a former occasion we were called upon to construe said section 19. In Schuster v. Elsner, 250 Ill. App. 192, at page 201, we held: “The purpose of section 19 is to afford relief to defendants who, (1) shall not have been served with summons, (2) all those who have not been served with a copy of the bill, (3) or received a notice of the pendency of the suit as provided for in section 12 of the Chancery Act, Cahill’s St. ch. 22, Ü12. In other words the provisions of section 19 are available only to those who have been constructively served by some means known to the law, and do not apply to anyone upon whom no service of any kind has been made. Where no service has been had upon a defendant he is not bound by a decree and need take no notice of it. Where, however, he has been served by some of the known methods, he is bound by it and must take notice of it. If the service so made was constructive only then he may avoid the binding force of the decree by appearing in open court and asking leave to defend as provided in section 19 aforesaid.”

We are of the opinion that the order of the circuit court of Lake county entered in this cause should be affirmed, which is accordingly done.

Order affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Wilson

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Lionel A. Sherwin, Plaintiff in Error. In re Commitment of Lionel A. Sherwin, Plaintiff in Error, for Contempt of Court in Case of Minneapolis Larabee Flour Company v. Isaac Berger, in the Municipal Court of Chicago.
    Gen. No. 35,849.

      Opinion filed March 29, 1933.
    Deneen, Healy & Lee, for plaintiff in error; Roy Massena and Donald jST. Schaerer, of counsel.
    John A. Swanson, State’s Attorney, for defendant in error; Otho S. Fasig and Edward E. Wilson, Assistant State’s Attorneys, of counsel;
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

This proceeding is a writ of error to reverse an order of the municipal court of Chicago finding the defendant Sherwin guilty of contempt of court and committing him to the county jail for a period of 90 days. The contempt was based on the preparation and presentation of a certain bill of exceptions by the defendant which was claimed to be false and so falsified in order to obtain a reversal of the cause out of which the contempt grew.

The order of commitment recites that Sherwin appeared before Judge Jonas on behalf of the defendant in a certain cause in the municipal court, known as Minneapolis Larabee Flour Mills v. Isaac Berger, Number 2042211; that said cause came on for hearing November 9, 1931, before the court and jury, resulting in a verdict in favor of the plaintiff and judgment on the verdict. A motion for a new trial was overruled and an appeal allowed upon the filing of a bond and bill of exceptions within 60 days; that Sherwin, intending to deceive the court, falsely, knowingly and contemptuously presented in court a'bill of exceptions which was untrue and known by him so to be. The order then sets out in detail a great many matters contained in the transcript of the testimony in the bill of exceptions which the court found to be false and as many more in the instructions.

The court before entering the commitment order called as witnesses the court reporters representing both the plaintiff and the defendant. Sherwin was in court and represented by counsel. The stenographic reports of the trial of the cause, Minneapolis Larabee Flour Mills v. Isaac Berger, were then read. There was a wide discrepancy between the notes of the stenographers for the plaintiff and the defendant, both as to the evidence and the instructions. The difference was so glaring that it is inconceivable that it could have been a matter of pure accident. The court during the contempt proceeding stated that it had an independent recollection of the instructions given and that he knew they were incorrect and untrue as they appeared in the bill of exceptions tendered in the original cause. The court expressed the opinion that the defendant Sherwin and the court reporters who took the testimony for Sherwin’s client were equally culpable. Two court stenographers took the testimony of the original proceeding on behalf of the plaintiff and both were experienced in their calling and had been actively engaged in the business of court reporting for a number of years. The notes of each of these differed very materially on substantially important issues from the notes of the stenographer representing Sherwin’s client. There may have been some question as to which of the stenographer’s notes were correct, but where there was such a material variance as there was in this case between the notes of the court reporter for Sherwin and the notes of both of the other reporters, the court could and did naturally place no reliance on the notes of Sherwin’s reporter, and placed the responsibility on Sherwin for presenting the bill of exceptions as a true and correct transcript of the record. - In view of all the circumstances, we are of the opinion that the greatest credence should be given the testimony as shown by the stenographic notes of the reporters for the plaintiff in the original action. The number of variances occurring amounted to over 17 and of these a great number were material to the issues in the case and subject to a reversal, if true. The court in its order found this to be a fact based both on the testimony before him and on his own personal recollection. The order sets out in detail both the true and the false testimony. When Sherwin presented this bill of exceptions to the court he knew, or he should have known, of these glaring errors in the bill of exceptions. If he knew, then he was guilty of an attempted fraud upon the court; and if he did not know, he was guilty of such gross negligence as would indicate a complete disregard of the duty he owed, as counsel, to the court before whom he tried the cause.

It is insisted that the court on its own motion can only punish for a direct contempt, namely, one that happens in its presence and of which it has knowledge and judicial cognizance; that otherwise it should be upon an information with leave to answer. Moreover, it is insisted that the court cannot punish for false testimony before it unless the court knows the testimony to be false of its own knowledge. There is a further rule recognized in contempt proceedings, namely, that one whose conduct tends to bring the authority and administration of the law into disrespect or disregard or which tends to hinder or obstruct justice, is such conduct as will amount to a contempt of court. Dahnke v. People, 168 Ill. 102; People v. Gard, 259 Ill. 238. This may be a direct contempt and we do not believe that the fact that the court considered extraneous evidence necessarily constitutes it one of an indirect contempt which would require the filing of an information. If the defendant Sherwin tendered a bill of exceptions to the court with the intention of deceiving the court and obtaining a reversal, it would be a direct contempt in our opinion and punishable as such. People v. Gard, supra. The court had the right to verify its own knowledge by the evidence of witnesses, but the contempt still remains a direct contempt inasmuch as the bill of exceptions was presented to the court with the intention to deceive.

It is insisted that the filing of the bill of exceptions is a merely clerical matter and when marked “presented, ’ ’ the court was not acting in a judicial capacity. The main question still remains, however, viz., whether the purpose was to deceive the court and to impede and obstruct the due course of administrative justice. A very similar case is found in United States v. Ford, 9 F. (2d) 990. In that case a bill of exceptions was presented to the trial court in which there were a number of statements of fact which were not true. The court heard evidence and found that such matters were in fact untrue. The court in its opinion, says:

“(2) Moreover, lack of actual knowledge does not constitute a defense, but only an extenuating circumstance in mitigation. It is counsel’s duty to know the contents of documents he presents for action by the court, and presentation is a representation that this duty has been performed. It is presumed he knows. It is also counsel’s duty to knowingly present none but documents true in their statement of facts, and therein again presentation is a representation of this duty performed — that counsel believes the facts to be true, and that in so far as they purport to relate counsel’s acts they are true. . . .

“ (4, 5) So, too, of lack of evil intent. In contempt, as in many varieties of crime, not always needs there be an evil quality of the mind. It suffices if the latter’s equivalent appears in forgetfulness, neglect, or failure of or indifference to duty or consequences. In any event, there is that much in this case.

“(6) Little need be said to emphasize that the administration of justice depends upon the integrity of judicial proceedings and records. Falsification of either obstructs and defeats justice. In consequence, if falsification be done or attempted intentionally in fact or equivalent as aforesaid, it is contempt of the authority of the court, and usually also a crime. Done by an attorney of the court, it is more reprehensible than by others; for it is an abuse of his office, a betrayal of his trust, a violation of his oath, infidelity to the court to which, and not to his client, is counsel’s first duty always, and a profanation of the temple of justice. All this is conceded here as everywhere. ’ ’

The power of a court to protect itself by its authority to punish for contempt should not be so hedged in by legal refinements as to render it ineffective. We believe this power is well defined in the opinion of the court in the case of Dahnke v. People, 168 Ill. 102, in which the statement is made:

“It has been said, that the power of the court in the matter of contempt cannot be defined within any limits, and that the primary question in all cases of alleged contempt is, ‘whether there has or has not been an interference or an attempt to interfere with the due administration of justice. ’ ”

It is insisted on behalf of the- defendant that as this is a criminal contempt it is necessary that the order affirmatively show that he, the defendant, was present in court when the order was entered, citing People v. Bain, 268 Ill. App. 192. In our opinion the judgment order of the court contains a sufficient recital showing the presence of the defendant. Moreover, the fact that he was present at the time is borne out by the record. We agree with the proposition that the defendant must be in court at the time the commitment is entered.

The Supreme Court in the case of People v. Moran, 342 Ill. 478, in its opinion, says:

“Of course, the law is well settled that the record shall affirmatively show the defendant was present in court when sentence was imposed if there is any corporal punishment administered. ’ ’

The order of commitment provides “that the body of said Lionel A. Sherwin be taken from the bar of the said court to the common jail of Cook County.” The record shows that immediately upon the entry of the order, the defendant Sherwin was taken into custody by the bailiff of said court in open court. The record imports verity. People v. Washington, 342 Ill. 350. The record also shows that during the course of the proceedings the defendant was present in person and represented by counsel. From the record it is obvious that if the defendant was present at the time the order was entered, this fact, appearing as it does, is sufficient to support the order.

Respect for courts should be strengthened rather than weakened. This cannot be accomplished if contempt proceedings are surrounded by technicalities which render the power of the court ineffective. Too many refinements in the law of contempt, while it aids the culprit, often tends to lessen the respect for the court. The rule that full faith and credit should be given to the judgment of trial courts does not appear to be extended to its orders in contempt proceedings. It is true that such a contempt may carry with it á jail ¡sentence, but it is also true that courts are loath to send individuals to jail for contempt and rarely do so unless in their opinion such a result is inescapable. Moreover, there are often many things which enter into a contempt proceeding which cannot always be reduced to an exact replica of what transpired, and set out in detail within the confines of a court order. Courts should require that practicing attorneys have a higher regard for the administration of justice than that which is required of the layman. Utter disregard of attorneys as to the truth or falsity of matters contained in papers and documents presented to courts should be condemned as unethical and contemptuous. Such we believe was the conduct of the defendant Sherwin in presenting to the trial court the bill of exceptions of the kind and character as was that presented in the case at bar.

For the reasons stated in this opinion the order of the municipal court is affirmed.

Order affirmed.

Hebel and Hall, JJ., concur.


text:
    John Sexton & Company, Appellee, v. Library Plaza Hotel Corporation, Appellant.
    Gen. No. 36,053.

      Opinion filed March 29, 1933.
    Rehearing denied April 13, 1933.
    Rosenthal, Hamill & Wormser, for appellant; Willard L. King and George W. Gale, of counsel.
    Blum & Jacobson, for appellee; Edward M. Keating and Reuben S. Flacks, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

The plaintiff, John Sexton & Co., a corporation, brought its action against the Library Plaza Hotel Corporation, defendant, to recover for goods and merchandise sold and delivered. The defendant denies that it ever ordered or received the goods in question. There appears to be a number of parties involved in the transactions bearing similar names. The goods delivered consisted of foodstuffs and similar supplies destined for use in a cafe or cafeteria situated at 1633-1635 Orrington avenue, Evanston, Illinois. The building in which the cafe or cafeteria was located was owned by the Library Plaza Hotel Building Corporation and was situated at the corner of Orrington avenue and Church street. The cafe occupied part of the basement and first floor of the building with its entrance on Orrington avenue and was known as the Library Plaza Cafeteria Corporation. The remainder of the building was occupied by the Library Plaza Hotel Corporation, under a lease, with its entrance at 701 Church street. There was also an inner entrance through the hotel to the cafeteria.

In order to avoid confusion we will refer to the Library Plaza Hotel Building Corporation as the “Building Company,” the Library Plaza Hotel Corporation as the “Hotel” and the Library Plaza Cafeteria Corporation as the “Cafeteria.”

The Cafeteria was originally operated by one Carlson, under a lease from the Building Company. Carlson was also president of the Building Company and later president of the Hotel. He began purchasing goods from plaintiff in 1922 and the account was carried in his name until sometime in 1924 or 1925, at which time plaintiff was advised that Carlson was not the owner of the Cafeteria but that it belonged to the Building Company and the goods were thereafter billed to that company. September 15,1926, the building Company leased the premises occupied by the Cafeteria to Carlson. In 1928 this lease was assigned by the Building Company to the Hotel. Carlson, in turn, in 1929, assigned the' lease to the Cafeteria, with the consent of the Hotel.

The account sued upon is from July 2,1929, to October 15, 1929. The plaintiff was beginning to feel that the account was insecure and on August 2,1929, it procured from Carlson a guarantee of the account. This instrument guaranteed plaintiff the prompt payment for any merchandise delivered by plaintiff to the order of the Hotel, Orrington Plaza Building Corporation, or the Indianwood Giolf Club. It is insisted that as Carlson was president of the “Hotel” he expressly recognized the liability of the Hotel. On the other hand it may be argued with equal force that the plaintiff was looking to Carlson and was not concerned about who was liable for the account. The account was carried on the books of plaintiff in the name of the Building Company. The statements from time to time were so made out to the Building Company. The delivery receipts show they were for goods delivered to the Hotel. The goods were delivered to the Cafeteria at Orrington avenue, the premises of the Cafeteria, and there receipted for by an employee of the Cafeteria.

At no time did the plaintiff ever receive a check from the Hotel. It did, however, receive and acknowledge payment from the Building Company and from Carlson. From July 23, 1929, to November 12,1929, it received checks for merchandise amounting to close to $6,000 signed Cafeteria by Carlson, its president.

It is insisted that the Hotel knew that the delivery slips were made out to the Hotel because of the fact that Carlson was its president. Carlson had no interest in the Hotel other than a qualifying share of stock. His interest in the Cafeteria Company does not appear, but from the record it is a fair inference that he was in fact the sole owner. Consequently, his interest in this litigation would be adverse to that of the Hotel. Notice to a principal is often ineffective where their interests are adverse. He was also president of the Building Company and of the Cafeteria. Confusion often results from the operation of various related corporations especially where names similar in sound are used. It cannot be said, however, that this fact alone creates a joint liability. There must be something more, such as a commingling of interests, a joint ownership, or a holding out to the world such as would mislead or tend to lull one into a mistake of fact. In the case at bar there was no positive act on the part of the Hotel that had any tendency to mislead. The Hotel did not hold itself out as the owner of or as interested in the Cafeteria. There was no act by it amounting to a ratification of the acts of Carlson in its operation. There is not sufficient evidence in the record to justify holding the Hotel liable. Carlson himself testified that he operated the Cafeteria. The credit was not extended to the Hotel, but to Carlson. The Building Company issued its checks at times in payment of merchandise but never the Hotel.

We are of the opinion that so far as this record is concerned, the evidence fails to justify the judgment and for that reason the judgment of the superior court is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Hebel and Hall, JJ., concur.


text:
    Madelon Price, Administratrix of the Estate of Theodore Price, Deceased, Appellee, v. Chicago and Eastern Illinois Railway Company, Appellant.
    Gen. No. 36,072.

      Opinion filed March 29, 1933.
    Rehearing denied and opinion modified April 13, 1933.
    Edward W. Rawlins, for appellant; K. L. Richmond, of counsel.
    Joseph D. Ryan and Edmund M. Sinnott, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

Madelon Price, administratrix, recovered a judgment in the superior court for $10,000 in a suit against the Chicago and Eastern Illinois Railway Company, a corporation, defendant, because of the death of Theodore Price which occurred on November 6, 1927, in the Village of Thornton, Cook county, Illinois.

The declaration consists of one count. This count charges that the defendant was operating a train over and along the railroad track in a southerly direction across a certain public highway in the Village of Thornton; that plaintiff’s intestate was a passenger in an automobile which was being driven in an easterly direction in the Village of Thornton, over what was known as the Ridge road or Margaret street, and that he was at the time in the exercise of ordinary care for his own safety; that the defendant carelessly, negligently and improperly ran and operated its said train and by reason thereof it ran into and collided with the automobile in which plaintiff’s intestate was riding, as a result of which he received injuries from which he died.

It appears that the accident happened about 12 o’clock noon on Sunday, November 6, 1927, and that the deceased was riding as a passenger in the front-seat and to the right of the driver; the car was being driven in an easterly direction and the tracks of the defendant crossed the street at right angles. The automobile was a Packard car driven by Joseph Price, father of the deceased. In the back of the car were Josephine Price, his mother, Hugh Price, his brother, Madelon Price, his wife, and Marjorie Price, his daughter. According to these witnesses the car had stopped a block away from the point where the accident happened because of a stop-and-go sign at that point. From that point it then proceeded at the rate of from 15 to 20 miles an hour until it reached a point about 35 feet from the track of the defendant. At this point it had reduced its speed until the automobile was proceeding at the rate of about three or four miles an hour. There were signal lights on the highway at this particular point which were supposed to warn drivers of automobiles and pedestrians of the approach of trains. There were two tracks of the defendant at this point, a north- and south-bound track. As the car in which plaintiff’s intestate was riding approached the tracks, there was a train consisting of seven cars loaded with sand, an engine and a caboose proceeding-over the west track in a southerly direction. The engine which was pulling this train was proceeding with the tender to the south and the cars were intended to be delivered at the plant of the Brownell Improvement Company, located from 500 to 1,000 feet south of the crossing.

Ridge road, or Margaret street as it was known in the village, was 66 feet in width from sidewalk line to sidewalk line and the middle of this highway was paved with either gravel or concrete 18 feet in width. The west or south-bound track, upon which the train was being operated, was straight for a distance of approximately 1,400 feet and beyond that there was a slight but gradual curve. West of the tracks, and upon the left-hand side of a driver approaching from the west and located on Ridge road, was a building known as the O-B Inn. Between this building and the westbound track there was a road or alley approximately 30 feet in width, running in a northerly direction parallel to the tracks. A person standing in the center of Ridge road and 35 feet west of the track could see an approaching train wrhen it reached Eleanor street which is 840 feet north. A person standing 25 feet "west of the tracks and in the middle of Ridge road had an unobstructed view of the tracks for a distance of over 1,500 feet. At the time of the accident, 12 o’clock noon, it was bright and clear.

Joseph Price, the driver of the car, died after the accident and before the trial. The other witnesses, on behalf of the plaintiff, consisted of members of plaintiff’s intestate’s family and a man by the name of Behrens, who was being driven by his chauffeur along Ridge road in an easterly direction and whose car stopped at the crossing because of the approaching train. These witnesses testified that the signal light was not operating and that there was no whistle blown by the engineer, nor bell rung; that they did not hear the approaching train and that the train was running at 35 to 40 miles an hour. On the other hand, a number of witnesses testified on behalf of the defendant that the signal light was working and that they could hear the train approaching. The engineer testified that he whistled for the crossing at Ridge road as well as for the crossing to the north.

Marjorie Price testified that the Packard car slowed down as they approached the tracks and when it was a few feet east of the building to the north it was. going about two miles an hour. Hugh Price, brother of the deceased, testified that the automobile was going two or three miles an hour when the front of the machine was 30 or 40 feet west of the track; that the deceased said: “Step on it Pop, here comes a train.”

Madelon Price testified that the Packard had attained its lowest speed at about 30 feet from the track; that at that time the lights were not flashing and the driver shifted his gears and started up and the deceased said, “All right, Pop,” and that the driver increased the speed of the machine for the purpose of crossing the tracks.

Without considering the weight of the testimony as to whether or not the signal light was working, the bell ringing or whistle blown, we are at once confronted with the question as to whether or not the deceased at the time of the accident was exercising due care for his own safety. He was riding in the front seat with the driver of the automobile. Not only that, but it is apparent from the evidence that he knew that the train was coming and undertook to direct the movement of the vehicle in which he was a passenger and to advise the driver of the proper course to pursue. If the Packard car was proceeding at the rate of three or four miles an hour it could have been stopped within a distance of a few feet. There was nothing to obstruct the view of the driver or the deceased at a point 25 feet from the south-bound track over which the defendant’s train was running. Sowers v. Illinois Cent. R. Co., 261 Ill. App. 63. Plaintiff’s intestate had driven along this road prior to the accident and had crossed this track on other occasions and was evidently familiar with the surroundings. A railroad crossing is a dangerous place and one about to cross over such a place is bound to use care commensurate with the known danger. The fact that the lights were not flashing, if they were not, will not relieve one of the duty of using this care particularly where there is an ample opportunity to get a clear and unobstructed view of the approaching danger. Dee v. City of Peru, 343 Ill. 36; Baltimore & O. R. Co. v. Goodman, 275 U. S. 66; Niederle v. Chicago Rapid Transit Co., 264 Ill. App. 347; Mabel v. Cleveland C., C. & St. L. R. Co., 264 Ill. App. 532. One who has an unobstructed view of an approaching train owes a duty to himself to exercise care for his own safety and cannot rely upon the assumption that there will not be a violation of a statutory requirement such as operating signals or ringing bells. Greenwald v. Baltimore & O. R. Co., 332 Ill. 627; Urban v. Pere Marquette R. Co., 266 Ill. App. 152. Where a passenger riding in an automobile has an opportunity of learning of approaching danger and has the opportunity to avoid it, he should for his own safety exercise due care and warn the driver of such danger. He cannot rely entirely upon the judgment of the driver of the car in which he is riding. Dee v. City of Peru, 343 Ill. 36; Mabel v. Cleveland, C., C. & St. L. R. Co., 264 Ill. App. 532.

From all the evidence, and particularly on the question of contributory negligence on the part of the plaintiff, we are of the opinion the motion for a new trial on behalf of the defendant should have been granted.

For the reasons stated in this opinion, the judgment of the superior court is reversed and cause remanded, for a new trial.

Judgment reversed and cause remanded.

Hebel and Hall, JJ., concur.


text:
    Isaac A. Love, Administrator of the Estate of Reuben B. Kilgore, Deceased, Appellant, v. Glencoe Park District, Appellee.
    Gen. No. 36,164.

      Opinion filed March 29, 1933.
    Acton, Acton & Baldwin and C. E. S penning, for appellant; W. M. Acton, of counsel.
    Tolman, Chandler & Dickinson, for appellee; Frederick Dickinson and Walter V. Schaefer, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

Issac A. Love, as administrator of the estate of Reuben B. Kilgore, filed his declaration in an action in trespass on the case against the defendant Glencoe Park District, a municipal corporation, for damages resulting from the death of the deceased by drowning, because of negligence on the part of the defendant through its maintenance and operation of the bathing beach located on the shores of Lake Michigan and within the park district.

The declaration consists of two counts. The first count, after setting up the organization of the- defendant as a park district, charges that it carelessly and negligently permitted plaintiff’s intestate to swim in Lake Michigan at the beach in question without warning him of a dangerous undertow which was in existence at that place at the time. The second count charges that the defendant maintained life guards at the place in question but that they negligently and carelessly failed to perform their duty and that the defendant also failed to have life preservers and safety ropes for use during an emergency, such as occurred at the time of the death by drowning of plaintiff’s intestate.

A demurrer was sustained to the declaration and the plaintiff electing to stand by his declaration, judgment was entered in favor of the defendant with costs against the plaintiff.

The only question presented to this court is whether or not the G-lencoe Park District, organized under the act providing for the organization of park districts, can be held legally responsible for accidents such as the one involved in this proceeding. The park district was created under “An act to provide for the organization of park districts and the transfer of submerged lands to those bordering on navigable bodies of water,” Cahill’s Ill. Rev. St. ch. 105, ¶ 295 et seq., approved June 24, 1895. Section 14 of the act, as amended in 1929, Cahill’s St. ch. 105, 308, conferred upon the park district, created thereunder, the power to construct equipment and maintain field houses, gymnasiums, assembly rooms, comfort stations, indoor and outdoor swimming pools, wading pools, bathing beaches and a number of other provisions for golf, tennis and other athletic sports. Under the act, as amended, the park was given the power to make and enforce reasonable rules, regulations and charges therefor. This court had occasion to consider this question in the case of Stein v. West Chicago Park Com’rs, 247 Ill. App. 479, and we there held that the West Chicago Park Commissioners, a municipal corporation, created as it is by the State legislature as a separate entity, and, considering’ the purpose for which it was organized, namely, for the health, welfare and enjoyment of the general public, is not liable on the ground of respondeat superior for the negligence of its servants and agents. We believe this to be the rule of this State as announced in the cases of West Chicago Park Com’rs v. City of Chicago, 152 Ill. 392; Bedtke v. City of Chicago, 240 Ill. App. 493; Holt v. City of Moline, 196 Ill. App. 235; Hendricks v. Urbana Park Dist., 265 Ill. App. 102.

The park district created under' the act already referred to exercises functions governmental in their character inasmuch as they are exercised for the benefit of the general public. There is some conflict in' the decisions but we are of the opinion that the general rule is in conformity with that expressed by the courts of this State. The great weight of authority appears to hold that the members of the park board, said board having been created as it was for the use of the general public, are not liable .individually, nor is the park district. Smith v. City of Iowa City, 213 Iowa 391; Aldrich v. City of Youngstown, 106 Ohio St. 342; Bisbing v. Asbury Park, 80 N. J. L. 416; Heino v. City of Grand Rapids, 202 Mich. 363; Caughlan v. City of Omaha, 103 Neb. 726.

The fact that the public was required to pay a certain fee or charge in order to avail itself of the use and privilege of the park does not change the character of the park district as a governmental agency. Carstens v. City of Wood River, 344 Ill. 319. So long as the fee is reasonable, it may be charged lawfully in order to provide and maintain various instrumentalities used by the park district for the benefit of the public. The fact that the park district, as created by the act, is carved out of a particular section or portion of another municipality does not take from it the controlling feature of its public use. Its enjoyment and amusement are not limited to the particular park district, but are for the benefit, health and recreation of the public generally. Furlong v. South Park Com’rs, 320 Ill. 507; Stein v. West Chicago Park Com’rs, 247 Ill. App. 479; Hendricks v. Urbana Park Dist., 265 Ill. App. 102.

No provision is made for the payment of any damages growing out of personal injuries and there is no fund out of which judgments of such character could be paid. It is true the commissioners of the park district have authority to raise funds by taxation, but this fund necessarily must be expended for the purposes for which the park district was created and it cannot be used for any other purpose. Backer v. West Chicago Park Com’rs, 66 Ill. App. 507; Hendricks v. Urbana Park Dist., 265 Ill. App. 102; West Chicago Park Com’rs v. City of Chicago, 152 Ill. 392.

It is attempted to distinguish the cases involving the West Chicago Park District because of the fact that the commissioners are appointed by the governor of the State. We are unable, however, to see the distinction. The purpose of the West Chicago Park District, under its commissioners appointed by the governor, and the park district involved in this proceeding are similar in their nature. Both were created and carved out by the legislature for the same general purpose, namely, for the health and welfare of the public generally.

It is also argued that the present rule is based upon the ancient doctrine that “the king can do no wrong. ’ We believe the rule is based upon a broader and more humane theory of government. The purpose of the State in the creation of park districts is primarily to provide for the health, welfare and entertainment of the public. The State could operate without such agencies, but without them the loss would be that of the public. They are not necessary to carry on the functions of government, but their existence is of inestimable benefit to the people. Accidents must, necessarily, happen because of their operation, but the great good to the greatest number greatly outweighs the hardships to the few. The health benefit derived by the general public is of first consideration, and it was evidently this fact which influenced legislatures in the creation of park districts similar to the one involved in this proceeding.

We are of the opinion that it is not requisite in considering the case at bar to discuss the question as to whether or not the defendant was operating in a private or governmental capacity. The park district had no functions that were private in their character. It was operated for the benefit of the public generally and for no other purpose. The case of Gebhardt v. Village of LaGrange Park, 268 Ill. App. 556, cited by counsel, was a case where the village had undertaken to run and operate a park and was operating buses for the purpose of carrying citizens of the village to and from the park. In the course of one of these journeys the plaintiff in that proceeding was injured and the court held that the village at the time was engaged in a private capacity and not a governmental one. We believe this case is distinguishable from the one at bar on the ground pointed out. Regardless of the rule announced in that case, this court still is of the opinion that it should adhere to the rule laid down in Stein v. West Chicago Park Com’rs, 247 Ill. App. 479.

For the reasons stated; the judgment of the superior court is affirmed.

Judgment affirmed.

Hebel and Hall, JJ., concur.


author: Mr. Justice Hall

text:
    William Jacobs, Defendant in Error, v. Olive G. Lucas, Plaintiff in Error.
    Gen. No. 35,688.
    Opinion filed March 29, 1933.
    J. Gray Lucas, Jambs B. Cashih and E. H. Morris, for plaintiff in error.

      Walter A. Rooney, for defendant in error.
   Mr. Justice Hall

delivered the opinion of the court.

By this writ of error it is sought to review an order of the municipal court of Chicago, entered December 12, 1929, striking from the files an amended affidavit of merits filed in said cause in defense of a writ of scire facias to revive a judgment obtained by plaintiff against defendant in the municipal court of Chicago on November 1,1922. Also by this order, defendant was defaulted for want of an affidavit of merits and the judgment revived. Defendant in error filed no brief herein. The writ recites among other things the following: “Now in behalf of said plaintiff, we have been informed that notwithstanding said judgment, execution of the same still remains to be made, and plaintiff has prayed that said judgment be revived according to law.”

In answer to the writ, there was filed in said cause an affidavit of merits, wherein defendant alleged that “on the 13th day of November, A. D., 1928, there was paid to and received by said plaintiff, William Jacobs, the sum of $1600.00 in full satisfaction and discharge of said judgment.” It is further set forth in said affidavit of merits that on the 15th day of July, A. D. 1922, defendant purchased from one Shapiro a certain automobile for the sum of $2,097, and that she paid therefor the sum of $800 in cash and delivered tó Shapiro seven promissory notes aggregating the sum of $1,297, signed by her with the power of attorney in each note authorizing the entry of judgment thereon, all of said notes being secured by a chattel mortgage on the automobile purchased; that thereafter the notes were indorsed and delivered to the plaintiff, who, on the 1st day of November, 1922, recovered a judgment by confession on all of the notes for the sum of $1,439 and $16.50 as costs of the suit; that execution issued on the judgment and was returned by the bailiff of the municipal court of Chicago with the indorsement of $680.50 paid thereon, which amount was receipted for by the plaintiff on such execution. It is further stated in such affidavit of merits that thereafter a levy was made by plaintiff on the automobile in question under the chattel mortgage given by defendant; that the defendant sued out a writ of replevin for the recovery of the automobile, gave the sheriff of Cook county a replevin bond for the sum of $2,400, and that in such replevin suit judgment was entered in favor of defendant Jacobs (plaintiff herein). It is further alleged in the affidavit of merits that thereafter Jacobs brought suit against defendant herein on the replevin bond given in said suit, recovered a judgment, and that execution issued upon said judgment and that a levy was made on certain real estate of the defendant which was sold to satisfy the execution, and that Jacobs received the sum of $1,887.85 of the proceeds of such sale; that the sheriff returned such execution satisfied, and that such sum so received by Jacobs was payment in full of all amounts due or claimed to be due and owing under the judgment in issue in this case, which affidavit of merits was stricken from the files by the order appealed from.

In Waterbury Nat. Bank v. Reed, 231 Ill. 246, the Supreme Court of Illinois said:

“The only defenses which can be set up in a scire facias proceeding are that no judgment was rendered, but if one was rendered that it has been satisfied or discharged. Bickerdike v. Allen, 157 Ill. 95; Smith v. Stevens, 133 Ill. 183.”

The order striking the affidavit of merits from the files herein became a part of the common law record in this cause. Therefore it was unnecessary to file a bill of exceptions herein showing the action of the court below in regard to its action in striking the affidavit of merits from the files. In Cohen v. Flaxman et al., 232 Ill. App. 240, the court said:

“At the outset, it is contended on the part of the plaintiffs that this court is not entitled, with only the common law record before it, to decide whether or not the trial judge erred in overruling the amended affidavit of merits and entering judgment by default. Considering, however, the nature of the plaintiffs’ claim as set forth in its statement of claim and the allegations in the last amended affidavit of merits, it seems but reasonable to conclude from the order of the court striking the amended affidavit of merits from the files that the motion to strike was considered as in the nature of a demurrer; and as it is the law that the action of the trial court in sustaining a demurrer is preserved for review without a bill of exceptions, we are of opinion that the action of the trial court is before us for consideration. Harmon v. Callahan, 286 Ill. 59.”

It was not necessary for an exception to be taken to the order of the court ordering the affidavit of merits stricken from the files. •

In People v. Upson, 338 Ill. 145, the county court of Fulton county entered an order assessing an inheritance tax against the appellant in that cause, from which order an appeal was prosecuted. With reference to the question as to whether an exception should have been taken to the order from which the appeal was taken, the Supreme Court said:

“Appellee contends that on this appeal there is no question presented for review because no exceptions were taken to the order of the court and preserved in the bill of exceptions. Previous to the amendment of Section 81 of the Practice Act in 1911 there would have been much force in this contention. The effect of the amendment was considered in Miller v. Anderson, 269 Ill. 608, and Pittsburgh, Cincinnati, Chicago and St. Louis Railway Co. v. Chicago City Railway Co., 300 id. 162, and it was held that the common law requirement of exceptions to rulings sought to be reviewed is obviated by the amendment of 1911. ’ ’

Although the point is not raised in appellant’s brief, the court calls attention to the fact that the writ in the instant case does not show that the judgment in question had not been paid. In Smith v. Stevens, 133 Ill. 183, in passing upon the question as to what a writ of scire facias must contain the Supreme Court said:

“The writ therefore must show not only that he has not had execution of his judgment, hut that his damages still remain unpaid, or that his right still subsists. In McVickar v. Heirs of Ludlow, 2 Ohio, 246, in discussing the necessary averments of writs of this character, the court say: ‘They must, therefore, contain everything that is required to constitute a good declaration; or, in other words, they must set out all the facts that are necessary to show a right in the plaintiff to the relief prayed for.’ In that case the court held the writ insufficient because it failed to aver that the plaintiff’s judgment was .unsatisfied. To same effect see Wolf v. Poundsford, 4 Ohio, 397; Union Bank of Georgetown v. Adm’r of Meigs, 5 id. 312.”

We are of the opinion that the facts set forth in the affidavit of merits constitute a defense to the action, and that the proper procedure of the municipal court is to allow respondent to file her affidavit of merits, and to give the parties a hearing on the defenses raised therein as was the procedure in Waterbury Nat. Bank v. Reed, supra.

The order of the municipal court of Chicago is reversed and remanded with the direction that it vacate the judgment, set aside the order striking the affidavit of merits from the files, and proceed as suggested herein.

Reversed and remanded with directions.

Wilson, P. J., and Hebel, J., concur.


text:
    Oscar H. Haugan, Appellant, v. Carl Thorgersen et al., Defendants. Bernard Given, Appellee.
    Gen. No. 35,984.
    Opinion filed March 29, 1933.
    Miller, Gorham, Wales & Adams, for appellant.
    Irving L. Block, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.

This is an appeal by the complainant, trustee, from an order of the circuit court of Cook county entered in a foreclosure proceeding directing the receiver appointed under a former order to pay over certain moneys collected by such receiver to the owner of the property. On an interlocutory appeal from the order appointing such, receiver, this court reversed the order upon the ground that the bill failed to make a sufficient showing to justify such appointment. After the filing of the mandate of this court in the circuit court, upon a petition filed by complainant, for the appointment of a second receiver, such appointment was made. In the interim between the appointment of the first receiver, the filing of the mandate of this court, and the appointment of the second receiver, said first receiver, as shown by its final account, had collected the sum of $11,407.05, had disbursed $6,770.50, leaving a balance on hand of $4,636.55, which sum this receiver, by the order of the circuit court, was directed to turn over to Bernard Given, the owner of the property. It is from this last order that this appeal is taken.

In complainant’s “Argument and Brief” he makes the following statement, which we will presume states his case in this appeal:

“In the cause at bar complainant elected to file a bill to foreclose and apply for the appointment of a receiver to collect the rents, issues and profits during foreclosure. The application for the appointment of a receiver is the only way in equity by which the mortgagee can reduce the rents, issues and profits to possession. Complainant in this case, therefore, did the only act which it was necessary or possible for him to do in equity to reduce his lien to possession.” True, and if complainant’s bill, upon which the application for receiver was made in the first instance, had made a case which entitled him to such relief, he would have had it. In reversing the order appointing the first receiver, this court said: (Haugan v. Thorgersen, 263 Ill. App. 656 [Abst.].)

“Presumably, the complainant could have made a showing as to the present value of the property so as to enable the court to determine whether it would be necessary to sequester the rents for complainant’s protection pendente lite, and it was complainant’s burden to make this showing.” This complainant did not do, so that the question as to whether or not under the bill as filed, he was entitled to have the rents, issues and profits from the mortgaged property sequestered pendente lite, is res adjudicatei.

In Levin v. Goldberg, 255 Ill. App. 62, this court said:

“The provision in a trust deed, pledging the rents, issues and profits is for the sole purpose of providing a secondary fund or security to protect the mortgagee against loss-in the event that upon foreclosure and sale there is a deficiency. Until the mortgagee takes possession or procures the appointment of a receiver, he has no better claim to the rents than a stranger. Until he takes such action the owner may permit any person whether duly authorized in writing or otherwise to collect the rents and retain, from the amounts collected, commissions and disbursements. It is Ms money and he may do ioith it as he pleases.”

In a late case the Supreme Court in Rohrer v. Deatherage, 336 Ill. 450, said at page 454: ‘ The mortgagor is entitled to his rents until a receiver is actually appointed, and the receiver cannot collect rents already paid to the mortgagor.”

Until the receiver now' acting was appointed, the income from the premises in question belonged to the owner. The trial court was not in error in ordering the receiver, whose appointment was nullified and deprived of its legal force and effect by the order of this court, to pay over to the owner the rents which such receiver had collected.

The order of the circuit court is affirmed.

Affirmed.

Wilson, P. J., and Hebel, J., concur.


text:
    George E. Lavelle, Appellee, v. Emanuel M. Steiner et al., Defendants. In re Petition of Russell Firebaugh, as Trustee, Intervening Petitioner, Appellant.
    Gen. No. 36,032.
    Opinion filed March 29, 1933.
    John A. Blaice, for appellant; Arthur Abraham, of counsel.
    Joseph Fisher, for appellee Ben Nuendorf.
   Mr. Justice Hall

delivered the opinion of the court.

By this appeal Bussell Firebaugh, as trustee in a trust deed, seeks to have a decree reversed which dismissed for want of equity an intervening petition filed by him, as trustee, in a proceeding brought on October 19, 1931, by complainant to foreclose a trust deed on certain premises described therein. The trust deed was given to secure a bond issue in the total sum of $250,000. Of the total issue, complainant in the instant case held $19,000, which, by an agreement with the trustee, had been subordinated to the remainder of the issue. On the day on which the bill herein was filed, the court appointed a receiver for the property. Firebaugh, as trustee, had theretofore instituted a suit in the superior court of Cook county, Case No. 54,668, to foreclose the trust deed in question, and on October 28,1931, upon the petition of Firebaugh, as trustee, the court entered an order extending the receivership of the receiver appointed in the instant case to case No. 54,668, the proceeding brought by Firebaugh.

Thereafter, on January 15, 1932, after obtaining leave of court, Firebaugh, as trustee, filed an intervening petition herein, to which answers were filed by the receiver and other interested parties including the owner of the equity redemption. By the intervening petition, Firebaugh set forth his right as trustee to the possession of the property under the terms of the trust deed, and prayed that the court direct the receiver to surrender to the trustee the premises described, together with the rents collected subsequent to the filing of the intervening petition. 'Various hearings were had on the petition of the trustee, the answers thereto of the receiver and the owner of the equity, and on March 21, 1932, the court entered an order dismissing the intervening petition of Firebaugh, as trustee, for want of equity. It is from this order that this appeal is prosecuted.

In view of the fact that the bonds held by the complainant in the instant case have been subordinated to the remainder of the issue, complainant’s position is parallel to that of a second mortgagee, and his legal status is the same. The lien in favor of the bondholders, other than the $19,000 holding, is a prior lien. No answer to the intervening petition was filed by the complainant.

Complainant (appellee) does not take issue with the intervening petitioner upon the proposition that under the doctrine announced in Rohrer v. Deatherage, 336 Ill. 450, upon default under the prior lien of the trust deed the trustee in the first instance is entitled to possession of the property notwithstanding the prior appointment of a receiver on the bill brought by the complainant as the owner of the subordinated bonds. He states in his brief, “that the trustee under a prior encumbrance has the right on proper showing to obtain possession of the premises for which a receiver has been appointed under a junior mortgage foreclosure, is conceded, but that he may ‘renege’ and avoid the results of his own voluntary act, is emphatically denied.” Complainant’s contention is that because the trustee petitioned for and secured the extension of the receivership and acquiesced in the possession of the receiver, that the trustee is barred from maintaining his right to the possession of the property, and that at best the petition of the trustee to be put in possession of the property is addressed to the discretion of the court.

It seems to this court that it was not only proper but that it was the duty of the trustee to have petitioned the trial court to extend the receivership to the bonds having the prior lien in order that the rents collected by the receiver should be properly applied. In Cross v. Will County Nat. Bank, 177 Ill. 33, the Supreme Court said: ‘ ‘ Undoubtedly, where the first mortgagee is not made a party defendant to a bill to foreclose filed by a second mortgagee, such second mortgagee, procuring the appointment of a receiver to collect the rents and profits, is entitled to have such rents and profits applied upon his mortgage to the exclusion of the prior mortgagee; and, in such case, the prior mortgagee will not be entitled to payment out of the rents, until he tiles a bill to foreclose his mortgage and procures the receivership to be extended to his security.”

Consumers Bond & Mortgage Co. v. Sadin, 266 Ill. App. 141, was a proceeding exactly similar to the instant case, and in deciding the case, this court said:

“The petitioner contends that ‘as first mortgagee its right to the possession and incidental rentals is absolute upon default and assertion of its right; that therefore chancellor should direct the receiver (appointed at the instance of the second mortgagee) to step aside and permit petitioner’s exercise of its legal rights.’ In the recent case of Altschuler v. Sandelman, 264 Ill. App. 106, we held that the appointment of a receiver to take charge of mortgaged premises under a junior mortgage does not destroy the right of a prior mortgage to take possession; that there is no merit in the contention that the latter can then only have the receivership extended as to it, and that it is error to dismiss, for want of equity, an intervening petition demanding that a receiver, appointed at the instance of a junior mortgagee, surrender possession to a first mortgagee; that there is no material difference or distinction between the rights of a first mortgagee in possession of premises prior to an appointment or attempted appointment of a receiver at the instance of a junior mortgagee, and the rights of a first mortgagee not asserted until after a receiver has been appointed and is in possession at the instance of a junior mortgagee; and that the appointment of a receiver at the instance of a junior mortgagee can only be made without prejudice to the right of the first mortgagee to the possession of the premises, if he sees fit within a reasonable time to assert that right.”

In Rohrer v. Deatherage, supra, the Supreme Court said: “In this State a mortgagor is the legal owner of the mortgaged premises against all persons except the mortgagee and his assigns. (Williams v. Williams, 270 Ill. 552; City of Chicago v. Sullivan Machinery Co., 269 id. 58; Seaman v. Bisbee, 163 id. 91; Barrett v. Hinckley, 124 id. 32; Emory v. Keighan, 88 id. 482; Hall v. Lance, 25 id. 277.) While a mortgage conveys a title as between the mortgagor and the mortgagee, it is only a qualified title as security for the creditor during the existence of the debt, and the mortgagor is regarded as the owner of the land for all beneficial purposes, subject only to the rights of the mortgagee. (Theiner v. Speckin, 209 Ill. 181; Fitch v. Pinckard, 4 Scam. 69). After condition broken, however, the mortgagee is, as between him and the mortgagor, the owner of the fee. Ladd v. Ladd, 252 Ill. 43; Ware v. Schintz, 190 id. 189; Waughop v. Bartlett, 165 id. 124; Esker v. Heffernan, 159 id. 38; Oldham v. Pfleger, 84 id. 102; Barrett v. Hinckley, supra. The mortgagor has the right to sell or make leases of the premises, and his grantee or lessee will have the right of possession until default in the terms of the mortgage, but the mortgagor cannot make a lease of the mortgaged premises which will give greater rights than he himself possesses or will interfere with the right of the mortgagee to enter for condition broken. After condition broken, ejectment may be maintained by the mortgagee against the mortgagor or those to whom he may have assigned the equity of redemption. (Taylor v. Adams, 115 Ill. 570.) Upon default in the condition of the mortgage the mortgagee has the right to possession against the mortgagor, his grantee, lessee or anyone claiming under him by any right. In such case the mortgagee has several remedies which he may pursue to enforce the payment of his debt. He may sue the mortgagor in assumpsit for a judgment upon the personal obligation; he may sue in equity for the foreclosure of the mortgage; or he may recover the posses sion of the mortgaged property by an action of ejectment. These remedies are concurrent or successive, as the mortgagee may deem proper, and he may pursue any tivo or all three of the remedies simultaneously. (Bradley v. Lightcap, 202 Ill. 154; Fish v. Glover, 154 id. 86; Harper v. Ely, 70 id. 581; Rogers v. Meyers, 68 id. 92; Carroll v. Ballance, 26 id. 9; Vansant v. Allmon, 23 id. 26.)”

In this proceeding the trustee, under the trust deed, having a prior lien on the premises involved and the income therefrom, is merely seeking an additional remedy given by the law and the court should have granted the prayer of the intervening petition. The cause is, therefore, reversed and remanded with the direction that the court enter an order setting aside the order dismissing the intervening petition and enter such ordér and take such steps as may conform to this opinion.

Reversed and remanded with directions.

Wilson, P. J., and Hebel, J., concur.


author: Mr. Justice Hebel

text:
    Charles H. Stern and Maurice S. Stern, Executors of the Estate of Esther Stern, Deceased, Appellants, v. Independence State Bank and State Savings Bank and Trust Company, Appellees.
    Gen. No. 35,928.

      Opinion filed March 29, 1933.
    Lee D. Mathias, for appellants; Clyde L. Todd, of counsel.
    Epstein & Arvey, for appellees; Louis M. Mantynband and Elmer Gertz, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This was an action in assumpsit wherein the plaintiffs sought to recover the sum of $500 and interest which they had on deposit in the Independence State Bank at the time the bank closed. The State Savings Bank and Trust Company, the successor of the Independence State Bank, was made a party defendant, because of its contract with the Independence State Bank, whereby it agreed to assume and pay the obligations of the Independence State Bank. The cause was tried before the court without a jury, and upon the conclusion of the hearing, the court found- the issues for the defendants and entered judgment upon this finding. The plaintiffs appeal.

In March, 1930, the Independence State Bank suspended business and at that time the plaintiffs had on deposit in the bank $1,985. On March 24, 1930, the , Independence State Bank entered into an agreement with the State Savings Bank and Trust Company. By the terms of this agreement the Independence State Bank sold, transferred and assigned to the State Savings Bank and Trust Company all of its assets, and this bank assumed the liabilities of the Independence State Bank.

A letter dated March 3, 1930, was mailed to the plaintiffs, signed by S. C. Levin on behalf of the depositors’ committee, which letter related to a proposed organization of a new bank to take over assets of the Independence State Bank. In order to raise the required sum of money, it was suggested in the letter that each depositor assign 25 per cent, of his deposit for the purchase of collateral trust gold notes signed by Louis Bomash in the aggregate amount of $650,000, secured by a trust deed upon 10 parcels of real estate owned by Bomash. Inclosed with this letter of March 3, 1930, was a proposal, which was to be signed by the plaintiffs, as follows:

“Independence State Bank,

“Chicago, Illinois.

“Dear Sirs: *

“Under date of, February 28, 1930, Louis Bomash delivered a letter addressed to the Members of the Depositors’ Committee Representing the Depositors in the Independence State Bank, outlining a plan to protect the depositors of your bank and to assist in the reorganization of a new bank.

“Among other things, this plan provides for the creation by you of a trust; the transfer assignment and conveyance to the Trustee named in said trust of certain real estate securities and/or collateral and the execution and delivery to you by said Trustee of trust certificates or other obligations of the Trustee in the aggregate principal amount of $650,000.00.

“As a depositor in your bank it is to my interest to assist in carrying out the plan outlined in the letter of Mr. Bomash and I therefore agree, upon the execution and delivery to you by said Trustee of trust certificates or other obligations of the Trustee in the aggregate amount of $650,000.00 as provided in said letter of Mr. Bomash to purchase $-face value of said trust certificates or other obligations of said Trustee and to pay for the same the face value thereof and accrued interest to date of delivery to me as follows :

“When you have received cash and/or subscriptions in an amount equal to the face value of said $650,000.00 of trust certificates or other obligations of said Trustee plus accrued interest to date of delivery to subscribers you are authorized to charge my deposit balance with the full amount of the purchase price of the trust certificates or other obligations of said Trustee which I hereby have agreed to purchase and thereafter you shall hold said trust certificates or other obligations of said Trustee for delivery to me or upon my order.

“In the event that you are unable to sell for cash and/or depositors’ subscriptions all of said trust certificates or other obligations of said' Trustee (in the aggregate principal amount of $650,000.00) within sixty days after receipt thereof by you, all right and obligation on my part to purchase any of said trust certificates or other obligations of said Trustee as herein provided shall cease and determine.

“No subscription from any depositor shall be valid if made for more than the amount on deposit with you of such subscriber unless accompanied by an agreement to pay cash for any such excess.

“Name:

“Address: 3/8/30.”

There is evidence of a telephone conversation between Charles H. Stern, one of the plaintiffs, and S. C. Levin of the depositors’ committee, to the effect that the plaintiffs would agree to sign the document mailed to them, upon the condition that the agreement would provide that the certificates would mature within 12 to 18 months after the date of the certificates; that Charles H. Stern, as one of the executors of the estate of Esther Stern, deceased, signed the form received by the plaintiffs and hereinbefore set forth, to which agreement was attached the following letter of the plaintiffs:

“March 8th, 1930.

“We are in receipt of your letter 3rd Inst., same having Government Post Mark, on March 7th, 1930, attached to your letter a typewritten form, specifying $500.00, to be purchased Trust Certificates. We return this typewritten letter same signed by us, authorizing you to make purchase of these said Certificates, in the name of Maurice S. & Charles H. Stern, Exec’t. with the understanding that these Notes, are to mature in one year to 18 months, not later, bearing 6% interest, and that the remaining balance to be given to us immediately after the opening of the bank.

“We have been informed by your Mr. S. C. Levin, on the phone yesterday, that there is a balance due Esther Stern Estate. Executors, Maurice S. & Charles H. Stern, the amount of $1,985.00, and that the 25% for the Trust Certificates, charged against us $500.00, to be deducted from this amount, leaving a net balance due us $1,485.00.

“If the above meets with your approval, and you agree to remit us the balance as above stated, you may then proceed with the $500.00 Trust Certificates, also acknowledge confirmation as to the herein.

“Tours very truly,

“Esther Stern Estate.

“By: Charles H. Stern,

Executor.”

It also appears from the evidence that after the mailing of the letter by the plaintiffs inclosing the proposal signed, by them, they were notified to call for the trust certificates provided for in the agreement; that the plaintiff Charles H. Stern was tendered certificates made payable in 36 months, which were refused by him; that no other certificates -were offered to the plaintiffs, and that on March 3, 1930, the plaintiffs withdrew from the Independence State Bank $1,485, leaving a balance on deposit of $500.

The defendants urge that by a preponderance of the evidence they have established that a novation was agreed to between the parties and that by the plaintiffs ’ purchase of the collateral trust certificates they released the Independence State Bank, and its assigns, from all liability. It is clear from the record that no time was fixed for the maturity of the certificates, and in order to be assured of the time of maturity the plaintiffs mailed the letter attached to the proposal, stating that the certificates would be accepted if the maturity date was within 12 to 18 months from the date of the certificates. This was a qualified acceptance by the plaintiffs. The modification of the contract was not acceptable to the defendants and there was no purchase by the plaintiffs of the certificates offered by the defendants.

In the case of Worley v. Holding Corp., 348 Ill. 420, the court, in passing upon the question of when the acceptance of a contract is established and applying the rule to that ease, said:

“An acceptance must "be unequivocal in order to create a contract. (Section 58, Ee-statement of the Law of Contracts, the American Law Institute.) A reply to an offer, though purporting to accept it, which adds qualifications or requires performance of conditions, is not an acceptance but is a counter-offer. (Section 60 of the same Ee-statement.) To constitute a contract by offer and acceptance the acceptance must conform exactly to the offer, and if it contains new conditions there is no contract. (Scott v. Fowler, 227 Ill. 104; Brach v. Matteson, 298 id. 387.) A letter written in reply to an offer, which re-states the terms of the offer, but with some variations, though slight, cannot be regarded as the consummation of a contract, and requires an acceptance upon the terms thus stated, and until unequivocally accepted, is only a mere proposition or offer. Maclay v. Harvey, 90 Ill. 525.”

The defendants contend that when the Independence State Bank closed its doors it alone was indebted to the plaintiffs, and that the State Savings and Trust Company did not assume the liability of the Independence State Bank to pay the plaintiffs the sum of $500 as alleged in the plaintiffs’ statement of claim. Having concluded that there was no novation established by the acts of the parties in the instant case, the liability of the Independence State Bank to the plaintiffs was a deposit. liability. In the agreement between the two banks, the State Savings and Trust Company, designated as the new bank, expressly assumed and agreed to pay the liabilities of the Independence State Bank, referred to in the agreement as the Old Bank, to its “commercial and/or savings depositors.” By the assumption of the liabilities of the Old Bank, the New Bank received all of the assets of the Old Bank, and upon receipt of such assets by transfer, the New Bank obtained sole title to the property. The New Bank having assumed the obligation to pay the depositors, the plaintiffs had a rig'ht to enforce the fulfillment of this obligation, which was made for the benefit of depositors, and the right of action accrued when the plan in question was not acceptable to the parties.

For the reasons indicated, the judgment is reversed and the cause remanded for a new trial.

Reversed, and remanded.

Wilsou, P. J., and Hall, J., concur.