text:
    R. S. Wishard, Receiver of the State Bank of Commerce, Wheeler, Illinois, Appellant, v. School Directors of District No. 11, Town 7 North, Range 8 East, Jasper County, Appellee.
    Opinion filed March 4, 1935.
    Albert E. Isley and Milo D. Yelvingtoh, both of Newton, for appellant.
    Kassermau & Kassermah, of Newton, Craig & Craig, of Mattoon, Fred L. Wham, Jr., of Centralia, and Robert M. Werdeh, of Mattoon, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Appellant in this proceeding- undertakes to appeal from a judgment entered in the circuit court of Jasper county on the 12th day of June, 1934. Appellee files a motion in this court to dismiss the appeal and in support of the motion attaches the affidavit of the clerk of the circuit court, dated December 14,1934, to' the effect that no notice of appeal was filed in the circuit court within 90 days after the date of the judgment and that in truth and in fact no notice of appeal has ever been filed.

In Veach v. Hendricks, 278 Ill. App. 376, an opinion filed at the October term of this court, we reviewed the various sections of the Civil Practice Act and rules of court in reference to the notice of appeal and there said “that the filing of a notice of appeal is jurisdictional and that the proceedings of the lower court cannot be reviewed on appeal unless such notice has been filed. The right of appeal is purely statutory and the statute granting such right must be strictly complied with. Hall v. First Nat. Bank, 330 Ill. 234; Davison v. Heinrich, 340 Ill. 349.”

Appellants file objection to appellee’s motion to dismiss the appeal and in support of said objection urge that counsel for respective parties were present in court on the 12th day of June, 1934, the date the judgment was granted and appellants were allowed 100 days for the filing of a bill of exceptions; that thereafter the bill of exceptions was examined and approved by counsel for appellee; that later they joined in a stipulation waiving the necessity of a praecipe for a record; that the record was filed in this court and that thereafter notice of application of appellants for an extension of time to file abstracts and briefs was served upon attorneys for appellee; that the abstracts of record and briefs and arguments were prepared and on the 30th day of November, 1934, copies were served upon attorneys for appellee; that on the 4th day of December, 1934, the attorneys for appellee served notice on counsel for appellant for an extension of time until the 15th day of January, 1935, in which to file briefs for appellee ; that said extension of time was granted by one of the judges of this court and that on the 14th day of December, 1934, a motion to dismiss the appeal was served upon appellant’s counsel and a general appearance was entered by appellee; that by reason of the facts aforesaid there was a waiver by appellee of any and all notice of appeal and that it is now precluded and estopped from relying upon any notice to effect an appeal to this court.

In Hawkins v. Hawkins, 350 Ill. 227, the court in disposing of a ease which should have been appealed to the Appellate Court instead of the Supreme Court, said, “The question of jurisdiction of the subject matter has not been raised, but where such jurisdiction does not exist, it cannot be conferred by consent or acquiescence.” (Miller v. Illinois Cent. R. Co., 327 Ill. 103; Larson v. Kahn & Co., 322 Ill. 147; Road Dist. No. 6 v. McKinney, 299 Ill. 130; Foote v. Lake County, 198 Ill. 638.)

In Chicago, P. & S. W. R. Co. v. President & Trustees of Town of Marseilles, 104 Ill. 91, the parties undertook to waive the necessity of filing an appeal bond, and the court said, “The waiver by the appellee of the appeal bond did not operate to perfect the appeal for any purpose, either to make it incumbent upon the party praying the appeal to prepare the cause for a hearing at the present term, or to suspend the judgment in the court below. The parties are in precisely the same attitude they were before that waiver was filed. There is no appeal here for us to act upon, — nothing to dismiss. The cause will be stricken from the docket. ’ ’

Under the foregoing authorities, this court has no jurisdiction to consider the case in the absence of a notice of appeal. It is a requirement of the statute and is a matter that cannot be waived by agreement of parties nor supplied by estoppel arising out of the conduct of either party.

No appeal has been perfected; there is nothing to dismiss. The order will be that the case be stricken from the docket.

Cause stricken.


source: Caselaw Access Project

author: Mr. Justice Murphy

license: Public Domain

text:
    James H. Ripley, Appellee, v. Gustav Kaemmerer et al., Appellants.

      Opinion filed March 4, 1935.
    P. C. Otwell and Louis Klingel, both of Belleville, for appellants.
    F. J. Tecklenburg and Bussell H. Classen, both of Belleville, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

In September, 1918, appellee herein, by written instrument, leased to certain persons the coal rights in approximately 100 acres of land located near Belle-ville in St." Clair county. On June 11, 1930, appellants herein, by a chain of assignments, became the owners of the lease and, after making certain improvements, began the operation of a slope mine. All assignments, including the one to appellants, were made with the consent of appellee.

Appellee filed his bill in chancery in the circuit court of St. Clair county to the April term, 1932, alleging that appellants had violated the terms of the lease in the following respects: (1) by working the mine in an unworkmanlike manner causing falls of the roof and subsidence of the surface; (2) by failure to keep an account book at the mine; (3) by failure to provide a scale to weigh the coal; (4) by failure to make monthly statements to appellee; (5) by refusing to pay 10 cents per ton royalty on the coal mined and removed from said mine; (6) by failure to make annual survey as required by statute; (7) by employing a second class mine manager while employing more than 10 men as miners; (8) by selling* an interest in said lease without the consent of appellee. The prayer was for an accounting* to determine the amount of royalty due and unpaid, that' appellee be allowed damages for subsidence of the surface soil caused by improper mining and that the court declare a forfeiture of the lease.

The defendants answered the bill denying* all the material allegations, except as to the charge of failure to pay royalty at the rate of 10 cents per ton and, as to that allegation, they averred the lease provided that when conditions change that then the rate should be four cents per ton instead of 10 cents and “that conditions in the mining* industry have changed to such an extent that they should be required to pay only the sum of four cents per ton as provided by the terms of said lease.” There is no averment in the answers as to what the conditions were upon which the change was based. General replication was filed and the cause referred to the master in chancery to make findings of fact, report conclusions of law and make recommendations for a decree.

The material parts of the lease upon which the royalty controversy arose are as follows: “To pay to the lessors the sum of ten cents for each and every ton of mine run coal mined and taken out of said mine, except the necessary coal that is consumed by the lessees in the necessary operation of said mine. . . . It is agreed, however, by the parties hereto that the ten cents to be paid by the lessors for every ton of coal mined and taken from said mine is based on the present conditions and it is stipulated and agreed that when those conditions change that then the rate shall be four cents for every ton of coal mined instead of ten cents per ton mined.”

In support of appellants’ contention that the conditions had changed, justifying a reduction of royalty from 10 cents to four cents, they offered evidence as to the sale price of coal and the cost of production at the time of the execution of the lease in 1918 and in 1931 and 1932. There is no evidence tending to prove the date the changes in price and cost of production occurred.

Appellee contended that the “conditions” referred to in the lease, the change in which was to justify a reduction in royalty, was in reference to the construction of a railroad switch to the mine, thus enabling the operators to load onto railroad cars instead of wagons and trucks and offered evidence tending to support his theory.

On this branch of the case, the master found that the evidence was so conflicting that it was impossible to determine what the parties meant in the use of the words “present conditions” and “when those conditions change” and he recommended that the decree be entered denying appellee’s prayer for forfeiture for failure to pay royalty and that appellants be held to account to appellee for 10 cents per ton and that, if the same was not paid within 30 days from the date of the decree, the lease be declared forfeited, otherwise, in full force.

Upon the other issues raised by the pleadings, evidence was introduced and the master found that during the period the mine was being operated by appellants, four falls had occurred which resulted in the subsidence of the surface; that these falls were caused by an attempt on the part of appellants to drive entries through under a certain ravine for the purpose of reaching a field of coal lying beyond; that appellee knew of these attempts and consented and acquiesced in appellants’ efforts and that in the attempt to drive said entries, the appellants did it in a workmanlike manner and that appellee was not entitled to damages for subsidence of the surface soil; that appellee caused a notice of forfeiture of lease to be served on appellants, but, that the proof was not sufficient to warrant a forfeiture of the lease.

Exceptions were overruled and a decree entered in accordance with the findings and recommendations of the master and taxed one-half the costs to each of the parties.

Appellants perfected their appeal to this court from that part of the decree finding that the. royalty clause in said lease was so ambiguous and uncertain that its meaning could not be determined, that it was null and void, that the provisions of the lease requiring 10 cents per ton royalty was in full force and effect, that the appellants owed plaintiff for royalty $3,009.80, and from the order directing that appellants pay one-half the costs.

Appellee has perfected his cross appeal from that part of the decree finding that the defaults of appellants were not of a sufficient, grave nature to warrant the termination of the lease and for failure of the court to allow damages for the subsidence of the surface and on that part of the decree which directed that one-half of the costs of the suit should be paid by appellee.

The questions presented on appellants’ appeal calls for a • construction of the royalty clause in the lease. In construing a contract, it is proper for the court to take into consideration the surrounding circumstances and to place itself as nearly as it can in the same situation as the parties who made the lease, so that it may view the circumstances as they viewed them and so it may judge the meaning of the words and their application to the things described as the parties judged and applied them. But, this does not give either party the right to establish a different contract from that expressed in the written agreement. Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102. It is to be presumed that the parties introduced into the contract every material item and term and in construing it, the court will not add thereto another term about which the agreement is silent. Decatur Lumber & Mfg. Co. v. Crail, 350 Ill. 319; Sterling-Midland Coal Co. v. Great Lakes Coal & Coke Co., 334 Ill. 281. It is-apparent that at the time of the execution of the contract in 1918, there were many conditions and circumstances surrounding the making of that contract, the change of which might properly be considered in changing the royalty to be paid under such changed conditions. The contract is silent as to which one or ones of those conditions the parties agreed upon. For this court to say it was one or the other of such conditions that then existed is to add a provision to the contract which the parties did not agree upon. A provision in a contract cannot be given effect when the court is left to ascertain the intention of the parties upon such provisions by mere conjecture or guess. Woods v. Evans, 113 Ill. 186.

‘ ‘ The motives and intentions of the parties can only be known from the writing to which the contract is reduced, and no assumption which is contrary to the language used therein can be based upon any external consideration. (Emerich Outfitting Co. v. Siegel, Cooper & Co., 237 Ill. 610.) The intention must be determined from the language used in the instrument and not from any surmise that the parties used the language to express an intention or meaning they had in mind bnt failed to express, and if they have overlooked a condition which they would perhaps have provided for if it had occurred to them, the court cannot guess at the provision they would probably have made and by construction read it into the instrument on the presumption that they would naturally have made such provision if they had thought of it.” Green v. Ashland Sixty-third State Bank, 346 Ill. 174.

In Davie v. Lumberman’s Mining Co., 93 Mich. 491, the court had before it for construction a miner’s contract containing a provision “as long as we can make it pay.” The court held that the wording was vague and that it was impossible to say that the minds of the parties concurred on the meaning of the words used.

Appellants contend that if the conditioning* part of the royalty clause is void for ambiguity and uncertainty that the whole clause in reference to royalty is likewise void. The clause in the lease that would, if valid, give the basis for a reduced royalty would only change the terms of the preceding clause as to the amount to be paid and since the condition upon which the changed rate has not been expressed in the contract and therefore void, the other provision would stand in full force the same as if the conditioning clause had never been inserted. Ditman v. Clybourn, 4 Ill. App. 542.

Upon the question of appellee’s right to recover damages for subsidence of the surface soil, the evidence shows that there was a ravine extending in an easterly and westerly direction across a part of this farm and that back of the ravine was a field of coal. Some one of appellants’ predecessors in title drove an entry parallel with the ravine and then undertook to reach the field back of the ravine by driving rooms under the ravine. Four of these rooms had been started at the time appellants began operation of the mine. As appellants drove these rooms under the ravine, the rock roof of the rooms was found to be checked and full of crevices. At the time appellants started operation, the rooms which had been started by their predecessors were 25 to 30 feet in width and the roof at that point was in good condition. A preponderance of the evidence shows that as appellants approached the ravine and the defective condition of the roof grew worse, they narrowed the rooms from the previous width until at the time of the cave-ins, the rooms were in width varying from 8 to 14 feet. The preponderance of the evidence is that this was proper mining under such conditions.

Appellant Kaemmerer testified that after the first fall in the roof he had a conversation with appellee in which he told him of the condition of the roof, that there had been a fall in one room and that it would be necessary to pull the track out of the other rooms and stop them, that it was very bad, and, that appellee said to him, “Don’t do that. Try it in the next place or two places. Try and get through there. I don’t care if a place or two does cave-in.” He said he wanted to get through to get the coal on the other side of the fall. Three other witnesses, testifying for appellants, corroborated Kaemmerer as to this conversation. It was denied by appellee.

The master found that in the mining operation of said mine by appellants, four falls occurred; that they were the result of an attempt to drive entries through so as to get out the coal lying beyond; that appellee knew of these attempts and agreed and acquiesced to push through the entries and that the evidence fails to establish that the work was not done in a workmanlike manner and in accordance with good mining practice. This finding was confirmed by the circuit court.

Appellants contend that the findings of fact by the master have the same force and effect as the verdict of a jury but in Chechik v. Koletsky, 311 Ill. 433, the rule was stated to be that the master’s report and findings while prima facie correct are of an advisory nature only. All the facts are open for the consideration in the first instance of the trial court, and, in case of appeal, by the reviewing court. Without regard'to the finding of the master upon any particular question of fact, the ultimate and final question in the reviewing court is, Was the decree rendered by the chancellor the proper one under the law and the evidence?

We have examined all the evidence bearing upon the question of the workmanlike manner with which the entries in question were driven and the consent and acquiescence of appellee to appellants’ actions in driving such entries, and we find that the preponderance of the evidence supports the findings of the master and the decree of the court.

March 22,1932, appellee caused a notice of forfeiture of lease in accordance with section 9 of the Landlord and Tenant Act, Cahill’s St. ch. 80, 9, to be served upon appellants and as grounds for such forfeiture averred substantially the same violations alleged in the bill and hereinbefore set forth. There is no provision in the lease giving appellee the right to declare a forfeiture or to re-enter the premises for a yiolation of any of its terms.

At the beginning* of operations in the latter part of November, 1930, and to January 1, 1931, appellants did not keep a book showing the coal mined and taken from the mine but kept a book of the amount of coal sold. Appellee objected and beginning* January 1, 1931, appellants kept a book at the mine showing an account of coal mined and taken from the mine and evidence shows that appellee made settlements of his royalty on the basis of that book as long as appellants continued to pay royalty at the rate of 10 cents per ton. By so doing, appellee waived all right to declare a forfeiture for violation of the lease in that particular. When appellants began operation, the scales to weigh the coal was located on the tipple, but, in 1930, appellants made certain changes and moved the scales into the mine. The preponderance of the evidence is that appellee consented to such change. The monthly statements required by the lease to be made at the close of each month were furnished and as long as appellants paid 10 cents per ton royalty, appellee accepted it without protest, and made settlements on the basis of such monthly statements. The statements were furnished each month after appellants changed the rate of royalty in July, 1931, and a tender of royalty at four cents per ton figured on the tonnage as set forth in the statements was made. Appellee refused to accept the tender but it does not appear that he refused to accept or protest the contents of the monthly statements.

The evidence shows that appellants caused a survey to be made in 1931 and two in 1932 and we deem that to be a substantial -compliance with the statute and of the lease which required appellants to operate the mine “according to the Illinois State Mining Law.” The only evidence that appellants violated the statute by employing a second class mine manager when they had more than 10' men engaged as miners is found in the statement furnished by appellants to appellee under date of November 30,1931, which is a statement showing the tonnage that each of 11 men mined. This is explained by appellants.that Kaemmerer who was the manager was at times also engaged in mining coal and that on other occasions, they employed a man to work-at night when the others were not working, and that he mined coal a part of the time. There is no merit in this contention. Appellee concedes that the proof is insufficient to prove that any interest in the lease had been sold without his consent.

The only other ground for forfeiture urged is the failure of appellants to pay 10 cents per ton royalty instead of four cents. They made a tender of what they deemed to be due and in good faith undertook to comply with the terms of the lease as they construed it. While they were wrong in their construction, it would be inequitable to declare a forfeiture of the lease for failure to make the payment of the full amount of 10 cents per ton.

The court did not err in taxing the costs one-half to each party.

The decree of the lower court is affirmed.

Decree affirmed.


author: Mr. Justice Huffman

text:
    New England Mutual Life Insurance Company, Appellant, v. Ida W. Miller, Appellee.
    Gen. No. 8,874.
    Opinion filed March 22, 1935.

      Judah, Deichmann, Trumbull, Cox & Stern, of Chicago, for appellant; Alexander F. Deichmann, of counsel.
    Charles D. Page, of Elgin, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellant company, on February 14, 1934, issued its policy of insurance upon the life of Frank L. Miller, in the sum of $5,000, pursuant to his application made therefor on February 8, 1934. His wife, appellee herein, was named as beneficiary. The insured died on March 26, 1934.

Appellant brought its complaint in chancery to the circuit court of Kane county, on May 1, 1934, seeking a cancellation of said policy because of certain alleged false representations made by the insured in his application therefor; praying that appellee, her attorneys and agents, might be enjoined from bringing a suit at law upon said policy until the determination of this suit. The complaint set out and specified divers instances in the application by insured wherein the answers given are alleged to have been false and incorrect. Appellee filed her motion to dismiss the bill of complaint, which motion is in the nature of a demurrer, denying the right of appellant to maintain this action. The order of the trial court refers to the motion of appellee as a demurrer and the court by its said order sustained the demurrer and dismissed the bill of complaint.

Appellant in its bill of complaint, after making specific references to the false and incorrect representations of the insured, alleges that said policy of insurance would not have issued except that appellant relied upon such alleged false and untrue representations. The contract of insurance further provided that it should not take effect unless and until the application was approved by the insurer at its home office and the first premium paid thereon while the proposed insured was in good health. The allegations of the complaint clearly show that the insured was suffering at the time of procuring this policy, from the ailments from which he died some forty days later. It is charged' in the complaint that the insured in answer to one question with reference to whether he had ever previously applied for insurance which was denied, responded in the negative. Appellant alleges that this answer the insured knew to be false and untrue, because of the fact that he was denied insurance by another company on February 1, 1934, on account of one of the ailments from which he died. Appellant urged that unless it receives the relief sought herein, upon the expiration of the two-year period in the policy, the same will then become incontestable and appellant would have no defense thereto upon a suit at law by appellee to recover.

Appellee contends that equity will not intervene to cancel a life insurance policy, after the death of the insured, because of false and untrue statements made by such insured in his application therefor.

Since the trial of this cause and the filing of the briefs by the parties in this court, the right of appellant to maintain this action has been determined in the case of Western & Southern Life Ins. Co. v. Tomasun, 358 Ill. 496, wherein it is held the right exists on the part of an insurer to maintain such an action.

This cause is therefore reversed and remanded to the circuit court of Kane county with directions that the motion of appellee to dismiss this suit be denied.

Reversed and remanded with directions.


text:
    In re Estate of Catherine McConnell Wesley, Deceased. Edward F. Hoban et al., Appellants, v. J. J. Cole, Executor of the Last Will and Testament of Catherine McConnell Wesley, Deceased, Appellee.
    Gen. No. 8,917.
    Opinion filed March 22, 1935.
    Hyer & Gill, of Rockford, for appellants.
    Dixon, Devine, Bracken & Dixon, of Dixon, and W. A. Keho, for appellee; Robert L. Bracken and J. O. Ryan, of Dixon, of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellee was appointed executor of the estate of Catherine McConnell Wesley, deceased, under her last will and testament. Letters testamentary issued to him on January 12, 1931. Upon four different occasions he deposited the total sum of $4,770 in the Amboy State Bank, which deposits were made in the nature of certificates of deposit and issued to appellee as the executor of said estate. The bank suspended business on December 11, 1931. Appellee filed his final report in said estate on February 3, 1932, which was the first term of court following the expiration of one year from the issuance of letters testamentary.

Appellee’s report showed a total received of $14,734, with a balance then on hand of $11,449 for disbursements. Appellee asked that he might turn over to the residuary beneficiary his claim as executor against the bank for the $4,770 held by it at the time it closed its doors, in satisfaction of his liability for such funds so deposited.

No controversy exists about the facts in this case. Appellant filed his objections to that portion of appellee’s final report which sought to turn over the above claim against the bank for $4,770 to the residuary legatee, and thus be absolved from liability therefor. The trial court overruled the objection of appellant and held that appellee should be relieved from all personal liability and responsibility for such funds belonging to said estate that he had deposited in the Amboy State Bank, upon time deposit as aforesaid.

There is no question involved in this case regarding the neglect of the executor to make yearly reports to the county court and to pay out money thereunder. Appellee took prompt steps to make final settlement of this estate at the first term of court after the expiration of one year from the issuance of letters testamentary. Therefore, any question of loss occasioned by his neglect to bring the estate to a speedy settlement is not involved. The liability of an executor or administrator as to the money of an estate in his hands is that of an ordinary bailee for hire. He is not regarded as an insurer, and is not liable for the loss of such property where he has shown good faith, and has acted with the diligence usual with good business men under similar circumstances. Accordingly, it is an accepted principle in most jurisdictions that an executor or administrator who deposits money of the estate, in good faith, in a solvent bank of good repute, to the trust account and not to his own account or credit, is not liable for the loss of such money through the subsequent insolvency or failure of such bank. This is especially true when the executor or administrator is guilty of no delay in the administration of the affairs of the estate and in taking the necessary steps provided by statute for the paying out of such money to those who are entitled to receive it.

There is only one question involved in this appeal and that is whether such certificates of deposit shall be construed as loans by appellee to the bank, or be considered as deposits therein. The statute has conferred no power on executors to loan funds of the estate, and where such power is not conferred by the will, it follows that such loans are without legal authority and any such executor must be held accountable for any loss in consequence of such loan. Wadsworth v. Connell, 104 Ill. 369. The position taken by appellant is that these time deposits are loans by the executor to the bank and therefore made at his own peril. This is the only point urged by appellant for reversal. The position taken by appellee is that they are deposits and not loans, and that he is not liable therefor. Appellee in this respect relies upon the case of McCormick v. Hopkins, 287 Ill. 66. This question was fairly presented in that case and the court there directly held that a time certificate of deposit, issued by a bank, not subject to check, payable at a future time with a certain rate of interest, did not of itself change the character of the transaction from a deposit to a loan. It was there further said that although, to all effects, a certificate of deposit was similar to a promissory note, and negotiable as such, it did not therefore cease to be a certificate of deposit and the transaction was not transformed into a loan. The transaction out of which a certificate of deposit arises is one of deposit and not a loan. It is a transaction peculiar to the banking business and one that the courts should recognize and deal with according to commercial usage and understanding, and a deposit in this respect is generally understood to mean not only demand deposits subject to check, but also deposits not subject to check for which time certificates may be issued.

Since the submission of this case to this court, the Supreme Court of Illinois, in the case of Harrison v. Ault, 359 Ill. 75, at page 79, with reference to the question now before us, reaffirms the rule announced by it in the case of McCormick v. Hopkins, supra, in the following language: “It is there pointed out that a deposit of a time certificate is not a loan of the bank, and the distinction between such a loan as it is known and established in banking custom, and a deposit on time certificate, is set out.”

We are of the opinion that under the above holdings of the Supreme Court, it is definitely established that the transaction out of which a time certificate or certificate of deposit arises is a deposit and not a loan.

The judgment of the trial court is therefore affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Friend

text:
    Henry W. Herbst, Administrator of the Estate of Edward W. Herbst, Deceased, Appellee, v. J. Arthur Levy, Appellant.
    Gen. No. 37,517.

      Opinion filed March 29, 1935.
    Joseph H. Hinshaw, of Chicago, for appellant; Os-well G-. Treadway, of Chicago, of counsel.
    Bows & Bows, of Chicago, for appellee; Augustine J. Bows and John D. Casey, of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Henry W. Herbst, administrator of the estate of Edward W. Herbst, deceased, brought an action against defendant under the Injuries Act, Cahill’s St. ch. 70, on behalf of the widow and daughter of plaintiff’s intestate to recover damages for the alleged wrongful death of plaintiff’s intestate. Trial was had before a jury, resulting in a verdict and judgment for $8,500, from which defendant appeals.

Counts 2 and 3 of the declaration were dismissed and withdrawn, leaving only count 1, which alleged the negligence of defendant and that plaintiff’s intestate was in the exercise of proper care and caution for his own safety at the time of the accident. Defendant interposed a plea of the general issue and an additional plea averring that the widow and daughter of deceased had brought suit before the industrial commission of Illinois, under the Workmen’s Compensation Act, Cahill’s St. ch. 48, ¶ 201 et seq., alleging that deceased was employed under said act and that the accident arose out of and in the course of his employment, which it is averred barred plaintiff’s action.

The circumstances of the case are most unusual. The facts, as to which there is substantially no dispute, disclose that defendant was the owner of a 6-passenger Dodge motor boat, which he operated on Fox Lake and adjacent waters and kept at Larson’s boathouse, located a short distance from the village of Fox Lake, Illinois.

Early in the afternoon of August 5, 1931, Edward W. Herbst, the deceased, and A. C. Ehlers, employees of the North West Buick Company, of which defendant was vice president, drove from Chicago to Larson’s boathouse by automobile for the purpose of doing some work on the boat. Later in the afternoon, Carl K. Kenderdine and one Herman Gfruneberg arrived at the boathouse. The deceased and Ehlers were still working on the boat. They then took a trip around the lake, returning in about 30 minutes. The work on the boat was finished, and Kenderdine invited the others to his summer cottage across the lake for dinner. The deceased, Ehlers, Kenderdine, Gruneberg and defendant, all got into the boat and proceeded through the channel into Nippersink Lake, across another channel and over Fox Lake to Kenderdine’s home, where all had dinner except defendant who went to his own home nearby.

After defendant had his dinner he drove his boat around the lake for some 30 or 40 minutes. About 8:30, just before dusk, defendant drove back to Kenderdine’s home for the purpose of taking the deceased and Ehlers back to the boathouse, where their automobile was parked, in order that they might return to Chicago. The same five men, and also Elmer Jung, making six in all, got into the boat and started for Larson’s landing. Defendant was driving, seated on the left-hand side of the front seat. Next to him was Gruneberg. Kenderdine was sitting on the deck, facing forward with his feet hanging between defendant and Gruneberg. Ehlers and Jung were sitting on top of the cockpit, and deceased was standing in the rear of the cockpit, about the middle of the boat, with his elbow leaning on the windshield, facing forward.

The boat was traveling at a speed of between 1,800 and 1,900 revolutions a minute, which was equivalent to 12 or 15 miles an hour. It had crossed to the west end of Fox Lake, and was making a slight turn to the right, following the channel. For some reason which is not explained by the evidence the boat seemed to raise up in the water, then level down, and turn over to the left, throwing the occupants into the water. The steering wheel pulled defendant under the overturned boat. When he extricated himself and came up to the surface, four of the men had already come up but plaintiff’s intestate could not be found. They called his name, searched under the boat, dove around in order to find him, but could not. The boat sank, leaving the men out in the lake. Deceased’s body was recovered the next morning.

The boat had been purchased new a little over a year before, and was in good running order at the time. It had an 8-cylinder engine, capable of 3,200 r. p. m., which according to the evidence was equivalent to a speed of about 35 miles an hour. Defendant was familiar with its operation, had driven it over this route many times at various speeds, and it had never before capsized. It was equipped with regulation marine lights and life preservers. The surface of the lake was calm, the water clear, and no objects were observed floating on the surface of the water at the place of the accident.

There is evidence to the. effect that prior to the accident there had been observed pier posts floating in the water and weed pods, consisting of large masses of sea weeds, floating just at the surface. On several occasions some of these weed pods had been encountered which clogged the propeller, and made it necessary to stop and reverse the boat in order to clear the propeller of these weeds. When the boat was raised the following day, the steering mechanism appeared to be intact and there were but a few scratches in the varnish on the bottom of the boat.

Of the five surviving occupants of the boat, only two were called as witnesses. Defendant, called as a witness on behalf of plaintiff, testified in substance that the boat was in good running order; that he was driving along at about 12 to 15 miles an hour, with both hands on the wheel, looking forward, and that very little conversation ensued; that immediately preceding the accident the boat was proceeding along without any change of speed and following the course of the channel slightly to the right, when the boat seemed to rise suddenly, turn to the left and then capsize; and that he observed no objects floating upon the water immediately before the accident.

Fred Ludolph, another witness called on behalf of plaintiff, testified that he was engaged in building, selling and repairing boats and motors, and was familiar with this particular type of boat. He de- . scribed the mechanism of the motor, ignition, clutch, propeller and steering apparatus, and their various functions. In the course of his examination, several hypothetical questions were propounded, which he was permitted to answer.- He testified that in his opinion an obstruction sufficient to overturn a boat would cause a mark or dent to appear on the bottom part of the boat or the mechanism on the underside of the boat,- — -the propeller or rudder, also that the striking of an object sufficiently strong to overturn a boat would cause a jar or shock which could be definitely felt by the occupants of the boat; and that a boat of this type, operating at from 1,800 to 1,900 r. p. m., turning slightly to the right at the time, could not be overturned by sea weeds in the water. He was then given a hypothetical question containing some of the facts in evidence relating to the speed of the boat, the number of passengers, the condition of the water, and other circumstances, and asked whether he could determine with reasonable scientific certainty the cause of the capsizing of the boat. After numerous objections made by counsel for defendant, he was permitted to testify that the accident might have occurred by reason of the sudden closing of the- throttle, shifting the weight, and lowering both sides of the boat. These elements, however, were not included in the hypothetical question, and there was no evidence from which the jury could fairly find that any of these processes took place by reason .of anything that defendant did in operating the boat. In fact, defendant stated positively that he did not close the throttle or either increase or decrease the speed of the boat, immediately preceding the accident. While there is some evidence to show that the throttle was closed when the boat was taken from the water the following day, it is entirely possible that this may have occurred when defendant, who was caught behind the steering wheel when the boat capsized, struggled to extricate himself from his position.

Fred Bairstow, a resident of that region, testified on behalf of plaintiff that he was familiar with the lake at the point of the accident; that the water was some 15 feet in depth; that there was no particular flow in any direction at that point, and that the weeds growing in that particular part of the lake were then only two or three feet high, leaving clear water below the surface for approximately 10 or 12 feet.

K. K. Kenderdine was the only witness produced on behalf of defendant, and testified substantially to the same facts as the defendant with reference to the speed of the boat, the condition of the water, the arrangement of passengers, the absence of particles floating on the surface, and added that “the boat acted very peculiarly just ahead of the accident, — a couple of seconds before the accident, — and it seemed to sort of level out a bit. I cannot exactly describe what it was, but there was a peculiar action just a second or two before the accident occurred, and when the accident occurred the boat listed over to the left and forced me, oh, maybe about 8 or 10 feet. From the time I first sensed something going wrong until I was in the water was not over two or three seconds. I could see what Mr. Levy was doing. He was right at my left. He was driving the boat. He was looking ahead, as I recall. There wasn’t any particular conversation going on at this particular time.”

The foregoing evidence, substantially all that was introduced as to the circumstances immediately preceding the accident, utterly fails to disclose the cause of the capsizing of the boat. It was not seriously contended by plaintiff upon the trial, nor does he urge in his brief, that defendant was negligent in driving the motor boat at 12 to 15 miles an hour in the dark over these waters. The facts disclose that the boat was equipped with lights and other required safety devices. If deceased, who from a standing position in the middle of the boat, was able to observe the speed of the boat and the course taken, and the condition of the waters at that point, sensed any danger, it was his duty, in the exercise of ordinary care and caution for his own safety, to call defendant’s attention thereto. The sole charge in the declaration is the negligence of defendant, and it was incumbent upon plaintiff to prove negligence. From a careful examination of the record we fail to find any competent evidence of negligence that could properly have been submitted to the jury. In fact, the court seemed to entertain considerable doubt, at the close of plaintiff’s case, whether a cause of action had been established. When defendant’s counsel, in making the motion for a directed verdict, stated to the court “I cannot see any evidence upon which the court could allow this thing to go to the jury,” the court replied: “There is considerable merit in what you say. I think under the old practice I would be forced to make a ruling on it. . . . The new practice act seems to contemplate this case going to the jury, so, if the court is in error in granting or refusing to allow this motion, the appellate court can correct it without a retrial of the case. ... I appreciate that the evidence is very circumstantial, there isn’t any clear proof that the defendant acted in a negligent manner. On the other hand, I also appreciate the happening of such an event.” The court evidently had reference to section 68 of the Civil Practice Act (subsection 3-a, ft 196, ch. 110, Cahill’s 1933 Eevised Statutes), which permits the trial judge to reserve his ruling on motions for a directed verdict until after the entry of a verdict, but this section of the statute does not in any way alter the rule of law which requires the court to direct a verdict in favor of defendant where plaintiff has failed to adduce some evidence of negligence when negligence is charged.

In the argument employed by plaintiff under point one of his brief, seeking to show that negligence was established, his counsel states that “the case clearly falls within the rule known as res ipsa loquitur,” and his argument to the jury was based principally upon this theory of the case. To the extent that this doctrine may be invoked as a substitute for specific proof of negligence, it is a variance from, or exception to, the general rule that negligence" must be specifically alleged and proved. The reason for the rule rests upon the presumption that in view of the surrounding-circumstances the accident would not have happened had the defendant used ordinary care, and the injury itself will be deemed to afford prima facie evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. However, the presumption raised by the doctrine does not require evidence to the contrary of equal weight to overthrow it, for such presumption is not of itself evidence but raises a rule of evidence and yields to any contrary proof. Therefore, when the surrounding circumstances leave room for a different presumption, the reason fqr the rule fails. (Bollenbach v. Bloomenthal, 341 Ill. 539; McGowan v. Nelson, 36 Mont. 67.) In the case at bar, defendant having been called as a witness on behalf of plaintiff, proved by his own testimony and that of Kenderdine, the only two eyewitnesses testifying, that defendant was not guilty of any act or omission which caused the boat to capsize, and that he was driving with due care and caution. This evidence served to overcome the presumption which arose before the contrary proof was offered, and, as was said in Bollenbach v. Bloomenthal, supra, “the presumption vanishes entirely.”

In well considered cases resting upon the application of this doctrine as tending to establish prima facie evidence, and where liability was upheld, it will be found that in every instance there was an essential element present, namely, proof of the existence of the cause or thing which was alleged to have been the negligent act that produced the injury, or proof of such facts from which the existence of such cause or thing constituting the alleged negligent act was the only reasonable inference - that could be properly drhwn. (Conover v. Delaware, L. & W. R. Co., 92 N. J. L. 602.) Thus, in Benedick v. Potts, 88 Md. 52, 41 L. R. A. 478, plaintiff was riding as a passenger in a roller coaster conducted in an amusement park by the defendant, and he was picked up in an unconscious condition in one of the tunnels through which the roller coaster had passed, with a wound or bruise on his forehead, but there was no evidence of any agency which might or could have caused the injury. The court so held and in the course of its opinion said:

“The maxim does not go to the extent of implying that you may, from the mere fact of an injury, infer what physical act produced that injury, but it means that when the physical act has been shown, or is apparent, and is not explained by the defendant, the conclusion that negligence superinduced it may be drawn, as a legitimate deduction of fact. It permits an inference that the known act which produced the injury was a negligent act, but it does not permit an inference as to what act did produce the injury. ’ ’

In Slack v. Harris, 200 Ill. 96, one of the cases cited in plaintiff’s brief, an engineer had gone to a small room at the top of the elevator shaft shortly before the accident, for the purpose of repairing the elevator and to adjust the apparatus, and took with him a monkey wrench. While there he called to the elevator man, asking him to run the car up and down while the adjustment was being made. The car rose so rapidly that the operator was unable to control it and it struck the roof, injuring the operator who brought suit against the owner of the building to recover damages. Plaintiff contended that the engineer loosened certain nuts in the elevator machinery while the car was being-run up and down the shaft, causing the elevator to become uncontrollable. After the accident it was found that certain nuts were loose, and expert machinists testified that the accident could have been caused by the loosening of the nuts. There was no direct evidence, however, to show that the engineer did loosen the nuts, and in testifying he denied having done so. It thus became a question of fact for the jury to determine whether the only explanation offered for the cause of the injury was a negligent act, and at least some plausible ground was offered for the cause of the injury without indulging in any inferences as to what act produced it.

In the case at bar, the cause of the capsizing of the boat is, under the state of the record, left entirely to speculation and conjecture, and under these circumstances the doctrine of res ipsa loquitur cannot be applied.

To permit recovery under this rule in the instant case, plaintiff would also be required to prove that defendant was in possession and control of the instrumentalities by which the accident was brought about, and that the accident was of such a nature that it could not reasonably be expected to have happened if defendant was not negligent in the control of such instrumentalities. (Barnes v. Danville Street Ry. & Light Co., 235 Ill. 566; Chicago City Ry. Co. v. Rood, 163 Ill. 477; and Letush v. New York Cent. R. Co., 267 Ill. App. 526.) While it is true that defendant was in possession and control of the motor boat, he did not have control of the water in which the boat was being driven, of the objects or particles that might have been therein, nor of the currents of the lake. He might have avoided obstructions on the surface of the water, but if there were any submerged or that could not be seen, he was in no better position to discover them than was the deceased himself.

Various other ground is urged by defendant for reversal, but in view of our conclusion that no negligence was shown and that the doctrine of res ipsa loquitur is not applicable, we deem it unnecessary' to consider other points. In our opinion there was no evidence of negligence that could fairly have been submitted to the jury, and therefore the trial court should have allowed the motion of defendant for a. directed verdict at the close of plaintiff’s ease.

For the reasons stated the judgment of the trial court will be reversed without remanding.

Reversed and judgment here for defendant.

Scanlan and Sullivan, JJ., concur.


text:
    Theresa Kahn Bold and Dorothy Kahn, by Sam H. Levin, her Guardian, Appellees, v. Mid-City Trust and Savings Bank, Appellant.
    Gen. No. 37,530.
    Opinion filed March 29, 1935.
    Gustav E. Bebrlt, of Chicago, for appellant.
    Pritzker & Pritzker, of Chicago, for appellees; Richard Weinberger, of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Defendant seeks the reversal of a decree entered by the circuit court sustaining the master’s report and granting the relief prayed in complainants’ amended bill.

The essential facts disclose that December 2, 1927, Joe Kahn, father of the two complainants, then aged 12 and 16 years respectively, entered into a written agreement with Mid-City Trust and Savings Bank creating a trust for the benefit of his children, and designating the bank as trustee. Thereafter he transferred to said trustee securities valued at $2,000. The agreement empowered the trustee to invest the trust estate and keep it securely invested according to its best judgment and discretion. Upon Kahn’s death, defendant as trustee received, an insurance fund of $6,000 as part of the trust estate. With the proceeds of the original securities, which had been sold and converted into cash, and the $6,000 insurance fund, the trustee purchased certain mortgage bonds and notes owned individually by the defendant bank. These bonds and notes were parts of loans on various improved properties secured by first mortgage trust deeds.

In all except two instances defendant acted as trustee under these loans and charged the owners of the properties fees for certifying the bonds, which fees were deducted from the face value of the loan. It also received commissions, varying from two per cent to five per cent of the amount of the loans, which were likewise deducted from the face value thereof. It placed insurance on the properties, charging the owners the full premiums, and received rebates of approximately 25 per cent from the insurance companies. Upon the guarantee policies ordered on these loans, defendant charged the owners of the properties the gross cost of the policies, and retained a discount of 10 per cent. All the sums thus received for certification fees, commissions, rebates and discounts were placed in the bank’s general funds, and became part of its assets. After each loan was consummated, the bank held the bonds or notes evidencing the loans,- and these, likewise, became part of its general assets.

According to the stipulation of the parties, the bonds held by the trustee for the Kahn estate were sold by the bank to “Mid-City Trust & Savings Bank, as Trustee for the Estate of Joe Kahn,” at their respective par values, together with accrued interest. ¡ In several instances the bank sold some of the bonds, later acquired by the estate, to its customers, and subsequently repurchased them at discounts of one per cent to two per cent. The commissions thus made were also placed in the bank’s general funds.

After the Kahn estate had acquired these bonds, default occurred on each of the loans. When Theresa Kahn Bold, one of the beneficiaries, became entitled to her share of the estate and made a demand therefor, the trustee offered her a portion of the bonds in question. Neither she nor her sister, Dorothy Kahn, having ever consented to, nor acquiesced in the acts of the defendant, and having had no notice thereof, they thereupon repudiated the trustee’s transactions, and demanded an accounting. The accounting was denied and suit followed.

The court’s decree removed the defendant as trustee, appointed one Sam H. Levin as its successor, directed defendant as trustee and in its individual capacity to pay to Theresa Kahn Bold, and to Sam H. Levin, as successor-trustee for the use and benefit of Dorothy Na.hn; each $5,156.72, with interest and costs of suit, and entered judgment in favor of each of the beneficiary complainants, and against defendant as trustee and in its individual capacity, for $5,156.72, interest and costs.

The principal question involved is whether a trustee can buy from itself bonds and notes which it owned in its individual capacity, even though it acted in good faith, received full value for the securities purchased, and was, as in this instance, specifically authorized by statute to invest in first mortgage bonds. Illinois courts have not often had this question under consideration under similar circumstances, but in other jurisdictions they have dealt with the subject and laid down rather definite equitable principles as a basis for their conclusions.

Michoud v. Girod, 4 How. (U. S.) 503, at page 555 (1846), frequently cited, enunciates the general rule as follows:

“It therefore prohibits a party from purchasing on his own account that which his duty or trust requires him to sell on account of another, and from purchasing on account of another that which he sells on his own account. In effect, he is not allowed to unite the two opposite characters of buyer and seller, because his interests when he is the seller or buyer on his own account are directly conflicting with those of the person on whose account he buys or sells.”

In Magruder v. Drury, 235 U. S. 106 (1914), the brokerage firm of Arms & Drury made real estate loans for which it charged commissions ranging from one per cent to two per cent. Drury, a member of the firm, was trustee of the estate involved, and as such bought notes which were a part of such loans from his own firm at par. It was Drury’s contention that no profit was made by the firm of Arms & Drury on the sales of notes to the trustee ; that the transactions of Arms & Drury with the trustee were in the regular course of their business, in which they had their own moneys invested; that they cost the estate no more than if the transactions had been with some other firm or individual; and it was argued that if the firm of • Arms & Drury, out of their own moneys, made loans on promissory notes, upon which the borrower paid customary brokerages, those were profits on their own funds in which the estate could have no interest, and in which it could acquire no interest by reason of the subsequent purchase of those notes by the trustee for their real value, any more than could any of the purchasers of such notes from Arms & Drury claim such an interest; that the relation of the firm of Arms & Drury to the trustee benefited the estate, by enabling the trustee at all. times to make immediate reinvestment of its funds, without loss of income, and by enabling the trustee at all times to readily procure rein-vestments without the payment of brokerage fees commonly charged the lender for placing his money, as well as the borrower for procuring his loan, in times of stringency. However, the court held it to be a well settled rule that a trustee can make no profit out of his trust, and said (page 119):

“The rule in such cases springs from his duty to protect the interests of the estate, and not to permit his personal interest to in any wise conflict with his duty in that respect. The intention is to provide against any possible selfish interest exercising an influence which can interfere with the faithful discharge of the duty which is owing in a fiduciary capacity.” And, after quoting the above excerpt from Michoud v. Girod, supra, continued (page 120):

“It makes no difference that the estate was not a loser in the transaction or that the commission was no more than the services were reasonably worth. It is the relation of the trustee to the estate which prevents his dealing in such way as to make a personal profit for himself. The findings show that the firm of which Mr. Drury was a member, in making; the loans evidenced by these notes, was allowed a commission of one to two per cent. This profit was in fact realized when the notes were turned over to the estate at face • value and accrued interest. The value of the notes when they were turned over depended on the responsibility and security back of them. When the notes were sold to the estate it took the risk of payment without loss. While no wrong was intended, and none was in fact done to the estate, we think nevertheless that upon the principles governing the duty of a trustee, the contention that this profit could not be taken by Mr. Drury owing to his relation to the estate, should have been sustained.”

In In re Matter of Long Island Loan & Trust Co., 92 App. Div. 1, 87 N. Y. S. 65 (1904), affirmed in 179 N. Y. 520, the trust company, in pursuance of its private business, had made several mortgage loans and held the bonds and mortgages in its possession. The executive committee of the trust company adopted a resolution that such bonds and mortgages, being the property of the company, should thereafter be held in the trust estate involved in that case. The beneficiary urged that the transaction amounted to a sale to the trust estate' by the trustees, and was in violation of public policy which forbids a trustee dealing with a trust estate both as buyer and seller, and demanded that the bonds and mortgages be adjudged to belong to the trustee and that the trust fund be made good, with interest. In its opinion, the court said (page 66):

“The transaction on the part of this trustee, no matter what degree of good faith may have been back of the resolution of 1893, is counter to public policy. Trustees cannot be permitted to deal with trust funds in the dual capacity of buyer and seller. It has long been settled, and upon principles which cannot be controverted, that a trustee cannot deal in his own behalf with the funds intrusted to his charge for the benefit of another. He can neither purchase the trust funds for himself, nor exchange them for his own property. (Ackerman v. Emott, 4 Barb. 626, 649; Smith v. Rowlett, 29 App. Div. 182.) ”

The facts in St. Paul Trust Co. v. Strong, 85 Minn. (1901), were strikingly similar to the instant case. The beneficiaries there objected to the trustee’s accounting with respect to six notes, secured by real estate mortgages, and repudiated the investments as being improper. The trustee in its individual capacity owned these six notes. Shortly after the notes and mortgages were acquired by the trust company, they were sold to the company as trustee of the Strong estate without the consent of the beneficiaries, some of whom were minors, for the full amount of the principal represented by the notes, with accrued interest. Upon the original acquisition' of these notes and mortgages, the trust company charged the mortgagors a commission for making the loans. No part of this commission went into the trust estate; it was all retained by the company. The trustee in that case, as here, contended that the investments fully complied with the requirements of the statute, and that it exercised good faith in the transactions, but the court held that the purchases by the trustee from itself were not to be tested in that way, and the trustee was surcharged with the principal of the trust fund, together with simple interest. Also quoting from the Michoud v. Girod case, supra, the court said (page 5):

“The rule of law which forbids transactions whereby the personal interest of a trustee may be opposed to his duty has often been referred to and applied in this court. It was stated in Baldwin v. Allison, 4 Minn. 11 (25), that no rule is more fully settled than that which forbids a trustee’s dealing with himself in respect to trust property; that no fraud, in fact, need be shown by the beneficiaries, and no excuse can be offered by the trustee to justify such transactions. The fact established, the result inevitably follows. This proposition has been repeated and affirmed in many cases. In King v. Remington, 36 Minn. 15, 25, 29 N. W. 352, 358, it was put in this form:

“ ‘The rule which disables one occupying a confidential or fiduciary relation in respect to property the subject of . sale, from purchasing for his own benefit, and regarding him as a trustee if he do so purchase, is absolute, and looks to no other facts than the relation and the purchaser.’

“In Webb v. Paxton, 36 Minn. 532, 32 N. W. 749, it was stated that the doctrine ‘does not depend upon the existence of intentional fraud, but is an inflexible rule, founded upon the fact that the two employments are incompatible. ’ ”

In Cornet v. Cornet, 269 Mo. 298 (1916), the trustee, Cornet, and his partner, Zeibig, real estate brokers, purchased a group of mortgage bonds in the name of the firm at a discount of eight per cent of the face amount thereof, and paid for the said securities out of firm bonds. Subsequently Cornet, as trustee, bought these bonds from his firm at par for the trust estate. The beneficiary repudiated the trustee’s act, and the court, in commenting on the transaction, said (pages 322, 323):

“In making this investment the defendant violated various rules by which equity seeks to secure trust funds from mismanagement and waste. One of these rules is that the trustee who invests such funds in his own name becomes personally responsible. This is only a corollary of the rule that if he deals with the estate on his own account it must be at his own risk. Were he permitted to do otherwise it would place before him the constant temptation to make the trust fund a dumping ground for his own unsatisfactory ventures. . . . The rule is imperative that a trustee cannot buy his own property from himself for the purpose of the trust. It makes no difference that the sale is intrinsically a fair one and for a full consideration. ‘The policy of equity is to remove every possible temptation from the trustee.’ Pomeroy’s Equity Jurisprudence (3d Ed.), sec. 958.”

The Supreme Court of this State, as early as 1844 in the case of Thorp v. McCullum, in 1 Gilm. 614, laid down the rule that trustees and others sustaining a fiduciary and confidential relation cannot deal on their own account with the thing or the persons falling within that trust or relationship, and recently in Bennett v. Weber, 323 Ill. 283, followed the same principle in a case where the trustee purchased in his own name real estate from himself as trustee under the trust involved. While the facts in these two Illinois decisions are somewhat different from those in the instant case, the reasoning employed by the court in arriving at its conclusions followed the same equitable principles.

The most recent enunciation of the same rule made in this State may be found in Joliet Trust & Savings Bank v. Ingalls, 276 Ill. App. 445, where the question arose upon a motion to dismiss the petition of George Woodruff, as trustee under the last will and testament of Lewis E. Ingalls, deceased, and Myra H. Peale, beneficiary under said will, the petition charging among other things that the Joliet Trust & Savings Bank, individually, had sold to itself as one of the former trustees under said will, notes secured by trust deeds upon real estate, and thereby made a large profit for itself upon the sale of said securities to the said trust estate. A motion to dismiss the petition, taking the place of a demurrer, was allowed by the trial court. The court of review, however, reversed the order dismissing the petition, and stated that “from the facts alleged in the petition, it is clearly apparent that the Joliet Trust and Savings Bank, acting as trustee for said estate, and purchasing securities from itself, acted illegally. The same is a fraud upon the estate.”

Solicitors for the trustee in the instant case cite no authority contrary to the equitable principles thus laid down, but seem to rely upon the good faith of the trustee and the specific statutory authorization to invest trust funds in first mortgage bonds. We believe, however, that these considerations are not controlling. The rule as enunciated by the foregoing cases is an inflexible one, based on sound public policy and designed to remove every possible temptation from a trustee to make the trust fund a dumping ground for his own unsatisfactory ventures. The courts have followed this principle even in cases where the best of faith, care and prudence was exercised, and under circumstances showing that the loans were perfectly secured and bore the highest rate of interest ordinarily obtainable.

From the cases cited, it likewise appears that the act of the trustee in purchasing its own bonds is voidable at the instance of any beneficiary within a reasonable time after notice, and that course of action having been pursued in the instant case, the decree properly surcharged the trustee with the principal of the trust fund and interest and directed it to pay complainants the respective sums shown to be due them upon the accounting.

So far as the removal of the trustee is concerned, it should be noted that defendant, having made improper investments without the knowledge or consent of the beneficiaries, upon demand for an accounting refused to render the same, although the older beneficiary had become entitled to her share of the trust estate. She had not received anything from the estate, which was intended by her deceased father to contribute to her support, and under the circumstances we think it was not improper for the chancellor to order the trustee’s removal.

The remaining contention of defendant is in substance that the judgment in this case should be payable out of the trust estate. In its portfolio of securities, the Kahn trust had nothing but defaulted real estate bonds and notes. To turn these back to the beneficiaries, after finding that the trustee had committed a constructive fraud upon complainants, would afford them scant relief. In re Matter of Long Island Loan & Trust Co., 92 App. Div. 1, 87 N. Y. S. 65 (1904), affirmed in 179 N. Y. 520, and in the Cornet v. Cornet case, 269 Mo. 298 (1916), previously cited, the courts held the trustee liable for the full amount of the trust fund as an individual, and we approve that part of the decree which granted complainants herein the same remedy.

For the reasons stated, the decree of the circuit court will be affirmed.

Affirmed.

Scahlah and Sullivah, JJ., concur.


text:
    James Spelina, Jr., Appellee, v. Ernest Sporry and E. J. Albrecht Company, Appellants.
    Gen. No. 37,630.

      Opinion filed March 29, 1935.
    Igoe & Flaherty and Cassels, Potter & Bentley, all of Chicago, for appellants; Michael L-. Igoe, Barry Gilbert, George H. Mason, Leslie H. Vogel and E. Douglas Schwantes, all of Chicago, of counsel.
    Joseph Lustfield and William: C. Greatman, both of Chicago, for appellee; Abraham W. Brussell, of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Plaintiff brought an action of assault and battery in the circuit court to recover damages for injuries received as a result of an alleged wilful assault by defendant Ernest Sporry, superintendent of E. J. Albrecht Co. (hereinafter referred to as the corporation), his employer, by means of a deadly weapon. The jury awarded plaintiff $12,000, presumably including punitive damages, upon which judgment was duly entered. The joint appeal by defendants followed.

The declaration charged that the corporation, engaged in constructing a bridge in the Forest Preserve District in Cook county, Illinois, employed Ernest Sporry as its superintendent, and invested him with a shotgun for purposes unknown to plaintiff; that Sporry, while acting within the scope of his employment, with force and arms assaulted and shot plaintiff with said gun and so wounded and injured him that he was rendered incapable of attending to his business affairs, necessitating the expenditure by him of $500 in endeavoring to be cured of his wounds, and that said wrongs were done by Sporry to plaintiff against the peace of the People of Illinois, to the damage of plaintiff in the sum of $50,000.

Defendants, having first filed a plea of the general issue, obtained leave of court to file a special plea on the date of the trial, wherein they allege in substance that in the construction of said bridge the corporation purchased and owned certain lumber used for erecting scaffolds along said bridge; that plaintiff, with others, unlawfully came upon the bridge and scaffolding, destroyed the same, and was attempting to steal certain parts of the lumber; that when defendants requested plaintiff to desist he refused to do so, and thereupon Sporry, in defense of said property and to prevent the demolition of the scaffolding and the stealing and carrying away of said lumber, shot plaintiff as alleged in the declaration, “but in doing so used no more force than was reasonably necessary.”

To support the foregoing plea of justification, Sporry testified that during the summer of 1934 he was superintending the building of a concrete bridge over the Des Plaines Eiver in Lyons, Illinois, for defendant corporation; that on the afternoon of August 19, as he was about to leave for home he observed plaintiff and two other men wrecking a scaffold which the corporation had constructed along the bridge; that he went to the tool wagon, took a shotgun, walked along the curb to the east end of the bridge, leaned over the rail and fired a shot into the ground alongside plaintiff, who, with his companions, was pulling a plank from the scaffold. The men kept on working, and according to Sporry he then shouted “Get the hell out of there.” They looked up and plaintiff thereupon “grabbed a 3 x 6 — twenty feet long laying on the ground, and put it on his shoulder and walked in a south direction for the woods. The edge of the broken woods is 150 to 200 feet away from the bridge, clear of the bridge site. I shouted at him, ‘Drop it or I will let you have it.’ He was close to the woods and it looked to me that he would disappear with the lumber, and I shot. I leveled the gun in his direction without aiming and I shot. He dropped the piece and disappeared: I turned back to the tool wagon, put the gun away, stepped into my car and went home. I didn’t know Spelina before that time. I didn’t have any ill will or any ill feeling toward him. My purpose in firing the shot was to prevent him from taking the piece of plank away.”

Taking Sporry’s testimony as true, it may be conceded that plaintiff was a trespasser and a wrongdoer (although plaintiff and his witnesses deny wrecking the scaffold and taking any lumber, and the jury may have believed his testimony) without furnishing any excuse or justification for the assault made upon him by Sporry. If plaintiff was in fact taking away one of the defendants’ planks, Sporry “might lawfully have resisted all attempts to take it with sufficient force to make such resistance successful, yet no justification in law can be found for the assault” with a deadly weapon then made on plaintiff. (Powers v. People, 42 Ill. App. 427, 432.) As much as the law respects the property rights of an individual, it will

not permit him to take life or employ snch dangerous measures as will endanger life merely to protect his personal property rights. This rule is well settled hy authority and invariably followed. (Mills v. Wooters, 59 Ill. 234, 235; Davison v. People, 90 Ill. 221, 229; Commonwealth v. Donahue, 148 Mass. 529, 531, citing numerous cases to the same effect in various jurisdictions.)

Notwithstanding their plea of justification, defendants on oral argument conceded the foregoing principle of law to be entirely sound, but asserted that Sporry had no intent to hit or seriously injure plaintiff, and fired only to scare him away and cause him to drop the lumber. Sporry’s intent, so far as it may be important, is best evidenced by what he said and did. According to his own admission, he shouted, “Drop it or I will let you have it,” and then leveled the shotgun in plaintiff’s direction, and fired. The shooting was a deliberate act constituting an assault, and Sporry certainly must have apprehended that some of the shots fired in the general direction of plaintiff would take effect.

Defendants are chiefly aggrieved by the size of the verdict and insist it was produced by the court’s ruling on evidence and in erroneously instructing the jury. Defendants offered to prove “that on several occasions prior to the 19th of August, 1932, this witness (Charles Moderi), as an employee of E. J. Albrecht Company, had seen plaintiff in this case (James Spelina, Jr.) taking lumber away from the construction work on the bridge, and had on such occasions chased plaintiff away from the work.” The court excluded the proffered evidence. Defendants contend that this proof was admissible, both in support of their plea of justification and in mitigation of exemplary damages. It is argued that the jury were required to decide whether or not defendants used reasonable force in the protection of property which plaintiff was engaged in despoiling and stealing; that as the case was given to the jury, this was considered plaintiff’s first offense and they may have thought that under the circumstances, shooting toward plaintiff constituted a use of excessive force, a view that might have been altered in the light of the offered evidence; that the tendered proof was also admissible in mitigation of noncompensatory damages, and to show Sporry’s animus toward plaintiff, who they say had committed a series of depredations on property which Sporry, as superintendent of construction, was in duty bound to protect. We think the exclusion of the offered evidence may be justified on various grounds.- (1) For the reasons hereinbefore stated it was clearly inadmissible to show justification for the shooting with a deadly weapon. Even in the light of prior depredations, Sporry would not have been justified in resorting to such dangerous measures for the mere protection of defendants’ personal property rights. (2) While evidence of prior depredations is admissible on the issue of mitigation of damages, it must be limited to that particular issue. Counsel say that the evidence should have been received and subsequently limited by the instructions of the court to the specific issue for which it was competent, namely, in mitigation of damages. With this we cannot agree. The rule is well settled that if evidence is admissible on one particular theory, and an offer is made without limiting it to such issue, the trial court will be justified in rejecting the offer to prove matters generally. It was so held in Byler v. Asher, 47 Ill. 101, 103, where defendant offered certain evidence as a defense. The trial court rejected the offer. The evidence was admissible in mitigation of damages. The reviewing court approved the ruling, and said (p. 103):

“It is urged, that while this evidence does not constitute a defense, still it was proper to show the animus of appellants in refusing to receive the vote. It is an answer to this position, that it does not appear to have been offered for such a purpose, and even if it were proper, to mitigate damages, it should have been offered for that purpose, and not as a defense.” To the same effect are Village of Jefferson v. Chapman, 27 Ill. App. 43, 52; Sanitary District v. McMahon & Montgomery Co., 110 Ill. App. 510, 526; Sinopoli v. Chicago Rys. Co., 316 Ill. 609, 612. (3) The offer of proof was not competent because the facts therein stated were not logically relevant to the issue of mitigation of damages in so far as Sporry’s shooting was concerned. The offer does not state whether Sporry had knowledge of plaintiff’s prior depredations; it merely refers to the observation of Moderi, an employee of the corporation, and his conduct in chasing plaintiff away from the premises. It does not appear from the offer that Sporry had ever observed plaintiff taking lumber or that he had chased him away.

No evidence was offered by plaintiff on his case in chief as to the pecuniary circumstances of either defendant, but, on cross-examination Sporry testified, over the objection of defendants, that he was earning $36 a week and he was also permitted to state that the Albrecht Company, his employer and codefendant, was capitalized for $100,000, to which no objection was made. It is earnestly argued that this evidence was prejudicial to defendants on the question of damages. Obviously, the showing that Sporry earned $36 a week could not have produced the large verdict complained of, nor could such showing have been prejudicial either to Sporry or to the corporation. The evidence relating to the capitalization of the corporation was not objected to, nor was any motion made to strike the testimony, and therefore counsel cannot claim prejudicial error on that ground. The rule that a party cannot urge, as error, the admission of evidence to which no objection is interposed is so well settled as to require no citation of authority.

Defendants criticize that portion of the court’s charge to the jury which relates to punitive damages, as follows:

“The Court instructs the Jury that if you believe from the evidence that the assault was wanton, reckless or vicious and uncalled for in character, then the Jury may add to such actual damages, if any such you find, such a sum as you ..may believe from the evidence would be reasonable and just as punishment.

“The Court instructs the Jury that in actions for trespass for assault and battery such as is the case at bar, the condition in life and circumstances of the parties are proper subjects for the consideration of the Jury in estimating the damages. In such actions the Jury may allow damages not only to compensate the plaintiff, but also to punish the defendant or defendants, according to the circumstances of the case.”

Several pages of defendants’ brief are devoted to citations presuming to hold that it is error, as counsel say, to allow the jury to consider “evidence as to the pecuniary circumstances of the defendants or any of them.” We have carefully examined these and other authorities, and find that Illinois courts have been extremely reluctant to allow judgments to stand which apparently included a large measure of punitive damages where evidence of the pecuniary circumstances of one defendant probably induced a large verdict against other defendants in moderate or humble circumstances, or where the instructions were so phrased as to emphasize the pecuniary ability of one defendant to pay punitive damages. In actions of tort where punishment is introduced as an element of damages, the only reason ever, assigned for making inquiry into the condition and pecuniary circumstances of the defendant is that what would be a severe punishment for a poor man by way of fine or exemplary damages, might not be felt by one in better circumstances. Upon this principle alone has evidence of the inquiry into the pecuniary circumstances of a defendant been held competent and proper. (Smith v. Wunderlich, 70 Ill. 426.) The authorities are generally to the effect that it is proper for the jury to consider a single defendant’s wealth and pecuniary ability under proper instructions, where there are no codefendants. The difficulty, of course, arises where there are two or more joint tort-feasors, for if found guilty the same amount of damages must be assessed against all. While it appears that the evidence relating to the corporation’s capitalization in the case at bar was admitted without objection, nevertheless we are convinced that this evidence, together with the charge given to the jury, undoubtedly produced a verdict which, as defendants insist, was largely punitive. The charge to the jury in the case at bar is free from any of the criticisms leveled at instructions given in the cases cited, but that portion of the charge which tells the jury that they may consider “the condition in life and circumstances of the parties,” in estimating the damages, in the light of the evidence before the jury, could have reference to nothing else than the pecuniary circumstances of the parties, and was undoubtedly prejudicial to the defendant Sporry.

It is also urged that the court erred in refusing to charge the jury that if they should find the shooting was not wanton and malicious, that they might assess only actual damages suffered by plaintiff. This element is included in the charge hereinbefore set forth, and it was not error to refuse the instruction offered in another form.

Both defendants are represented by the same counsel, and they have insisted all through their briefs and on oral argument that the evidence and instruction produced a verdict which is not only excessive as to both defendants, but especially prejudicial to Sporry. Prior to the enactment of the Civil Practice Act, it would have been incumbent upon the court of review, in view of our conclusion in this regard, to have reversed and remanded the cause for a new trial as to both defendants. Under the new act as we read it, however, it is possible for the reviewing court to give any judgment or make any order which ought to have been given or made, and grant such relief, including a partial reversal, as the case may require. (Cahill’s 1933 Revised Statutes, ch. 110, ¶ 220; Fogel v. 1324 N. Clark St. Bldg. Corp., 278 Ill. App. 286.) Therefore, much as we regret so doing, and especially in view of the fact that defendant Sporry committed the assault, we feel constrained to reverse the judgment and remand the cause for retrial as to Sporry, but not as to the corporation defendant.

Defendants insist that the verdict was grossly excessive and we are inclined to hold with them in that contention. While it is true that the assault was wanton, the monetary loss suffered by plaintiff was nominal. He undoubtedly suffered considerable pain, and was confined to the hospital and his home for several weeks, and his injuries necessitated treatment and attendance by a physician. Examination of the medical evidence, however, justifies the conclusion that his injuries are in no way permanent. He was unemployed at the time of the assault, and suffered no loss of earnings. Upon a careful consideration of all the circumstances in the case, we believe that a judgment of $3,000 would have amply compensated him for his pecuniary loss, suffering and for the element of punishment which may be included in this form of action. Therefore, if plaintiff will file a remittitur of $9,000 within 30 days the judgment in his favor will be affirmed as against the corporation, E. J. Albrecht Company, for $3,000; otherwise it will also be reversed and the cause remanded for a new trial.

Judgment reversed and remanded as to defendant Sporry; and affirmed for $3,000 as to defendant corporation, E. J. Albrecht Company, on remittitur of $9,000 to be filed within 30 days by plaintiff; otherwise judgment to be reversed and the cause remanded.

Scanlan and Sullivan, JJ., concur.


author: Mr. Justice Scanlan

text:
    The People of the State of Illinois, Plaintiff in Error, v. Michael Nakielny, Defendant in Error.
    Gen. No. 37,782.

      Opinion filed March 29, 1935.
    Thomas J. Courtney, State’s Attorney, for plaintiff in error; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel.
    No appearance for defendant in error.
   Mr. Justice Scanlan

delivered the opinion of the court.

An information was filed in the municipal court of Chicago charging Michael Naldelny with intent to cheat and defraud the People of the State of Illinois by false pretenses. On February 6, 1934, defendant waived a jury and after evidence heard the trial court found him guilty as charged in the information and sentenced him to confinement in the house of correction for the term of 90 days and to pay a fine of one dollar. Defendant was committed to the house of correction and while serving his sentence the following verified “petition” was filed, on February 28, 1934:

“State of Illinois
County of Cook
“In the Municipal Court of Chicago
First District
"The People of The State of Illinoi vs. Michael Nakielny
No. 1282353
“Petition Under Section 89 of the Practice Act
“Your petitioner, Julia Nakielny, . . . respectfully represents unto this Honorable Court that one Michael Nakielny, is now incarcerated in the City of Chicago at the House of Correction, under a judgment entered by this Honorable Court on the 6th day of February, A. D. 1934, by which said judgment the said Michael Nakielny was sentenced to ninety days in the House of Correction and fined One Dollar.
“Your petitioner further shows that the said Michael Nakielny was charged and sentenced in the above entitled cause with obtaining money under false pretenses.
“Wherefore your petitioner prays that pursuant to Section 89 of the Practice Act of the State of Illinois, this court vacate said judgment entered on, to-wit, the 6th day of February, A. D. 1934, and set this cause for hearing to the end that these new witnesses be heard and that your petitioner may have a fair trial on the merits of this cause.
Julia Nakielny.”

On the same day the following orders were entered:

Order
“This cause coming on to be heard on petition filed and notice to State’s Attorney, it is hereby ordered that the defendant be brought from the House of Correction before Court Boom No. 1000, 1121 So. State Street, Chicago, Illinois, at 9:30 A. M., on the 1st day of March, A. D. 1934, to appear at a hearing on a petition for new trial under Section 89 of the Practice Act.
“Frederick W. Elliott
Judge Municipal Court.”

“This cause coming on to be heard on petition filed, the Court finds it has jurisdiction of the subject matter, and it is hereby ordered that defendant be brought from the House of Correction before Branch Court No. 27, 1121 So. State St., Chicago, Illinois, at 9:30' A. M. on the 1st day of March, 1934, to appear at a hearing on a petition for new trial under section 72 of the Civil Practice Act.”

The following order was entered on March 1, 1934:

“Motion new trial entered and allowed.

“State’s Attorney objects to new trial and proceedings.

“Said defendant being duly advised by the Court as to his right to a trial by jury in this cause elects to waive a trial by jury, and this cause is by agreement in open Court between the parties hereto, submitted to the Court for trial without a jury.

“Now come the people by the State’s Attorney and the defendant as well in his own proper person as by counsel also come, and said defendant being duly arraigned and forthwith demanded of and concerning the charge alleged against him in the information herein how he will acquit himself therefor for a plea in that behalf says that he is not guilty in manner and form as charged in said information.

“The people being now- here represented by the State’s Attorney and said defendant being present in his own proper person as well as represented by counsel and thereupon trial of this cause is now here entered upon before the Court without a jury, and the Court after hearing all the testimony of the witnesses and the arguments of counsel, and being fully advised in the premises, renders the following finding, to-wit: —‘The court finds the defendant, Michael Nakielny, guilty in manner and form as charged in the information herein. Wherefore it is ordered that the same be entered of record herein. ’ ”

The order further recites that defendant then filed an application to be admitted to release on probation, and that the court, having heard the evidence, granted the application and released defendant on probation for the period of one year. The People have sued out this writ of error to reverse the order entered March 1. The cause comes before us upon a common law record. Defendant has not filed a brief in this court.

Counsel for the People contend that it was error for the trial court not to strike the petition, as no notice was given as required by law; that the notice provided by section 89 is the process and that jurisdiction of the People could be obtained only by the service of the notice. One of the orders entered by the trial court on February 28 recites “notice to State’s Attorney.” The order of March 1 recites that the State’s attorney took part in the proceedings, and although the common law record recites that the People objected to the proceedings, there is nothing in the record to indicate that they raised the question of want of notice.

The People also contend that the petition does not state any ground for relief under section 89, is wholly insufficient, and that the action of the trial court in granting a motion for a new trial and in placing the defendant upon probation .was without warrant under the law.

“A motion or petition made under section 89 of the Practice act, and likewise under section 21 of the Municipal Court act, stands as a declaration in a new suit. The issue made and the judgment sought concern only the setting aside of the original judgment entered. The order made on such motion is a final order and directly reviewable as a final judgment. (Cramer v. Commercial Men’s Ass’n, 260 Ill. 516; Domitski v. American Linseed Co., 221 id. 161.) It is generally recognized that the proceedings under a motion or petition in the nature of a writ of error coram nobis are civil in their nature. (People v. Crooks, 326 Ill. 266; State v. Calhoun, 50 Kan. 523, 72 Pac. 38; 2 R. C. L. sec. 266.) The burden is on the one seeking to set aside the judgment, to prove by a preponderance of the evidence the facts alleged in his petition or motion. Errors of fact which may be availed of under section 89 of the Practice act or section 21 of the Municipal Court act include duress, fraud and excusable mistake.

“A writ of error coram nobis, or a motion under the statute, is an appropriate remedy in criminal cases as well as civil and lies to set aside a conviction obtained by duress or fraud, or where by some excusable mistake or ignorance of the accused, or without negligence on his part, he has been deprived of a defense which he could have used at his trial, and which, if known by the court, would have prevented conviction. (People v. Crooks, supra; Sanders v. State, 85 Ind. 318; 44 Am. Rep. 29; State v. Calhoun, supra; 2 R. C. L. sec. 266; 18 L. R. A. 842, note; People v. Perez, 98 Pac. (Cal.) 870.) Since the judgment entered upon such proceeding is final and the proceeding is civil in its nature, either the State or the defendant is entitled to a review of the judgment of the court entered on such motion or petition.” (People v. Green, 355 Ill. 468, 472-3. See also Barnes v. Chicago City Ry. Co., 185 Ill. App. 148, 150-1.)

The contention that the petition was wholly -insufficient to warrant a proceeding under section 89 is clearly a meritorious one. While it is headed, “Petition Under Section 89 of the Practice Act,” and prays that the judgment be set aside “pursuant to section 89 of the Practice Act,” there is no error in fact alleged in it of some fact unknown to the court at the time the judgment was rendered which would have precluded the rendition of the judgment had it been within the knowledge of the court at the time, and, therefore, section 89 could not be invoked, under such a petition, to vacate the original judgment. Newly discovered evidence touching exclusively the merits of the issues actually tried and determined by a final judgment of a court of competent jurisdiction is not ground for the petition. The petition does not even aver that the testimony of the “new witnesses” was not known to the defendant at the time of the trial, nor that he had not a full opportunity to present such testimony at the trial. Nor does it allege that the testimony of the “new witnesses” would show that he was not guilty of the charge. Where a party seeks to avail himself of the remedy of the writ of error coram nobis he must not only aver some error of fact which may be availed of under the writ, but he must also show that it was by no fault or negligence of his that the error in fact was not made to appear at the trial. Defendant, at the time the petition was filed, was serving his sentence, and the trial court had no power to entertain a motion for a new trial and to vacate or set aside its judgment (see People v. LaBuy, 285 Ill. 141; People v. Perlmutter, 306 Ill. 495, 497), hence the pretended proceeding under section 89.

“A writ of error coram nobis can only be procured by one who is a party, or privy to the record, or injured thereby.” (5 Ency. of Pl. & Pr. 31.)

“It is laid down in the elementary hooks, that a writ of error (coram nolis) can be brought by him only who was a party or privy to the record, or injured by the judgment, and who consequently will derive advantage from its reversal.” (Holford v. Alexander, 12 Ala. 280, 289. See also Snodgrass v. Snodgrass, 212 Ala. 74, 2 R. C. L. p. 309.)

Julia Nakielny, who commenced the instant proceedings and who verified the petition, is a stranger to the original judgment. Within the meaning of the law, she was not injured by that judgment, nor will she derive advantage from its reversal. “It (the motion) should show some meritorious right to be enforced, of benefit to the mover.” (Barnes v. Chicago City Ry. Co., supra, p. 151. See also Wagener v. Western Electric Co., 213 Ill. App. 326, 328.) Upon the same day that the petition was filed, the trial court set the “hearing on a petition for new trial” for the following morning at 9:30. In a proceeding under section 89, the State’s attorney, after written notice, has a right to test the sufficiency of the motion or petition by demurrer, plea of nullo est erratum, by motion to dismiss, by pleading special matters in confession and avoidance, or by making an issue of fact by traversing the allegations. (See People v. Green, supra, p. 475.) If the petition or motion is sufficient upon its face and the facts are disputed, an issue must be made up to be tried. In Mitchell v. King, 187 Ill. 452, the court held that the petition or motion is the commencement of a new suit in which new issues are made up, upon which there must be a finding and a judgment, and that “if the alleged error is proved and there is judgment for the plaintiff in error, it is that for such error the judgment be recalled and annulled. ’ ’ Later cases have followed that holding.

‘ ‘ The judgment upon a writ of error coram nolis is that the judgment complained of be recalled, if the issue is in favor of the petitioner; and the original suit is placed in the same position as it was when the judgment was rendered. The judgment complained of is affirmed if the issue is in favor of the defendant in error.” (5 Ency. of Pl. & Pr. 36, 37.) After the petition was filed and notice served the People should have been ruled to plead, and if they failed to comply with the rule default could then be entered against them. (Barnes v. Chicago City Ry. Co., supra, p. 151; Wagener v. Western Electric Co,, supra, p. 328.) No rule to plead, no default, was entered. The petition was plainly vulnerable to demurrer. As no errors of fact cognizable under section 89 were alleged in the petition, an issue of fact could not have been made up. Even if a rule had been entered against the People to plead and they had failed to comply with it, the proper procedure required that default be entered against them before judgment be taken. (Barnes v. Chicago City Ry. Co., supra; Wagener v. Western Electric Co., supra.) That the trial court treated the petition as an ordinary motion for a new trial is clear from the record. Without following any of the rules of procedure necessary in a proceeding under section 89 the trial court at once entered the order, “Motion new trial entered, and allowed,” and then proceeded to retry the original charge, and after finding defendant guilty, placed him upon probation.- In the order of March 1 there is no finding, no judgment, such as must appear .in a proceeding under section 89 (sec. 72, par. 200, ch. 110, Cahill’s Ill. Rev. St. 1933). The petition is so innately and substantially defective that it is insufficient to sustain" a judgment in a proceeding under section 89. In this connection, it will be noted that the instant writ of error involves a direct, not a collateral, attack upon the judgment order of March 1, 1934. That the trial court had no jurisdiction to entertain a motion for a new trial is settled law. The State’s at-torney is fully justified in contending that the alleged petition under section 89 was but a patent subterfuge intended to give the trial court an appearance of jurisdiction so that the defendant might be placed upon probation after he was no longer within the court’s jurisdiction.

The judgment order of March 1, 1934, is reversed. The State’s attorney should immediately take proper steps to bring about the recommitment of the defendant under the judgment order of February. 6, 1934.

Judgment order of March 1,1934, reversed.

Friend, P. J., and Sullivan, J., concur.