author: Mr. Justice Hebel

text:
    Addie Lawson, Appellant, v. Lyle R. Fisk and Clarence Hoklas, Appellees.
    Gen. No. 41,807.

      Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed December 9, 1942.
    Ryan, Sinnott & Miller, of Chicago, for appellant.
    Delmar J. Hill and Cyrus L. Garnett, both of Chicago, for certain appellee.
    Rawlins & Wright, Edward W. Rawlins and James F. Wright, all of Chicago, for certain other appellee.
   Rehearing Opinion.

Mr. Justice Hebel

delivered the opinion of the court.

In passing upon a rehearing that was allowed to the defendant Clarence Hoklas, one of the defendants in the above entitled cause and to which the plaintiff filed an answer, we will consider the questions as they are presented by the parties.

It has been suggested by this defendant that the legislature has seen fit to allow recovery for accidental injuries to a guest in an automobile only in case of injuries through wilful and wanton misconduct of the operator of the motor vehicle and that ordinary negligence on his part will not give rise to a cause of action to a guest.

In its opinion the court refers to a collision of defendant Hoklas’ car. and the defendant Fisk’s car at the intersection of 50th street and Woodlawn avenue, Chicago, with the defendant Hoklas proceeding east on 50th street and defendant Fisk proceeding.north on Woodlawn avenue, Woodlawn avenue being a through street against 50th street; and the court remarks that as defendant Hoklas approached Woodlawn on 50th street, he saw a stop sign and stopped west of it, but that he was the only witness out of seven who said that Hoklas stopped before entering Woodlawn avenue here.

It is also suggested by the court in its opinion that Hoklas told the investigating officers at the scene of the accident that he, Hoklas, “must have stopped back too far,” and later at the police station he told the same officers that he “did not stop at the through street.” Shortly after the accident, Hoklas told the police officers who investigated the accident that he first observed the north bound car to Woodlawn avenue when it was 10 to 20 feet from his car, at which time his, Hoklas’, car was about the center of the intersection. On the trial he testified that when the front of his car was at the west side of the west sidewalk of Woodlawn avenue he noticed the Fisk car 150 feet to the south. He admitted that he never mentioned to the police officers who interrogated him about the happening of the accident that he saw the Fisk car when it was 150 feet away. He further stated he did not remember seeing the Fisk car “until after he was sued. ’ ’ This suggestion that we have just offered was quoted by us in our opinion and from the facts as they are suggested it would seem that the facts related have a material bearing upon the question as to whether the defendant was, at the time of the accident, operating the car in a wilful and wanton manner. While the operator attempts to convince the court that he may have been guilty of negligence, still his evidence suggests, as repeated in this opinion, and would clearly indicate, that the manner of Hoklas ’ operating the car was a question for the jury to pass upon, and the very question that is important in the disposition of the case is whether such was the fact or not.

In discussing the guest case it would of course be necessary that we have in mind this provision of the statute which specifies that, “No person riding in a motor vehicle as a guest without payment for such ride . . . shall have a cause of action for damages against the driver . . . for injury ... in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the driver . . . . ”

While defendant’s counsel concede that there is grossly irreconcilable statement constituting some seeming contradictions in testimony in the negligence field, still, as we have already indicated, the questions that were to be passed upon were for a jury. And, while it is true if there was not any evidence that would indicate that there was wilful and wanton conduct in the operation of the car the court may have some authority to pass upon that question, in this case the evidence, it would seem to this court, fully justifies the jury in finding that the defendant operated the automobile in a wilful and wanton manner at the time of the áccident.

It has been called to our attention that in the opinion we have filed the court remarks that Hoklas stopped west of the stop sign. The court in its opinion said, “he stated he fully realized it was a stop sign, that he stopped his automobile a few feet west of it. He is the only witness, as stated in the briefs, who testified that he obeyed the stop sign.” So, in the suggestion of the remark of the court it is altogether different from that that was called to our attention by Hoklas upon this question. However, it is well to have in mind and counsel has briefly summarized a definition of wilful and wanton conduct, citing as authority therefor the case of Clark v. Hasselquist, 304 Ill. App. 41. In the opinion in that case the Appellate Court for the second district quoted a complete statement of the rule as announced by our Supreme Court, as follows. In Streeter v. Humrichouse, 357 Ill. 234, the court said:

“To constitute an act wanton, the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must he conscious, from his knowledge of the surrounding circumstances and conditions, that his conduct will naturally and probably result in injury. An intentional disregard of a known duty necessary to the safety of the person or property of another, and an entire absence of care for the life, person or property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal wilfulness.”

So when we come to consider the authority just quoted it is apparent from the facts as they are in this record that Hoklas stands convicted of wilful and wanton operation of Ms automobile, and therefore, in further consideration, Hoklas was conscious of his conduct and fully realized that there was a stop sign protecting Woodlawn avenue and that Woodlawn avenue was a through street; and it was obvious to Mm, as it would be to any motorist that disobedience of such stop sign and driving out across a through street without keeping a lookout for the approaching vehicles would naturally and probably result in injury.” Moreover, he manifested ‘ ‘ an intentional disregard of a known duty necessary to the safety of another.” It was Ms “known duty” to bring his car to a stop before passing that stop sign and not to drive on to and across that through street without doing so. This duty was imposed by the Uniform Act Regulating Traffic on Highways, and from the facts as they appear HoHas “intentionally disregarded” it. The performance of this duty “was necessary to the safety” of the plaintiff. The statute was a safety measure, and it would appear from the injuries that the plaintiff has received and sustained through Hoklas’ disregard of that duty how necessary to her safety was the observance of the statutory duty imposed on Hoklas to obey the stop sign. Further, it was suggested by the plaintiff that there was “an entire absence of care on his part.” He intentionally disobeyed the stop sign and after doing so he failed to maintain any lookout for vehicles approaching on Woodlawn avenue, so that he exercised absolutely no care whatsoever for the plaintiff’s safety. His conduct in wilfully, intentionally and deliberately driving past the stop' sign and crossing that through street with unchanging speed and in doing so without maintaining a lookout for approaching vehicles certainly exhibited conscious indifference and the consequences clearly make a case of constructive or legal wilfulness.

However, counsel for this defendant claim that their client’s conduct amounted to mere negligence because he stated he thought he had time “to make the crossing” when he saw the southbound car, which he testified at that time was about 150 feet to the south. Hoklas could not possibly have thought he could clear the crossing ahead of the Fisk car when he saw it 150 feet away, because he did not see that car when it was 150 feet away. He did not see that car, as he told the police officer, and according to the statement he signed that morning, until it was 10 or 20 feet away, and therefore he testified on the trial “I didn’t remember seeing that car 150 feet away until after I was sued.”

It is well .to consider the facts as they appear in this record. Defendant’s whole theory is that he was not guilty of wilful and wanton conduct in the operating of the car. However, when we come to look at the facts it must be altogether different from what has been contended for. We would like to consider the facts as they are called to our attention in the quotation that has been offered but we believe that we have stated enough of the facts to make it evident that the jury did pass upon the facts and they did reach the conclusion that the operation of that car by Hoklas was wilful and wanton. And it appears that the Supreme Court has divided wilful and wanton injury not intentionally inflicted into two categories, and we are suggesting this thought from the briefs that were filed in the case: Category 1, vie., “failure after knowledge of impending danger to exercise ordinary care to avoid it” clearly describes his conduct. Hoklas had knowledge of the presence of the stop sign and that Wood-lawn avenue was a through street. He knew that driving past that stop sign and across that through street without first bringing his car to a stop was fraught with danger to his passengers; yet he deliberately placed the plaintiff in danger by his unlawful act, and not only failed to exercise any care to slow down or stop or to maintain a lookout for approaching traffic. Category 2 as announced in Brown v. Illinois Terminal Co., 319 Ill. 326, is “failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.” This renders nugatory the statement in Rajek v. Cummings, 314 Ill. App. 465. Hoklas ’ conduct clearly falls within the category number 2, having intentionally and recklessly violated the stop sign warning and driven past it with unchanging speed. The defendant Hoklas even then, by the exercise of only slight care, could have discovered the danger of the approaching Fisk automobile in ample time to avoid it by slowing down or stopping his automobile. It was broad daylight, the weather was clear and the visibility was good. So that it appears from the record that Hoklas’ acts were such as justified the finding that was made by the jury.

Complaint is made upon this rehearing by counsel for the defendant that the court misapprehended the prejudicial nature of plaintiff’s instruction number one based in part on the charge that Hoklas with a con-scions indifference to surrounding circumstances and conditions, wilfully and wantonly drove his automobile at a speed greater than was reasonable and proper having'regard to the traffic and use of the way in violation of the speed statute, because counsel think that is essentially a statute to cover a collision between motorists or with others on the highway not occupying the position of passenger and guests. This is apparently unsound, for if the speed statute was intended to apply to motorists involved in collisions, it would be contrary to reason and common sense to hold that it does not apply to or protect the motorists’ passengers. There is no such exception in the statute itself and counsel have cited no authority for the distinction which they seek to draw.

Therefore the order granting a new trial as to the defendant Fisk is affirmed; the order granting a new trial as to the defendant Hoklas is reversed; and the cause is remanded to the trial court for further proceedings in due course.

Affirmed as to defendant Fish and reversed as to defendant Roldas, and remanded for further proceedings in due course.

Burke, P. J., and Kiley, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    In re Estate of Kinga Dickson, Deceased. Anna Mikolajczak, Appellant, v. John J. Dickson, Administrator of Estate of Kinga Dickson, Deceased, Appellee.
    Gen. No. 41,915.
    Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed December 9, 1942.
    Rehearing denied January 6, 1943.
    Smietanica, Conlon & Nowak, of Chicago, for appellant; Leon J. Nowak and George H. Morton, both of Chicago, of counsel.
    Thomas F. Allman, of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

It appears from the facts that are in the record in this case that Kinga Dickson died on the 2nd day of December, 1936. Letters of administration on her estate were issued by the probate court of Cook county on the 19th day of December, 1936, to John J. Dickson, her husband. Adam M. Lulinski and Aloysius Lulinski are undertakers. On, or shortly after the 2nd day of December, 1936, the date of death of said Kinga Dickson, the said administrator, John J. Dickson, contracted with one Aloysius Lulinski for the burial of said Kinga Dickson, and pursuant thereto said Kinga Dickson was buried by said Adam M. Lulinski. The amount of the funeral was $562.60. The appellant herein, Anna Mikolajczak, mother of the deceased, at the request of John J. Dickson, administrator, and the said Aloysius Lulinski, undertaker, paid the funeral bill to said Lulinski with the understanding that said undertaker file his claim" against the estate in the probate court and that she would be subrogated to the claim of said undertaker. Thereafter and on the 4th day of December, 1937, and within one year from the time of granting of letters of administration, Adam M. Lulinski, undertaker, filed his claim for $562.60 against the estate in the probate court of Cook county.

On the 23rd day of June, 1939, appellant herein, Anna Mikolajczak, filed her petition in the probate court of Cook county, reciting the above facts, and requesting that an order be entered that she be subrogated to all the rights that Adam M. Lulinski, the undertaker, might have as claimant against said estate.

Upon hearing the evidence and argument on her petition the probate court of Cook county ruled that-Anna Mikolajczak, volunteered the payment of the funeral bill and denied the prayer of her petition. The probate court thereupon entered its order accordingly and further ordered that the claim of the undertaker be dismissed.

Anna Mikolajczak, appellant herein, appealed' from . said order to the circuit court of Cook county and upon her appeal to the circuit court demanded a trial de novo by jury. The circuit court heard preliminary argument by counsel and entered an order on the 30th day of October whereby it denied the prayer of Anna Mikolajczak for subrogation, denied the motion to dismiss the claim of Adam M. Lulinski, remanded the same to the probate court for further consideration, and permitted Anna Mikolajczak to intervene in the probate court.

The matter was subsequently heard by the probate court on the petition of Thomas F. Allman, attorney for John J. Dickson the administrator, and on January 2, 1941, the probate court entered an order providing, among other things, that the order previously entered by said court on the 2nd day of November, 1939, be affirmed and that the. prayer of Anna Mikolajczak be denied. A further order was entered by the probate court on the 31st day of January, 1941, whereby it was ordered that the relief prayed for by Anna Mikolajczak be denied without prejudice.

Anna Mikolajczak again appealed to the circuit court of Cook county from the order of the probate court affirming its former decision and order denying the prayer of the petition. On the second appeal, Anna Mikolajczak filed her usual bond duly approved. She also filed a demand for jury trial in the circuit court.

The matter of appeal from the probate court came on again to be heard upon the motion of John J. Dickson, administrator. It was heard by the Honorable William V. Brothers in the circuit court. The court heard preliminary argument by counsel and assumed the facts to be as recited in the order entered on the 28th day of April, 1941, from which order this appeal is taken to this court.

Anna Mikolajczak, upon appeal from the probate court to the circuit court suggests that the case should be heard de novo and that the circuit court should retain jurisdiction of the case and enter the appropriate order; that the circuit court, having assumed certain facts to he as recited in the order made by it on April 28, 1941, denied petitioner a trial de novo by a jury as demanded; that no facts were before the court, no evidence presented, and no evidence stipulated as recited in said order, and that the court gathered the facts merely from the argument of counsel.

Appellant herein calls attention to the Probate Act which provides:

“Upon an appeal to the circuit court the cause shall be tried de novo. An appeal may be taken from the circuit court as in other civil cases.” (Probate Act, sec. 333.)

Our attention is also called to the case of Richardson v. Embers on, 96 Ill. App. 403, where the court said:

“The appeal therefrom was properly taken to the circuit court which should have proceeded to hear de novo the matters involved.”

It was further urged that upon the first appeal to the circuit court where an order was entered on the 30th day of October, 1941, it was provided that the matter of the claim of Anna Mikola jczak be referred back to the probate court, and that, while the circuit court had no power to refer the matter back to the probate court, its doing so was merely an irregularity and that where a second appeal is taken no harm is done by the irregular practice, but that the circuit court should have retained the case for final hearing upon the questions raised by the appeal. American Surety Co. v. Sperry, 171 Ill. App. 56 is cited. It is also urged that the effect of the appeal is to vacate the judgment appealed from, citing Anderson v. Patty, 168 Ill. App. 151.

The funeral bill was paid by the appellant at the request of the administrator and Lulinski the undertaker. She was induced to make the payment upon the representations of the administrator and the undertaker that if she paid the funeral bill Lulinski the undertaker would file a claim against the estate for the amount of the bill, and that upon his filing the bill she would be subrogated to all the rights of the undertaker therein.

According to the facts, the appellant paid the bill and Lulinski the undertaker filed his claim against the estate for the amount of the bill, and appellant therefore seeks subrogation in accordance with the agreement made with her by the administrator and Lulinski the undertaker. Appellant suggests that she paid the debt of another at his request, and that in such case she does not occupy the position of a mere volunteer, and cites in support of her suggestion the cases of Home Savings Bank v. Bierstadt, 168 Ill. 618; Golsen v. Golsen, 127 Ill. App. 84; and Hoopeston Nat. Bank v. Williams, 181 Ill. App. 122. Appellant also calls to our attention that the probate court, when adjudicating upon matters pertaining to the settlement of estates, is clothed with authority to exercise equitable powers like those of a court of equity, and cites in support of her position the case of Shepard v. Speer, 140 Ill. 238.

' The defendant, appellee, suggests that appellant is not entitled to subrogation and urges that there are three reasons why, assuming all the facts alleged in appellant’s answer are true, she was not entitled to subrogation, and suggests that the reasons apply even more strongly to the allegations of the petition she filed.on June 23, 1939, and that this explains the attempt to alter the allegations somewhat. The defendant contends that the facts which have been called to the attention of the court, assuming that they were true, would not bring the situation within the field or scope of the principle of subrogation. In supporting this view he questions the citation by the appellant from Home Savings Bank v. Bierstadt, 168 Ill. 618, calling to our attention that the following did not appear in appellant’s brief but appears at page 624 of the opinion of the Supreme Court:

“But in addition to this principle of legal subrogation there exists another principle, which is termed conventional subrogation, which results from an equitable right springing from an express agreement with the debtor, by which one advances money to pay a claim for the security of which there exists a lien, by which agreement he is to have an equal lien to that paid off, whereupon he is entitled to the benefit of the security which he has satisfied with the expectation of receiving an equal lien. . . .
“It is the agreement that the security shall be kept alive for the benefit of the person making the payment which gives the right of subrogation, because it takes away the character of a mere volunteer.”

Appellee then points to the fact that Adam M. Lulinski merely filed a claim against the estate, that it had not been allowed and he factually had no claim against the estate at the time he filed his claim since appellant avers that she paid him for the services which he rendered, upon his promise to file a claim, that his was not a “claim for the security of which there exists a lien,” and since Adam M. Lulinski had no lien of any kind, he could not agree that appellant was “to have an equal lien to that paid off,” and that there was no allegation of an agreement “that the security .shall be kept alive.”

When we come to consider the leading question which is involved in this matter, theré is no real difference between conventional and legal subrogation, except that in the former there must be an express agreement with the debtor, by which one person-pays a debt for the security of which there exists a lien, while in legal subrogation there need be no such express agreement, but there must be the relation of principal and surety or the like.

Upon the second question that is called to the attention of the court, why the appellant is not entitled to subrogation, appellee suggests that neither legal nor conventional subrogation is ever allowed to a volunteer or one who pays a debt voluntarily. In this regard he quotes Suppiger v. Garrels, 20 Ill. App. 625, where at pages 628, 629 the court says:

“Appellants base their claim to share equally with appellee G-arrels, upon the doctrine of subrogation. Unless appellants have shown that Kyhiner & Co. were in some way liable to pay the note and interest in question, that doctrine has no application. A mere stranger or volunteer can not, by paying a debt for which another is bound, be subrogated to the creditor’s rights in respect to the security given by the real debtor. (Citations.) A stranger within the meaning of this rule is not necessarily one who has had nothing to do with the transaction out of which the debt grew. Any one being under no legal obligation or liability to pay the debt is a stranger, and if he pays the debt, a mere volunteer. ’ ’

To the same effect is Bennett v. Chandler, 199 Ill. 97, where the court quotes the Suppiger case and approves that which the court said in its opinion:

“Inasmuch, therefore, as Chandler was a mere volunteer-, he was not subrogated in any way to the rights of Mrs. Green, as the holder of the coupons in question. ’ ’

It is urged that assuming that appellant had a right to subrogation, there exists a third reason why. it would not be granted her in this matter: Her right to be subrogated would have arisen at the time of the alleged payment and agreement, if at all. A claim for subrogation is no different than any other claim. Then she would be required to file a claim therefor within one year from the date of letters of administration.

In considering the law and! applying, it to the facts that we have before us, it does not appear that the appellant in this action had any different cause of action than a claimant who filed a claim for services rendered. She was a stranger in this action, and could not be a proper claimant of the undertaker’s claim under the circumstances.

The suggestions that were offered by the appellant in support of her position on this appeal were given careful consideration, and we are of the opinion that the order entered by the court on April 28,1941 should be affirmed.

Order affirmed.

Burice, P. J., and Ejcley, J., concur.


text:
    Peter S. Sarelas and People of the State of Illinois ex rel. Peter S. Sarelas, Appellant, v. Dewey F. Fagerburg et al., Appellees.
    Gen. No. 42,126.

      Heard in the third division of this court for the first district at the March term, 1942.
    Opinion filed December 9, 1942.
    Rehearing denied January 6, 1943.
    Weber & Weber, of Chicago, for appellant.
    Nicholson, Snyder, Chadwell & Fagerburg, of Chicago, for certain appellee; Richard M. Keck, of Chicago, of counsel.
    Dent, Weichelt & Hampton, of Chicago, for certain other appellees.
   Mr. Justice Hebel

delivered the opinion of the court.

This is. an appeal by the plaintiff from a judgment entered on a directed verdict in favor of defendants on the 18th day of June, 1941, and from a decision of the court denying plaintiff’s motion for a new trial on the 3rd day of July, 1941, and from an order of the court dismissing Dewey F. Fagerburg, one of the defendants, on the 10th day of May, 1940, and from an order denying plaintiff’s motion for leave to file an amended complaint, on the 10th day of May, 1940.

The facts are, as they appear in this record, that on the 1st day of June, 1934, plaintiff did file a complaint in the circuit court of Cook county, in case number 34 C 7429, as a judgment creditor against McCue and Company, a corporation dissolved on June 22, 1932, its stockholders, directors and officers, including Dewey F. Fagerburg, alleged to be a stockholder, officer, director and attorney for the said McCue and Company corporation. Summons was issued and delivered to the sheriff of Cook county on June 1, 1934, for service on the defendants in said case. The sheriff of Cook county by his deputies did serve the defendant Dewey F. Fagerburg on June 4,1934, and William G. Shirer on June 6, 1934, another defendant in said complaint in case number 34 C 7429, but failed and neglected to serve and perfect the service of summons on McCue and Company, a corporation, and made return that said defendant, McCue and Company, a corporation, “was not found in this county.”

The circuit court of Cook county dismissed the plaintiff’s complaint for the reason that service of process was not had on the dissolved McCue and Company, a corporation, within two years from the date of its dissolution, June 22, 1932. Plaintiff appealed to the Appellate Court of Illinois, first district, which affirmed the dismissal of the suit by the circuit court; and the Appellate Court delivered an opinion which is reported in volume 291, Illinois Appellate reports, page 540, stating that the court had no jurisdiction of the case for the reason that the summons had not been served on the defendant corporation, McCue and Company, within the two-year period fixed by section 79 of the General Corporation Act of 1919.

It further appears that in the present case a complaint was filed on May 9,1939, which set out plaintiff’s cause of action, incorporating therein the affidavit of the deputy sheriff, August Berke; motions to dismiss the complaint were filed by the defendant, Dewey F. Fagerburg, on June 19, 1939; the defendants, William D. Meyering and the United States Casualty Company, a corporation, filed their answer on June 28, 1939; on May 10, 1940, the court entered an order dismissing plaintiff’s suit as to defendant, Dewey F. Fagerburg, and an order denying plaintiff’s motion for leave to amend Ms complaint. On June 4, 1941, as to William D. Meyering and the United States Casualty Company, the court entered an order granting plaintiff leave to file instanter an amended complaint and an order that every allegation in said amended complaint he deemed denied by the defendants, William D. Meyering and the United States Casualty Company, unless a written answer is filed by said defendants; plaintiff’s amended complaint against William D. Meyering and the UMted States Casualty Company, a corporation, defendants, was filed June 4, 1941. The cause then, on June 17, 1941, proceeded to trial and, before plaintiff fimshed his evidence on all issues, the trial judge in the morning session of June 18, 1941, decided to separate the issues and submit the case to the jury on the question of negligence and liability of William D. Meyering, ex-sheriff of Cook county, in failing to serve the corporation McCue and Company, in the circuit court of Cook county, case number 34 C 7429, on June 4, 1934, when the defendant D. F. Fagerburg, was found and served on June 4, 1934, which was 18 days before the remedy against directors, officers and stockholders of said corporation, wMch had been dissolved on June 22, 1932, expired by conditional limitation of two years after the date of dissolution if process was not served upon the corporation within that time as provided under section 79 of the General Corporation Act of 1919, and as held in the case of Sarelas v. McCue & Co., 291 Ill. App. 540. In the aftérnoon session of June 18, 1941, the trial judge entertained and allowed the motions of defendants William D. Meyering and the United States Casualty Company, Meyering’s surety on his bond, to exclude all evidence received in behalf of the plaintiff, and for directed verdict for both defendants, which was signed and the court entered judgment on the directed verdict, and on July 3, 1941, entered an order over-ruling plaintiff’s motion for a new trial and denying a new trial in that cause.

The plaintiff contends that the action of the trial court in allowing the motion of the defendants to exclude all of the evidence received on behalf of the plaintiff at the close of plaintiff’s case, and in allowing and giving an instruction to the jury to find the issues in favor of the defendants, when even on the face of the pleadings and the record there is a manifest negligence or violation of statutory duties by the former sheriff, William D. Meyering, is a denial of elementary justice and contrary to the spirit and the letter of the law. It is further urged as to the negligence and omission of the sheriff and his deputies of their statutory duties in failing to effect service of summons on the corporation McCue and Company, that the circuit court of Cook county, in case 34 C 7429, held that it was fatal to the maintenance of plaintiff’s cause of action as a judgment creditor against McCue and Company, a corporation, its officers, directors and stockholders, including the defendant in this case, Dewey F. Fagerburg.

• The Appellate Court for the first district in its opinion, vol. 291, at page 548, upheld the circuit court and in its opinion said:

“The summons not having been served on the defendant corporation, McCue and Company, within the two-year period fixed by section 79, the court had no jurisdiction of the case, and the motion of defendants to dismiss was properly sustained.”

In reply to the suggestion that was offered by the plaintiff, the defendant states that it is the law that a sheriff is not an insurer of the service of process and that to establish a liability the burden is upon the plaintiff to prove by a preponderance of the evidence that the failure to serve McCue and Company was due to the failure of William D. Meyering or. his deputies to exercise reasonable diligence to serve the summons (citing cases).

The plaintiff in support of his position quotes five sections of the Sheriffs’ Act, approved January 27, 1874, Ill. Rev. Stat. 1941, ch. 125 [Jones Ill. Stats. Ann. 124.01 et seq.]. The substance of these sections is that the sheriffs are the officers designated by statute for the service of process; that they may act by deputies and are responsible for the negligence of their deputies ; that failure to obey the lawful decree of a court shall be deemed contempt and punished accordingly, and the sheriff shall be liable to the party aggrieved for such disobedience; and that upon taking office sheriffs should give bond approved by the judges of the circuit court. The question as to what bearing these sections have in determining the degree of diligence required of a sheriff, or whether the failure to produce evidence from which the jury may reasonably find that William D. Meyering was negligent in the service of summons,is a question that will have to be passed upon to determine whether the sheriff was diligent in his duty as a sheriff in the attempt to serve the summons which was in his possession and which it was his duty to serve.

It does not appear that the plaintiff has referred to one place in the abstract of record which purports to show that any particular individual was a proper person upon whom the service of summons could have been made as against McCue and Company. Plaintiff complains of failure to serve Dewey F. Fagerburg or W. Gr. Slfirer of McCue and Company and at various places in his brief refers to one or both of these individuals as officers, directors, stockholders, agents or attorneys for McCue and Company, and it is suggested by the defendants that one would expect a reference to evidence that one or both bore such relationship to McCue and Company.

The only evidence plaintiff offered in support of his claim of negligence was the testimony of plaintiff, who recited certain facts of his appearing at the sheriff’s office in the county building; that he went to the man at the front desk and asked him if he had the service of summons on the defendants in this particular case and that the man looked at his book and found no return had been made and told plaintiff that the man intrusted with the service was Deputy Sheriff Berke; that plaintiff was told to leave a message there; there was a scratch pad there on which he could write it, and so he wrote; that he was told to place the note on the spindle there, which he did; that he wrote on a piece of paper the lawyer’s name and also his name and address and telephone number, and did not hear anything from either the sheriff or deputy sheriff or anybody else. Plaintiff says he áppeared there on several occasions for the purpose of getting information as to the service that might have been made by the sheriff upon these defendants.

That is about the sum and substance of the effort made by the plaintiff in such interests as would be necessary for the sheriff or the deputy sheriff to make service upon these defendants. Plaintiff states that he was present on several occasions, as we have already indicated, but the only information given is that service was had such as indicated herein.

These defendants contend the alleged memorandum made by the plaintiff does not make out a case of negligence on the part of the sheriff, and it is further contended by the defendant that the testimony of plaintiff as to the alleged contents of such memoranda is not legal nor proper evidence, and was erroneously received by the trial court. The written memorandum was not produced and no effort was made to lay a proper foundation for the use of secondary evidence other than offering a notice to defendants to produce. No proof was ever made that the memorandum was in the possession of Meyering or Berke or of the United States Casualty Company. The fact that the plaintiff served a notice to produce on Meyering and the United States Casualty Company does not make secondary evidence admissible, because the records are not and were not in the possession of these defendants.

The plaintiff draws his deduction, however, from the fact that the sheriff served the summons on defendants Fagerburg and Shirer prior to the time he returned the summons “not found” as to the defendant McCue and Company. The summons which plaintiff copies in full is directed against McCue and Company, and against other individual defendants. It is. not claimed that the individual defendants occupy any relationship, agency or otherwise, to McCue and Company. There is nothing in the summons itself which would indicate that the plaintiff intended or thought that service on McCue and Company could be effected by serving one of the individual defendants in its behalf. Plaintiff’s statement, “Even without the testimony of any witness, the original summons . . .

shows the negligence and omission by the sheriff and his deputies of their statutory duties, in failing to serve and perfect the service of summons on the corporation,” is absurd. Plaintiff does not suggest nor does he contend that he informed the sheriff or any of his deputies of the name of any officer or agent of McCue and Company in Cook county. As previously demonstrated, there is no evidence in the record that McCue and Company was in Cook county in the month .of June or of July 1934, or that there was any officer or agent of that company in Cook county at that time. From the facts as they appear in this record, there is no evidence that there was any director or stockholder of McCue and Company in Cook county in June or July 1934.

Plaintiff next argues that the failure to return the summons within five days after service on Shirer and Fagerburg was a violation of Ms duty by William D. Meyering, ex-sheriff. He further states that the case went to trial, so far as defendants Meyering and the United States Casualty Company were concerned, upon an amended complaint filed June 4, 1941. The breaches alleged in the complaint are that Meyering neglected to fulfill his statutory duty to serve the summons and that he made a false return that McCue and Company was not found in this county. Defendants urge that there is no allegation that Meyering breached his duty by failing to return the summons within five days after service. The issue is not raised by the pleadings and was not raised on the trial, and the contention is first made by the plaintiff in this court. Aside from the fact that such issue was not in the case either by pleading or upon the trial, and cannot first be raised in this court, the provision in the summons whereby the sheriff is directed to make a return within five days after service has no application to the case at bar, for the reason that such five-day period obviously begins to run at the time of service on all defendants named. In the case at bar fourteen individual defendants and the corporate defendant McCue and Company had not been served on June 6,1934, and the five-day period did not -start to run either on June 4 or June 6 when Fagerburg and SMrer were served. Consequently defendants urge and cite authorities to the effect that, in the absence of special conditions known to the sheriff, he has until the return day to serve and return the summons. The summons in the case at bar was returnable on the first and third Mondays in July, 1934. The plaintiff, however, urges that the plaintiff himself and his attorney in that case not only gave the sheriff instructions of the names of the defendants and-their addresses, but the plaintiff repeatedly inquired about the service in the sheriff’s office and repeatedly left memorandums, as instructed by the sheriff’s deputies, on the spindle kept and maintained for that purpose in the sheriff’s office; that the name, address and telephone number of plaintiff’s attorney was typewritten on the summons; that the plaintiff, in his many memorandums left on the spindle in the sheriff’s office as directed by the sheriff’s deputies, requested that the sheriff or deputy sheriff notify him or his attorney, at the address and telephone number of himself or his attorney written on the memorandum, and he inquires what more could have been done to awaken the sheriff and his deputies. The defendants, however, suggest that it is to be noted that the plaintiff does not contend that the memorandum contained information as to whom the sheriff should serve as an agent or officer of the corporate defendant. It is to be noted that the plaintiff does not state what name or what address he claims he wrote on the memorandum. The mere fact, if it is a fact, that the plaintiff tried to help the sheriff serve the corporate defendants does not show that the sheriff was negligent in serving the summons. The plaintiff, however, next contends that the sheriff never ascertained how to serve McCue and Company by examination of the records at the recorder’s office of Cook county. Plaintiff did not offer those records in evidence, since there is nothing to show what if anything in reference to McCue and Company was disclosed by records in the recorder’s office. Aside from this fact, the charter of an Illinois corporation does not disclose the identity of officers or agents now, and it did not in 1934. As it is suggested, the record is silent as to when McCue and Company was incorporated, and there is nothing in the evidence to show the situation which existed at the time it continued to exist in June 1934.

While plaintiff contends that Fagerburg and Shirer were variously officers, directors, stockholders, agents and attorneys, it is not the law that service on a corporation may be effected by serving a director, stockholder or attorney. Section 17 of the Civil Practice Act of Illinois [Jones Ill. Stats. Ann. 104.017], quoted at page 22 of plaintiff’s brief, provides that service of process on a corporation shall be made “by leaving a copy thereof with any officer or agent of said company found in the county.”

Section 43 of the Corporation Act in effect in 1934 (Ill. Rev. Stat. 1935, ch. 32, sec. 43), provides that the officers of a corporation shall consist of president, one or more vice-presidents, secretary, treasurer and such other officers and assistant officers as may be elected by the board of directors in the manner prescribed by the by-laws. Directors are not referred to as officers.

It would appear that the record is just as devoid of evidence that Fagerburg was a director, stockholder or attorney of McCue and Company in June or July of 1934, or at any other time, as it is that he was ever an officer. Since plaintiff refers to Fagerburg as a director, stockholder and attorney, we point out that the statute does not provide for service of process on a corporation by serving such persons, and that plaintiff evidently realizes this fact, for he also cites sec. 23, ch. 79 of the Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 71.019], which provides for service on directors. That section, however, pertains only to process issued by justices of the peace.

The summons in the circuit court case is dated June 1, 1934 and the first return day is the first Monday in July, 1934. The two-year period following the dissolution of McCue and Company expired June 21, 1934. Consequently plaintiff’s cause of action in the circuit court suit became barred prior to the return day specified in the summons. From the record, it is suggested by the defendant, there is no evidence that the sheriff was advised by plaintiff, his attorney, or by anybody that the statute of limitations would run on June 21, 1934, and it appears from the record that the plaintiff testified that he did not know, at the time the summons was in the hands of the sheriff, that it was necessary to serve the- corporation within two years after the dissolution of McCue and Company, and there is nothing about this summons which put the sheriff on notice that the statute of limitations was about to run.

It appears that in the absence of special circumstances a sheriff has until return day in which to make service of process. In Mechem on Public Officers, page 491, the rule is stated as follows:

“Sec. 753. Liable for Negligence in serving Process for Appearance. — The officer is therefore bound to exercise reasonable diligence in serving process for defendant’s appearance. What is reasonable, depends in this case, as in others, upon the circumstances.^ The officer ordinarily should serve process in the order in which it is delivered to him. He is not obliged to neglect the business of everybody else, . . . but has, under ordinary circumstances, until the return day' in which to make the service.
“But if he is informed of unusual circumstances which require more haste, as if the debtor is about to depart from the country or is only temporarily within the jurisdiction, or if the statute of limitations is liable to expire, or if, for any other reason, the plaintiff should direct that it be served immediately, the officer would be bound to use a greater degree, but still the same kind of diligence, — reasonable diligence under the unusual circumstances.
“This duty requires that the officer shall exercise reasonable diligence to find the defendant, and reasonable care to make a proper and sufficient service; but, at the same time, the officer is not bound to find the defendant at all hazards, and he is not liable if he does not find him, though within reach of his process, if he used reasonable diligence.”

Defendants further quote from 57 Corpus Juris, Sheriffs and Constables, page 782, in which the rule is stated as follows:

(Sec. 144) c. Time for Execution. A sheriff should execute a writ without delay and within a reasonable time after he receives it, and, in the absence of directions by plaintiff in the writ, or knowledge of special circumstances requiring greater diligence, execution of the writ within the time allowed by law is sufficient. But where a sheriff has knowledge or reasonable ground to believe that there will be danger of loss to the creditor through delay in the execution of a writ, it is his duty to execute it immediately.” (Citing the case of State v. Rollins, 13 Mo. 179.)

It would appear from the authorities and the facts as they appear in this record that William D. Meyering was under no duty whatever to serve the summons prior to the expiration of two years after the dissolution of McCue and Company, and by serving the summons at any time before the first Monday in July, 1934, Meyering would have fully fulfilled his duties as sheriff. There is no evidence that his ultimate failure to serve the summons by return day was caused by negligence but if it had been, such failure would not have resulted in damage to the plaintiff because prior to the time Meyering’s duties required him to serve the summons, the plaintiff’s cause of action in the circuit court case was already barred by the expiration of the two-year period after the dissolution of McCue and Company.

A further question that is called to our attention is that the trial court properly refused to receive in evidence the affidavit of August Berke, the former deputy sheriff. Plaintiff offered in evidence an affidavit made by August Berke on March 26, 1936. The objection of the defendants to this offer was sustained. The plaintiff in this case contends that the affidavit was admissible as an admission made in a pleading in another action and as a declaration against interest. The defendant replies that the instant suit is against William D. Meyering and the United States Casualty Company. Berke was not a party herein, nor was he or the sheriff a party to the circuit court suit. Although the affidavit was not a pleading in the circuit court suit of Sarelas v. McCue & Co., it would not be admissible if it had been, for the reason that the maker of the affidavit is not a party to the case at bar. The cases of People ex rel. Nelson v. Central Mfg. Dist. Bank, 306 Ill. App. 15, and Hinman v. Devine, 167 Ill. App. 625, and section 35 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.035], pertain to admissions by a party. As appears from this affidavit, Berke called on Fagerburg and served him individually and at the time informed Fagerburg that McCue and Company was one of the defendants, and inquired of Fagerburg where he could find the president, secretary, or any officer, agent or employee of McCue and Company, and that Fagerburg told Berke that McCue and Company had ceased doing business and that Fagerburg did not know where any officer or agent of said McCue and Company could be found. It further appeared from the affidavit that Berke told Fagerburg he was listed as an agent of McCue and Company and that Fagerburg told him this was not so, and, the affidavit further states, whereupon the affiant at that time having no reason to doubt the representation so made by Fagerburg, left without serving the corporation.

As a matter of fact, the affidavit of Berke did not tend to prove negligence on his part, or on the part of the sheriff, and was not a declaration against interest. The affidavit does show that Berke performed his duties by attempting to locate and serve an officer or agent of McCue and Company. Hence, the affidavit was immaterial and irrelevant to prove any of the issues in favor of the plaintiff, but if it had tended to prove any of such issues, it would have been inadmissible because it is á mere ex parte hearsay statement.

It does not appear from what the plaintiff contends that.during the course of the trial the judge made remarks and was otherwise guilty of conduct which tended to influence the minds of the jury. However, it has been suggested by defendants that inasmuch as the case did not go to the jury, and the question is whether or not the plaintiff produced evidence from which the jury might reasonably find the issues in favor of the plaintiff, that it is immaterial whether or not the trial court’s conduct might have tended to influence the jury. So that, from the facts as they appear in this record and as we have just stated, the cause was not submitted to the jury, and therefore there was nothing to influence them upon a finding as to the facts in the case in question. It appears finally that the court properly directed a verdict because the plaintiff’s amended complaint fails to state a cause of action and no evidence was admissible thereunder which could make out a case in favor of plaintiff.

This action was against the sheriff and his surety upon the sheriff’s official bond. The substance of the bond is not pleaded; the bond is not set up in haec verba, and a copy of the bond is not attached to the amended complaint as an exhibit. The bond, however, was received in evidence over the objection of the defendants.

Section 36 of the Practice Act (Ill. Rev. Stat. 1941, ch. 110, par. 160 [Jones Ill. Stats. Ann. 104.036]) provides:

“Sec. 36. (Exhibits.) Whenever an action, defense or counterclaim is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader shall attach to his pleading an affidavit stating facts showing that such instrument is not accessible to him. In pleading any written instrument a copy thereof may be attached to the pleading as an exhibit. In either case the exhibit shall constitute a part of the pleading for all purposes. No proferí shall be necessary.”

The suggestion is offered by the defendant that the provision of the statute is mandatory and that the amended complaint and, in fact, the original complaint fail to allege a cause of action on the bond.

After a careful consideration of the facts as they appear in this record and of the law as suggested we are of the opinion that the court properly entered the judgment upon a directed verdict in favor of the defendants.

Affirmed.

Burke, P. J.,- and Kilby, .J., concur.


author: Mr. Justice ECebel

text:
    People of the State of Illinois ex rel. Mary Austin et al., Appellees, v. Board of Commissioners of Cook County et al., Appellants.
    Gen. No. 42,200.

      Heard in the third division of this court for the first district at the April term, 1942.
    Opinion filed December 9, 1942.
    Thomas J. Courtney, State’s Attorney, for appellants; William J. Tuohy, Marshall V. Kearney, Joseph P. Burke, Jacob Shamberg and Brendan Q. O’Brien, Assistant State’s Attorneys, of counsel.
    James W. Breen, of Chicago, for appellees.
   Mr. Justice ECebel

delivered the opinion of the court.

This is an appeal by the defendants from an order of judgment entered by the superior court of Cook county in proceedings for mandamus brought by the plaintiffs and appellees, regular employees in the office of the assessor of Cook county, against the Board of Commissioners of Cook county, Michael J. Flynn, county clerk and ex oficio county comptroller of Cook county, and Lee J. Howard, county auditor of Cook county, defendants, to compel said Michael J. Flynn to approve a payroll for the payment of salaries of said employees of the office of the assessor of Cook county for the period commencing September 1, 1941, and ending September 15, 1941, and to transmit said payroll to the county treasurer of Cook county for payment, which order herein appealed from directs the issuance of a writ of mandamus directed to said Michael J. Flynn, as county comptroller of Cook county, commanding him to approve the said payroll and transmit the same to the county treasurer of Cook county, so that the plaintiffs might receive the salaries therein set up for the period in question.

Said final judgment orders that the defendants, the Board of Commissioners of Cook county and Lee J. Howard, county auditor of Cook county, be dismissed from the proceedings, without prejudice to the plaintiffs and without costs.

The appellant will hereinafter be referred to as defendant and the appellees as plaintiffs.

In reply to the amended petition for mandamus, the defendant answers the several questions that are presented by the amended petition and to these answers plaintiffs filed a reply and upon the issues being joined the cause was transferred to a non-jury calendar, was heard by the trial court without a jury, and evidence was introduced by both parties. The trial court sustained the contentions of the plaintiffs and entered a judgment for issuance of a writ of mandamus directed to said Michael J. Flynn, county comptroller of Cook county, commanding him to approve forthwith the said payroll for the period of September 1 to September 15, 1941, so that the plaintiffs may receive their salaries for the services rendered to the assessor of Cook county for said period. Said final judgment contained said payroll with the names of plaintiffs together with the title of their offices, positions or places of employment which they occupied during said period and the amount of salary to he paid them for said period, together with the amount of motor maintenance to be paid to certain of them. Said judgment finds that said assessor approved said payroll for the period September 1 to September 15, 1941; that the rates of salary in said payroll are not in conflict with any resolution adopted by the county board prior to the adoption of the annual appropriation bill; that the accounts against which said payroll was charged had on September 1 and September 15,1941, more than sufficient funds available out of which said payroll might be paid; that the total amount of said payroll for said period was $29,096.70 and that the payment of said payroll for said period would not in any manner exceed the amount appropriated by said county board for the payment of salaries of employees in the office of the assessor of Cook county for the fiscal year 1941; that said payroll was prepared and approved by the assessor, submitted to the civil service commission of Cook county and approved by it, and was transmitted to said defendant, Michael J. Flynn, comptroller of Cook county; that it was the duty of said comptroller of Cook county to approve said payroll; that the plaintiffs demanded the approval of said payroll by him and that he arbitrarily refused to approve it and has persisted in his refusal.

Said final judgment further finds that the assessor of Cook county was directed by the Board of Commissioners of Cook county and the comptroller of Cook county to lay off, for a period of two weeks, without pay, all regular employees in the office of the assessor of Cook county, thereby compelling said employees to take what is commonly called “a payless vacation”; that for the period commencing September 1, 1941 and ending September 15,1941, the assessor of Cook county did lay off, for a period of two weeks, without pay, all of the above-named plaintiffs, with the exception of the first 53 employees named on said list, and that during said period he employed as extra employees in the office of the assessor of Cook county, all of the regular employees who were given a payless vacation for said period; and that the said action of the assessor of Cook county was lawful and in accordance with the express power conferred by law upon the assessor of Cook county by the statutes of the State of Illinois.

Said final judgment further finds that the Board of Commissioners of Cook county, in its annual appropriation bill, expressly provided for the employment of extra employees by the assessor of Cook county and fixed the number of such employees to be so employed and the amount of salary to be paid to said extra employees by the assessor of Cook county; that the amount of salary approved by said assessor to be paid said plaintiffs for said period was in accordance with the rates of salary as fixed in the annual appropriation bill for extra employees; and that the salary for the regular employees in the office of the assessor of Cook county for the period of September 1 to September 15, 1941 was charged to account No. 8-11, and that the salaries of the extra employees employed by the assessor of Cook county for said period were charged to the several accounts that are named in the judgment order.

The defendant, Michael J. Flynn, comptroller of Cook county, duly filed his notice of appeal and praecipe for record in the trial court with proper proof of service thereof, appealing from the findings and judgment of the trial court, and applied for and secured from the trial court an order making his notice of appeal a supersedeas.

From the statement that was filed in this case it appears that the plaintiffs in this case are endeavoring to collect their salaries for the period of September 1, 1941, to September 15,1941, for services performed at the express direction of the assessor of Cook county. The names of the first 53 plaintiffs, except that of the name of the assessor of Cook county, are the names of those employed as regular employees in the office of the assessor of Cook county and who were appointed to their positions after having passed a competitive civil service examination, and they have occupied their offices, positions or places of employment for many years. All of the other plaintiffs were civil service employees in the office of the assessor of Cook county prior to September 1, 1941.

Under the law the assessor of Cook county has the power to lay off or suspend any civil service employees for a period of time not exceeding 30 days for economy purposes or for any purpose which the assessor may determine is for the most economical and efficient administration of the affairs of his office. The Board of County Commissioners, for economy reasons did not appropriate as much money to pay the regular employees in the office of the assessor of Cook county for the year 1941 as it had appropriated for the year 1940. In fact, the county board reduced the appropriation for the payment of regular employees in the office of the assessor of Cook county in an amount equal to two weeks ’ salary for each employee, and the same was true as to the regular employees in all the other county offices. In order to bring this about, the county board directed the county comptroller to notify all of the department heads to lay off their regular employees for a period of two weeks without pay.

The plaintiffs in this case who are suing for salaries' as extra temporary employees in the office of the assessor of Cook county for the period commencing September 1, and ending September 15,1941, were laid off as regular employees of the office of the assessor of Cook county during this period and were employed as extra employees by the assessor of Cook county for this same period.

The salaries fixed by the county board for the offices, positions or places of employment they occupied as regular employees in the office of the assessor of Cook county were not changed at any time by the assessor or by the county board.

It is therefore contended by the plaintiffs: first, that the assessor of Cook county is authorized by law to lay off, for economy reasons, or for any reason that he may believe will be conducive to a more efficient administration of the affairs of his office, his regular civil service employees, for a period of time not exceeding 30 days; second, that the assessor of Cook county had the power and authority to lay off his regular civil service employees for a period of 14 days without pay, and to employ them in any other position or place of employment created by the Board of County Commissioners of Cook county and for which positions or places of employment salaries were fixed by the county board and appropriation made to pay for the same; third, that in laying off his regular employees from the offices, positions or places of employment created for the regular employees by the county board and appointing them as extra employees to other positions or places of employment in the office of the assessor of Cook county, the assessor of Cook county did not in any manner change the rate of salary fixed by the Board of Commissioners of Cook county in its appropriation bill for the year 1941 for any office, position or place of employment; fourth, that the assessor of Cook county in laying off regular employees for a two weeks ’ period without pay and employing them as extra employees in positions or places of employment in the office of the assessor of Cook county, did not expend more than the amount appropriated for the salaries of regular employees and did not expend more than the amount appropriated by the county board for extra employees; fifth, that the plaintiffs are not claiming pay for overtime either as regular employees or as extra employees in the office of the assessor of Cook county for the past year of 1941; sixth, that the assessor of Cook county has not violated any of the provisions of the State Constitution or the statutes of the State of Illinois.

It is urged by the defendant that the Constitution and statutes of the State of Illinois provide that the salary of county officers must be determined in a fixed amount by the county board in the annual appropriation bill and may not be increased or decreased during the officer’s term of office; that the plaintiffs as regular employees with specified salaries appropriated for their respective offices, positions or places of employment are barred under the provisions of the Constitution and statutes from having additional or overtime compensation beyond their fixed yearly salary specified in the appropriation bill for 1941. The defendant further contends that the Constitution of 1870 and the statutes of Illinois both require that the compensation or salary of county officers shall be determined in a fixed and certain amount by the county board in its annual appropriation bill, and further provide that the compensation of no officer shall be increased or diminished during his term of office. Section 10 of Article X of the Constitution provides in part as follows:

“The county board, except as provided in section 9 of this article, shall fix the compensation of all county officers, with the amount of their necessary clerk hire, stationery, fuel and other expenses. . . . Provided, that the compensation of no officer shall be increased or diminished during his term of office . . .”
And further: That the Ill. Rev. Stat. 1941, ch. 120, sec. 487 [Jones Ill. Stats. Ann. 119.503], provide as to deputy assessors, as follows:
“The number and compensation of the clerks and the deputies (other than the ex-officio deputies) shall be determined annually by the county board and such compensation shall be paid from the county treasury.” And further, it is contended that the Ill. Rev. Stat. 1941, ch. 34, sec. 64.17; State Bar Ass’n Stats. 1937, ch. 34, sec. 64(9), provide as follows:
“The salaries or rate of compensation of all officers and employees of said county, when not otherwise provided by law, shall be fixed by the Board of Commissioners and shall be fixed prior to the adoption of the annual appropriation, and shall not be changed during the year for which the appropriation is made.”

The argument that is offered by the defendant is that the plaintiffs one and all were county officers, within the contemplation of the above-quoted sections of the Constitution and Illinois statutes, during all of the period of their employment in the office of the county assessor, including the period September 1 to September 15, 1941 for which they claim salary as extra employees, the county board having created special positions, offices or places of employment for each of them with a designated and fixed yearly salary by setting up such positions, offices or places of employment and a specific yearly salary for each in its annual appropriation bill of 1941. Defendant further urges that the plaintiffs, and each of them, as the record shows, received their respective salaries in their entirety as appropriated for them in said appropriation bill of 1941; that they now claim additional compensation for work allegedly done by them during the two weeks’ period from September 1 to 15, 1941, under a special payroll other than the regular payroll upon which they were paid their salary.

It does not appear from this record that the constitutionality of the annual appropriation bill was raised by the defendant in the trial court, and therefore the question of constitutionality was not passed upon by the trial court. The law is well established by the courts in passing upon attempts of appellants to argue errors committed by the trial court on points not argued below, and we do not regard it as necessary to cite many decisions upon this question. In the case of Holmes v. First Union Trust & Savings Bank, 362 Ill. 44, the Supreme Court, in its opinion, said:

“It is a settled rule of this court that a party will not be permitted to raise objections here which were not urged in the trial court. ’ ’

We believe that the failure of defendant to appeal directly to the Supreme Court constitutes a waiver on his part of his right to raise constitutional questions in this court. There is no merit in the contention of the defendant, as the terms of employment of the plaintiffs were not fixed by the Constitution nor by any statute of the State of Illinois.

Upon the pertinent question that is involved here in this case the Supreme Court said in Anderson v. City of Jacksonville, 380 Ill. 44:

“The two questions not previously passed upon are a contention that the act in question attempts to increase the compensation of municipal officers appointed for a definite term of office during such term, in violation of section 11 of Article IX of the Constitution, and a further question, not involving the Constitution, as to the validity of certain releases which appear to have been executed each month by each policeman at the time he was paid. The constitutional question gives us jurisdiction and we will therefore decide both points.
“The first point is without merit because it has been definitely held by this court that where the term of an office is not fixed by a constitutional or statutory provision, it is held at the pleasure of the appointing power, and although that power has attempted to fix a definite term for the office, as in this case was done by ordinance, the constitutional provision above referred to does not apply and the salary may be raised, lowered or revoked by the proper authority.”

It does not appear that the Constitution of a statutory provision has provided for the fixing of salaries of the employees of the assessor’s office, and, such being the fact, the appointment that is made of regular extra employees of the assessor’s office is held at the pleasure of the appointing power, and although the attempt to fix a definite term for the office, still, as the Supreme Court said in its opinion upon that question, ‘ ‘ the salary may be raised, lowered or revoked by the proper authority.”

As we have already indicated in the opinion of this court, the regular employees of the assessor’s office are civil service appointees and were appointed as such employees. The assessor of Cook county has the authority, and only the authority, to remove them from office, for purposes that he may deem important and for the good of the office, for a period of not„to exceed 30 days, and, after the 30 days has expired, unless there has been some action taken that would justify further effort to control the employee, he will be returned to his office as an employee and will continue to render the service that is required of him in that office.

In order, as suggested in the brief filed by the plaintiffs, properly to ascertain the salaries fixed by the county board for the offices, positions and places of employment in the office of the assessor of Cook county, and in order properly to ascertain the intention of the county board, it becomes necessary to consider the entire annual appropriation bill for the year 1941. Only in that way can it be ascertained what are the amounts of the salaries fixed for the various employees of the office of the assessor of Cook county. It further appears that the county board fixed the salaries for the various offices, positions and places of employment in the office of the assessor of Cook county for regular employees and for extra employees. And then the provision of the county board goes on to state that eight hours should constitute a day’s work in the office of the assessor of Cook county when the employment is during the ordinary business hours, and five hours should constitute a day’s work when the employment is outside of ordinary business hours, or during the night, or on holidays or Sundays, at not to exceed $6 per day per man and not to exceed $1.05 per hour for overtime. So that, from the record in this case, it does not appear that any of the employees have been appointed for a fixed period of time. They are appointed and the appropriation is made for an annual period during which they will receive such salary as was provided for by the county board.

It appears from the discussion of counsel in the case that the plaintiffs would not spend much time in discussing the constitutional question were it not for the fact that the defendant cites section 64.17 of chapter 34, of the statutes, which reads as follows:

“The salaries or rate of compensation of all officers and employees of said county, when not otherwise provided by law, shall be fixed by the Board of Commissioners and shall be fixed prior to the adoption of the annual appropriation, and shall not be changed during the year for which the appropriation is made. ’ ’

The defendant urges that the employees were all county officers within the contemplation of the above-quoted provision of the statute during all the period of their employment in the office of the county assessor, including the period from September 1 to September 15, 1941. It does not appear that any evidence was offered to prove that the rate of salary fixed by the county board in its annual appropriation bill for the offices, positions or places of employment which the plaintiffs occupied as regular employees of Cook county were increased or diminished by any act of the county board or of the assessor of Cook county.

It is well recognized as a fact that the plaintiffs were only entitled to receive the salaries fixed for the offices, positions or places of employment held by them as regular employees in the office of the assessor of Cook county so long as they occupied said offices, positions or places of employment and discharged their duties pertaining thereto, and it is urged, as we have already stated in this opinion, that the assessor of Cook county, by virtue of the authority conferred upon him by law, relieved the plaintiffs from performing the duties of the offices, positions and places of employment which they held as regular employees in the office of the assessor of Cook county. Their right to collect the salaries for such regular offices, positions or places of employment in the office of the assessor of Cook county did not include the period from September 1 to September 15, 1941, and the amount of the plaintiffs’ salaries for the period in question was saved to Cook county. It is well suggested that the statutes of the State of Illinois do not prohibit a regular employee of Cook county, while unemployed, from accepting a position as an extra employee, or as a temporary employee, during the period in which he has been separated and relieved from the performance of his duties as a- regular employee.

It appears in the instant case that the plaintiffs are not claiming two salaries. They are only endeavoring to collect the compensation out of the appropriation for extra employees fund for extra or temporary employees in the office of the assessor of Cook county from September 1 to September 15, 1941, and for the period they performed and discharged the duties pertaining to said offices, positions or places of employment.

It is urged by the defendant that the plaintiffs were employed by Cook county and were officers of Cook county, and lay great stress upon the fact that they are officers and not employees. From an examination of the record, and from the facts that appear in evidence, they are but employees, regardless of whether they occupied positions or places of employment as regular employees of the assessor of Cook county, or were temporary employees. Upon this question, the Supreme Court said, in the case of City of Pekin v. Industrial Commission, 341 Ill. 312:

“In People v. Coffin, 282 Ill. 599, on page 606, it was said: ‘In many cases it is difficult to determine whether a person is an officer or merely an agent or employee of a municipality. It is even more difficult to lay down any fixed rule to determine the question, in all cases, as to whether a person is an officer or merely an agent or employee of a municipality. G-enerally, an officer takes an oath of office, while a mere agent or employee does not. The duties and services of a mere employee are purely ministerial, and he is not clothed with discretion nor with power to represent or bind the corporation. (28 Cyc. 585.) An office is a place in a governmental system created or recognized by the law of the State, which either directly or by delegated authority assigns to the incumbent thereof the continuous performance of certain permanent public duties. A position is analogous to an office in that the duties that pertain to it are permanent and fixed, but it differs from an office in that its duties may be nongovernmental and not assigned to it by any public law of the State. An employment differs from both an office and a position in that its duties, which are nongovernmental, are neither certain nor permanent.’ ” The fact that these regular employees were relieved from their duties óf such employment and appointed as extra employees does not violate any of the provisions of the statutes of the State of Illinois, and does not change their duties to the State of Illinois. It is clear that while the county appropriation bill established salaries at lower levels than the previous year, that the salary rates per month of the prior year were to be maintained by means of the “payless vacation.” The deputy comptroller’s letter regarding the “pay-less vacation” indicates that intention of the hoard. The assessor’s action, relieving the regular employees, conformed to that intention.

"When we come to consider all of the questions that have been called to our attention, we are of the opinión that the court did not err in directing that the payroll of the office of the assessor of Cook county for the period commencing September 1 and ending September 15, 1941, be approved by the comptroller of Cook county, and the order and judgment of this court is that the judgment of the superior court of Cook county ordering and directing the county comptroller to approve the said payroll should be affirmed.

Affirmed.

Burke, P. J., and Kiley, J., concur.