text:
    The People of the State of Illinois ex rel. Lou Hamilton, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 36,901.

      Opinion filed March 6, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    William H. Sexton, Corporation Counsel, and Francis J. Vurpillat, Assistant Corporation Counsel, for appellants.
    R. E. Blackwood, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

Lon Hamilton, relator, hereinafter referred to as petitioner, was certified by the civil service commission to the position of telephone operator in the police department of the City of Chicago, October 23, 1930. She was discharged April 14, 1931, without the assignment of any cause or reason. She was reinstated November 10, 1931, pursuant to judgment entered in a previous action of mandamus on the ground that she had been illegally discharged. The instant mandamus action was brought by her subsequent to her reinstatement to compel the City of Chicago and its proper officials to pay her $855.68, salary alleged to be due from April 14, 1931, the date of her wrongful discharge, until her reinstatement November 10, 1931. G-eneral and special demurrers to her petition for mandamus were overruled and, respondents electing to abide by their demurrers, judgment was entered that a writ of mandamus issue commanding them to pay her the above amount. This appeal followed.

Pars. 1 to 6, inclusive, of the petition alleged facts to establish her character as a civil service employee in the classified service of the city. Pars. 7 to 19, inclusive, alleged facts that established that certain designated officers of the City of Chicago, without substantial compliance with the civil service act and the rules of the civil service commission, wrongfully removed her as a probationer from her position as telephone operator; that she made a demand for restoration thereto; and that by a previous writ she was reinstated to her position and thereafter paid her salary. Pars. 20 and 21 contained the following averments:

“20. Your petitioner further shows that there is due her at One Hundred Twenty-five Dollars ($125.00) per month until October 23, 1931, the sum of $779.19, and thereafter from October 23,1931, to November 10, 1931, at One Hundred Thirty-five Dollars ($135.00) per month, the sum of $76.50, making1 a total of $855.69 due your petitioner.
“21. Petitioner further shows that each of the respondents herein are charged with specific duties in initiating and preparing pay rolls for employes and such duties must be performed that salary due your petitioner as telephone operator, police, may be paid to her.”

The petition concluded with the following prayer:

1 ‘ That a writ of mandamus issue herein, directed to and against each of the respondents herein directing each of them to perform their specific duties in connection with pay roll preparation to the end that your petitioner may be . . . paid her salary for the period April 14, 1931, to November 10, 1931, in the sum of $855.69, subject to the laws and ordinances in regard to such acts. ...”

Respondents’ general demurrer was in the usual form and the pertinent portion of their special demurrer was as follows:

“The petitioner herein has mistaken her remedy and has resorted to the action of mandamus when, by the affirmative allegations of her pleadings the only actions at law available to her are those of debt and assumpsit, the petitioner demanding the payment to her of a claim alleged to be due her from the city upon which no action or judgment has been taken.”

The material pprtion of the judgment order entered by the trial court is as follows:

“It is therefore ordered and adjudged by the court that a writ of mandamus be issued by the clerk of this court and under the court’s seal, commanding the respondents, Edward J. Kelly, as" Mayor, James A. Kearns, as City Treasurer, M. S. Szymczak, as City Comptroller, James P. Allman, as Commissioner of Police, Richard J. Collins, Alfred 0. Anderson and Joseph P. Geary, as the Civil Service Commission, all of the City of Chicago, each and all of them to do any and all things necessary to enable petitioner to receive the warrant of the City of Chicago in the amount of $855.69; that Respondent Szymczak as City Comptroller draw or cause to be drawn a warrant to petitioner in said amotint and that Respondent Kearns as City Treasurer of the City of Chicago pay same to the end that your petitioner shall receive the same amount of $855.69 due petitioner for the period set forth in petition herein.”

Respondents contend that the petition for the writ is obnoxious to both special and general demurrers; that mandamus is not a writ of right and that petitioner has no right to the writ; that the affirmative allegations of the petition disclose a mere claim of debt alleged to be owing from the City of Chicago, or a promise to pay such debt, for which only the common law actions of debt or assumpsit are available; that such claim of debt can be adjudicated by resort to only one or the other of such actions, and until clearly established by judgment against the municipality its officers cannot be coerced by the writ to recognize and concede the legality of petitioner’s demand, for they owe no duty to pay such claim until so liquidated and adjudicated against the city.

Petitioner’s theory is that her salary had been appropriated; that after she had shown her right to it by reinstatement under the previous writ of mandamus the only thing left for respondents to do was to draw warrants and make payments to her as they have now been ordered and directed to do; and that she had a clear right to maintain mandamus to enforce her claim.

The sole question presented for our determination is whether petitioner has mistaken her remedy and is precluded from maintaining mandamus under the law and facts presented on this record. The.rules for determining whether or not mandamus will lie to compel payment of money out of a municipal treasury are no different than those applicable in other cases.' One of the rules most rigidly adhered to at common law was that the writ would never be issued if there was a plain, adequate legal remedy. In all States where mandamus still retains its common law form, unaltered by statute, a treasurer cannot be compelled to pay money if there is another adequate and specific,remedy. It has usually been held that if a suit would lie against the municipality on a warrant, or on a claim represented by the warrant, the treasurer would not be compelled by mandamus to pay it. 14 L. R. A., note pp. 773, 774.

However, in this State the common law rule has been changed by statute, and the question appears to have resolved itself into a matter of the court’s inquiry as to whether or not the officers of the municipality, against whom the issuance of a mandamus is desired, have plain legal duties to perform which they may conveniently be compelled to do by mandamus. If there is no doubt as to the amount claimed, the right of the petitioner to receive it, or the duty of the proper officers to draw and pay warrants covering same, it would seem that it lies within the discretion of the court to award the writ to compel payment, even though there are other specific legal remedies available. Chap. 87, par. 9, Cahill’s 1931 Revised Statutes, provides as follows:

“The proceedings for a writ of mandamus shall not be dismissed nor the writ denied because the petitioner may have another specific legal remedy, where such writ will afford a proper and sufficient remedy; and amendments may be allowed as in other civil suits.”

While the remedy rests largely in the discretion of the courts, yet the rule is uniform and inflexible that the writ will not be granted unless the relator’s right to it is clearly established. People ex rel. Hillard v. Davis, 93 Ill. 133.

Respondents earnestly insist that petitioner must first resort to an action in either debt or assumpsit to establish her claim and reduce it to judgment, and only upon the refusal of the city to pay the judgment may she proceed to mandamus the city or its proper officers to pay it. That was the law of this State prior to the revision of our Mandamus Act in 1874, placing it within the discretion of the court to allow the writ where a clear right was shown for its issuance, even though the petitioner might have another specific legal remedy where such writ would afford a proper and sufficient remedy.

In our opinion where the petitioner’s claim for “back salary” is one of a character whose payment the law imposes on the municipality, it is the obvious duty of the city comptroller and treasurer, or other paying officers, to pay when such officers have the funds to pay with. We fail to see that an action either in debt or assumpsit is a sufficient remedy in this cause where a clear right to the payment of a definite amount of salary wrongfully withheld from petitioner has been shown, as well as a plain duty on the part of the disbursing officers of the city to pay it. It appears to us that under the circumstances disclosed there is a palpable insufficiency in the remedy which would give her a personal judgment against the municipality to be followed, it may be, by a mandamus to compel the payment of the judgment. She has an immediate right. to the payment of the salary appropriated for her at the time of her discharge, which appropriation was still effective at the time of her reinstatement, and a remedy which imposes any of the delay indicated and contended for, with its attendant expense, is entirely inadequate. (Ray v. Wilson, 14 L. R. A. 773.) A remedy which will avoid or preclude mandamus in this State in a proper case, in our opinion, must be one competent to afford relief upon the very subject matter in question and which is equally convenient, beneficial and effective. Ordinarily the remedy must be such as to enforce the right or compel the performance of the particular duty in question, — in effect specific performance — and not merely a remedy which in the end saves the party to whom the duty is owed unharmed by its nonperformance. 38 C. J., p. 561.

No case has been cited in this State and we have failed to find one which is decisive of the precise question presented on this appeal. Cases have been cited in which unlawfully discharged State employees successfully maintained mandamus to compel the proper State officials to perform their duties to the end that such employees might receive their salaries for the period of their wrongful dismissal. These cases are not applicable to the issue presented here because that was the only remedy available to State employees, inasmuch as the State could not be sued directly without its consent. Respondents cite City of Chicago v. Luthardt, 191 Ill. 516, 522, O’Connor v. City of Chicago, 327 Ill. 586, and Hittell v. City of Chicago, 327 Ill. 443, 446, where in each instance the reinstated employee brought assumpsit to collect his “back salary,” as indicative of the proper remedy to pursue in this character of case. Assumpsit was brought in those cases, but in none of them was it held that either assumpsit or debt was the exclusive remedy where1, as here, a clear right has been shown to the payment of such salary or that mandamus would not lie. While many jurisdictions adhere to the common law rule that mandamus is a prerogative writ and should be awarded only where there was no other specific legal remedy, this State and many others have by statute liberalized the action to the extent that when the clear right is sufficiently shown mandamus will lie as a speedy, convenient and adequate remedy, even though other specific remedies may be available. The reason for this rule is clearly expressed in People ex rel. German Ins. Co. of Freeport v. Getzendaner, 137 Ill. 234, where, on p. 262, the court said:

“We have often held, that to authorize a mandamus to be issued, the petitioner must show a clear legal right. The People v. Forquer, Beecher’s Breese, 104; The People v. Chicago and Alton Railroad Co., 55 Ill. 95; The People v. Glann, 70 id. 232; The People v. Village of Crotty, 93 id. 180; Lavalle v. Soucy, 96 id. 467; The People v. Dulaney et al., id. 503. And all of the cases cited by counsel for the respondents which we have not herein commented upon, belong to this class, — the facts were not admitted, and the amount or the right involved presented an issue of fact. ‘It is not the province of mcmda/mus,’ says High in his work on Extraordinary Remedies (sec. 339, 2d ed.), ‘to settle the difference of opinion between municipal authorities and claimants, as to the amount due for services rendered. All such cases of disputed accounts or claims against the municipality should be referred to the arbitrament of a jury or to the ordinary process of the courts, and they cannot be determined by proceedings in mandamus.’ . . . But there are here no facts in dispute. The allegations of the petition are admitted by the demurrer to be true, and the only contention is in regard to a conclusion of law, as to which, in our opinion, there is no doubt, and the case is therefore clearly within the authority of . . . cases cited . . . holding that mandamus will lie.”

Petitioner alleged her rig*ht to the position she held with the City of Chicago as a civil service employee, her wrongful discharge, the previous writ directing her restoration, her reinstatement, the specific appropriation for her salary at the time of her discharge and still in effect at the time of her reinstatement, the refusal to pay her salary for the period during which she was unlawfully prevented from performing her duties, and the duty of the designated officers of the city to perform and their refusal to perform specific acts in connection with pay roll preparation, to the end that she might be paid her salary for such period. All of these material allegations are admitted by the demurrer to be true. By reason of her restoration to her position by a previous writ of mandamus, and because of the persistence of the City of Chicago and its officials in refusing to pay her the definite appropriated salary of which she had been wrongfully deprived, we are of the opinion that the trial court properly exercised its discretion in awarding the writ to compel its payment.

For the reasons indicated the judgment of the circuit court is affirmed.

Judgment affirmed.

Gridley and Scanlan, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Gridley delivered

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. John Bain et al., Plaintiffs in Error.
    Gen. No. 36,728.

      Opinion filed March 6, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    Rehearing denied March 21, 1934.
    Harry Olson and Sanford Olson, for plaintiffs in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Grenville Beardsley and Albert J. Woll, Assistant State’s Attorneys, of counsel.
   Mr. Justice Gridley delivered

the opinion of the court.

This cause originated by the return of an indictment in the criminal court of Cook county on February 17, 1932, charging the six defendants with conspiracy to obtain money and other property by false pretenses, etc. The defendants, Mulholland and Buhlig, were granted a severance and, on the trial of the other four defendants, they testified as witnesses for the State. A jury having been waived by agreement the trial was had before the court during the summer of 1932, at which much oral and documentary evidence was introduced. The transcript of the record consists of more than 10,000' pages, and the printed abstract of more than 800 pages. For the State 114 witnesses testified. Each of the four defendants testified in his own behalf and defendants called more than 70 witnesses. The prosecution arose out of the closing on June 9, 1931, of 12 Chicago banks, known as the “Bain Banks,” which were practically under the control of the principal defendant, John Bain. The 12 banks were organized under the laws of the State of Illinois and were named and known as: West Englewood Trust & Savings Bank; Armitage State Bank; Auburn Park Trust & Savings Bank; Brainerd State Bank; Bryn Mawr State Bank; Chatham State Bank; Chicago Lawn State Bank; Elston State Bank; Ridge State Bank; Stony Island State Bank; West Highland State Bank, and West Lawn Trust & Savings Bank. John H. Bain and Robert A. Bain are sons of John Bain, and W. Merle Fisher is his son-in-law. At the conclusion of the trial on August 25, 1932, the court entered the following findings and judgment:

“That the People have not sustained by evidence beyond a reasonable doubt, within the rule laid down in People v. Clark, 329 Ill. 104, that the defendants conspired as charged in the indictment to receive deposits knowing the bank to be insolvent, or to keep the banks open to receive deposits when they knew the banks were insolvent as charged in other counts of the indictment, and the court finds that the defendants cannot be held guilty under those counts”; that “as to all other counts in the indictment, the court finds each and every one of the defendants guilty as charged and fixes the punishment of the defendant, John Bain, whose age the court finds to be 64, at imprisonment in the penitentiary for a term of not less than one year or more than five years; and the court adjudges that the defendants, John H. Bain, W. Merle Fisher and Robert A. Bain, each be condemned to pay a fine of one thousand ($1,000) dollars”; and that “the court further finds that the defendant, John H. Bain, is 34 years of age, that the defendant, W. Merle Fisher, is 43 years of age, and that the defendant, Robert A. Bain, is 29 years of age.”

On March 16, 1933, the present writ of error was sued out and on the same day it was here ordered that the writ 'be made a supersedeas upon the four defendants respectively entering into certain recognizances, with sureties, with the sheriff of Cook county. After briefs had been filed, the People, by the State’s attorney, filed a written motion, accompanied with suggestions and affidavits, “to strike from the transcript of the record the two original bills of exceptions incorporated therein.” On November 16, 1933, after counter suggestions and counter affidavits had been filed, the motion was reserved to the hearing. During the oral argument on January 3, 1934, leave was given to counsel for defendants to present memoranda of additional suggestions and authorities bearing upon one of the points made in their original printed brief, and the memoranda were presented and have been considered.

The indictment consisted of 73 counts. Those on which the court found that the four defendants could not be held guilty are numbered 27 to 50, inclusive, and they need not now be considered. The other 49 counts, on all of which the court found the defendants guilty as charged, may be divided for convenience into three groups, of which counts 1 to 14, inclusive, form group No. 1; counts 15 to 26, inclusive, and counts 51 to 62, inclusive, group No. 2; and counts 63 to 73, inclusive, group No. 3.

Of said group No. 1, count 1 charges the four defendants, and Mulholland and Buhlig, on June 9, 1931, in said county, with unlawfully, fraudulently and maliciously conspiring together, and with other unknown persons, to unlawfully obtain from the public generally the sum of $13,000,000, and divers checks, drafts, notes, bonds, and other instruments in writing for the payment of money of the value of $13,000,000, from the public generally, “by false pretenses, and to cheat and defraud the public generally, . . . contrary to the statute,” etc. (i. e., section 46 of chapter 38, Cahill’s St. 1931, if 116, p. 1010.) In count 2 the same charges are made as being ‘ ‘ contrary to the law, ’ ’ etc. In count 3, the defendants are charged with unlawfully, etc., conspiring together, and with other unknown persons, to unlawfully obtain “from stockholders, depositors, customers, creditors,” and persons about to become such, “of the West Englewood Trust & Savings Bank,” an Illinois banking corporation, “the sum of $3,000,000,” etc., and divers checks, etc., of that value, belonging to said stockholders, etc., “by false pretenses, etc., contrary to the statute, ’ ’ etc.' In counts 4 to 14, inclusive, the charges are substantially the same as to each of the 11 other Bain banks.

Of group No. 2, count 15 alleges in substance that on said date, etc., John Bain was and had been for a long time the president and a director of 'the West Englewood Trust & Savings-Bank; that John H. Bain was and had been an officer of the bank and an assistant of John Bain, performing certain powers and duties as president; that W. Merle Fisher was and had been cashier and a director of the bank; and that Walter IT. Buhlig was and had been a director of the bank and the chairman of its Discount and Finance Committee. And it is charged that the six defendants, on said date, etc., knowingly, wilfully, fraudulently, etc., conspired, etc., wrongfully, etc., as officers or agents of said bank, “to buy, discount and purchase,” or cause to be bought, discounted and purchased, for and on behalf of said bank, from John Bain and the other five defendants, and from firms and corporations which the six defendants ■ controlled or were interested in, “divers notes, mortgages, and real estate property ... at an exorbitant, extortionate and excessive price,” far in excess of their value, as they well knew, “and to thereby collusively obtain,” without consideration from the bank, “for themselves and for said firms and corporations, . . . the funds, money and property of said bank, and to thereby defraud said bank, contrary to the law,” etc. In counts 16 to 26, inclusive, the charges are substantially the same in relation to each of the 11 other banks. Count 51 charges a conspiracy of certain defendants named as officers of the West Englewood Trust & Savings Bank, and of other defendants, “to cheat and defraud said bank of its funds” and to induce it “to make excessive loans” to persons insolvent or approaching insolvency without receiving security therefor, and to make or cause to be made to themselves, as officers and agents of the bank, or to companies in which said defendants were interested, excessive loans, when they or the companies were insolvent, “thereby making such loans bad, desperate and worthless,” as they well knew, and “thereby to injure said bank and to defraud it of its funds, money and property, contrary to the law, ’ ’ etc. In counts 52 to 62, inclusive, the charges are similar except that the other 11 banks, respectively, are named.

Of group No. 3, count 63 charges a conspiracy of certain named defendants as officers of the West Englewood Trust & Savings Bank, and of other defendants, to make for the bank, or cause the bank to make, loans to its officers or salaried employees, “without first having an application for said loans made and approved by the board of directors of said bank, as to security and amount, contrary to the law,” etc. In counts 64 to 73, inclusive, the charges are similar, except that 10 of the other 11 banks, respectively, are named.

On February 24, 1932, the four defendants were arraigned and pleaded not guilty. Thereafter they were given leave to withdraw their plea, and they filed a written motion to quash the indictment. Numerous grounds for the motion are specified, among which are that some of the counts are “vague, indefinite and general,” and “furnish no bases from which defendants may apprehend the number, time, place or character of the transactions, if any, to be produced in evidence against them”; that some are bad for duplicity; that some, while purporting to do so, do not sufficiently charge the offense of conspiracy at common law; and that some, while charging the defendants with conspiracy to commit claimed unlawful acts as officers of the respective banks, do not allege that all defendants had any official connection with the particular bank. Subsequently, after a hearing, the court denied the motion to quash.

On June 13, 1932, the State’s attorney filed a bill of particulars in the cause. Neither the record nor the abstract discloses that at any time after its filing defendants made any objections to its sufficiency, or made any motion for the filing* of an additional or more specific bill of particulars. The bill of particulars, as filed, is as follows:

As to counts 1 and 2 of the indictment, the members of the public intended to be defrauded by the conspirators “include the class of persons referred to in counts 3 to 14, inclusive, and also the customers and stockholders of the Lews Company and of John Bain, Inc., a corporation, and also persons who were owners of securities, and the various banks who were also holders of securities and indebtedness of the various trusts in the bank, in which trusts the defendants, or either of them, were interested, to wit:

‘ ‘ The various trusts in the various banks, numbered as follows: 4, 7, 74, 185, 190, 625, 721, 725, 915, 1032, 393, 825, 833, 1200, 1240, 1202, 687, 1060, 1063, 1090, 1051, 1006, 1002, 852, Cn-211, CB 213, 1032, 131, 149, 120, 56, 51, 49, 37, 31, 28, 8 and 6.”

The false pretenses, the means by which defendants intended to effect the consummation of the conspiracy as alleged in counts 1 to 14, inclusive, “include false pretenses with reference to and concerning the value and worth of assets and resources and liabilities of the various banks mentioned, and of the Lews Company and of John Bain, Inc., and of the Trusts mentioned, and as to the solvency of the banks and worth of their various assets, and of their capital, surplus and undivided profits, and of the value of the properties and assets of the trusts mentioned, and of the firms and corporations and concerns and enterprises hereinafter mentioned and in which the various defendants or either of them were interested, which said indebtedness and securities and obligations were purchased by the divers banks and either retained or sold to divers members of the public. ’ ’

The conspiracy to purchase, for and on behalf of the banks from the defendants and each of them and from the firms and corporations which they controlled or were interested in, notes, mortgages, bonds, etc., as alleged in counts 15 to 62 inclusive, “comprises premises commonly known as:” (Here follow the names of seven bank premises); the “real estate bond issues commonly known as: ” (Here follow the names of 31 bond issues by name of building, etc.); the ‘ ‘ securities and obligations written against the divers trusts herein mentioned; the stock issues of John Bain, Inc., the Lews Company, Gage Park Safe & Securities Company, Stony Island Safe & Securities Company, Auburn Park Safe & Securities Company, Chatham Building Corporation, Chicago Lawn Building Corporation, Highland Building Corporation, Hop stein Safe & Deposit Company; and the real estate bought on behalf of the banks also include the real estate bought from the building corporations and occupied by the various banks as bank buildings; the Drexel Western Investment Company and the Caledonia Company; and all notes, signed by defendants and by the various directors of the banks, and by John Bain, Inc., and by the Lews Company, and by all officers of the banks, which have never been paid except by renewal or giving something in lieu of cash by the various parties, firms and corporations herein named, and which are now in the banks as assets of the various banks.”

Under counts 51 to 62, inclusive, “the State will introduce the loans and discounts, stocks, bonds and other evidences of indebtedness and property, and purchases of the same made by various officers and directors of the various banks and from various firms, individuals and corporations above mentioned, and none others. ’ ’

Counts 63 to 73, inclusive, in which the conspiracy is charged to make loans to the various officers of the banks named, and to the divers trusts, firms and corporations in which the defendants were interested or which they controlled, “refer to the various persons, trusts, firms and corporations, building enterprises and real estate properties herein mentioned, and none others.”

It appears from an interlocutory bill of exceptions (which is marked by the trial judge as having been presented on July 20, 1932, and which is contained in the present transcript as finally certified by him) that during June, 1932, and before the trial, a written motion was presented by one of the defendants, John Bain, to suppress certain evidence and certain of his personal books and records; that the motion was supported by his affidavit and that of James J. G-ammonly, his bookkeeper; that an assistant State’s attorney, Edwin J. Baber, presented an answer to the motion and a counter affidavit, sworn to by him; that thereafter a hearing was had on the motion, at which, in addition to the affidavits and answers, certain testimony of Grammonly and of one Edward C. Barry, offered by the State, was presented; that defendants did not call any witnesses; and that at the conclusion of the hearing the court denied the motion, to which ruling counsel for John Bain excepted. The affidavit of Bain is in substance as follows:

That prior to November 3, 1931, there was pending in the circuit court of Cook county a chancery suit, entitled, Seaborg v. John Bain, Inc., a corporation, and others; that on November 3, 1931, affiant was called as a witness and testified before Judge Feinberg; that he was examined about a stock subscription he had made to the capital stock of John Bain, Inc.; that he then stated that all of his books and papers had been turned over by him to his bookkeeper (Gammonly) and that if the court desired he would order Gammonly to bring them into court, but suggested that Gammonly be subpoenaed; that after the books, etc., had been produced, the court ordered them turned over to an accountant employed by the Straus National Bank & Trust Co., receiver for John Bain, Inc.; that without affiant’s knowledge or consent said accountant turned over the books, etc., to assistant State’s attorney, Baber; that had affiant known this was to be done he would have “protested, and sought an order from the circuit court to prevent it”; that following his appearance in the circuit court affiant was confined for a considerable time in a hospital because of illness, and did not learn that the books, etc., had been in Baber’s hands “until approximately April 15, 1932”; that affiant is informed and believes and so states that the books, etc., “have extensively been used,” by the State’s attorney and assistants “in the discovery and preparation of evidence to be used in the present prosecution,” and that the books, etc., “or information derived from them, or witnesses who have been discovered because of them, are to be used against him in the present prosecution”; and that, because of the foregoing, “affiant says that the rights and privileges guaranteed to him by the Constitution of the United States and of Illinois have been violated, in that his private books and papers have been seised and taken possession of by the state’s attorney without his consent, and that he has thus been compelled to be a witness against himself.”

The affidavit of Gammonly is in substance as follows :

That affiant had been in Bain’s employ, as his personal bookkeeper, for about 18 years, and as such had kept the records of all of his business transactions ; that among the books and records are certain journals, cash books, ledgers, canceled ledger sheets, scratch books, check books, check stub books, etc. (describing them); that about November 9, 1931, in response to a subpoena duces tecum, he appeared before Judge Feinberg and produced some.of the books, and at a later date produced, under the court’s direction, other books and gave certain testimony; that about November 18, 1931, under the court’s direction, he delivered all books into the custody of said judge’s clerk, and received a receipt therefor signed “by an assistant secretary of the Straus National Bank & Trust Co., receiver for John Bain, Inc.”; and that during March, 1932, he discovered that all of the books and records, were in the possession of assistant State’s attorney, Baber, “in an office at 1538 West 63rd street, Chicago.”

In the answer and counter affidavit of Baber he stated in substance:

That prior to November 6, 1931, Gammonly maintained an office separate and apart from John Bain, in which office he, and not Bain, had possession of the books, etc.; that Bain, without any order of the circuit court and of his own free will, requested Gamnlonly to produce the books, etc., in Judge Feinberg’s court to be used in the cause there pending; that Gammonly produced them according to Bain’s request; that after they had been in Judge Feinberg’s court for about two days, Grammonly was served with a subpoena to produce them in a Federal court; that Grammonly advised Bain of the subpoena being served and Bain told him “to produce the books in accordance with the subpoena and to co-operate in all matters pertaining to any investigation of the same ’ ’; that when the books were in Judge Feinberg’s court, witnesses were there examined, and “finally the books, at the court’s direction, were left with the clerk of that court and thereafter turned over by him to the auditor of the receiver for examination”; that “during all of said proceedings, John Bain was represented in court by counsel and neither he nor his counsel ever raised any objection whatsoever to any acts or doings or orders pertaining to such books”; that the books, etc., were examined for the receiver by one Oppenheimer; that affiant requested Oppenheimer to permit auditors for the State to examine them, which permission was granted; that on account of the inconvenience of having the examination made in Oppenheimer’s office, “Oppenheimer permitted the auditors of the State to take the books from his office upon a receipt, promising to return the same to him, and that said auditors now have possession of the books by virtue of such receipt”; that Bain and the other defendants herein “have had permission to examine the books separate and apart from all employees of the State, and have had the same access to the books as the auditors of the State have had, except that the defendants herein were not permitted to take them from the premises where they were being held by the State, and for the reason that the State is bound to return them to said Oppenheimer”; that “about January 30, 1932, John Bain assigned and delivered to the Chicago City Bank & Trust Co., for the benefit of his creditors, all of his personal assets, real, personal and mixed and wheresoever situated, including all legal and equitable property of any and every nature and by him held”; and that the books mentioned “were the property of said Bain and were a part of his assets in connection with the matters in said books set forth.”

On the hearing of the motion to suppress, Gammonly testified that early in November, 1931, in compliance with telephone calls received from Robert A. Bain and Edward C. Barry that John Bain wanted his personal books taken to Judge Feinberg’s court room, he (the witness) took the books to that place; that he had also received a subpoena from the “Federal Government Internal Revenue Department” to produce the books; that on November 9, 1931, he saw John Bain and informed him of the subpoena, and Bain told him “to take care of both subpoenas, and to co-operate, and bring in all the books and records ’ ’; that prior to taking the books to Judge Feinberg’s .court room they were in his (the witness’) possession “at his office at No. 1538 West 63rd street, Chicago,” which office “John Bain had nothing to do with”; that he (the witness) had had the books in his possession for about four years; and that after the Bain banks were closed in June, 1931, he continued to retain the possession of the books, although his active duties as Bain’s bookkeeper, and his salary therefor, had ceased upon the closing of the banks. Edward C. Barry testified that early in November, 1931, John Bain instructed bim to tell Gammonly to bring his (Bain’s) books to Judge Feinberg’s court room.

Counsel for defendants have assigned on the record 101 errors, but in the stated points in their original brief 20 grounds for reversal are set forth. And in none of these grounds is it urged that the finding of the trial court (that the defendants are guilty as charged in counts 1 to 26, inclusive, and in counts 51 to 73, inclusive) is against the manifest weight of the evidence, or that defendants were not proven guilty beyond a reasonable doubt. In their printed argument, however, in addition to urging said grounds for reversal, they argue that the evidence does not sufficiently show that defendants were guilty beyond a reasonable doubt of any of the charges, and they make the statement, many times repeated, that the judgment should be reversed as to all defendants because they were “the victims of the recent depression.” The 20 grounds, boiled down (including the point made in counsels’ printed argument), amount to six contentions in substance as follows:

1. That the court erred in refusing defendants’ motion to quash the indictment.
2. That in view of the indictment containing so many counts, the failure of the court to require an “adequate and fair” bill of particulars constituted error.
3. That the court erred in failing to limit the State in it's proof as to the transactions disclosed from the bill of particulars filed.
4. That the court erred in denying defendants’ motion to supress certain documentary evidence, obtained by the State’s attorney by an “unlawful seizure” of John Bain’s private books and records without his consent, in violation of his constitutional rights.
5. That to support the court’s general finding of guilty on all the counts in question it was “legally necessary that all defendants be proven to have been in the same conspiracy,” which was not proven.
6. That the evidence does not sufficiently show that defendants are guilty beyond a reasonable doubt of any of the charges contained in the counts.

In this opinion we shall only consider the six contentions, as, under well settled rules, any assignments of error that are not supported by argument may be considered as waived. (People v. Cobb, 343 Ill. 78, 83; People v. Kozel, 303 Ill. 112, 114.)

As to the first contention (error of court in refusing defendants’ motion to quash the indictment) counsels’ argument in their brief is in substance that the indictment shows on its face that there was “a misjoinder of offenses in the several counts ’ ’; that the rule is, that where “two or more distinct felonies are charged in the same indictment, ’ ’ it may be quashed upon motion, or the prosecutor be compelled to elect upon which charge he will proceed (citing Kotter v. People, 150 Ill. 441, 445); that the ‘ ‘ rule is the same in misdemecmor cases where the charges are not founded on the same facts or form or are a part of a series of offenses of the same or similar character or are not based on the same transaction”; that the indictment “contained three different groups of charges which did not grow out of the same transactions, and which were not founded on the same facts or formed a part of a series of offenses of the same or similar character”;-that the “methods of the prosecution were unfair,” in that defendants “were grievously prejudiced” by the fact that the prosecution was “upon an indictment containing 73 counts, covering 14 banks and many firms and corporations, and alleging false pretenses in all counts without setting out those false pretenses in either the indictment or bill of particulars,” and “neither defendants nor their counsel could prepare to meet such voluminous, general and omnibus charges, nor could the court properly rule upon the evidence”; and that, hence, the court erred in not quashing the indictment upon defendants’ motion. Wei find no substantial merit in the contention or argument. Each count of the indictment charged defendant with the offense of conspiracy, either in violation of the statute (sec. 46 of our Criminal Code, Cahill’s St. ch. 38, ft 116) or at common law. It is illegal at common law to obtain money or property or to cheat and defraud, by means of false pretenses (People v. Smith, 239 Ill. 91, 103). Even if it could be said that the various counts charged separate and distinct misdemeanors, yet we regard them as of the same character or grade. Although separate felonies, as urged by counsel, may not be included in different counts of the same indictment, the same offense may be stated in different ways in as many different counts as the pleader may think necessary, provided that all the counts relate to the same transaction. (People v. Rasmussen, 328 Ill. 332, 333; Lyons v. People, 68 Ill. 271, 275.) And the rule as to misdemeanors is broader. In People v. Elliott, 272 Ill. 592, 600, it is said: “The State may join misdemeanors of the same character in the same indictment, and the court may fix separate punishment upon each count on which there is a conviction. . . . This practice has been approved by this court rather than to require separate indictments for each offense.” (See, also, People v. Allen, 352 Ill. 262, 267; People v. Munday, 204 Ill. App. 24, 32, affirmed as to the particular point in 280 Ill. 32, 51.) In the Munday case, the indictment for conspiracy, consisting of numerous counts, was similar to the present indictment, and the court decided against a similar contention made by the convicted defendant. In People v. Jacobson, 247 Ill. 394, 398, it is said: “In the case of misdemeanors the joinder of several offenses of the same character will not, in general, vitiate in any stage of the prosecution. In such cases the practice of quashing the indictment or information or calling on the prosecution to elect on which charge he will proceed does not exist.” In People v. Montgares, 347 Ill. 562, 567, it is said: “In an indictment charging misdemeanors, separate and distinct offenses of the same nature may be charged in the same indictment under various counts. The offenses as charged may be tried in the same case.” Furthermore, it is clear to us, under repeated decisions of our Supreme Court, that counts 1 to 14, inclusive (comprising Group 1) are not obnoxious to a motion to quash. (People v. Smith, 239 Ill. 91, 103, 106.) And in an indictment charging a conspiracy to obtain money by false pretenses with intent to cheat and defraud, it is not necessary that the false pretenses be set forth. (People v. Smith, supra; Johnson v. People, 22 Ill. 314, 316, 317; Chicago, W. & V. Coal Co. v. People, 214 Ill. 421, 440; People v. Nall, 242 Ill. 284, 292.) And where a defendant is convicted upon a general finding or verdict of guilty under an indictment containing numerous counts, one or more of which is good, the conviction will not be set aside because other counts may be considered to be defective. (People v. Smith, 239 Ill. 91, 107; Ochs v. People, 124 Ill. 399, 414; Thomas v. People, 113 Ill. 531, 535, 536.) And it is difficult for us to perceive the force of counsels’ argument, that because of the large number of counts, etc., defendants were hampered in preparing their defense, when consideration is given to the charges contained in the counts, the bill of particulars filed, and defendants’ general knowledge of the business affairs of the 12 Bain banks, of which John Bain was the directing head, as shown by the evidence. These banks had more or less been operated as a unit prior to their closing on June 9,1931, and the conspiracies charged in the counts arose out of their operation. And the evidence shows that defendants for many years had conspired and acted together in selling to various persons and the public generally real estate securities, by means of circulars and printed statements which to their knowledge contained false representations as to the value of the properties.

Defendants’ counsel in their original brief further argue that in each of counts 51 to 62, inclusive (Group 2), two or more “distinct offenses” are charged in the same count, and that, hence, those counts are bad for duplicity and should have been quashed. In our opinion the point is without merit. As we read the counts, each alleges, in connection with the particular named bank, one conspiracy to effect two unlawful objects. And, as we understand the rule, this is proper pleading. (United States v. Aczel, 219 Fed. 917, 933; Frohwerk v. United States, 249 U. S. 204, 209; Noyes v. State, 41 N. J. L. 418, 421; State v. Remedy, 63 Iowa 197, 200.) In the Acsel case it is said: “Is this first count bad for duplicity? It charges a single conspiracy or combination to commit several crimes. • This does not make the count multifarious or bad for duplicity.” In the Frohwerk case it is said: ‘‘ Countenance we believe has been given by some courts to the notion that a single count in an indictment for conspiracy to commit two offenses is bad for duplicity. This court has given it none. . . . The conspiracy is the crime, and that is one, however diverse its objects.”

During the oral argument, and in the memoranda of additional suggestions then presented, defendants’ counsel took the position, in urging error on the part of the trial court in denying the motion to quash the indictment, that the offenses charged in the indictment were felonies rather than misdemeanors, and that the above mentioned rule as to felonies should have been applied by the court in passing upon the motion. They state in said memoranda in substance:

That “the three groups of charges involved in the 73 counts of the indictment are distinct offenses, and felonies and not misdemeanors, and, therefore, cannot ... be charged in the same indictment, and the indictment . . . should have been quashed”; that our Illinois statute defines a felony as “an offense punishable with death or by imprisonment in the penitentiary,” and that “every other offense is a misdemeanor”; that in Lamkin v. People, 94 Ill. 501, 504, in speaking of our statute, it is said: “It will be noted ‘a felony is an offense punishable,’ that is, absolutely punishable, not that may or may. not be ‘punishable with death or by imprisonment in the penitentiary,’ while the offense of which plaintiffs in error are indicted and convicted here shall be punishable by imprisonment in the penitentiary or by fine. Surely it is no more accurate, in view of this language, to say this offense is punishable by imprisonment in the penitentiary than to say it is punishable by fine, and it is impossible to say, under any rule of construction, that we are bound to lay more stress on the language fixing the punishment by confinement in the penitentiary than on that fixing the punishment by fine.” And counsel further state that although this construction of the statute, as made in the Lamkin case, has been followed in many subsequent decisions in this State, yet such construction has not been discussed in any subsequent case upon its merits; that said construction “was a mistake,” in that “it has allowed the People to indict for many serious crimes in one indictment, overwhelming the defendant by an unfair prosecution”; that the Lamkin case “was wrongly decided, because it misinterprets the English language”; that the word “punishable” has been otherwise defined by lexicographers, and similar statutes in many other jurisdictions have otherwise been construed (cases referred to); and that “the judicial legislation attempted by the court in the Lamkin case ought not to be longer followed, and defendants oppressed with the type of prosecutions (like the present one) that have become common in the use of the conspiracy charge.”

In our opinion the above position, so taken by counsel, is without merit. Whatever may have been the construction of statutes similar to ours in other jurisdictions, the clear construction of our statute, as made in the Lamkin case, supra, has been repeatedly followed in many subsequent decisions of our Supreme Court and is now the unquestioned law in this State. (See Baits v. People, 123 Ill. 428, 429; Herman v. People, 131 Ill. 594, 597; Paulsen v. People, 195 Ill. 507, 514; People v. Stavrakas, 335 Ill. 570, 582; People v. Siemen, 351 Ill. 433, 434; People v. Mangano, 354 Ill. 329, 341.)

As to counsels’ second contention (that the court erred in failing to require the State to file an “adequate and fair” bill of particulars), it is a sufficient answer to say that the record discloses that the State did file a bill of particulars (above set forth), and that neither the abstract nor the bill of exceptions discloses that defendants before the trial made any objections to said bill of particulars, or moved that an additional or more specific one be filed. In People v. Rogers, 324 Ill. 224, 229, it is said:

“Plaintiff in error’s second contention is, that the court should have required the State to furnish a more specific bill of .particulars concerning the offense charged. As we have seen, the motion filed by plaintiff in error for that purpose was allowed and a bill of particulars was filed. If he was not sufficiently informed by it he was at liberty to demand a more specific bill of particulars. (People v. Depew, 237 Ill. 574, 578.) He did not, however, make such motion but went to trial on the bill of particulars furnished, and cannot now complain.”

As to counsels’ third contention (that the court erred in failing to limit the State in its proof as to the transactions disclosed from the bill of particulars filed), we do not find that counsel has pointed out any evidence that the court admitted over objection made on this particular ground. If evidence was admitted that is outside the field of the bill of particulars it should have specifically been referred to: It is not our duty to explore the record to ascertain what particular evidence counsel may have in mind. Furthermore, as the case was tried without a jury, it is to be presumed, if any such improper or incompetent evidence was admitted, that the court disregarded the same in reaching his findings.

As to counsels’ fourth contention (error of the court in denying defendants’ motion to suppress certain documentary evidence obtained by the “unlawful seizure” of John Bain’s private books and records, etc.), we do not think that it is supported by the affidavit and testimony presented on the hearing of the motion. We fail to find that any “unlawful seizure” of the books and records was had. It appears rather that they were voluntarily produced in the circuit court, under Bain’s orders, and that while they were in possession of that court, or of the Straus National Bank & Trust Co., as the court’s receiver of John Bain, Inc., the State’s attorney was allowed to and did examine them. Defendants’ counsel argue in substance that there was a violation of sections 6 and 10 of Article II of the Illinois Constitution, in that there was an “unlawful seizure” of the books, etc., and that Bain was “compelled to give evidence against himself.” We find no merit in the argument. It is the law of this State that if books, documents, papers or other property, belonging to and in the possession of a party who is a defendant in a criminal cause be taken by an unlawful search and, seizure, such books, etc., may not be introduced in evidence against said party upon the trial of said cause, and that prior to the trial a motion to suppress this evidence so obtained should be granted. (People v. Brocamp, 307 Ill. 448, 453, 454; People v. Castree, 311 Ill. 392, 397; People v. Winn, 324 Ill. 428, 441; People v. Brooks, 340 Ill. 74, 76.) But in Gindrat v. People, 138 Ill. 103, 111, it is said (italics ours): “Courts, in- the administration of the criminal law, are not accustomed to be over-sensitive in regard to the sources from which evidence comes, and will avail themselves of all evidence that is competent and pertinent and not subversive of some constitutional or legal right.” And in People v. Paisley, 288 Ill. 310, where the facts pertaining to the point under discussion were similar to those in the present case, it is said (p. 314, italics ours): “The court properly permitted the books of all three of the defendants’ banks to be used in evidence, . . . These books were secured by the State’s attorney’s office from the receiver in bankruptcy, who had gotten them from defendants’ receiver appointed on their bill. Consequently section 10 of article 2 of our constitution, providing ‘no person shall be compelled in any criminal case to give evidence against himself,’ was not violated. . » . Defendants were not compelled by the court to produce books or papers in their possession. . . . Even papers and documents illegally seized from a defendant’s possession are admissible in evidence against him in a criminal case if otherwise competent. Courts will not take notice of how they were obtained. . . . Other States having similar constitutional provisions have made similar holdings upon the question now before us.” (Citing cases.) Furthermore, it sufficiently appears that when the books, etc., in question, were examined by the State’s attorney, John Bain had parted with his possession of them and did not have title to them. (People v. Bransfield, 289 Ill. 72, 77, 78; Matter of Harris, Bankrupt, 221 U. S. 274, 279.) Furthermore, it was no concern of John Bain how the State’s attorney temporarily secured possession of the books, etc., from the receiver of John Bain, Inc., or from any person other than himself, because a defendant may only complain of the violation of his own constitutional rights, and not in respect to the manner in which the books, etc., were obtained by the State’s attorney from a person not a defendant. (Guckenheimer & Bros. Co. v. United States, 3 F. (2d) 786, 789; Remus v. United States, 291 Fed. 501, 511; Burdeau v. McDowell, 256 U. S. 465, 476.)

As to counsels’ fifth contention (that to support the court’s general finding of guilty on all the counts in question it was legally necessary that all defendants he proven to have been in the same conspiracy, which was not proven), it is difficult for us to understand just what is meant. If counsel means that it was not proven that all defendants were officers of the same banks and that, hence, a defendant not an officer would be legally incapable of unlawfully conspiring with respect to the affairs of the particular bank, we are of the opinion that there is no substantial merit in the contention. As we view the evidence it sufficiently appears that all the defendants were either directly involved in the unlawful conspiracies as charged in said counts, or aided or abetted in their consummation. Counsels ’ contention is somewhat like the one made by the convicted defendants in the Ochs case, 124 Ill. 399, mentioned at page '421, which, for reasons thereafter stated in the opinion in that case, was decided adversely to them. And we think that the holdings in the Ochs case are a sufficient answer to counsels’ present contention. (See, also, McCracken v. People, 209 Ill. 215, 221.)

Before discussing defendants’ counsels’ sixth contention (that the evidence does not sufficiently show that defendants are guilty beyond a reasonable doubt of any of the charges contained in the counts), we shall consider the written motion of the State’s attorney (supported by suggestions and affidavits) to strike from the record the original bill of exceptions, which motion was reserved to the hearing after counter suggestions and counter affidavits had been filed. The main ground for the motion was that no agreement or stipulation had in fact been made between counsel for the respective parties to so incorporate the original bill of exceptions in the transcript. An examination of the trial judge’s certificates to the transcript, duly signed by him on March 15, 1933, discloses, however, the statement that “the parties hereto have agreed and stipulated that the original bill of exceptions may be incorporated in the transcript of the record in lieu of a copy thereof.” It thus appears that the judge was of the opinion that such an agreement or stipulation had been made and he so certified. In West Chicago Park Com’rs v. Boal, 228 Ill. 589, 590, it is said: “We are without facilities in this court, in a case brought here by appeal or writ of error, to determine an issue of fact of this character, and we are satisfied it was not the purpose of the legislature to charge us with that duty.” In the present case we shall be governed by the court’s finding, as certified to, that the agreement and stipulation had been made by the parties. And the said motion, previously reserved to the hearing, is now denied.

Counsel for the State contend that the abstract of record, filed by defendants, “does not contain all the evidence” and, hence, the question of their guilt or innocence is not properly before us. Counsel argue that it is not stated in the abstract that it contains all the evidence; that the abstract is defendants ’ pleading (citing People v. Ambolo, 343 Ill. 480, 483); that “where matters have been introduced in evidence and do not appear in the abstract the court will assume that such matters are sufficient to justify the judgment, and this notwithstanding the fact that the record may be certified to contain all the evidence,” (Citing People v. Ambolo, supra; People v. Miller, 352 Ill. 537, 540; People v. Yuskauskas, 268 Ill. 328, 329); that the State introduced about 3,000 documents or writings, of which there is no index, and some of them are not even mentioned in the abstract; and that some of the testimony of the various witnesses is not abstracted at all. In view of the holdings in the cases cited, and in other cases decided by our Supreme Court, there is much force in counsels’ contention. And a comparison of the abstract with parts of the record itself, discloses that counsels’ argument as to the insufficiency and incompleteness of the abstract is meritorious. Much of the testimony of the State’s witness, Cutmor, a real estate appraiser, does not appear in the abstract, and about 30 of his appraisal reports of the values of various real estate properties financed by John Bain and his associates are omitted. This testimony and said reports were material to some of the issues of fact involved, when taken in connection with other admitted evidence. Some of the material testimony of other of the State’s witnesses is also omitted. And some of the material testimony and admissions, given and made by the defendants, John H. Bain and John Bain, as well as by other of defendants’ witnesses, are either omitted from the abstract or are not fully abstracted.

However, we have read and considered the oral and documentary evidence as set forth in the abstract, have in numerous instances referred to the record itself and have read and considered the statements and arguments of opposing counsel, contained in the brief of the State’s counsel and in the reply brief of defendants’ counsel as to the purport and effect of the admitted evidence. No useful purpose will be served in detailing the evidence or discussing counsels’ arguments. Suffice it to say that, after careful consideration of the evidence and those arguments, we are satisfied that the court’s findings of guilty, as to all four defendants, of the charges made in all counts now in the case, are clearly sustained by the evidence, and that the court did not err in entering the respective judgments of conviction above mentioned. And we are of the opinion that from the entire evidence there can be no reasonable doubt of the guilt of all of the defendants. The case was carefully tried by an able and experienced judge, sitting in place of a jury by agreement of the parties. And in People v. Thompson, 321 Ill. 594, 600, it is said: “A court of review will not reverse a judgment of conviction in a criminal case unless satisfied that there is a reasonable doubt of defendant’s guilt. ... A judgment of conviction . . . will only be reversed where the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant’s guilt.”

The respective judgments of conviction rendered against the defendants should be affirmed, and it is so ordered.

Affirmed.

Sullivan, P. J., and Scanlan, J., concur.


text:
    Prudential Insurance Company of America, Complainant and Appellee, v. Gertrude Ostrom et al., Defendants. Appeal of Charles R Kunz, Appellant.
    Gen. No. 36,760.

      Reversed and remanded with directions.
    Opinion filed March 6, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    Michael W. Kaveney and Thomas P. Quinn, for appellant.
    No appearance for appellee.
   Mr. Justice Gridley delivered

the opinion of the court.

In an interpleader cause, commenced by the filing of complainant’s bill in the circuit court of Cook county on October 14, 1931, such proceedings thereafter were had as resulted in the court on February 15, 1933, entering a final decree in complainant’s favor, from which Charles R. Kunz prosecutes the present appeal. No appearance and no brief have here been filed by appellee (complainant).

In the preamble of the decree it is stated that the cause came on to be heard upon complainant’s bill, the answers, of Charles R. Kunz and Edward J. Grunska, the report of the master to whom the cause was referred, the evidence heard before him, and the exceptions of said Kunz to said report, “which exceptions are hereby overruled.” And it is further stated that the court, having considered the pleadings, the master’s report and the evidence filed therewith, and having heard arguments of counsel, “Doth Find” (substantially as follows):

1. That the court has jurisdiction of the subject matter and of the parties.
2. That complainant, a New Jersey corporation, issued and delivered four policies of insurance upon the life of Benjamin H. Ostrom (numbers of policies stated).
3. That said Ostrom departed this life, and Gertrude Ostrom, his wife, -the beneficiary named in the policies, made claim for the proceeds.
4. That in the regular course of its business, on August 25, 1931, complainant issued its check for $1,424.27, and on that date Gertrude Ostrom requested Kunz to cash the same, which he did, and she received in money the amount of the check.
5. That on August 22,1931, Grunska commenced an attachment suit for the sum of $406.30 against Gertrude Ostrom before George E. Arthur, a police magistrate with office in the Village of Glen Ellyn, Du Page county, Illinois; that complainant was named in the attachment suit as garnishee and was duly served as such on August 22,1931; and that the service was made upon its agent in charge of its office at Downers Grove, Illinois, — said office being the only one retained by it in Du Page county.
6. That Grunska also notified complainant at its office at No. 1200 North Ashland avenue, Chicago, of the service of the writ upon it as garnishee, and that the money on the policies should not be paid until the disposition of the attachment suit.
7. That.thereafter complainant filed its answer as garnishee in the suit pending before said police magistrate, in which it stated that ‘ ‘ it had sufficient money in its hands belonging to Gertrude Ostrom with which to satisfy the claim of Grunska”; and that the attachment writ was served upon complainant “at least three (3) days before the delivery of said check to Gertrude Ostrom. ’ ’
8. That thereafter such proceedings were had in the attachment suit that on October 3,1931, a judgment was rendered against Gertrude Ostrom for $381.50, and costs of suit amounting to $15.85, which judgment is still in full force and effect and not appealed from, but that the garnishment proceeding against complainant is still pending and undetermined.
9. That payment upon the check of $1,424.27, so delivered to Kunz, “was stopped by complainant,” and it remains unpaid and is now the property and in the possession of Kunz, “who claims the amount by reason of having cashed the check and advanced his money to Gertrude Ostrom.”
10'. That complainant, “in accordance with an Interlocutory Decree heretofore entered in this cause,” has deposited with the clerk of this court the sum of $1,400.11, “being the amount of the check so delivered to Gertrude Ostrom, less its costs in this suit.”

And the court in the final decree ordered and adjudged in substance as follows:

That all findings of fact made in said interlocutory decree, which are inconsistent with the findings herein, are hereby changed and modified to conform to the findings herein, “which are found to be the facts as shown by the evidence in this cause ’ ’; and that the interlocutory decree is further changed and modified in this respect, viz., “that complainant herein, Prudential Insurance Company of America, is not released, discharged and acquitted from further liability on account of the deposit with the clerk of this court of said sum of $1,400.11. ’ ’

That the fees of the master, to whom this cause was referred, are hereby approved in the sum of $78.85, as shown by the schedule attached to his report, and the same are hereby taxed as costs in this cause; and that from the funds so deposited with the clerk of this court, said clerk is hereby directed to pay to the master said sum of $78.85 in full payment of his fees.

That from the amount so deposited with the clerk, Grunska is entitled to the sum of $397.65, together with the sum of $5 for his costs in this cause, or a total of $402.65, and the clerk “is hereby ordered and directed to pay to Grunska said sum of $402.65.”'

That the defendant, Kunz, “is entitled to the balance of said fund, remaining in the hands of the clerk after the payments herein provided for, — being the amount of $918.61, to be applied upon the check of said complainant Insurance Company hereinbefore described”; and that the clerk “is hereby ordered and directed to pay to Kunz said sum of $918.61.”

That that part of the interlocutory decree (viz., that the payment of the sum of $1,400.11 by complainant to the clerk of this court shall constitute full satisfaction of all claims and demands of all defendants herein, and by such payment the complainant Insurance Company, its successors and assigns, are forever released, acquitted and discharged of and from any and all further liability to the defendants, Gertrude Ostrom, said Kunz and said Grunska, and their executors, administrators, successors and assigns, for and on account of the making, issuance and delivery and existence of said policies of insurance, and said proceeds thereof represented by said check issued to the order of Gertrude Ostrom by said complainant Insurance Company) “be and the same is hereby chang-ed, modified and altered as to said Kunz in this, that this decree shall not operate as a bar to any action hereafter brought by said Kunz, or the legal holder and owner of said check of complainant Insurance Company, issued to said Gertrude Ostrom in the sum of $1,424.27, for any sums remaining unpaid thereon, nor shall this decree be a bar to aim action which may be brought by the legal owner or holder of said check for damages by reason of the ivrongful execution and delivery thereof and the refusal to pay the same.”

That the order heretofore entered, and contained in the interlocutory decree, enjoining defendants, their agents, etc., from bringing or prosecuting any suit at law or in equity in any jurisdiction against the complainant Insurance Company because of the issuance of said check be set aside as to any right of action of the defendant, Kunz, in respect to any b alamoe that may be due to him on account of the failure or refusal to pay said check.

In complainant’s bill, after stating various facts in substantial accord with those as found by the court as above stated, it alleged that it has always been willing to pay the amount of the face of said check, less the court costs incurred in bringing this inter-pleader suit, to such person or persons as may lawfully be entitled to receive the same and to whom complainant can with safety pay the same, and complainant hereby offers to bring said amount, less said costs, into court, etc.; that the nature of its business requires it to do business through widely scattered offices in many cities and towns, each being under separate management, and that, hence, it is impossible for it to be apprised immediately of transactions taking place in its various offices, etc.; and that it does not collude in any respect with any of the defendants, and has not filed the present bill at the request of any of the defendants, but has done so of its own volition and to prevent it from being harassed and sued as regards the matters alleged, etc. The prayer of the bill is similar to that usual in an interpleader bill, and, in addition, there is a prayer for a temporary injunction against Gfrunska, his agents, etc., enjoining him from the further prosecution of the attachment suit, and for a temporary injunction against all defendants, etc. On October 21, 1931, a temporary injunction was issued.

To the bill Gfrunska and Kunz filed separate answers, and complainant filed replications thereto. In Kunz’s answer, filed December 4, 1931, after stating the issuance of the policies, the death of Benjamin Ostrom, the issuance by complainant of the check for $1,424.27, and its delivery to Gertrude Ostrom, he alleged that he upon request cashed the check and delivered the proceeds to her “without knowledge on his part, or that of his agents, of the pendency of said attachment suit against her”; that he presented the check for payment at the bank upon which it was drawn, but that payment was refused; that the check was returned to him marked “payment stopped”; that he now holds the same unpaid, as a bona fide holder for value; and that the face amount of the check should be paid to him. He denied that the fund proposed to be deposited in court by complainant should be subject to any court costs incurred by the bringing of this interpleader suit, or that complainant was entitled to the relief as prayed in its bill.

On October 4, 1932, on motion of complainant, the court entered a so-called “interlocutory decree” (mentioned in said final decree), in which the court, after making certain findings based upon the pleadings and the statements of opposing counsel made in open court, ordered and adjudged (a) that this bill of interpleader “is properly filed”; (b) that complainant pay to the clerk of the court the proceeds of the policies amounting to $1,424.27, less the costs incurred by it of $24.16, “leaving the net amount so to be paid of $1,400.11, which shall remain to the credit of this action and abide the further order of the court”; (c) that, it appearing that complainant has paid said net amount to the.clerk “said payment shall and does constitute full satisfaction of all claims and demands of all defendants against complainant for or on account of said policies (giving the numbers) and said check issued to the order of Gertrude Ostrom,” and that complainant is “forever released, acquitted and discharged of and from any and all further liability to the defendants, Gertrude Ostrom, Kunz and Grunska”; (d) that, it appearing that Gertrude Ostrom is not claiming the proceeds of the fund so deposited and is not, therefore, now a necessary party defendant to this suit, she “is hereby dismissed as party defendant to this interpleader”; (e) that the defendant (Kunz), having possession of said check, produce it and deliver it to complainant for cancellation; (f) that the remaining defendants (Kunz and Grunska), their agents, ote., “are hereby perpetually and permanently enjoined from bringing or prosecuting any suit or suits at law or equity” against complainant Insurance Company “for or on account of its making or issuing said check”; (g) that the defendant, Grunska, his agents, etc., “are hereby perpetually and permanently enjoined from proceeding with or taking any steps whatsoever with said attachment suit naming complainant as garnishee,” etc.; (h) that “jurisdiction by this court is retained over the balance of said fund,” remaining on deposit with the clerk of this court, and “over the remaining parties defendant,” until further order, “concerning the interpleader issues between said defendants, Kunz and Grunska”; and (i) that complainant is hereby dismissed out of this cause after and upon the entry of this interlocutory decree and it is expressly excused from further attendance upon the trial.

Two days thereafter, on October 6, 1932, the defendant Kunz, by his solicitors, appeared and moved (1) that the court “vacate and set aside said interlocutory decree” and (2) that the cause be referred to a master “upon the question as to whether or not the defendants shall be compelled to interplead- herein,.” After arguments heard the court denied both motions, and thereupon both Kunz and Grunska, by their respective solicitors, joined in a motion for a reference of the cause generally to a master. This motion the court granted, and ordered that the master take testimony and “file his report covering the testimony, together with his conclusions of fact and law, within 60 days.”

" On December 9, 1932, the master’s report (dated November 26, 1932) was filed. It appears from the report that on the hearings only the defendants, Kunz and G-runska, appeared by their respective solicitors; that certain oral and documentary evidence was introduced on behalf of each defendant, which had reference solely to their respective claims to the said fund, deposited with the clerk of the court; and that upon the submission of the report Kunz alone filed objections, which were overruled. In the report, after making numerous findings (substantially the same as found by the court in said final decree as above set forth), the master stated that, as he understood the order of reference, he was to report only “as to the disposition of said fund” of $1,400.11, so deposited: and the master concluded as follows:

“Under all the evidence in this cause, I have no alternative but to find that there should be paid to Edward J. Grunska the sum of $381.50 and $15.85 as costs, or a total of $397.35, and that the remainder of said fund be paid to Charles R. Kunz. That out of said fund should first be paid the costs and expenses of this proceeding, including the master’s and stenographer’s fees upon this reference to be taxed as a part of the costs of this suit.”

By order of court the objections of said Kunz to the master’s report were ordered to stand as exceptions, and, after a hearing, the court overruled the exceptions and entered the final decree appealed from as above mentioned.

In 4 Pomeroy’s Equity Jurisprudence (4th Ed.) p. 3172, sec. 1322, it is said that the equitable remedy of interpleader “depends upon and requires the existence of the four following* elements, which may be regarded as its essential conditions: 1. The same thing, debt or duty must be claimed by both or all the parties against whom the relief is demanded; 2; All their adverse titles or claims must be dependent, or be derived from a common source; 3. The person asking the relief — the plaintiff — must not have nor claim any interest in the subject matter; 4. He must have incurred no independent liability to either of the claimants; that is, he must stand perfectly indifferent between them, in the position merely of a stakeholder.”

This statement of the law is quoted with approval in the following adjudicated cases in this State, viz.: Platte Valley State Bank v. National Live Stock Bank, 155 Ill. 250, 257; Morrill v. Manhattan Life Ins. Co., 183 Ill. 260, 267; Heinrich v. Harrigan, 179 Ill. App. 199, 202. In discussing said fourth element the author (Pomeroy) further says (p. 3178, sec. 1326; italics ours):

“Such an independent liability may be incurred in two classes of cases: 1. In the first place, the agent, depositary, bailee, or other party demanding an inter-pleader, in his dealings with one of the claimants, may have expressly acknowledged the latter’s title, or may have bound himself by contract, so as to render himself liable upon such independent imdertdking, without reference to his possible liability to the rival claimant upon the general nature of the entire transaction. Under these circumstances, as the plaintiff is liable at all events to one of the defendants, whatever may be their own respective claims upon the subject-matter as between themselves, he cannot call upon these defendants to interplead. He does not stand indifferent • between the claimants, since one of them has a valid legal demand against him at all events. Even if the acknowledgment or promise has been obtained by fraud or mistake the right of the party thus deceived to be relieved in equity from his liability cannot be considered and sustained in an interpleader suit. 2. In the second class of cases, the independent liability of the plaintiff to one of the defendants arises from the very nature of the original relation subsisting between them, without reference to any collateral acknowledgment of title, or promise to be bound.”

In a note under said section it is further stated (p. 3179):

“Another instance of the doctrine is, where the plaintiff, in stating the case in his bill, is obliged to admit himself to be a wrong-doer to either one of the defendants; he thus shows an independent liability to that defendant, and is not entitled to an interpleader. (Citing cases.) If the liability has been occasioned by some act of the plaintiff himself, he is not entitled to the remedy.” , (Citing cases.)

In the present case, as appears from the pleadings, the court’s findings and the evidence introduced before the master, the salient facts are: (1) Because of the policies issued by the complainant insurance company and of the death of the insured, the company became admittedly indebted to Gertrude Ostrom, the beneficiary named in the policies, in the sum of $1,424.27; (2) on August 22, 1931, while the company was so indebted, Grunska, a bona fide creditor of Mrs. Ostrom, commenced an attachment suit against her in said police magistrate’s court and on the same day caused the company to be served as garnishee; (3) three days later, on August 25, 1931, an agent of the company (presumably not having knowledge of the service of such garnishment writ) caused to be delivered to Mrs. Ostrom its check, payable to her order, for $1,424.27, in payment of its indebtedness on said policies; (4) shortly thereafter she indorsed the check and,, at the request of said agent of the company, Kunz cashed the check and Mrs. Ostrom received the money and Kunz deposited the check for collection in his bank; (5) shortly thereafter, notwithstanding the fact that .Kunz was and is a bona fide holder of said check for value, the company wrongfully stopped payment of the check and it has not been paid; (6) thereafter, on October 3, 1931, Grrunska obtained a judgment in said attachment suit against Mrs. Ostrom for $381.50 and costs; (7) thereafter on October 10, 1931, the insurance company filed its answer as garnishee in said suit alleging (a) that “it holds a sum of money sufficient to pay the judgment entered against defendant” (Mrs. Ostrom) and (b) that “said sum is also claimed by said Kunz”; and (8) that on October 14, 1931, the insurance' company filed its present bill of inter-pleader.

The main contention of counsel for appellant, Kunz, is that the circuit court erred in entering the final decree appealed from. And counsel argue that neither the pleadings nor the evidence disclose such a state of facts as warrants the court in decreeing that the defendants (Kunz and Grunska) interplead, because (1) the complainant insurance company has incurred independent legal liabilities to each of the two defendants (to Grrunska because of its answer as garnishee in said attachment suit, and to Kunz because of his possession as a bona fide holder for value of the company’s check of $1,424.27); (2) complainant is not merely a stakeholder but is itself interested in the result of the interpleader suit, and (3) complainant is also a wrongdoer in that it unlawfully stopped payment of its check of $1,424.27. After considering the principles and rules of law as above stated, and the facts as shown, we are of the opinion that there is substantial merit in the contentions and argument of counsel. (See, also, Mitchell v. Northwestern Mfg. & Car Co., 26 Ill. App. 295; Rauch v. Fort Dearborn Nat. Bank, 223 Ill. 507.) Accordingly, the decree of the circuit court of February 15, 1933, appealed from, is reversed and the cause is remanded with directions to the circuit court to dismiss complainant’s bill for want of equity.

Reversed and remanded with directions.

Sullivan, P. J., and Scanlan, J., concur.


author: Mr. Justice Gridley

text:
    Goodman American Ice Cream Company, Plaintiff and Appellant, v. Barney M. Mendelsohn and Herman M. Mendelsohn, Defendants. Herman M. Mendelsohn, Appellee.
    Gen. No. 36,798.
    Opinion filed March 6, 1934.
    Heard in the second division of this court for the first district at the June term, 1933.
    Samuel Shkolnik, for appellant.
    Michael B. Roderick, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

On November 23, 1932, plaintiff caused a judgment by confession for $1,052.56, to be entered in the municipal court against defendants on their judgment note for $800, dated March 10, 1930, payable to plaintiff’s order on or before six months with interest at six per cent per annum after date. The amount of the judgment included accrued interest and an attorney’s fee. On November 30, 1932, upon the verified petition of Barney Mendelsohn, the court ordered that as to him the judgment be vacated and the suit dismissed, for the reason, as found, that he had duly been adjudicated a bankrupt, and on March 7,1932, discharged from his obligation on said note. On November 30, 1932, also, on the verified petition of Herman Mendelsohn, the court ordered that the judgment as to him be “opened” but stand as security, that he be given leave to make his defense upon a trial, and that his petition and affidavit “stand as an affidavit of merits in the cause.” Subsequently, by leave of court, he filed an additional affidavit of merits, setting up an additional defense. On February 17, 1933, there was a trial without a jury, resulting in the court finding the issues against plaintiff, and adjudging that the confessed judgment of November 23, 1932, against Herman Mendelsohn (hereinafter called defendant) be vacated, that plaintiff take nothing, and that defendant recover his costs, etc. The present appeal by plaintiff followed.

In defendant’s said petition, as an affirmative defense to the note, he alleged in substance that he signed and delivered the note on March 10, 1930, at his Chicago office; that an employee of plaintiff, one M. W. Kingsley, exhibited the note which had already been signed by his brother, Barney Mendelsohn; and that he (defendant) signed the note because of the statements and representations of said Kingsley then made, in substance as follows:

That plaintiff company (also known as Goodman American Corporation) had paid to Barney Mendelsohn the sum of $800; that the sum “was a bonus to Barney Mendelsohn because he had changed his ice cream business from the Wieland Ice Cream Co. to plaintiff company”; that because of the fact that there was some kind of a gentlemen’s agreement between ice cream companies belonging to a certain Ice Cream Association (viz., that none of the companies would take away each others’ customers by means of the paying of a bonus or gift), “it would be necessary for me to sign said note with said Barney Mendelsohn, so that, in case of an investigation, plaintiff company would be able to show said note and say that there was actually a loan, and that my signature to said note would be impressive evidence to convince any investigator that the money, so paid to Barney Mendelsohn was a loan”; that plaintiff company “would never attempt to enforce payment of the note”; and that “my signature would only be used for the purpose of shielding plaintiff company from any charge which might be made that it had paid a bonus for the privilege of taking away business from one of the companies which belonged to said ice cream association.”

And in said petition, defendant made the further defense in substance that because of said bankruptcy proceedings, the scheduling of the note therein and Barney Mendelsohn’s discharge from his obligation on the note, the entry of the joint judgment by confession was erroneous as to both defendants. And in his additional affidavit of merits, filed January 23, 1933, defendant made the further defense, that he signed the note only “as a surety” for Barney Mendelsohn, and that plaintiff failed to make any efforts to collect the note prior to the bankruptcy proceedings.

On the trial plaintiff, to make out its prima facie case, introduced the note in evidence, and also plaintiff’s check for $800, dated March 12, 1930, payable to the order of Herman Mendelsohn, and having on its face a notation that the “item” for which it was given was a “note” for $800. The check bears the successive indorsements of “Herman Mendelsohn” and “Marquette Pharmacy, by Barney Mendelsohn,” and is stamped as having been paid.

Thereupon defendant’s attorney, after introducing a certain document in connection with the organization of plaintiff as an Illinois corporation in October, 1900, stated in substance that while the $800 “was loaned to Herman Mendelsohn” and he signed the $800 note “as a co-makeryet he desired to make another and new defense (not stated in defendant’s affidavits of defense) that said loan was “ultra vires” the plaintiff corporation. The document introduced did not even tend to prove said new defense and no further evidence to sustain it was introduced by defendant.

Thereupon, to sustain defendant’s so-called “bonus” defense as stated in his petition, defendant testified at length, both on direct and cross-examination, and he called as a witness another brother, Philip Mendelsohn, and he introduced in evidence two certain bills rendered by plaintiff to the Marquette Pharmacy under dates of September 10, 1930 (date of maturity of said note) and October 12, 1931. Barney Mendelsohn did not testify. Defendant’s testimony disclosed that he (Herman) was an attorney at law with an office in Chicago and had practiced his profession for 16 years; that Barney operated a drug store, under the name of the Marquette Pharmacy, at 1121 North State street, Chicago; and that Philip was in the employ of Barney as the manager of and as the pharmacist in the store. And defendant testified as to his version of a conversation had with M. W. Kingsley, plaintiff’s salesman, just prior to the delivery of the note on March 10, 1930.

On plaintiff’s behalf, in rebuttal, said Kingsley and one Kritzman (another salesman of plaintiff) and Mark C. Goodman (sales manager of plaintiff) gave testimony, and, thereafter, both Herman and Philip Mendelsohn testified in sur-rebuttal. From the testimony of plaintiff’s witnesses it appeared that for a considerable time prior to March 10, 1930, plaintiff had been supplying the drug store with ice cream, that about said date the business of the store was such that it needed money, and that an application for a loan was made to plaintiff, which resulted in said loan of $800 being made. At the conclusion of the hearing of the evidence the court entered the finding and judgment as above mentioned. And the record discloses that the trial judge said at that time:

“It will serve no good purpose for the court to go into the evidence in this case. To put it mildly, somebody is mistaken. ... I can’t imagine this ice cream company coming to a total stranger and giving him $800 without knowing anything about his responsibility. I am inclined to believe that the defendant never had any consideration for this note, and being of that opinion, as I say, there is no use of my discussing the evidence, because it will not help anybody. My conclusion is that this note was given, and this money advanced, for the purpose of obtaining the business; that being true, there will be a finding for defendant. ’ ’

It appears that the case was decided by the trial court in favor of defendant on the so-called “bonus” defense as stated in his petition as above set forth. But no useful purpose will be served in detailing the conflicting evidence. Suffice it to say that after a careful consideration of all the evidence hearing upon said affirmative defense, we are of the opinion that it was not sustained by a preponderance of the evidence, that the court’s finding* was not warranted, and that the court erred in vacating the judgment as confessed against defendant. On cross-examination defendant testified that “he did not remember” whether he had prepared this note “in his office on his own typewriter,” but that he “might have.” If so, and if the sole reasons for his signing the note with his brother, Barney, were as stated in his said petition, it is difficult to perceive why he, an experienced attorney, should sign a judgment note, rather than an ordinary note. Furthermore, he testified to the effect that he had charge, as an attorney, of preparing the schedules in the bankruptcy proceedings for Barney and scheduled said note as a valid obligation of Barney. This action is at variance with the theory of defense to the note as afterward stated in said petition and advanced upon the trial.

And we do not find any evidence in the record to sustain defendant’s further defenses, as stated in his additional affidavit of merits, that he signed the note “as a surety” and that plaintiff made no efforts to collect the note prior to said bankruptcy proceedings. The note itself shows that defendant was a joint maker with Barney and Goodman’s testimony disclosed that repeated efforts to collect the full amount of the note from both Barney and defendant were made by plaintiff without avail.

And in our opinion there is no merit in defendant’s further defense, as stated in his said petition, that after Barney had been discharged by virtue of said bankruptcy proceedings from his obligation on said note, the entry of a joint judgment by confession was erroneous as to both defendants, Barney and Herman. We think it was proper for the court, by its order of November 30, 1932, to “vacate” the confessed judgment as to Barney, and to only “open” the said judgment as to Herman, for the purpose of determining upon a trial on the merits whether or not he was liable to plaintiff on said note. In Seymour v. Richardson Fueling Co., 205 Ill. 77, 83, 84, it is said: “The rule that, where a money judgment is a unit as to all the defendants, the judgment must be against all or none, does not apply where a personal defense (such as a discharge in bankruptcy) is established as to one or more of the defendants.” And in Hem v. Allen, 179 Ill. App. 223, 228, it is said: “Where one defendant sets up a defense like a discharge in bankruptcy, which has accrued to him since he signed the joint obligation, such defendant may recover his costs in a suit against both defendants, and yet the plaintiff may be entitled to a judgment against the other defendant.” (See also Byers v. First Nat. Bank of Vincennes, 85 Ill. 423, 425; Perelson v. Podolsky, 191 Ill. App. 589, 591.)

For the reasons indicated the judgment of the municipal court of February 17, 1933 (vacating said confessed judgment of November 23, 1932, against defendant, Herman Mendelsohn, and entering a judgment against plaintiff for costs), is reversed, and judgment is entered in this court that said confessed judgment of the municipal court of November 23,1932, for $1,052.56, as against said Herman Mendelsohn only, stand in full force and effect as of the date of its rendition. All costs are to be paid by said Herman Mendelsohn.

Reversed and judgment here.

Sullivan, P. J., and Scanlan, J., concur.

Finding of facts: We find as facts in this case that the affirmative defenses of Herman Mendelsohn to the judgment note sued upon, as stated in his petitions or affidavits of merits, and as outlined in the opinion of this court this day filed, were not sustained on the trial in the municipal court by a preponderance of the evidence, and that said Herman Mendelsohn, as a co-maker of said note, was indebted to plaintiff, Goodman American Ice Cream Co., on November 23, 1932, on said note, according to its tenor and effect, in the sum of $1,052.56.