text:
    Albert Kahlfeldt, Appellant, v. Leonard A. Busby et al., Appellees.
    Gen. No. 36,678.
    Opinion filed November 21, 1933.

      Royal W. Irwin, for appellant.
    Weber, Miller, Deffenbaugh & Donovan, for appellees; Frank L. Kriete and Warner H. Robinson, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiff sued defendants in case to recover damages for personal injuries sustained through the alleged negligence of defendants in an accident on July 3, 1930. The case was tried before the court and a jury and at the close of plaintiff’s evidence the court, upon the motion of defendants, directed a verdict for them. Plaintiff has appealed from a judgment entered upon the verdict.

The accident occurred at the intersection of 63d street and Springfield avenue. Plaintiff lived on 63d place near Springfield avenue. He was employed in the baggage room of the Chicago and Western Indiana Bailroad Company and his hours of employment were from 3 p. m. to 1 a. m. On his way home it was his habit to take a west-bound 63d street car to Springfield avenue. It was provided by an order of the Public Utilities Commission that in stopping a street car at any intersecting street for the purpose of receiving or discharging passengers it was the duty of the street car company to stop such car at the nearest crossing-in the direction in which such car was going, and plaintiff testified that the west-bound cars usually stopped at the northeast corner. On the morning of the accident plaintiff was on a west-bound car on 63d street, and as it approached Springfield avenue he got up from his seat, went out on the front platform, and told the motorman that he wanted to get off at Springfield avenue. The motorman did not answer. When the car arrived at Springfield avenue it did not stop at the northeast comer, and when it reached about the middle of that avenue, still going, the motorman opened the front door of the car. Plaintiff testified he then knew that the car had passed the east side of Springfield avenue without stopping and that it was going at the rate of about five miles an hour, “or so.” He further testified that when the door was opened he looked out to the east and saw nothing coming, and that he then stepped off the car when it had reached a point close to the west side of Springfield avenue and was still going five miles an hour; that shortly after he stepped off the car he was struck by an automobile that was proceeding westward on the north side of 63d street; that as he got off the car he had hold of a grab iron with his left hand and that he was facing west as he got off and when he was struck. He lived at 3930 63d place, which is located a couple of blocks west of Springfield, and he testified that if he rode on the car “clear across the street until it stopped, if it was going to stop at all,” “it would be better for him,” “if nothing happened.” He further testified that he did not know how many steps he took, after getting off the car, before he was struck by the automobile. After he was struck the street car was stopped within a few feet. As a result of the accident plaintiff sustained certain injuries.

Plaintiff states that the trial court directed a verdict for the defendants on the sole ground that the plaintiff was guilty of contributory negligence in stepping from the moving street car. We find nothing in the record to sustain this statement. Defendants contend that not only did plaintiff fail to prove that he was in the exercise of ordinary care for his own safety at the time of and just prior to the accident in question, but that he also failed to prove that defendants were guilty of negligence that proximately contributed to cause the injuries.

As to the alleged negligence of defendants, plaintiff: states his position as follows: “The negligence of the defendants in this case is based upon the theory that the defendants failed to stop the car at the near side of Springfield avenue, as provided for by the order of the Public Utilities Commission, and that the defendants negligently invited the plaintiff to dismount from the street car at a point that was dangerous on account of the passing of motor vehicles.”

It seems clear to us that the failure of the street car to stop on the east side of the street was not a proximate cause of the injury. As stated in Cleveland R. Co. v. Sebesta, 121 Ohio 26, 31, “the failure to open the exit door at the first stop was an omission of duty on the part of the conductor that entailed some little inconvenience and a trifle of delay upon the passenger, but that omission of duty inflicted no injury upon the passenger.” In the instant case plaintiff was not injured by the failure of the street car to stop on the east side of the street. After the car had passed the stopping place on the east side of the street plaintiff was still a passenger upon it and in perfect safety. Had he remained on the car until it reached the next stopping place and then been injured by an automobile after he alighted, at that place, it surely could not be reasonably said that the failure to stop on the east side of Springfield, was the proximate cause of the injury. As contended by defendants, “the failure to stop on the east side of the street was merely an incident in a chain of incidents which helped to create the conditions which made the injury possible,” but it was not the proximate cause of the injury. As stated in Illinois Central R. Co. v. Oswald, 338 Ill. 270, 274: “One act may furnish the occasion for another act, and such second act may be the cause of an injury without the first act in any manner being a contributing cause of such injury. The second act may be the result of some intervening cause in no manner flowing from the original act but which cause is given an opportunity to operate through the occasion furnished by such original act. The cause of an injury is that which actually produces it, while the occasion is that which provides an opportunity for the causal agencies to act.” In the instant case the motorman could have opened the door or not, as he saw fit, regardless of the fact that the car did not stop on the east side of the street, and plaintiff was not caused to step off the moving car, when he did, merely because of the failure of the motorman to stop on the east side of the street. In fact, plaintiff testified that “it would be better for him” if he rode on the car “clear across the street until it stopped, if it was going to stop at all,” “if nothing happened.’’

As to the contention of plaintiff “that the defendants negligently invited the plaintiff to dismount from the street car at a point that was dangerous on account of the passing of motor vehicles,” in Busack v. Chicago City Ry. Co., 283 Ill. 117, our Supreme Court laid down the rule that the mere opening of a door by a motorman did not constitute an invitation to a passenger upon a street car to alight from the car while it was moving, and that such action by a motorman, under said circumstances, would not raise a presumption of actionable negligence against the defendant. The court stated that opening a door under such circumstances would constitute an invitation to a passenger to prepare to alight from a car when it came to a stop. It is true that most of the cases cited in support of the rule announced were steam railroad or elevated railroad cases, but it appears that the court was of the opinion that the same rule would apply to street cars as applied to steam railroads and elevated railroads. However, one of the cases cited, Paginini v. North Jersey St. Ry. Co., 69 N. J. 60, involved a passenger upon a street car, and in Twaddell’s Adm’r v. South Covington & C. St. Ry. Co., 255 S. W. 1027, which involved a passenger upon a street railway, and in which the Court of Appeals of Kentucky cites with approval the Busack case, the point was made that a different rule should be followed in the case of street railways, but the court, in passing upon that point, said: “We can see no distinction between the two so far as opening the door is concerned. If that act constitutes an invitation to alight only when the car is stopped in the one case it would be equally as applicable in the other; indeed, if it- is proper in order to avoid delay to open the vestibule door of a steam railway, and it is to be considered as an invitation to alight only after the car has stopped, it would in this respect seem to be equally if not more appropriate in the operation of a city railway, as the stops are much more frequent,” and the court calls attention to the fact that the Busack case involved a passenger upon a street railway. In Becker v. Chicago Railways Co., 216 Ill. App. 324, 327, the court states that “the charge in the declaration is that the defendant carelessly invited and permitted a passenger to alight from the car by opening the front door of the car while it was in motion, ’ ’ and held that under the holding in the Busack case the declaration failed to state a cause of action. We are constrained to hold that plaintiff’s evidence failed to prove that the defendants were guilty of negligence that proximately contributed to cause the injuries, and it is, therefore, unnecessary for us to consider the question as to whether or not the plaintiff was in the exercise of ordinary care for his own safety at the time of and just prior to the accident.

Plaintiff has cited a number of cases to the effect that it is negligence for a street car company to discharge passengers at an improper or dangerous place. It is sufficient to say, in reference thereto, that the evidence of plaintiff fails to show that the street car company was discharging a passenger (the plaintiff) at the time the latter stepped off the car.

The judgment of the superior court of Cook county is affirmed.

Affirmed.

Sullivan, P. J., and Gridley, J., concur.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Louis Provenzano, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 36,700.

      Opinion filed November 21, 1933.
    Rehearing denied December 4, 1933.
    Fred H. Montgomery, for appellant; Edward C. Craig and Vernon W. Foster, of counsel.
    Guerine & Brust, for appellee; Guy C. Guerine, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiff ¡sued defendant to recover damages for personal injuries and property loss sustained as the result of a collision between a truck owned and driven by plaintiff and a train of defendant, at a grade crossing in Hillside, Cook county, Illinois, on August 18, 1928. A jury returned a verdict finding defendant guilty and assessing plaintiff’s damages at $4,000. Defendant has appealed from a judgment entered upon the verdict.

In a former trial of this case there was a directed verdict for defendant at the close of plaintiff’s case. Upon appeal we held (Provenzano v. Illinois Cent. R. Co., 263 Ill. App. 530) that plaintiff’s evidence made out a clear prima facie case against defendant and that the trial court erred in directing a verdict. To save repetition we refer to our former opinion for a statement of the pleadings, the locus in quo and plaintiff’s theory of fact.

Defendant contends that “the trial court erred in sustaining plaintiff’s demurrer to defendant’s special plea invoking provisions of the Workmen’s Compensation Act in defense of plaintiff’s claim for damages for personal injuries.” Almost five years after the accident occurred, during the second trial of this cause and at a time when plaintiff had offered most of his proof, defendant asked leave to file this special plea. Counsel for defendant admitted to the trial court* that in the first trial they had not attempted to interpose the defense raised by -that plea, and they gave no excuse for their dilatory conduct. Plaintiff urges a number of grounds in support of the court’s action in sustaining the demurrer to this plea, but it is unnecessary to refer to all. The plea assumes, in the introductory part, to answer the whole declaration, as follows: “Now comes the defendant, . . . leave of court being first had and obtained, and for a further and special plea herein says that the plaintiff, Louis Provenzano, ought not to have and maintain his aforesaid action against it, the said defendant, because the defendant says,” etc. The plea is clearly bad as against the claim for property damage, as the Workmen’s Compensation Act provides compensation only for accidental injuries or death. In Gebbie v. Mooney, 121 Ill. 255, 257, the court said:

“Chitty says: ‘If a plea profess, in its commencement, to answer the whole cause of action, and after-wards answers only a part, the whole plea is bad,’ and he says the proper course is to demur. 1 Pleadings (7th Am. ed.) 554, * 555.”

“A special plea in bar, which commences as an answer to the whole declaration, and answers only one cdunt, is bad, and where it professes to answer the whole declaration, but only answers a part, it is bad. ’ ’ (Puterbaugh’s Com. Law Pl. & Pr. (10th ed.) p. 114.)

“It is to "be observed, that a plea which only contains an answer to part of the declaration must be qualified accordingly in the commencement.” (Ib.)

“It is a familiar rule, that a plea which professes to answer the whole declaration, but only answers a part, is bad; that principle controls here. The demurrer will have to be sustained to the two pleas.” (Peabody v. Kendall, 145 Ill. 519, 526.)

(See also Titcomb v. Straight, 57 Ill. App. 331, 332; Kopf v. Yordy, 200 Ill. App. 409, 415; City of Marshall v. C., C., C. & St. L. Ry. Co., 80 Ill. App. 531, 535; Hartzell v. Cincinnati, H. & D. Ry. Co., 218 Ill. App. 553; People v. McClellan, 137 Ill. 352, 359; People v. McCormack, 68 Ill. 226; Goodrich v. Reynolds, Wilder & Co., 31 Ill. 490, and People v. Weber, 92 Ill. 288, 291.) In Puterbaugh, pp. 114-5, the author gives the various forms used where qualification is necessary. Defendant’s position, as we understand it, is that plaintiff, the Central Lime& Cement Company and defendant were all operating under the Workmen’s Compensation Act, and were subject to its provisions; that any claim the plaintiff may have as the result of the accident must be determined in the first instance by the industrial commission, and that the only jurisdiction the circuit court would have would be to review,, by a writ of certiorari, the action of the commission. In other words, defendant’s special plea is one to the jurisdiction of the circuit court. It requires no authorities in support of the established rule that a plea that seeks to oust a circuit court of jurisdiction for matters not appearing from an inspection of the record must be certain to every intent and must contain proper averments of facts accurately and logically stated, excluding every intendment of jurisdiction; and deductions, arguments, inferences and conclusions of the pleader are not sufficient, Tested by this rule the plea is not sufficient, We may add that after carefully considering that part of the record that bears upon the instant question we are impressed with the fact that the plea was offered more for the purpose of appeal than for any benefit that might have been gained during the trial of the case, had the demurrer been overruled.

Defendant next contends that the third count of the amended declaration is insufficient to charge a wilful and wanton injury. No demurrer was filed to this count, and neither at the close of plaintiff’s case nor at the close of all the evidence did defendant offer a separate motion and a separate instruction as to it. Not only did defendant fail to challenge, in any apt way, the sufficiency of the count, but its instructions ten and eleven are based upon the theory that plaintiff had the right to recover if the jury found from the evidence that the defendant was guilty of wilful and wanton conduct in the operation of its train which proximately caused the injury in question, and having, by its conduct, permitted the case to be submitted to the jury upon that theory, it should not now be heard to contend that the third count was insufficient. Count three alleges, inter alia, that “the plaintiff was possessed of and was lawfully driving a certain automobile truck upon and along a certain public highway there, to-wit, Harrison Street, in a westerly direction, at near and over a certain crossing of the said public highway and a certain railroad of the defendant, . . . and the defendant was then and there possessed of a certain locomotive engine, with a train of cars then attached thereto, which said locomotive engine and train were then and there under the care and management of divers then servants, agents and employees of the defendant, who were then and there driving and operating the same upon and along the said railroad, near and toward and over the crossing aforesaid; and the plaintiff avers that the defendant, by its then agents, servants and employees, drove, managed, and controlled said locomotive engine at near and over said crossing in a wilful and wanton manner, and drove, managed and ran said locomotive engine on upon and over said crossing into, upon and against the said automobile truck of the plaintiff, then and there proceeding on, upon and over said crossing,- and thereby the plaintiff was then and there thrown with gréat force and violence from and out of the said automobile truck,” etc. (Italics ours.) Defendant’s major contention is that this count ‘ ‘ does not attempt to charge the defendant with negligence in the manner in which it operated the train over the crossing; but only that it operated the train ‘in a wilful and wanton manner.’ It is not charged or attempted to be charged that the defendant was guilty of a conscious act, from which injury would likely or probably result; and it did not charge that the defendant was guilty of reckless indifference to consequences; nor that it intentionally did some wrongful act or omitted some known duty, which produced the injurious result. ’ ’ Even if it be conceded that the count would be obnoxious to a demurrer the question here is, Is it sufficient, after verdict and judgment. Century dictionary defines “wilful” as follows: “Due to one’s own will; spontaneous; voluntary ; deliberate; intentional: as, wilful murder; wilful waste.” Webster defines it as follows: “Self-determined; voluntary; intentional; as willful murder.” Century dictionary defines “wanton” as follows: “Characterized by extreme recklessness, foolhardiness, or heartlessness; malicious; recklessly, disregardful of right or of consequences: applied to both persons and their acts.” Webster defines it as follows : ‘ ‘ Reckless; heedless; malicious; as, wanton mischief.” In Hull v. Seaboard Air Line Ry., 76 S. C. 278, 281, it is said:

“Each of the words, wantonness, wilfulness and recklessness, embodies the element of malice, either express or implied, and are in law substantially the equivalent of each other, in so far as they give rise to an action based upon punitive damages.”

In Palmer v. Smith, 147 Wis. 70, 75, it is said that the word “wanton” means “without reasonable excuse, and- implies turpitude, ’ ’ and ‘ ‘ such a degree of rashness as evinces a total want of care, ... or willingness to destroy, although destruction itself may have been unintentional.” See also Walldren Express Co. v. Krug, 291 Ill. 472, 478, as to the meaning of the words “wanton” and “wilful.” In that case the court said (p. 479):

“In Chicago City Railway Co. v. Jordan, 215 Ill. 390, we said: ‘Where there is a particular intention to injure, or a degree of willful or wanton recklessness which authorizes a presumption of an intention to injure generally, the act ceases to be merely negligent and becomes willful or wanton. In such a case there may be an actual intent to injure or such a conscious or intentional disregard of the rights of others as to warrant a conclusion that an injury was intended. ’ A charge of wantonness implies an act intentionally done in disregard of another’s rights, designed and intentional mischief, and not a mere negligent omission of duty.” (Italics ours.)

In Jeneary v. C. & I. Traction Co., 306 Ill. 392, the count charged that the defendant wilfully and wantonly ran its train against plaintiff and injured him, and the court held that the plaintiff had the right to recover under such count. (See also Brown v. Illinois Terminal Co., 319 Ill. 326.) We are not prepared to concede, as defendant contends, that the count should be held to be fatally defective after verdict and judgment, especially when it is clear that defendant conducted its defense upon the theory that the count was good. The following statement of Mr. Justice Taylor in Williams v. Kaplan, 242 Ill. App. 166, 180, seems particularly applicable here:

“The manifest tendency of the law as shown by the decisions is towards less rigor in the technique of pleading, provided, of course, the defendant’s rights are not thereby endangered or impaired.”

We are strongly opposed to the further contention of defendant that if the verdict cannot be sustained upon the theory of wilful and wanton injury the judgment must be reversed. In support of this last contention defendant relies upon Grinestaff v. New York Cent. R. R., 253 Ill. App. 589; O’Neall v. Blair, 261 Ill. App. 470, and Streeter v. Humrichouse, 261 Ill. App. 556. We are in entire accord with the specially concurring opinion of Mr. Justice O’Connor in Price v. Bailey, 265 Ill. App. 358, 365, in which case the first division of this court very emphatically and justly disagreed with the holding in the said cases that a general verdict in a personal injury case should be set aside where some counts charged defendant with negligence and others with wilful and wanton conduct and there, was no evidence to sustain the wilful and wanton counts. The same division, in the later' ease of Hawkins v. McClun, 266 Ill. App. 601 (abst. opinion), in an opinion written by Mr. Justice McSurely, adhered to its position in the Price case.

Defendant contends that the evidence is insufficient to support a charge of wilful and wanton injury.

“Whether the negligent conduct of a defendant which has resulted in injury to another amounted to wantonness is a question of fact to be determined by the jury, if there is any evidence in the record fairly tending to show such a gross want of care as indicates a willful disregard of consequences or a willingness to inflict injury.” (Walldren Express Co. v. Krug, supra, 476.)

(See also Jeneary v. C. & I. Traction Co., supra, 397.) As stated in Brown v. Illinois Terminal Co., supra, 331:

“Courts have recognized the difficulty of accurately stating under what circumstances a defendant may be held guilty of willful and wanton misconduct in causing an injury. Such conduct imports consciousness that an injury may probably result from the act done and a reckless disregard of the consequences.”

Defendant has argued the instant contention upon the assumption that “the collision occurred on a country crossing, ’ ’ whereas the accident occurred at the Harrison street crossing in the village of Hillside, Cook county, Illinois. Adjoining Hillside is the village of Bellwood. In the opinion we filed upon the former appeal there is a fairly complete statement of the locus in quo. The Harrison street crossing is the center of Hillside and near by the village hall, police department, fire department and a public school are located. A short distance east of the crossing the track is built through a cut or defile, and it crosses Harrison street at a sharp angle. Plaintiff’s evidence in the second trial as to the alleged obstructions to the. view of the train as it approached the crossing is similar to that given in the first trial. From the testimony of both sides it is clear that from the time the train came out of the cut until it reached the crossing but two or three seconds elapsed. There were no gates, nor signal lights, nor a watchman at the crossing, and plaintiff’s evidence was to the effect that there was no bell rung nor whistle blown on the train as it approached the crossing, and that the train, as it came out of the cut, was traveling at the rate of 50 to 60 miles per hour. Defendant introduced evidence to the effect that the bell was ringing and the whistle was blown as the train approached the crossing, but the effect of this evidence was seriously affected by the testimony of the railway mail clerk, “in the service of the United States Postal Department,” a witness for defendant, who testified that it was the duty of the engineer to give him the station whistle when the train was a mile east of the depot and that the engineer did give him that whistle when the train was a mile east of the depot and that he then, in the performance of his duties, opened the door of his car to look out and that the engineer “had started on the second series of whistles when the accident took place.” The engineer testified that he was familiar with the situation, that he knew that the road was being used by trucks for hauling material and that as he approached the intersection “there are three crossings, one right after the other. There is a school right there at Wolf Eoad crossing. There is a school, city hall and fire station, I believe, there at Wolf Eoad crossing. I was going through there at 55 miles an hour. ... The train was moving about 85 feet per second, traveling at 55 miles an hour. It did not take very long for that train to get to the crossing after it came out of the cut.” He further testified that when he was about 1,000 feet away from the crossing he “saw this truck coming down Harrison Street” and that “he (plaintiff) beat me a little bit” to the crossing; that he watched the truck from the time he first saw it and that when the train was within 250 feet of the crossing he became afraid that the driver of the truck did not know there was a train approaching and that he then sounded two long and two short whistles but that he could not possibly then have stopped his train, at the speed at which it was going, in less than 500 feet. As tending to support the contention of plaintiff that the engineer made no effort to stop his train, after he observed plaintiff in a position of danger, from plaintiff’s evidence it appears that Wolf road is “about 1,000 or 1,100 feet west of Harrison Street crossing, ’ ’ and, that when the engineer got off the engine, after the train had stopped, it was on the other side of the Wolf road crossing. The fireman testified that the train stopped “right east of Wolf road. I don’t know exactly how close.” While the engineer testified that he did not see other trucks passing over the crossing, testimony for plaintiff was to the effect that there were several other trucks that had just passed, or were about to pass, over the crossing at the time of the collision. The contention of plaintiff that when the entire testimony of the engineer is carefully considered, it tends to show a wilful and wanton recklessness in approaching and passing over the crossing, is not without force. Under all the facts and circumstances, we are of the opinion that we would not be warranted in holding that there was no evidence tending to prove wilful and wanton conduct.

Defendant contends that the trial court should have directed a verdict for defendant. Upon the former appeal a like contention was made and we held that it was without merit. The evidence for plaintiff, upon the second trial, was as strong as upon the first trial, and the instant contention is without merit.

Defendant contends that the verdict of the jury is clearly and manifestly against the preponderance of the evidence. After a careful consideration of the evidence we have reached the conclusion that this contention is without merit.

Defendant contends that the court erred in giving, at the request of plaintiff, instructions seven and eight. This contention is based upon the assumption that count three “was a futile attempt to charge a wilful and wanton injury,” and we have already passed upon that contention. Moreover, defendant’s instructions ten and eleven, as we have already stated, are based upon the theory that plaintiff had the right to recover upon count three, if the evidence warranted it. We are. unable to understand upon what facts defendant bases its contention that it was injured by the ruling of the court in respect to count three and the giving of these two instructions. The jury allowed plaintiff $4,000. The uncontradicted evidence shows that the truck was worth, at the time of the accident, between $3,000 and $3,500, and that it was sold, after the accident, for $300. After the accident plaintiff was unable to work' for four months. During that period he was taking “diathermic treatments” for his spine at the Oak Park hospital and the County hospital. His arms and legs were “all banged up and cut and bruised.” He had a stitch under his nose and a cut over his right eye. At the time of the trial he was still taking “diathermic treatments.” Pour months after the accident he obtained “an easy job at the Western Electric as inspector.” It is evident from uncontradicted evidence that the jury did not award punitive damages. In fact, plaintiff, not the defendant, might justly complain of the size of the verdict. Nor do we find any substantial merit in the further contention of defendant that the court erred in giving, at the request of plaintiff, instruction four.

We find no merit in defendant’s contention that the court admitted incompetent evidence on behalf of plaintiff and excluded competent evidence offered by it.

The court, at the instance of defendant, gave twenty-one instructions, some of which are properly subject to serious criticism. In any event, defendant’s rights were fully protected by the instructions:

Defendant has had a fair trial and the judgment of the circuit court of Cook county is affirmed.

Affirmed.

Sullivan, P. J., and Gridley, J., concur.


author: Mr. Presiding Justice Hall

text:
    First Union Trust and Savings Bank, Complainant, v. Division State Bank et al., Defendants. Esther Homer et al., Appellees, v. First Union Trust and Savings Bank, Appellant.
    Gen. No. 36,918.
    Opinion filed November 21, 1933.
    Tatge & Tatge and Sonnenschein, Berkson, Lautmann, Levinson & Morse, for appellant; Robert F. Kolb, David Levinson, Abraham Fishman and Isaac E. Ferguson, of counsel.
    Wolf & Love, for appellees; Stephen Love, Louis F. Davis and George Broide, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

In this case, complainant as trustee in a mortgage . deed of certain real estate given to secure a loan of $250,000, since reduced to $200,000, evidenced by bonds, both of which were executed by certain of the defendants, filed a sworn bill in chancery to foreclose the same. The bonds bear 6 per cent interest before maturity and 7 per cent after maturity. It is charged in the bill that defendants have defaulted in the payment of interest and instalments of principal agreed to be paid by the terms of the contract; that a large amount of taxes levied against the mortgaged premises, agreed to be paid by mortgagor, have not been paid; that the owners of the property have committed waste and have permitted the premises to deteriorate and to develop into a state of disrepair, and that the rents collected which were pledged by such trust deed as partial security for such loan, have been diverted to the personal uses of certain of the defendants instead of being used for the payment of the debt and the maintenance of the property. It is also charged in the bill that the property has so depreciated in value that it is scant security for the loan. The trust deed provides, in case of such defaults, that a receiver may be appointed for the mortgaged property. Complainants prayed for the appointment of such a receiver. The mortgaged premises consist of a business block comprising 12 stores, a theatre, a hall, and a number of suites of offices. The trust deed contains all the usual provisions in regard to the mortgaging of the rents, the right to a receiver and the right to possession of the premises after default.

Certain defendants filed an answer in which they admit all of the material allegations of the bill, except the allegations charging waste, and that the property is scant security, which allegations are denied. Complainant’s right under the law to institute the proceedings and have the relief prayed, are not denied, but tacitly admitted. In addition to the answer these same defendants filed a petition in which they allege among other things that because of the large amount of taxes levied against the premises, these defendants were unable to pay the interest and the instalments of principal as they became due, and that since April 1st, 1932, they have paid over to complainant all the net income from the property — except approximately $8,000 — for the benefit of the bondholders, and for the payment of certain deposits on account of taxes. It is alleged in the petition that because of the decrease in the amount of rent possible to be collected from the property, which condition has come about since the execution of the trust deed, and because of the great amount of taxes levied against the property, defendants are not able to secure sufficient income from the premises to pay any of the instalments on the principal as they have and will become due, and only 2% per cent instead of 6 per cent interest as the interest instalments become due. This petition further recites that because of the cost of the foreclosure and administration of the property by a receiver, the interests of all parties concerned will be best conserved by allowing certain of the defendants to remain in the management and control of the property, to collect the rents and account to the trial court for all their acts and doings. This petition sets forth with much elaboration general statements concerning the economic situation now prevailing in the country and its effect on real estate values in Cook county. Alleged data as to the great number of foreclosure suits brought and pending in the courts of Cook county and the large sums of money alleged to have been paid for solicitors, masters and other fees in and about the foreclosure of mortgages, is set forth in this petition. Exceptions to the petition were filed, as well as a general demurrer thereto, both of which were overruled by the court in the order appealed from.

From the record in the instant case, it appears that nothing was before the court other than the bill,- answer and petition. No testimony was taken. . -

The findings of fact and the order appealed from, are in part and in substance as follows:

That with taxes at the rate of‘approximately $7,000 per year, and with a net operating income of approximately $12,000 per year, the bondholders cannot realize from the said premises more than approximately 21/2 per cent per year by way of interest on. the indebtedness of $200,000 which still remains unpaid, and this without setting up a reserve to amortise the. principal of the said indebtedness; that if the expense of a foreclosure or receivership be added, then the bondholders will receive no interest whatever on their holdings, nor can any fund be set up to amortise the principal of the said indebtedness; that in view of the fact that the complainant is in possession of all of the bonds, and is the trustee under the trust deed, there is no necessity for a foreclosure of the aforesaid trust deed at this time, because these defendants are entirely willing, and hereby offer, and have heretofore offered,- to cause all of the net operating income of the said premises,' together with a statement of rentals and expenditures, to be turned over to the complainant monthly, for the benefit of the bondholders, pur-' suant to order of this court; that these defendants have even offered to the complainant, for the benefit of the bondholders, that if the above indebtedness were canceled then they would convey the title to the aforesaid premises to the complainant, or any person by it appointed, for the benefit of the bondholders, in consideration for an option to repurchase the premises within two years plus a cash consideration of $5,000; that these defendants made the said offer to the complainant even though these defendants have, a cash investment in the said premises, over and above all revenue by them received from the premises, of over $150,000; that despite the fact that an expenditure of $5,000 for the said deed would be about one-fourth of the cost of a foreclosure and receivership, the complainant has rejected the said offer and has filed this suit and is now seeking a receiver for the aforesaid premises; that all of the defendants are insolvent, and that a deficiency judgment would afford no relief to complainant, which fact defendants admit; that the expense of the foreclosure proceeding herein, including solicitor’s fees, master’s fees and other costs would amount to approximately $20,000, which, in case of foreclosure, would be a total waste; that on January 1, 1933, more than $1,300,000,000 worth of real estate in Cook county was in foreclosure receivership; that the number of foreclosure suits brought in Cook county in the years 1926 to 1932 inclusive was 41,817 ; that the total mortgage indebtedness upon which foreclosure suits were brought in Cook county for the years 1930 to 1932 inclusive was $1,223,247,437; that because of low rentals in Cook county, every incumbered piece of real estate in Cook county is now, or very shortly will be, in default in its mortgage indebtedness, and that approximately 500,000 parcels of real estate which are incumbered, will shortly be in foreclosure, which will impose upon the courts of Cook county a task which it will be impossible for them to assume and that a study of several hundred cases of mortgage foreclosure in Cook county indicates that excessive fees have been allowed to masters and solicitors in such foreclosure proceedings.

The court ordered that the motion for receiver be denied, and that the defendants, Joseph Homer, Louis Homer, Jack Homer and Abe Homer, remain in possession of the property, to operate and manage the same with the power, rights and duties usually vested in receivers, being accountable to the court as if they were receivers, and that they be excused from the necessity of filing bond as receiver; that such owners in possession should make an itemized statement of receipts and disbursements and turn over to the complainant the net income of the premises for each month, and that the complainant use the moneys received for the payment of past and current taxes, and that until such taxes have been paid, the bonds described in the bill of complaint shall bear no interest, but that after the payment of all past due and current taxes, the complainant shall use all moneys in its possession for the purpose of paying interest of not more than 3 per cent per annum, and that if there is any surplus after the payment of such interest, such surplus shall be applied to the ratable reduction of the principal indebtedness of the said bonds; that the complainant be enjoined from returning' to the owners any of the bonds described in the bill of complaint; that the complainant be enjoined from taking any further action in this suit until the further order of the court; that the bondholders be restrained and enjoined from instituting any action in equity or at law upon the said bonds until the further order of the court, and that the defendants be excused from the necessity of filing any bond as a prerequisite to the taking effect of the injunctional orders.

While this court appreciates the fact that a great hardship is frequently visited upon owners of real estate of the character involved in this case who have mortgaged the same, and from which the income, under prevailing conditions, is frequently insufficient to pay the charges contracted to be paid, we also have in mind the fact, generally known, that the owners of bonds for the payment of which these properties are pledged, are suffering in the same degree as the mortgagors. We are unable to find any authority which gives a court or chancellor the power to alter the terms of a written contract, or to declare a moratorium on debts agreed to be paid, both of which the trial court by its order seeks to do, in direct violation of the Federal and State constitutions. The law in this State on the subject of the rights of the mortgagee after default is so well settled that it seems almost useless to cite authority. In Rohrer v. Deatherage, 336 Ill. 450, the Supreme Court said:

“The first proposition of the plaintiff in error that the inclusion in the Eohrer mortgage of the rents, issues and profits of the land, with the land itself, would not alone deprive the mortgagor of the right to receive the rents for his own use until the mortgagee took some steps to enforce his lien upon the rents and profits, is a correct statement of the law and is supported by the authorities cited. The mortgagor is entitled to his rents until a receiver is actually appointed, and the receiver cannot collect rents already paid to the mortgagor (Mississippi Valley and Western Railway Co. v. United States Express Co., 81 Ill. 534; Gilman v. Illinois and Mississippi Telegraph Co., 91 U. S. 603; Sullivan v. Rosson, 223 N. Y. 217.) In this State a mortgagor is the legal owner of the mortgaged premises- against all persons except the mortgagee and his assigns. . . . While a mortgage conveys a title as between the mortgagor and the mortgagee, it is only a qualified title as security for the creditor during the existence of the debt, and the mortgagor is regarded as the owner of the land for all beneficial purposes, subject only to the rights of the mortgagee. (Theiner v. Speckin, 290 Ill. 181; Fitch v. Pinckard, 4 Scam. 69.) After condition broken, however, the mortgagee is, as between him and the mortgagor, the owner of the fee. (Ladd v. Ladd, 252 Ill. 43; Ware v. Schintz, 190 id. 189; Waughop v. Bartlett, 165 id. 124; Esker v. Heffernan, 159 id. 38; Oldham v. Pfleger, 84 id. 102; Barrett v. Hinckley, 124 id. 32.) . . . After condition broken, ejectment may.be maintained by the mortgagee against the mortgagor or those to whom he may have assigned the equity of redemption. (Taylor v. Adams, 115 Ill. 570.) Upon default in the condition of the mortgage the mortgagee has the right to possession against the mortgagor, his grantee, lessee or anyone claiming under him by any right. In such case the mortgagee has several remedies which he may pursue to enforce the payment of his debt. He may sue the mortgagor in assumpsit for a judgment upon the personal obligation; he may sue in equity for the foreclosure of the mortgage; or he may recover the possession of the mortgaged property by an action of ejectment. These remedies are concurrent or successive, as the mortgagee may deem proper, and he may pursue any two or all three of the remedies simultaneously. (Bradley v. Lightcap, 202 Ill. 154; Fish v. Glover, 154 id. 86; Harper v. Ely, 70 id. 581; Rogers v. Meyers, 68 id. 92; Carroll v. Ballance, 26 id. 9; Vansant v. Allmon, 23 id. 26.) On March 14, 1924, when the bill was filed, there had been a default in compliance with the terms of the mortgage. Upon demand of the mortgagee it was equally the duty of Deatherage, the mortgagor, and Coe, his lessee, to surrender possession to him. ” Under the showing made here, complainant should have been given the relief to which it is entitled under the law.

In the decree appealed from, the court, among other things, finds in effect, that excessive fees have been allowed to solicitors and masters in chancery in foreclosure proceedings, and seems to conclude that excessive fees will be allowed here, and predicates his findings largely on this conclusion. Except from the court’s findings in this case, this court has nothing before it to suggest that excessive fees have been habitually allowed in foreclosure proceedings. If this were true, the fault lies with the chancellors before whom, the hearings were had, who had it in their power to fix reasonable fees only, such fees to be based upon the character and amount of services rendered. Even if it were true that excessive fees have been allowed in foreclosure proceedings, this fact, if it were a fact, did not give the court in this case the power to take from a mortgagee the right to foreclose where the mortgagor has defaulted, which it does by this decree. Also, in this decree the chancellor enjoins the collection of the rate of interest agreed to be paid, and enjoins and restrains the trustee and the owners of the bonds in the mortgage deed from asserting the rights which the contract and law give them. In all of these particulars, the court was in error.

From the decree in this cause entered in the circuit court of Cook county on April 1, 1933, an appeal was prayed and allowed, and a complete record filed in this court and docketed as case No. 36,808. Subsequently, this interlocutory appeal from such decree was perfected, a complete ■ record filed in this court and docketed as case No. 36,918. Thereafter, an order was entered by and with the consent of the parties consolidating these cases for the hearing, and but one set of briefs and abstracts was filed.

The order of the court in this case is that the decree and order of the circuit court of Cook county restraining and enjoining the complainant from returning any of the bonds described in the bill of complaint to the respective owners thereof, restraining and enjoining complainant and the owners of such bonds from instituting any action in equity or at law upon the said bonds, or any of them, restraining and enjoining further action in the prosecution of this suit, and the collection of more than 3 per cent interest on such bonds, be reversed and remanded.

Reversed and remanded.

Wilson and Hebel, JJ., concur.


author: Mr. Justice McSurely

text:
    The People of the State of Illinois, Defendant in Error, v. Sam Hunt, Plaintiff in Error.
    Gen. No. 36,964.
    Opinion filed November 22, 1933.
    Daniel A. Covelli and Tyrrell A. Richardson, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, J. Albert Woll, Henry E. Seyfarth, and Charles Dougherty, Assistant State’s Attorneys, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

The defendant, charged with carrying- a revolver concealed about or on his person, was found guilty by a jury and sentenced to serve one year in the house of correction and to pay a fine of $300. He seeks a reversal.

On the evening of May 18, 1933, two police officers, while riding in a police squad car on Wabash avenue in Chicago, saw and recognized the defendant standing on the sidewalk; they turned their car to the curb, jumped out and called, “Police officers!”; defendant ran across the sidewalk into a cafe, holding one of his hands inside his coat; the officers followed a step or two behind him and when they got into the cafe they saw defendant pull a revolver out of his clothing and throw it underneath a cigar counter, saying, “I beat you to it that time.” They arrested defendant and recovered the revolver from under the counter. It was a loaded 38-caliber revolver.

In this court defendant argues that the information is fatally defective in that it charged defendant with carrying a revolver “about or on” his person; that the charge being in the disjunctive makes the offense in the alternative, and where the statute making the offense is in the alternative, the information must charge in the conjunctive form. Seacord v. People, 121 Ill. 623.

There are certain decided cases which draw a distinction between the words “on” and “about” in the expression under consideration. In Schraeder v. State, 28 Ohio App. 248, the word “on” in this connection was said to mean “connected with or attached to, while the word ‘about’ means nearby, close at hand, in reach of.” In that case the revolver was in a pocket on the inside of the door of the automobile immediately beside the accused; he was charged with carrying the weapon “on or about his person,” and the conviction was affirmed. On the contrary, in State v. Brunson, 162 La. 902, under almost identical facts, the accused was discharged. The court held that “on or about” are interchangeable and synonymous terms, meaning “on.” Therefore, although the revolver was in a pocket on the inside of the front door of the automobile immediately beside the seat occupied by the accused and within his reach, it was not “on” his person. The opinion noted that in Alabama, Missouri and Texas, carrying a weapon concealed in a vehicle, though not on the accused’s person, is a violation of the law against carrying a weapon “on or about the person.” It is not so in Kentucky, Georgia or South Carolina. In Tennessee, North Carolina, Missouri and Texas, the words “on” and “about” áre held to be not convertible terms but to have different meanings. In Alabama, Virginia, Kentucky, Georgia and South Carolina, the words “on or about” are held to be synonymous terms.

In State v. King (Mo. App.), 285 S. W. 794, a defendant was charged with having in his possession “a still, worm, doubler, or other equipment” used in the manufacture of intoxicating liquor. The conviction was reversed because it made the charge in the alternative. This decision seems to be contrary to decisions in this State where it has been held that the word “or” used to characterize two phases of the same fact, stated but a single ground and not the alternative. People v. Lavendowski, 329 Ill. 223; People v. Leoni, 198 Ill. App. 376. These cited cases are typical of the variant decisions construing the phrase" under consideration.

People v. Niemoth, 322 Ill. 51, indicates the reasonable construction to be given these words. There the revolver was on the floor of the automobile, behind the front seat where the defendant was sitting, and could not be reached by him unless he moved from his position. The information charged him with carrying a weapon “on or about his person.” It was held that “about his person” means sufficiently close to the person to be readily accessible for immediate use, and that as the weapon was not so accessible the evidence failed to establish the guilt of the defendant. Applying this reasoning to the instant case, we hold that the charge of carrying a weapon “on or about his person” means carrying a weapon readily available for use. The ability to reach the weapon for immediate use is the gist of the charge. It is merely quibbling • — a kind of logomachy — to say that the crime depends upon whether one could take the weapon from one’s clothing or from a nearby place. The' danger which the statute seeks to suppress is the carrying of a weapon easily reachable for use. We hold that the information, which is in the language of the statute, properly charged the crime for which defendant was tried.

In People v. Lake, 332 Ill. 617, the information was held bad because it did not contain an allegation that the revolver was carried “on or about his person,” and that the information “should be as descriptive of the offense as is the language of the statute.”

Defendant’s counsel, in a well written brief, suggests that it would be impossible properly to present a plea of former jeopardy as the trial court could not say of which crime the defendant had formerly been found guilty. The word “or” in the information was used to denote two phases of the same act, namely, the carrying of a weapon which the defendant could readily reach for use.

Instruction No. 4, given at the request of the State, is criticized. It in substance told the jury that the admissibility of evidence was to be decided by the court, and “that the jury have no right to disregard any evidence which the court has held to be competent for their consideration and admitted.” This instruction merely told the jury that it should consider all of the evidence admitted by the court, and would be so understood by the jury. In this connection, we note that the abstract and bill of exceptions show only two of a number of instructions given. We will therefore assume that other instructions removed any possible misconception which the jury might have because of instruction No. 4.

No evidence was introduced in defense. The jury was justified in finding the defendant guilty. We see no reason to disagree with the sentence imposed by the court.

As we hold that the information properly charged a violation of the statute, that the verdict of the jury was in accordance with the evidence, and that there were no errors on the trial, the judgment is affirmed.

Affirmed.

Matchett, P. J., and O’Connor, J., concur.


author: Mr. Justice O’Connor

text:
    J. R. Fetherston et al., Appellees, v. National Republic Bancorporation et al., Defendants. Appeal of Central Republic Trust Company, Appellant.
    Gen. No. 36,952.
    Opinion filed November 22, 1933.

      Arthur J. Hughes, for appellant; Frank Michels and Laurence V. Meyering, of counsel.
    Shulman, Shulman & Abrams, Leonard F. McGee and Paul T. Klenk, for appellees; Meyer Abrams, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal the defendant, the Central Republic Trust Company, seeks to reverse an order of the superior court of Cook county which denied its motion to dissolve an injunctional order restraining defendant, its officers, agents, successors and assigns from selling certain collateral held by it. Complainants’ motion for an injunction was heard on their verified amended bill of complaint as amended. Afterward, the defendant moved to dissolve the injunctional order, the motion was overruled and denied, the defendant’s general and special demurrer was overruled and it ordered to answer. On this appeal, therefore, the question is whether the allegations of the amended bill were sufficient to warrant the issuance of the injunctional order.

The allegations of the bill, so far as is necessary to state them here, are that J. R. Fetherston, individually and as chairman of the “Depositors Protective Organization of the Madison Square State Bank” (a voluntary organization) and other depositors of that bank and H. R. Dow, receiver of the Madison Square State Bank, as complainants, filed their bill on behalf of all the depositors of that bank, the total claims of the depositors aggregating more than $962,000; that complainants’ action in filing the bill was unanimously ratified and approved by more than 3,000 depositors of the Madison Square State Bank; that the National Bank of the Republic was a banking institution located in downtown Chicago, which desired to dominate and control certain banks in outlying districts of Chicago, and with that end in view organized a syndicate known as National Republic Investment Trust, and a corporation known as the National Republic Bancorporation which obtained control of a number of outlying banks, including the Madison Square State Bank; that in order to induce the depositors to leave their money in the Madison Square State Bank and others to make new deposits in the bank, the National Bank of the Republic and the National Republic Bancorporation caused to be advertised that the outlying banks were a part of a system supported by them with combined resources of more than $250,000,000, and that certain officers of the Bancorporation and officers of the downtown bank advertised that the outlying banks were in a strong financial condition, backed by the downtown banks mentioned; that a statement of the financial condition of the Madison Square State Bank was issued with the knowledge and approval, of the National Bank of the Republic and the Bancorporation, showing that the Madison Square State Bank had resources of more than two and one-half million dollars, cash on hand, and due from banks of more than $726,000; that these statements were untrue and were known by the parties who made them to be untrue; that they were acted upon by complainants in the belief that they were true; that June 10th and 11th, 1931, all of the collateral in the Madison Square State Bank, consisting of notes, bonds, trust deeds and other securities, were taken to the National Bank of the Republic and placed in that bank as collateral “for an alleged indebtedness of $450,000,’’ as shown by the latter bank’s books under the heading of “Bills'Payable,” and that these bills were later reduced to about $348,000; that the National Bank of the Republic and the Central Trust Company merged into a bank known as Central Re-, public Trust Company, the defendant, and acquired the securities above mentioned, aggregating’ more than $450,000; that afterward the financial statement which was required by law was made by certain of the defendants and showed that the Madison Square State Bank was in good financial condition; that the $348,000 which was owed by that bank was paid in full, and that that bank had about $650,000 cash on hand with no bills payable; that this report was false and known to be such, and a few days after publication of such financial statement the records of the Madison Square State Bank showed that the bills payable, aggregating more than $348,000 again appeared as being due and unpaid, and very little cash deposits in that bank; that these false financial statements caused certain of the depositors to leave their deposits in the bank and others to open up new accounts, as a result of which they lost their money, the bank being hopelessly insolvent when it was closed.

It was further alleged that the defendant, Central Republic Trust Co., notified the Madison Square State Bank and H. R. Dow, its receiver, that it held two promissory notes executed by the Madison Square State Bank, one dated July 1, 1931, for $150,000 and one dated October 10, 1931, for $50,000, and that there was a balance due on these notes of more than $146,000, and that at a certain date mentioned it would offer at public sale the balance of collateral held by it as security for the payment of the notes; that the face value of the collateral was more than $458,000; that the Central Republic Trust Co. was not an innocent purchaser for value of the two collateral notes, having received them through its merger with the National Bank of the Republic.

The prayer of the bill was that complainants be decreed to have a lien on the collateral and that the defendant, Central Republic Trust Co., its officers and directors who participated in the alleged fraudulent transactions mentioned, be held jointly and severally liable to pay any deficiency to make up the full amount of the deposits of more than $962,000.

The merits of the case are not before us. The only question on this interlocutory appeal is whether the court erred in refusing to dissolve the preliminary injunction.

The defendant contends that each of the depositors “has a complete and adequate remedy at law, by separate actions which can neither be prosecuted nor joined in equity,” and therefore the court of chancery had no jurisdiction. We think it obvious that 3,000 depositors ought not to be required to bring 3,000 separate suits which would require the proving of the same charges 3,000 times, when equity in one suit would afford complete relief. To say that there was an adequate remedy at law under the circumstances, is wholly without merit. Kiefer Tanning Co. v. Alliance Ins. Co., 266 Ill. App. 362; Regan v. Grady, 343 Ill. 423; Golden v. Cervenka, 278 Ill. 409. Moreover, the receiver in this case represents all the depositors.

The defendant further contends that the matters alleged in the amended bill of complaint fail to show that the securities in question were not properly held by the defendant, Central Republic Trust Co., as collateral security for the payment of the two notes executed by the Madison Square State Bank for $150,000 and $50,000, respectively, on which there is a balance due of more than $146,000, and in support of this it is said that no facts were alleged tending to show that the Madison Square State Bank did not owe the claimed balance due on the two notes. We think this contention must be sustained.

The theory of complainants’ bill is that defendants made a false statement, which was published, and on which complainants relied, which showed that the bills payable by the Madison Square State Bank, aggregating more than $348,000, were paid when, as a matter of fact, they were not paid, because a few days after the publication of the statement the records of the Madison Square State Bank again showed the $348,000 due and owing by that bank; that the report was false in this particular; that the bills were not in fact paid. But the further argument seems to be that when, through the fraudulent acts of the defendants in making the report, which showed the $348,000 of bills payable had in fact been paid, the collateral should have been returned to the Madison Square State Bank, and that therefore the collateral was not held by the defendants as a valid pledge. We think this contention cannot be sustained because the allegations of the bill are that the bills payable were in fact not paid. We have been unable to find any allegation of fact in the amended bill, as amended, that tends in any way to show that the balance of the two notes of $150,000 and $50,000, respectively, namely, $146,000, was not a bona fide indebtedness due and owing from the Madison Square State Bank, for which the securities in question were pledged as collateral security. The argument seems to be that the bill alleges the claimed $450,000 on which there was a balance due of more than $348,000, was only an “alleged indebtedness.” This is but a conclusion; no facts are pleaded to warrant this conclusion, and such allegations are insufficient. Obviously, if there' was a valid indebtedness of $146,000 due and owing from the Madison Square State Bank, the payment of which was secured by the collateral involved, the defendant ought not to be enjoined from selling the collateral to pay the balance due it.

The facts alleged by complainants did not warrant the issuance of the injunctional order, and the court erred in refusing to dissolve it.

The order of the superior court of Cook county appealed from is reversed.

Order reversed.

Matchett, P. J., and McSurely, J., concur.


author: Mr. Presiding Justice Wolfe

text:
    The People of the State of Illinois, Defendant in Error, v. Wallace G. Siemen, Plaintiff in Error.
    Gen. No. 8,646.
    Opinion filed November 22, 1933.
    Reuben R. Tiffany, for plaintiff in error.
    Oscar E. Carlstrom, Attorney General, J. J. Neiger, Assistant Attorney General, and Harry C. Tear, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Fred E. Hammond, Ralph M. Hammond, and Wallace G. Siemen were respectively president, vice president, and cashier of the State Bank of Stockton, Illinois. This bank was closed by the auditor of public accounts on September 6, 1928. The grand jury of said county returned an indictment against the above named parties on November 7, 1929, charging each of the said defendants with the crime of receiving a deposit of $55 from one Leonard S. Beattie, when at the time of receiving said deposit, the said bank was insolvent and that each of said defendants had knowledge of that fact.

There were two counts of the indictment which were substantially the same, with the exception that the second count charged that Beattie deposited a certain check for the payment of $125.

The State’s attorney elected to try the defendant, Wallace Gr. Siemen, upon the first count of the indictment.

The defendants were admitted to bail and two of them, Balph M. Hammond and Wallace Gr. Siemen, on February 7, 1930, filed a motion challenging the array of the grand jury. The motion was supported by affidavits. The motion alleged substantially that certain of the grand jurors were depositors in the State Bank of Stockton at the time it was closed; that some of the grand jurors were otherwise interested in the proceeding to liquidate Said bank. The defendants’ motion challenging the array of the grand jury was overruled, and they reserved an exception to this ruling. The plaintiff in error then filed a motion that the State’s attorney be required to furnish him a copy of the evidence of Justin Jagar, who was a witness before the grand jury, and whose name was not noted on the indictment by the foreman of the grand jury. The said motion stated further that the defendant Siemen desired to file a motion to quash the indictment. This motion was granted and the State’s attorney furnished the defendants with a copy of the evidence given by Justin Jagar before the grand jury.

The defendants, Hammond and Siemen, filed a motion to quash the indictment and attached to the motion an affidavit of Justin Jagar, and the defendant Siemen; a copy of the testimony given by Justin Jagar before the grand jury was also attached. The affidavit shows that Justin Jagar was chief bank examiner for the Northern District of Illinois; that he appeared before the grand jury and gave testimony in the investigation of the case of the State Bank of Stockton, and Fred E. Hammond, Ralph M. Hammond and Wallace Gf. Siemen, with reference to the subject matter as set forth in the above indictment; that it is their belief that Jagar gave evidence in reference to the subject matter then being investigated before the grand jury. A motion to 'quash the indictment was overruled. The defendant, Wallace Gf. Siemen, asked for and was granted a separate trial from the other defendants.

During the month of April, 1932, a jury was selected, evidence offered, and the jury brought in a verdict finding the plaintiff in error guilty and fixed his punishment at imprisonment in the penitentiary, and also fined him $110, this amount being twice the amount of the $55 deposited to Leonard S. Beattie’s account as charged in the indictment.

Cahill’s St. ch. 78, if 19 (section 1, ch. 78 of SmithHurd’s Revised Statutes, 1933), provides: “No grand jury shall make presentments of their knowledge, upon the information of a less number than two of their own body, unless the juror giving the information is previously sworn as a witness, in which case, if the evidence shall be deemed sufficient, an indictment may be found thereon in like manner as upon the evidence of any other witness who may not be of the jury. ’ ’ In the case of Musick v. People, 40 Ill. 268, 272, the court uses the following language: “When it is remembered, that under our practice an indictment may be preferred on the information of any two members of the grand jury without being sworn as witnesses, or on the oath of one only, we cannot see how they could be challenged for having formed and expressed an opinion of the prisoner’s guilt. If that could be done, then, under our practice, the accused could, by challenge of such jurors, prevent a finding in that mode, as the jurors having knowledge of facts sufficient to warrant an indictment, would certainly entertain the belief of his guilt. We are rather inclined to the opinion, that this forms no ground of a challenge to a grand juror; but if it does, the objection should be taken, as in the case of a petit juror, before he has taken the oath. State v. Rickey, 5 Halstead, 83. Otherwise great inconvenience and delay, if not an obstruction to the administration of justice, might ensue. And such was the rule adopted in the trial of Colonel Burr, but the exception in that case was to the manner in which the jury had been selected, and illustrates the practice in such proceedings.”

From the wording of the statute and the expression of the Supreme Court, it is quite evident that a grand juror may have knowledge of a particular crime and not be disqualified for serving as a member of the grand jury.

In this case the State is not attempting to recover from the defendant any money that a creditor of the bank would be entitled to, but was prosecuting the defendant for a criminal act for receiving a deposit that had become a part of the assets of the bank. It is our opinion that the court properly overruled the challenge to the array of grand jurors.

Numerous other objections are urged by the plaintiff in error why this judgment should be reversed, but it is our opinion that the evidence clearly shows and sustains the charge that the plaintiff in error as cashier of the State Bank of Stockton, accepted a deposit of $55 from the witness Leonard S. Beattie, knowing at the time that the bank was insolvent. We find no reversible error by the court in the admission or rejection of evidence presented to the jury. The instructions fairly present the law of the case.

The plaintiff in error, in due time, entered a motion to qnash the indictment for the reason that Justin Jagar had appeared before the grand jury and gave material evidence concerning the plaintiff in error, and that Jagar’s name was not indorsed on the back of the indictment as a witness upon whose evidence the indictment was found.

The plaintiff in error has cited several cases that would seem to hold that such an omission was fatal to the indictment, but an examination of these cases discloses this question was not squarely presented to the court for adjudication. In the case of McKinney v. People, 2 Gilm. (Ill.) 540, 552, the first case cited by the plaintiff in error, this question was not involved, as the court, after stating the rule, that if there had been such an omission and a motion properly made to quash the same, the indictment should be quashed, proceeded to say: “As it does not appear from the record but that the names of the witnesses were endorsed on the indictment we are bound to presume that they were.”

In the case of Andrews v. People, 117 Ill. 195, the court states that the statute requiring the foreman of the grand jury to note on the indictment the names of the witnesses upon whose evidence the same is found is mandatory and a disregard of this requirement would, no doubt, be sufficient ground to authorize, upon proper motion to quash the indictment. But in this case a decision of the question before us was not necessary, for later in the case the court says: “Here are the names of five witnesses noted on the indictment by the foreman of the grand jury as required by the Statute and the presumption is, in the absence of a contrary showing, that they were the witnesses and the only witnesses upon whose evidence an indictment was found.”

The case of People v. Bladek, 259 Ill. 69, is one in which the wife of the defendant was compelled to testify before the grand jury, and it was urged at the time of the trial that the indictment should be quashed for the reason that the indictment was based upon incompetent evidence, but the court says, “The trial court would not inquire into the proceedings before the .grand jury to determine whether the evidence heard was sufficient to support the indictment unless all the witnesses, and not merely one of them, were incompetent.” So in this case as- in the other ones cited by the plaintiff in error, the exact question that this court has to decide is not involved in that suit.

In People v. Haxton, 207 Ill. App. 584, the Appellate Court of the Third District held that the county court of Morgan county erred in not sustaining a motion to quash an indictment charging the defendant with the violation of the statute in selling liquor in anti-saloon territory, for the reason that the names of the witnesses were not indorsed on the indictment. An examination of that case discloses that no names were indorsed on the back of the indictment. So the exact question presented in the case, in this court, was not passed.upon in that case; however, the court in the Haxton case cited the same cases as authority for"their position as plaintiff in error does in this case.

Since this case was submitted to this court our Supreme Court in the case of People v. Kingsbury, reported in 353 Ill. 11, has passed upon this identical question and in their opinion reviewed the earlier cases. In passing upon this question they say: “Another ground of the motion to quash was that the indictment was found on the evidénce of Wallace J. Black before the grand jury and his name was not indorsed upon the back thereof, as required by section 17 of the Jurors act. It is shown by evidence heard on the motion to quash, that Black did appear at least two times before the grand jury that found the indictment, and that the grand jury returned thirty-six indictments against Kingsbury, Hops and Denhart. The State’s attorney and Black testified that Black testified before the grand jury in connection with its investigation relating to a charge against the officers of the bank of receiving deposits knowing* the bank to be insolvent but did not testify concerning the offense of making* a false statement to the Auditor of Public Accounts. The statute requiring the indorsement on the indictment of the names of the witnesses on whose evidence it is found is mandatory. (People v. Bladek, 259 Ill. 69; Andrews v. People, 117 id. 195.) The names of eighteen witnesses were indorsed on the back of the indictment in this case, and the presumption is, in the absence of a showing to the contrary, that they are witnesses, and the only witnesses, on whose evidence the indictment was found. (Andrews v. People, supra.) There was no showing* that the finding of the indictment in this case was in any part upon the evidence of Black. There was no error committed in overruling the motion to quash the indictment.”

On the trial of this case it was not necessary for the prosecution to call Jagar as a witness against the defendants as the proof was sufficient to show that the bank was insolvent. Before the trial the plaintiff in error demanded of the State’s attorney and was given a transcript of the evidence of Justin Jagar, so that he had full knowledge of what the testimony was before the grand jury. What error, if any, was purely technical, and we are of the opinion that the plaintiff in error had a fair and impartial trial and the trial court did not err in overruling* his motion to quash the indictment.

For the reasons above stated the judgment of the circuit court of Jo Daviess county is hereby affirmed.

Judgment affirmed.


author: Mr. Justiqe Huffman

text:
    Rae C. Heiple, Receiver of Henry Denhart and Company, Appellant, v. Edward Lehman and Lydia King, Appellees.
    Gen. No. 8,506.
    Opinion filed December 6, 1933.
    George W. Hunt and J. Edward Radley, for appellant.
    Ridgely & Ridgely, for appellees; Ben C. Leiken, of counsel.
   Mr. Justiqe Huffman

delivered the opinion of the court.

The State Bank of Henry Denhart & Company was engaged in a general banking business. On March 1, 1929, it made a loan of $1,000 to appellees, Lydia King and Edward Lehman, taking their note for that amount, payable on March 1, 1930. On April 1, 1930, $200 was paid upon the principal of said note, and the accrued interest paid to that date. On April 11, 1930, the bank was closed by the auditor of public accounts of the State of Illinois, and Bae C. Heiple appointed receiver. At the time the bank was closed, appellee, Lydia King, had on deposit to her credit individually, the sum of $1,965.01. A 10 per cent dividend has been paid to said appellee of $196.50, leaving a balance due her upon her deposit of $1,768.41, which has not been paid.

On March 30, 1931, and in vacation of the circuit court of Woodford county, appellant took judgment by confession against appellees for the sum of $856, then claimed due upon said note. On motion of appellees this judgment was opened up and leave given appellees to plead. Appellees filed three pleas, consisting of the general issue and two special pleas. The first special plea set up that the debt represented by said note was the direct obligation of Lydia King, and used by her solely and for her own purposes, and that she is obligated thereunder as the principal maker, and primarily liable thereon and that the said Lehman is obligated on the note as a surety only; and then interposing the plea of set-off. This plea was traversed by the appellant and the replication thereto denied the relationship of principal and surety on the part of the appellees. Appellees demurred to the replication, which demurrer was sustained. An issue of fact was here presented of which appellees’ demurrer was in no way conclusive. In the second special plea appellees set up the bank deposit of the said Lydia King as a set-off against said note, alleging that there was due from the bank to appellee King at said time, the sum of $1,768.41, which sum exceeded the amount due upon the note in question, and offering to set off and allow to the appellant a sufficient sum from the claim of appellee, to pay the principal and interest of said note. Appellant filed replication to this plea denying the right of appellees to urge such defense. Appellees demurred to this replication, which demurrer was sustained.

The appellees’ demurrers to appellant’s replications to the special pleas were sustained by the court as aforesaid, and appellant elected to abide the pleadings, whereupon judgment was entered in favor of appellees.

Appellant urges three reasons for the reversal of this case. First, that the appellees cannot plead as a set-off the individual deposit of Lydia King. Second, that the court erred in sustaining appellees’ demurrers to appellant’s replications to the special pleas. Third, that the court erred in not carrying appellees’ demurrers to the replications, back to the pleas.

Appellant filed its general demurrer to appellees’ special pleas, which demurrer was overruled and leave given appellant to reply double. Appellant then filed its replications to the special pleas, and when appellees demurred thereto, appellant made its motion that the demurrers be carried back to the pleas. This motion was denied. Appellant complains of the refusal of the court to carry said demurrers back to the pleas. We do not understand that a demurrer to a replication will be carried back to the plea, when a demurrer to such plea has already been filed and overruled. Fish v. Farwell, 160 Ill. 236; People v. Powell, 274 Ill. 222. Appellant, by the filing of its demurrer to appellees’ special pleas, is now precluded from urging that the court erred in refusing to carry the demurrer to the replications, back to the pleas. This disposes of appellant’s third point urged for reversal,

Special plea No. 1, to the effect that appellee Lehman was a surety upon the note, set up a proper defense. A set-off due a principal is also available to the surety. Himrod v. Baugh, 85 Ill. 435; and when the principal and surety join in the same plea, the consent of the principal to the pleading of the set-off by the surety, is thereby shown. Luther v. Mathis, 211 Ill. App. 596. This plea and the replication thereto raised a question of fact, which could only be decided upon a hearing. The ruling of the court in sustaining a demurrer to appellant’s replication denying the relationship of principal and surety was erroneous.

The third plea of appellees rested upon the defense of set-off. The claim of set-off arose because of the deposit of Lydia King in the bank. Appellant urges that this plea was bad on account of the lack of mutuality.

Should this third plea of appellees be proper, then it is conclusive upon the parties to this appeal and the court’s sustaining of appellees’ demurrer to appel-' lant’s replication to the second plea, of principal and surety, will make no difference. And if this third plea of appellees is not proper, then this cause must be reversed and remanded.

With respect to appellant’s first contention that the individual deposit of Lydia King could not be set off against the joint and several note of appellees, we are of the opinion that such right did exist. This being the case, then appellant’s second point urged for reversal, to the effect that the court erred in sustaining appellees’ demurrer to appellant’s replication to the plea of principal and surety, is automatically disposed of.

It has been held that a bank possesses the right of set-off,, under similar circumstances to which appellees now plead same. Hayden v. Alton Nat. Bank, 29 Ill. App. 458; Merchants Nat. Bank v. Maple, 65 Ill. App. 484. We find no later holdings to the contrary, and we see no reason why the converse of this rule should not apply.

It has long been the holding of the courts in this State that where a promise is both joint and several, distinct remedies may be taken against the promisors until satisfaction is obtained. Moore v. Rogers, 19 Ill. 347. It has also been held that where the contract is joint and several, its legal effect is double and equivalent to independent contracts, and that distinct remedies may be pursued until satisfaction is obtained. People for use of Miller v. Harrison, 82 Ill. 84; Joyce v. Spafford, 101 Ill. App. 422.

The liability of appellees upon the note in question was joint and several. The legal effect of the note remains unchanged and the obligation therein assumed by appellees still remains a several as well as a joint obligation. The payee as well as the payor is bound by the terms of the written obligation. Any one or more joint and several makers of a note may voluntarily discharge the same by payment thereof to the holder, and upon such payment, the debt is extinguished in so far as such holder is concerned; and as to him, all of the other joint and several makers are released and discharged; or, on the other hand, the holder of such note may enforce payment thereof from any one of the several makers thereof, and this in turn discharges all other makers as far as such holder is concerned. A holder of a note is entitled to only one satisfaction, and he has no right to refuse payment thereof when tendered by any one of the makers. It is no concern of his which one of the obligors furnishes the money to discharge the debt. The only thing he can insist upon is that the debt be paid.

The availability to a set-off or counterclaim in favor of one of several defendants against a joint liability is a right that in this State has been denied such defendant. Formerly the great weight of authority, throughout most jurisdictions, was against a set-off of this character. There has been, however, a growing tendency both in legislation and court decisions, to afford a settlement in one action of as many controversies among the parties as may be accomplished without injustice or injury to the rights of others. As a result, the availability to a set-off of a claim of one codefendant has gradually been given a broader recognition. The recently adopted Practice Act of this State, by section 38 thereof, Cahill’s St. ch. 110, If 166 Of 162, ch. 110, Smith-Hurd Rev. St. 1933) grants the right of set-off to one or more defendants and against one or more plaintiffs, not only from mutual accounts existing between them, but in tort as well as contract, and for unliquidated damages as well as for liquidated accounts.

The availability to a set-off in favor of one of several defendants, where they are severally liable and in which a separate judgment may be had against one of them, has generally been conceded. This is put upon the grounds that in reality there is a several obligation or promise upon the part of each defendant, and that the plaintiff might pursue distinct remedies against those severally liable until satisfaction was obtained. In legal effect this makes each promisor’s obligation equivalent to an independent promise or contract and therefore he should have the right to separately plead payment, or tender, out of his own money; and a plea of set-off rests upon the same principle.

We are of the opinion that where two or more defendants are joined in an action to which they are severally liable and in which a separate judgment may be had against them, a cross-demand in favor of one of the defendants against the plaintiff comes within a fair construction of the requirement of mutuality and such defendant should be permitted in the ends of justice to assert his cross-demand; and especially should this be so where the plaintiff is an insolvent bank, in the process of liquidation, and with such defendant having on deposit in said bank more than enough money to pay the obligation upon which the bank is seeking to recover, and which deposit the bank refuses to consider and is endeavoring to compel such defendant to pay the entire amount of the note, and sacrifice her right of set-off or cross-demand against the bank, on the grounds that mutuality is lacking. Mutuality exists as between the appellant and Lydia King, and where the plaintiff is an insolvent, unusual and extraordinary conditions arise, and public justice demands that such defendant, being severally liable, should be protected in her right of set-off.

The authority of the earlier decisions, Hayden v. Alton Nat. Bank, and Merchants Nat. Bank v. Maple, supra, has never been impugned. In the present case the obligation of the defendants is joint and several, and, therefore, a several judgment could have been had against either defendant. The fact that the action was joint in form does not affect or change the principle involved. The plaintiff had but one claim and but one cause of action, and payment by any one of those severally liable thereon, whether voluntarily made, or whether by judicial process by plaintiff, would necessarily satisfy the debt so far as plaintiff was concerned and become a complete release and discharge as to all others jointly and severally liable thereon. Any other rule would permit a creditor to recover his claim as many times over as he had parties severally liable for the debt. A defendant who is severally liable might not see fit to interpose his claim of set-off for the benefit of his codefendant as against a solvent plaintiff, but if he does so elect, it is a matter of his own concern, and under the terms of the ‘written obligation, within his own right. The fact that such action on the part of the defendant must necessarily inure to the benefit of all the othe,r defendants liable, does not .change the nature of the obligation-or in any way tend to abridge the separate and several rights of such defendant as they may appear therein.

The title to a general deposit of money placed in the bank by a depositor, passes to the bank, and the relationship of debtor and creditor, arises. Sullivan v. Arcola State Bank, 314 Ill. 40; Kamfner v. Auburn Park Trust & Savings Bank, 344 Ill. 200. When a depositor is indebted to a bank, the bank, upon the right of set-off, has the power to apply the deposit to the payment of such depositor’s indebtedness. Niblack v. Park Nat. Bank, 169 Ill. 517, 521. The right of set-off could not exist without mutuality between the depositor and the bank. Some attempt has been made to base this right of the bank upon the grounds of a lien, but it is not a lien when applied to a general deposit, for a general deposit becomes the property of the bank, the bank merely becoming the debtor of the depositor; and one cannot have a lien on his own property. It has been held that a depositor- can set off his deposit against his indebtedness, McCagg v. Woodman, 28 Ill. 84; and thus out of the relationship of debtor and creditor, as between a depositor and the bank and as between the bank and a depositor who is indebted to it, we find that there is a mutuality existing, which the courts have recognized, as giving to the respective parties the right of set-off, upon the one part as well as upon the other. Since the right of set-off arises and can be enforced only where there are mutual demands and debts between the parties, it therefore appears that the courts of this State as between banks and its depositors, have recognized the mutual relationship of debtor and creditor and permitted the allowance of set-offs, and permitted a bank to exercise the same as against one joint and several maker of a note. Hayden v. Alton Nat. Bank, supra; Merchants Nat. Bank v. Maple, supra. It has further been said that “statutes of set-off are remedial and beneficial acts and are to be liberally construed.” Wetherell v. Thirty-First St. Bldg. & Loan Ass’n, 153 Ill. 361, 367. Especially is this so where the party against whom the set-off is claimed is an insolvent. The trend of our modem decisions is toward liberality in the allowance of set-off in cases of insolvency, in order that no more than a true balance may be required to be paid by the solvent individual to the estate of the insolvent, if any such balance is due; and that the solvent debtor should not be required to pay his debt in full to the insolvent and thus sacrifice his right of set-off or cross-demand. Justice requires that the mutual liability between the parties should be so adjusted that a true balance might be ascertained and judgment had accordingly.

We do not believe that the rule of lack of mutuality among codefendants should prevail in this case. Here, appellee is severally and individually liable' for the payment of the note sued on. Litigation should be terminated as quickly as possible when it can be done with justice to all the parties involved according to their rights, and without injury to others.

Lydia King had sufficient funds on deposit with appellant to more than twice-over off-set the amount due on the note. She elected to so apply such funds, and we see no good reason why such right should be denied her. Both parties to this action concede that the obligation upon the part of Lydia King toward the bank is a several obligation as well as a joint one. As stated, it has been held that a bank possesses such right as the appellee now seeks to exercise, and we repeat that we see no reason why the converse of the rule should not here apply.

The liability of Lydia King being several and she therefore possessing the right of set-off, and the relationship between her and the bank being mutual as to debtor and creditor, and the bank being indebted to her in excess of her indebtedness to it, we do not see where the appellant has any cause to complain because Lydia King elected to exercise her right of set-off. The law does not impose upon receivers of defunct banks, the obligation of defeating the just and legal claims of one creditor for the benefit of other creditors. Niblack v. Feldman, 204 Ill. App. 443.

The cross-demand of Lydia King, exceeding the demand of appellant, constituted a complete payment of . the obligation due appellant. The appellant having thus received one satisfaction, the legal result thereof was the release and discharge of all others who might have been liable upon the obligation. Therefore, appellant was in no way prejudiced by the judgment of the court in favor of appellee, Lehman.

The judgment of the circuit court is affirmed.

Affirmed.