text:
    People of the State of Illinois, Plaintiff in Error, v. Eugene L. McGarry (Impleaded), Defendant in Error.
    Gen. No. 41,135.
    Opinion filed October 1, 1940.
    Rehearing denied October 15, 1940.
    Thomas J. Courtney, State’s Attorney, for plaintiff in error; Wilbert F. Crowley, Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Blair L. Varnes, Assistant State’s Attorneys, of counsel.
    Walker Butler, of Chicago, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendant filed a plea in bar to an indictment in a criminal case; this was heard by the trial judge who sustained the plea and ordered the defendant discharged; the People in this court challenge this ruling by writ of error; defendant moves that this be dismissed on the ground that the People have no right to a writ of error to review a judgment in a criminal case. Should this motion be sustained, is the question presented.

Our Supreme Court in a series of recent decisions has laid down rules for determining such a motion. In People v. Barber, 348 Ill. 40, in a comprehensive opinion, filed February, 1932, examining a large number of cases it was held that the reviewing court had no power, at the instance of the People, to review a judgment in a criminal case. This was especially true in view of the statute of 1845 (Smith-Hurd Stat. 1931, ch. 38, par. 747), which provided ‘ that in no criminal case shall the People be allowed an appeal, writ of error or new trial. ’

Subsequently, in 1933, a statute was passed which provided that “The People may sue out writs of error to review any order or judgment quashing or setting aside an indictment or information.” Ch. 38, par. 747. This statute was applied in People v. Kopman, 358 Ill. 479, where the Supreme Court reversed a judgment which sustained a motion to quash an indictment.

In People v. White, 364 Ill. 574, defendant filed a plea of former jeopardy, alleging that he had been formerly acquitted of the offence with which he was charged in the indictment; to this plea a replication was filed which by stipulation was allowed to stand as a demurrer to the plea; the trial court after hearing entered an order overruling the demurrer, sustained the plea and ordered the indictment quashed. The People sued out a writ of error seeking a reversal of the action of the trial judge, not only because he sustained the plea but quashed the indictment; the Supreme Court held that the hearing was solely as to the plea of former acquittal and when that plea was sustained defendant was entitled to an order of discharge and the additional order quashing the indictment should be rejected as surplus-age; that the amendment of 1933 to the criminal code did not apply, and the motion to dismiss the writ was allowed.

' In People v. Vitale, 364 Ill. 589, the People attempted by writ of error to bring in review the orders of the trial judge discharging the two defendants. The Supreme Court in its opinion said “The important issue that lies at the threshold of this case is whether the People have a right to a writ of error.” The amendment of 1933 to the criminal code was considered and it was held this statute specifically limited the right to a writ of error to those cases in which the trial court had quashed or had set aside the indictment. The court said “It was not intended by the General Assembly to grant a general right of review to the People from every unfavorable judgment in a criminal case”; that the legislative amendment permitted the People to have a review in criminal cases in two situations: “ (1) Where the sufficiency of the indictment had been challenged by motion to quash prior to plea and motion sustained, and (2) where the indictment was attacked by motion in arrest after verdict or finding before the court where a jury was waived, the indictment was searched and found wanting in some one or more material requirements, the motion therefore granted and the indictment ‘set aside.’ ” The court said the plea of former conviction in that case did not put in issue the validity of the indictment; that the only question in issue was the sufficiency of the plea and not the soundness of the indictment; that if the plea in bar was sustained the proper judgment is nil capiat, and any other words may be considered as mere surplusage. Ño opinion was expressed as to the validity of the pleas but the court held it had no jurisdiction and could not review the judgment of the trial court holding the pleas good. Similar facts were presented in People v. Nitti, 365 Ill. 20, in which the trial court sustained a plea in bar which the People attempted to have reviewed by writ of error. The Supreme Court held it was without jurisdiction and the writ was dismissed.

In People v. Finkelstein, 372 Ill. 186, defendant moved to quash the indictment as insufficient; while the motion to quash was pending defendant filed a plea in bar alleging immunity from prosecution; a replication was filed to this plea which was later withdrawn and the People filed a motion to strike the plea; the trial court heard arguments on both motion to quash and that to strike the plea of immunity; the trial court stated that although he was satisfied defendant was entitled to immunity, yet because the motion to quash the indictment was filed first he would dispose of that, which he did by sustaining it and quashing the indictment; he then announced that since the indictment fell, the plea fell with it. To the argument that what occurred in the trial court was of no special consequence, as in substance the result was the same as sustaining the plea, the Supreme Court opinion said the right of the People to writs of error depends upon whether the judgment of the court quashed the indictment or sustained the plea, and it was important and not a mere technicality that the record be kept straight in that regard. The opinion went on to say that “On a record quashing an indictment the People, under the section of the Criminal Code quoted, have a right to sue out writs of error. On a judgment of the court sustaining a plea in bar and discharging the defendant, the People do not have such a right." It was held that the trial court should have held the motion to quash waived and passed upon the motion to strike the plea and that it was error to sustain the motion to quash the indictment while the plea in bar was pending.

The record in the present case shows that the People filed an answer to defendant’s plea in bar and, after hearing on the plea and answer, the trial court sustained the plea and ordered defendant McGarry discharged.

The People argue in opposition to the motion to dismiss the writ that the form of the order is not controlling but the substantial character of the plea in bar shows it was in effect a motion to quash the indictment and should be so considered and the order of the trial court sustaining' the plea and discharging the defendant should be considered as in substance an order quashing the indictment. The point is without merit. The right of the People to a writ of error in a criminal case does not exist except when it is plainly and unequivocally conferred by express statute. In the language of the Supreme Court in People v. White, 364 Ill. 574, the writ of error will not lie in criminal cases at the instance of the People without a statute conferring the right “fin the most plain and unequivocal terms, such as" cannot be turned by construction to any other meaning. ’ ’ ’

Moreover, the plea cannot be considered as a motion to quash the indictment. The indictment charged that Eugene L. McGarry, defendant, was a judge of the municipal court of Chicago then and there acting as such judge and had power and authority to admit to bail persons charged with criminal offenses, to approve and certify bail bonds, examine the sureties on oath and to take proof and acknowledgment on such bail bonds made by such sureties under oath. It was charged that McGarry with certain other persons conspired to do divers illegal acts injurious to the administration of public justice, in that McGarry certified divers bail bonds containing schedules of personal property had been sworn to before McGarry as judge by the person whose name appeared on the bond as surety, when in truth and fact no such acknowledgment or proof was made by such person as surety in said respective bail bonds, either before MeGarry or any other judge. The second count of the indictment is substantially to the same effect, charging certain persons conspired with MeGarry to advise and encourage him to certify that certain bail bonds had been sworn to under oath before him, MeGarry, when in fact no such acknowledgment or proof was made by such person, either before Me-Garry or any other judge.

The plea in bar asserted that MeGarry was a duly elected judge of the municipal court of the city of Chicago and as such immune from indictment and trial for the offenses alleged to have been committed in his office as judge, and for alleged omissions of duty in his office of judge; that the criminal court had no jurisdiction of the subject matter set forth in the indictment; that MeGarry can be prosecuted only under the terms and provisions of section 30, article 6 of the State constitution, in that the indictment and all matters and things therein set forth relate exclusively to official judicial acts of MeGarry as judge of the municipal court. Both in form and substance this was a plea of immunity as a bar to prosecution and not a motion attacking the indictment. As was held in People v. Vitale, 364 Ill. 589, the plea of former conviction did not put in issue the validity of the indictment any more than a plea in bar tests the sufficiency of a declaration or complaint at law. The plea in bar in no wise went to the sufficiency of the indictment but raised only the legal question as to whether under the indictment defendant could be prosecuted. In the Vitale case it was said “The ruling of the court sustaining the plea was in legal effect a holding that the prosecution was barred under the indictment but not an adjudication that the indictment was bad. ’ ’

We are expressing no opinion as to the correctness of the trial court’s judgment on the plea in bar.

The above authorities clearly indicate that in the instant case the People cannot obtain a review of the ruling of the trial court and that the motion to dismiss the writ must he sustained.

For the reasons indicated the cause is dismissed for want of jurisdiction.

Dismissed.

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


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    Henrietta E. Countiss, Appellee, v. Lawrence H. Whiting and Alfred McEwen, Appellants. Frederick D. Countiss et al., Appellees.
    Gen. Nos. 40,735 and 41,097.

      Opinion filed October 1, 1940.
    Rehearing denied October 15, 1940.
    Winston, Strawn & Shaw, of Chicago, for appellants ; John D. Black, of Chicago, of counsel.
    Ira W. Hurley and Harry G. Fins, both of Chicago, for certain appellee.
    Cameron, Heath & Burry, of Chicago, for certain other appellee; John R. Heath, of counsel.
    George A. Lane pro se and for certain other appellees ; George A. Lane and Leon Lecour Drolet, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

April 27,1926, Henrietta Eleanor Robinson of Greenwich, Connecticut, made a written agreement with Whiting and McEwen, as trustees, conveying to them 1649 shares of stock of the Ox Fibre Brush Company, a corporation. By its terms the trust was to last 10 years and the stock was to be returned to the donor at the end of that period if she survived thus long*. If the donor died within the period, the income from the trust estate after her death was to be paid in equal proportions to four daughters of the donor, Margaret McEwen, Frances McEwen, Laura Evans and Eleanor Whiting. In case of the death of any of these while entitled to income under the trust, the income payable to such daughter during the remainder of the period [it was provided] should be paid to the “lawful heirs” of such deceased daughter. At the expiration of the period it was provided the trust estate should be divided equally between the four daughters, or in case of the death of any one of them, the part she would have taken had she been living [it was provided] should be paid to her ‘ ‘lawful heirs. ’ ’

The donor died within the 10-year period. Her daughter, Eleanor Whiting, the wife of Lawrence H. Whiting, thereby became entitled to one-fourth of the income from the trust estate. Eleanor Whiting died within the period leaving her surviving her daughter, Henrietta Countiss, the plaintiff, Frederick Countiss, her son, Barbara Whiting, a daughter, and Lawrence H. Whiting, Jr., a son, and her husband, Lawrence H. Whiting.

January 14, 1936, plaintiff sued claiming that she was entitled to one-sixteenth of the income from the trust, which the trustees refused to pay to her. She made defendants the trustees, her brother Frederick Countiss, Barbara Whiting her sister of the half-blood and her brother of the half-blood, Lawrence H. Whiting, Jr. Barbara and Lawrence H. Whiting, Jr., minors, submitted their interests to the protection of the court. Frederick Countiss answered admitting the allegations of the bill and praying his answer might be taken as a cross-bill. The trustees answered averring that Lawrence H. Whiting, surviving husband of Eleanor Whiting, with the four children was a “lawful heir” of his deceased wife Eleanor, and that he was therefore entitled to a one-twentieth part of the income of the estate.

In paragraph 15 of the answer the trustees averred that Lawrence H. Whiting was not only an heir of his deceased wife but executor of her estate and by way of counterclaim set up that plaintiff, without his knowledge or consent, had taken property of the estate which would render him liable in case it was not returned; that the value of the property thus taken exceeded any amount due plaintiff on any theory of the case, and that plaintiff was therefore not entitled to maintain the suit until she should have returned this property. On plaintiff’s motion the counterclaim was stricken, together with the paragraph of the answer asserting that Lawrence H. Whiting was a “lawful heir” of his deceased wife.

An amended answer was filed averring for a second time that Lawrence H. Whiting was an heir and plaintiff was precluded by this counterclaim. October 27, 1938, the counterclaim was dismissed and from that order the trustees appeal. The appeal is No. 40,735. Thereafter, the trustees filed their report. Plaintiff and others filed objections to it and August 16, 1939, a decree was entered adjudging that Lawrence H. Whiting was not an heir of his wife Eleanor within the meaning of the trust agreement; that $4,328.39 had been wrongfully paid to him by the trustees on the theory he was her heir and that he should repay the sum with interest; that the trustees had waived compensation for their services, etc. From this decree the trustees appeal and their appeal is No. 41,097. These appeals have been consolidated for hearing.

The trustees say the order dismissing the counterclaim was final and that its effect was to terminate the right of Lawrence H. Whiting to recover on the matter set up in the counterclaim. Section 77 of the Civil Practice Act (Smith-Hurd Anno. Stats., ch. 110, par. 201, p. 195 [Jones Ill. Stats. Ann. 104.077]) is cited. It is said the dismissal of the counterclaim finally determines that Lawrence H. Whiting has no cause of action against plaintiff. This is not true. The claim set up is not in favor of Whiting but of the estate of which he is executor. It is said this may on certain contingencies become a personal claim by him. The order is final only in the sense that it prevents the presentation of this counterclaim on the merits in this suit. The order of dismissal does not purport to adjudicate the claim on the merits. The motion to dismiss was made and allowed on the theory that the counterclaim could not be presented in the instant suit, and that it should have been presented in another forum, namely, the probate court of Cook county. This will not prevent a future trial on the merits. The counterclaim as to form was properly pleaded (§ 33 [2] of the Civil Practice Act [Jones Ill. Stats. Ann. 104.033]) but the nature of it was such as to preclude an adjudication on the merits in this case. It could not be tried in this suit because it purported to state a claim in behalf of Lawrence H. Whiting as executor of the estate of Eleanor Whiting. It also purports to state a possible future contingent claim by Lawrence H. Whiting personally.

The counterclaim as stated is very indefinite and uncertain. If the motion to dismiss had been made on that ground it might well have been allowed for that reason. This ground was not presented in the motion but is pointed out in the argument. The trustees contend the counterclaim was allowable under § 38 of the Civil Practice Act. (Smith-Hurd Anno. Stats., ch. 110, par. 162 [Jones Ill. Stats. Ann. 104.038]). This section is sweeping in its character and has made many former decisions as to counterclaims inapplicable. However, there remains notwithstanding the statute at least one limitation. The counterclaim must be a personal liability between parties to the suit. This counterclaim is not between parties to the suit, or if we regard it as between parties, it sets up merely a possible future contingent liability. While the following cases do not construe § 38, the principles of law necessarily involved in the construction are therein illustrated. McCully v. Silverburgh, 18 Ill. 306; Wisdom v. Becker, 52 Ill. 342; Gourley v. Walker, 69 Ia. 80, 28 N. W. 444; Devore v. Devore, 138 Mo. 181, 39 S. W. 68; White v. Word, 22 Ala. 442; Lanier v. Brunson, 21 S. C. 41. At any rate, under § 38 of the Civil Practice Act something must be left to the discretion of the court. We hold the court did not err in dismissing the counterclaim.

In appeal No. 41,097, the important question for decision is whether within the meaning of the Robinson trust Lawrence H. Whiting is a “lawful heir” of his deceased wife, Eleanor, and therefore a beneficiary of the trust. By its rulings in the settlement of the accounts of the trustees, and finally by the terms of the decree entered, the court held Whiting was not such “lawful heir.” That determination is challenged. It is said the question “is purely one of definition of the term ‘lawful heirs’ unexplained by the context”; that construction of a will is not involved; that the trust agreement granted no power of appointment to the daughters of the donor; that it merely declares a description of a class of beneficiaries to be determined by reference to the Statute of Descent. Reliance is placed on paragraph 4 of § 1 (Smith-Hurd Anno. Stats, ch. 39 [Jones Ill. Stats. Ann. 110.193]) which provides in substance that when there is a surviving husband and also a child or children of the intestate, the husband shall receive one-third of the personal estate.and in lieu of dower one-third of the real estate in which he shall waive his right of dower. The statute also provides the methods by which this right of dower may be waived by the husband.

When, as here, the word “heir” or “heirs” is unexplained or uncontrolled by the context, the words are interpreted according to their strict technical import. When so interpreted the word “heir” designates “the person or persons appointed by law to succeed to the real estate in case of intestacy.” (2 Jarman on Wills, 5th American Ed., p. 585.) The trustees say that under the statute Mr. Whiting is the “heir” because by law he is appointed to succeed to the property of his wife’s estate upon her death. This is also said to be the law of the State in which the donor resided at the time she made the trust agreement. Beach v. Meriden Trust & Safe Deposit Co., 98 Conn. 821,120 Atl. 607, 608; Hartford-Connecticut Trust Co. v. Lawrence, 106 Conn. 178, 138 Atl. 159-161.

In Illinois the language of some of the opinions is conflicting as in Richards v. Miller, 62 Ill. 417, quoted with approval in Alexander v. Northwestern Masonic Aid Ass’n, 126 Ill. 558, where it was said the word “heirs” unexplained by the context “will be held to mean the persons appointed by law to succeed to the estate in case of intestacy,” while at p. 424 of the same opinion it states “the word heir, when uncontrolled by the context, designates the person appointed by law to succeed to the real estate in question in case of intestacy. ’ ’ The language in People v. Emery, 314 Ill. 220, and Suiter v. Suiter, 323 Ill. 519, also may be construed to mean that he who succeeds to the property or he who takes by virtue of the statute is heir. Other decisions make such interpretation impossible as in Gauch v. St. Louis Mut. Life Ins. Co., 88 Ill. 251, where it was held that a surviving wife as against surviving’ children could not take any part of a life insurance policy on the husband’s life, payable to his heirs-at-law. The court there said: “We know of no respectable authority, and venture there is none, holding that one entitled to dower or an interest in the nature of dower, or any allowance of personal property only, because of the survivorship of the husband or wife, is held to be included within the legal definition of ‘heir.’ ”

Tu Braidwood v. Charles, 327 Ill. 500, decided in 1927, where the wife died intestate leaving two children by a former marriage and a husband, who died a few days after her death without filing* an election to waive or take dower, leaving as his sole heir a son by a former marriage, it was urged the husband was an heir under paragraph 4 of § 1 of the Descent Act. However, the Supreme Court said: “Appellant cannot revive an extinct life estate, convert it into a fee simple interest and inherit the latter. ’ ’

In Rolofson v. Rolofson, 246 Ill. App. 305, the precise question seems to have been presented. The question there was whether Mrs. Rolofson, the surviving wife of John Rolofson, was one of his heirs within the meaning of the words used in a will. There was a surviving child and it was contended under paragraph 4 of the section the widow was an heir of her deceased husband. This was decided after the 1923 amendment to the statute. The husband died December 9,1923, after the effective date of the amendment. (Laws of Illinois 1923, p. 325.) The court held the widow was not an heir saying:

“We are unable to escape the conclusion that when the term ‘heir’ is used in its technical sense, it does not include the surviving wife or husband, except when the facts of the case come under clause three of section one of the chapter entitled ‘Descent,’ Cahill’s St. ch. 39, If 1, providing for the widow or surviving husband when there is no child or children or descendants of a child or children of the intestate. ’ ’

This case seems to be precisely in point. In conformity with it and other cases cited we think it must be held that Lawrence H. Whiting was not entitled to a share in the income from this trust.

It is further contended by the trustees that in the absence of a charge of lack of good faith or charge that they took any action not believed by them to be within their discretion or power, and in the absence of any charge of wilful default by them, they are not liable in this action. They rely on paragraph 9 of the trust agreement, which provides: ‘ ‘ The Trustees shall not be liable for any action taken by them in good faith and believed by them to be within the discretion or power conferred upon them by this agreement, nor for any loss unless the same shall happen through their own wilful default.” It is contended it was held in Burns v. Hines, 298 Ill. App. 563, that there was no liability under such a provision. We hold a trustee who pays to himself funds due to other beneficiaries of the trust is not rendered exempt from action by such a provision. See Restatement of the Law of Trusts, § 222 (2); Scott on Trusts, Vol. 2, pp. 1174ff, §§ 222, 222.3. We also think the court properly held the trustees by their conduct waived.payment of fees for services, and that the trial court did not err in limiting to $1,500 the amount of compensation allowed to the attorneys for the trustees.

The order dismissing the counterclaim and also the decree on the merits will be affirmed.

Affirmed.

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


text:
    Harry Goldstine Realty Company, Appellee, v. City of Chicago, Appellant.
    Gen. No. 41,084.

      Opinion filed October 1, 1940.
    Rehearing denied October 15, 1940.
    Barnet Hodes, Corporation Counsel, for appellant; Alexander J. Resa and L. Louis Karton, Assistant Corporation Counsel, of counsel.
    Alec E. Weinrob, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

In an action brought to recover compensation for additional services rendered by plaintiff’s assignor as a valuator of real estate in connection with the North State street subway in the year 1931, upon trial by the court, there was a finding for plaintiff with judgment for $8,000, from which defendant appeals.

It is argued for reversal the claim was barred by the statute of limitations; that an alleged contract of August 12,1930, on which the suit is based, was void in violation of the statute, of the ordinances of the city and against public policy; further, that the court erred in denying motions of defendant for a finding in its favor and in entering judgment for plaintiff.

The services are claimed to have been rendered by Harry Goldstine, who assigned his claim for compensation to plaintiff corporation. At the time of these services Goldstine was employed by the Board of Local Improvements of the city of Chicago as its chief valuator of real estate in connection with the widening of streets. He received a salary of $100 per day. August 12,1930, Michael J. Faherty, president of the Board of Local Improvements, wrote him as follows: “I am in receipt of your favor of the 4th inst. with reference to your employment on the subway special assessment work in addition to your work as Chief Valuator for the Board of Local Improvements and in reply will say that I confirm my verbal conversation with you that in your present work five hours shall be considered as a day and that the extra time required not to exceed five hours per day shall be charged for as overtime at the rate of $100.00 per day.

“You can, therefore, render your bills as heretofore for your work as Chief Valuator and in addition thereto render a bill for-overtime in connection with subway work at the rate of $100.00 per day.

“For your information will say that I am submitting the foregoing to the Board at its meeting for their approval. ’ ’

August 13, 1930, the Board of Local Improvements approved the above communication. Thereafter, Mr. Goldstine continued his services as chief valuator for five hours per day and in addition rendered other services five hours per day on subway matters. From April 6, 1931, to July 20, 1931, he performed these additional services in connection with the subway. He has been paid in full for his time as chief valuator. The city refuses to pay for the time he rendered services on the subway. This action is to recover for 400 hours additional time at $20 per hour.

Defendant contends the suit of plaintiff is barred by the statute of limitations (Ill. Rev. Stat. 1939, ch. 83, § 15, p. 1995 [Jones Ill. Stats. Ann. 107.275]). The additional services of Goldstine for which suit is brought were ended on July 20, 1931. The complaint was not filed until May, 23, 1938. If the action is regarded as one to recover compensation for services rendered under an oral agreement or for services rendered without a valid special agreement, the five-year limitation would be applicable. On the contrary, if we regard this suit as based on a valid written agreement the ten-year provision of the statute would apply and the action would not be barred. Goldstine was a civil service employee. Plaintiff stipulated on the trial that the record would show the Civil Service Commission carried him on the list and certified him. Plaintiff, however, objected to the materiality of the fact. Since Goldstine was within the classified civil service it is well settled by the decisions that the relationship which existed between him and the city was not contractual in its nature, and his right to compensation for his services does not rest on any contractual relationship but on the contrary on the rendition of services by him. Gathemann v. City of Chicago, 263 Ill. 292; People ex rel. Reilly v. City of Chicago, 337 Ill. 100, 104. Section 15 of the Illinois limitations statute provides in substance that the time limited for bringing civil actions not in writing and not otherwise provided for shall be five years, and it is well settled that an action for compensation for services rendered not based upon a written contract must be brought within five years. Miller v. Cinnamon, 168 Ill. 447. We have seen the additional services of Goldstine for which suit was brought were rendered for a period beginning April 6, 1931, and ending July 20, 1931, and that suit was not instituted until May 23, 1938. We hold the action is barred by the statute.

It is, therefore, unnecessary to decide the question of whether the letter of August 12, 1930, written by Faherty, approved by the Board of Local Improvements on the following day and accepted by Goldstine, was a written contract within the meaning of the Limitations Act. Assuming it to be a complete written contract, we hold, nevertheless, plaintiff could not recover on it for the reason that such a contract would be void as made in violation of the statute of the State and the ordinances of the city and because it would be contrary to public policy. Goldstine was a civil service employee. His employment was subject to the provisions of the Civil Service Act (Ill. Rev. Stat. 1937, ch. 24½, pars. 39-77 [Jones Ill. Stats. Ann. 23.040-23.080]). Section 3 of the act provides the civil service commissioner shall classify positions of employment and offices to which the act is applicable, “and no appointments to any of such offices or places shall be made except under and according to the rules hereinafter mentioned.” Section 11 of the same act provides for the exemption of certain employees from its provisions. The employment of Goldstine was not a kind to which the exemption was applicable. Section 4 of article 7 of the City and Villages Act (Ill. Rev. Stat. 1937, ch. 24, par. 104, § 4 [Jones Ill. Stats. Ann. 21.196]) provides in substance that no contract shall be made by the city council or board of trustees or any committee or member thereof “and no expense shall be incurred by any of the officers or departments of the corporation, . . . unless an appropriation shall have been previously made concerning such expense, except as herein otherwise expressly provided,” and that any contract made or expense incurred in violation of these provisions shall be null and void. Section 208 of Division 1 of the Criminal Code makes it an offense to enter into such contracts (Ill. Rev. Stat. 1937, ch. 38, par. 449 [Jones Ill. Stats. Ann. 37.396]). The statute has been construed and held valid in well-considered cases decided by the Supreme Court and by this court. May v. City of Chicago, 222 Ill. 595; DeKam v. City of Streator, 316 Ill. 123; City of Harvard v. McCauley, 253 Ill. App. 218. No appropriation for overtime for the additional services performed by plaintiff during the years 1930 or 1931 was proved in this case. The complaint does not allege that any such appropriation was made. The burden of proof was upon plaintiff to show this. People v. Frick, .367 Ill. 446, 450. Since Goldstine was at the time of the execution of this supposed contract an officer of the city of Chicago, any such contract would be void for the further reason that it was forbidden by Ill. Rev. Stat. 1937, ch. 24, art. 6, § 7, par. 90 [Jones Ill. Stats. Ann. 21.181]. Koons v. Richardson, 227 Ill. App. 477.

Section 3276 of the Chicago Municipal Code, in force August 12,1930, provided that eight hours should constitute a legal day’s work upon all work performed under any contract entered into with the city of Chicago. Goldstine is presumed to have known the statutes and the ordinances and the lack of power of the municipal corporation. DeKam v. City of Streator, 316 Ill. 123,

As against the objection that there was no appropriation plaintiff argues Goldstine, as a real estate expert employed by the Board of Local Improvements, was under the jurisdiction and control of the attorney of that board and, therefore, exempt from the operation of the Civil Service law. Plaintiff also argues that defenses of illegality and failure to appropriate are not available because not set up in defendant’s answer. These defenses are not set up in the answer but the attorney for the city stated in open court upon trial that these defenses would be relied on, and the case was tried without objection on that theory. Plaintiff cannot object in this court for the first time. Zukas v. Appleton Mfg. Co., 200 Ill. App. 403; Dougherty v. Bliss, 244 Ill. App. 282. It might well be the duty of court itself to call attention to the defenses of illegality and public policy even if the same were not pleaded. In support of his contention that Goldstine was a member of the law department of the city and, therefore, exempt from the civil service laws, plaintiff cites People ex rel. Ettelson v. Faherty, 306 Ill. 119. The case does not sustain its contention and the defense was not proved as a matter of fact.

We hold, as a matter of law, plaintiff was not entitled to recover and the judgment will be reversed without remanding.

Judgment reversed.

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


author: Mr. Justice Matchett Mr. Presiding Justice O’Connor

text:
    Frank Burket et al., Trading as Sawyer and Allen, and A. B. T. Pigall, Appellees, v. Reliance Bank and Trust Company et al., Defendants. Frederick C. Croft, Appellant.
    Gen. No. 41,093.

      Opinion filed October 1, 1940.
    Rehearing denied October 15, 1940.
    W. Robert Brown, of Chicago, for appellant.
    Edmund D. Adcock, of Chicago, for certain appellee; John W. Day, of Chicago, of counsel.
    Seyfarth & Atwood and Leonard & Leonard, all of Chicago, for certain other appellees; Karl Edwin Seyfarth and Benton Atwood, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

By decree entered August 10, 1936, in an action by creditors to enforce the statutory and constitutional liability of Frederick C. Croft and others as stockholders of the insolvent Reliance Bank and Trust Company, the receiver recovered a judgment against Croft for $3,200 and costs of $13.22. On May 10, 1939, Croft filed his petition (thereafter an amended petition) praying that the judgment against him might be satisfied and its further collection enjoined. Plaintiffs and the receiver answered denying petitioner was entitled to relief. The matter was heard on the amended petition and answer, no reply to the answer having been filed and no evidence taken. July 7, 1939, the court found the issues against petitioner and entered an order denying the prayer of his petition. This appeal followed.

Croft has not personally paid anything at all on the judgment entered against him. It draws interest at 5 per cent and there is now due thereon more than $3,600. He held (as the decree found) 32 shares of stock during the period from March 3, 1921 to July 2, 1924, during which period there accrued unsatisfied liabilities of $36,730.76. In his original petition it was averred that since the entry of the decree the total amount of unsatisfied liabilities had been collected from other stockholders; in fact, that the amounts paid by these other stockholders were substantially in excess of $36,730.76. In reaching this conclusion the petitioner relied upon payments made by' other stockholders who held stock partially or entirely within the period from March 3, 1921 to July 2, 1924, the defendant’s period of ownership. In computing the payments applicable to petitioner’s ownership where stockholders held partly within and partly without the period, the original petition allocated such payments ratably over all the liabilities accruing during the period of ownership of the paying stockholders and took credit for only the portion of the payment attributable to the liabilities accruing during their mutual and co-extensive period of ownership, the material facts being set forth in Tables “A” and “B” attached to the original petition. However, the computation made by this method disclosed that prior to the entry of the decree on August 10, 1936, the applicable payments made by such other stockholders were $6,021.12 less than the total unsatisfied liabilities of $36,730.76, which accrued during defendant’s period of ownership. Only by adding the further sum of $24,426.31 collected on and after the date of the decree would the total applicable collection from stockholders become in excess of the total liability accruals of the bank for that period. It, therefore, appeared on that theory defendant was liable for the amount of the judgment rendered against him with costs at the time it was entered.

After the plaintiffs and receiver answered, petitioner changed his theory and filed the amended petition. Attached to it were ‘ Tables C and D ’ ’ showing a list of paying stockholders, the period of the holding of each of them, the date of payment and the amount. Bach stockholder listed in “Table C” held his stock exclusively during some portion of the period from April 18, 1917 (the date the bank opened) to June 11, 1928. Defendant held his stock in the bank only during a small part of this period. The total collections from these stockholders when added to other stockholder payments applicable to such period, as set up in “Table D” attached to the amended complaint, disclosed a total payment by such stockholders of $195,983.68, and that the total unsatisfied liabilities of the bank accruing during this period of time, after deducting $51,088.43 of dividends paid from the assets of the bank, amounted to $161,780.04. By this method the payments and collections from other stockholders appeared to be $34,203.64 in excess of the entire and complete liabilities of the bank for the period to which the payments related. It appeared from the answer to the amended petition that $102,-917.78 of this total payment was collected prior to the entry of the decree on August 10, 1936, and the plaintiffs and receiver averred that this sum could not be considered as a payment and satisfaction of the stockholders’ liability because a part of it had been distributed to the creditors of the bank as a dividend prior to the entry of the decree and was included in the 20 per cent dividend credit allowed by the final decree against the unsatisfied liability accruals of the bank, and that to now consider payments made prior to the decree in partial satisfaction of the stockholders’ liability would constitute a duplicate credit or application of such prior payments in favor of the defendant. It was also urged that the decree was res judicata as to all stockholder collections and payments made prior thereto.

In support of Ms contention that payments of these other stockholders satisfied the decree against him, petitioner cites: Cohen v. North Ave. State Bank, 291 Ill. App. 558; Schwarts v. Broadway Trust & Savings Bank, 291 Ill. App. 460; Flanagan v. Madison Square State Bank, 292 Ill. App. 448 and Burket v. Reliance & Savings Bank, 296 Ill. App. 406. These cases all follow the rule announced by the Supreme Court in Burket v. Reliance Bank & Trust Co., 366 Ill. 98. In every one of these cases the court had before it the question of a defense interposed to a suit by creditors to enforce the liability of one or more of a group of stockholders and the defense was allowed to the extent that other contemporaneous stockholders had actually paid liabilities which had accrued. Petitioner does not aver the paying stockholders were contemporaneous with him. The tables show they were not. No one of these cases in any way involved the question of the satisfaction of a judgment rendered against an individual stockholder for his personal liability.

When the liability of a stockholder has been reduced to judgment the liability is merged therein and becomes a new obligation of record which differs in kind, nature and essence from the original obligation. The claim loses its character of group obligation. The group obligation ceases and becomes a mere personal obligation. Wayman v. Cochrane, 35. Ill. 151; Frost v. Thompson, 219 Mass. 360,106 N. E. 1009; Milwaukee County v. White Co., 296 U. S. 268, 80 L. Ed. 220. A court has no power to satisfy a decree for matters which existed at the time the decree was entered. McDonald v. Holdom, 208 Ill. 128-135; Harding v. Hawkins, 141 Ill. 572-581. Payments made by the debtor subsequent to the ’decree may be shown in satisfaction thereof by a motion similar to the writ of audita querela. People v. Wilmot, 254 Ill. 554-558; Reid v. O’Brien, 86 Ill. App. 128; Handley v. Moburg, 266 Ill. App. 356-361; Silberman v. Becklenberg, 279 Ill. App. 250-256. The prayer of defendant’s petition is precluded by the doctrine of res judicata. Lee v. Hansberry, 372 Ill. 369. Moreover, if the facts averred in the amended petition stood admitted, which they do not, it would be necessary to affirm the order. The petition does not allege nor on the record are facts disclosed showing the payments for which credits are claimed were made by contemporaneous stockholders.

The rule upon which defendant relies when presented as a defense is applicable only to payments made by such stockholders. The rule is also limited in its application to cases in which it is presented as a defense prior to judgment and decree. We do not think it should be extended to cases in which application is made for the satisfaction of judgments. The record discloses many of the payments claimed were made pursuant to settlements. In such case the unquestioned rule is that the creditor has a right to apply the payment. If payments of contemporaneous stockholders could, after the rendition of a judgment against an individual stockholder, be used by him as a basis for the satisfaction of the judgment any final adjudication of equities in this class of cases would become impossible, and the collection of judgments most difficult. The order will be affirmed.

Order affirmed.

McSurely, J., concurs.

Mr. Presiding Justice O’Connor

specially concur-

ring : I agree the order should be affirmed on the ground that the payments made were not by contemporaneous stockholders.


text:
    Servilla Bradley, Appellant, v. Dean Bakke and The Beacon Building Corporation, Appellees.
    Gen. No. 41,112.
    Opinion filed October 1, 1940.
    Rehearing denied October 15, 1940.
    Benjamin G. Clanton, of Chicago, for appellant.
    SONNENSCHEIN, BERKSON, LAUTMANN, LEVINSON & Morse, of Chicago, for appellees; Jesse H. Brown, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court'.

In this case plaintiff appeals from an order entered July 27, 1939, granting the motion of defendant to strike plaintiff’s second amended complaint and dismissing the cause.

The complaint was in two counts, one of which charged slander and the other assault. The question for decision is whether either count stated a cause of action. If the first or second count stated a good cause of action it was, of course, error to dismiss the suit. We hold the first count stated a cause of action. In substance it charged that plaintiff was a person of good repute and theretofore found employment in homes of quality and respectability in Chicago; that at the time of the utterance of the slanderous words she was employed by Charles and Mae Windsor as a maid in their home at 174-186 E. Delaware place, Chicago; that defendant, Bakke, was the manager and agent of the premises in which her employers lived, which was owned by the Beacon Building Corporation, the other defendant; that Bakke, intending to, injure plaintiff, on January 28, 1939, falsely and maliciously spoke of plaintiff these words: “I have been watching this girl [meaning plaintiff] for some time; I have long suspected her [meaning plaintiff] of taking the papers from this floor which were delivered and left at the doors of the other tenants and so I set a trap for her and found that she had Dr. Campbell’s marked paper in her pantry. I can’t have her on the place. She [meaning planitiff] has been stealing these papers for some time. I can’t have her [meaning plaintiff] on the place any longer.” The complaint says Bakke meant to signify that plaintiff had feloniously stolen the newspapers belonging to the tenants on the premises. It is also averred that by reason of what he said she was discharged without character reference and was deprived of wages she was then earning, and that she has ever since been out of employment.

Defendants contend the words were not slanderous per se, and that it was, therefore, necessary that the pleader should allege special damages. While the brief of plaintiff seems to concede the words spoken were not slanderous per se, we hold they were on the authority of Miller v. Johnson, 79 Ill. 58, and Stumer v. Pitchman, 124 Ill. 250. Moreover, the complaint alleges that as a result of the words spoken plaintiff was discharged without reference. This amounts to an averment of special damages. The court erred in sustaining the motion to strike and in dismissing the suit. The judgment will be reversed and the cause remanded.

Reversed and remanded.

O’Cohitor, P. J., and McSurely, J., concur.


text:
    How and Company, et al. Chicago Flower Growers, Inc., Appellee, v. City of Chicago, Appellant.
    Gen. No. 41,141.

      Opinion filed October 1, 1940.
    Rehearing denied October 21, 1940.
    Barnet Hodes, Corporation Counsel, for appellant; Walter V. Schaefer and Robert J. Nolan, Assistant Corporation Counsel, of counsel.
    Leonard C. Mead, of Geneva, and Howard B. Bryant, of Chicago, for appellee; Tolman & Megan, of Chicago of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Petitioner owns five City of Chicago Special Assessment Bonds, Nos. 11607 to 11611. The issue and payment of such bonds are provided for in the Local Improvement Act and amendments thereto (Ill. Rev. Stat. 1939, ch. 24, pars. 698-819, pp. 547-584 [Jones Ill. Stats. Ann. 76.003-76.138]). The act in its various sections makes the city of Chicago trustee for the levy, collection and distribution of the special assessments on which alone the holders of the bonds must rely for payment. In Rothschild v. Village of Calumet Park, 350 Ill. 330 (opinion filed October 22, 1932), at page 340, the Supreme Court held:

“It became the duty of the village, as such trustee, to pay the funds so collected from each of the several installments of each assessment in pro rata proportion upon each of the bonds, respectively, issued against the several installments; . . .”

June 19, 1936, the Chicago Flower Growers, Inc. and other plaintiffs filed their suit in equity for an accounting against the city of Chicago, and June 8, 1938, a decree was entered finding as to the bonds that “the maturity dates, face values and numbers thereof, together with the sums of money collected and applicable to such bonds, the payments made thereon, and the respective principal and interest, amounts due thereon upon a pro rata basis, were as follows :

The decree entered judgment in favor of Chicago Flower Growers, Inc. and against the city in the amounts set forth in the column headed “Principal Due.” The decree also found: “It Is Further Ordered, Adjudged and Decreed by the Court, that the said respective bonds so held by said respective plaintiffs shall remain outstanding as a valid and subsisting obligation of the City of Chicago to the extent of the balance of the face value thereof of said bonds over and above the amount for which this decree is entered herein, and shall remain payable with interest thereon from funds collected and received by said City of Chicago on account of and as the proceeds of the first installment and other installments or supplemental assessments allocable to the payment thereof, subsequent to the collections accounted for in this proceeding.

“It Is Further Ordered, Adjudged and Decreed by the Court, that any bonds not wholly cancelled by this judgment may be partially cancelled by having endorsed upon them in substance the words and figures as follows, to-wit:

“ ‘Partial payment made by judgment and decree of the Superior Court of Cook County, Illinois, Case No. 34S9040, for the sum of $ — —.’ ” The court also retained jurisdiction to enforce the terms of the decree.

July 11,1939, Chicago Flower Growers, Inc. filed its petition asserting its ownership of the bonds and the rendition of the decree of June 8, 1938. It asserted the decree of June 8 found that as of December 1,1937, petitioner was entitled, as its pro rata share of collections, to a payment on each of the bonds amounting to 61.659 per cent, or $616.59 on each bond; that prior to that date there had been paid on each bond the sum of $160, and there was still due and owing as its pro rata share of collections to December 1, 1937, the sum of approximately $460 on each bond; that judgment was accordingly entered against the city and in favor of petitioner on each of the bonds in an amount equal to the difference between the amount paid on the bonds and petitioner’s pro rata share of collections due December 1, 1937. It was averred in paragraph 4 that since the entry of the decree the city had collected moneys on the 1931 instalment of Warrant Mo. 52345, and held $413 applicable to the principal of the third instalment of the warrant, any portion of which it had failed to pay.

The petition prayed an order directing the city of Chicago to disburse this $413 and in making the disbursement to calculate the pro rata payments applicable to petitioner’s bonds “without regard to the en-. dorsement of judgment made on said bonds pursuant to said decree, but to pro rate to all outstanding bonds on their original par value.”

The city answered admitting collection of the $413; the entry of the decree of June 8; that the money should be distributed pro rata, but said, “The pro rata share applicable to the payment of each bond is the proportion of the principal amount of such bond which the total amount of monies collected on account of the warrant and installment bears to the total amount of obligations issued against said warrant and installment. ’ ’ The answer of the city also averred that where a judgment had been entered upon a bond, “the judgment must be considered as payment in determining .the share of the money subsequently collected which is applicable to such bonds. And in so far as the judgment which has been entered with respect to any bonds, plus money available for payment, exceeds the pro rata share of total collections applicable to such bonds, the excess should be applied in satisfaction of said judgment.”

The matter was heard upon the petition and answer and upon a stipulation of the parties. The stipulation provided that the bonds originally issued to anticipate the collection of the third instalment of Special Assessment Warrant No. 52345, together with amounts applied in payment of the bonds and vouchers prior to December 31, 1932, were as follows:

Bonds and

Bond Vouchers Issued Payments

G-11598 $ 1,000.00 $1,000.00

G — 11599 1,000.00 1,000.00

11600 1,000.00 1,000.00

11601 1,000.00 1,000.00

11602 1,000.00 1,000.00

11603 1,000.00 1,000.00

11604 1,000.00 1,000.00

11605 1,000.00 1,000.00 11606 1,000.00 1,000.00

11607 1,000.00

11608 1,000.00

11609 1,000.00

11610 1,000.00

11611 1,000.00

K-212 300.00 130.00

M-908 500.00 500.00

Voucher 3646 ...... 46.98 46.98

Total issue......... $14,846.98

It was stipulated that prior to December 1, 1937, $160 had been paid on each of the bonds owned by petitioner ; that June 8,1938, judgment was entered against the city on each of the bonds for $460; that since December 1,1937, there had been collected on the third instalment Special Assessment Warrant No. 52345, the sum of $413.34, which was available for distribution. The court entered an order finding the above facts and that the city had failed to pay any portion of the $413.34 upon petitioner’s bonds. The order found that under the terms of the decree of June 8, “it became and is the duty of the City of Chicago and its officials to pro rate all moneys received in this installment upon all bonds outstanding in this installment, including the aforesaid bonds owned and held by the petitioner, and became and is the duty of the City of Chicago and its officials to calculate such pro rata payments applicable to petitioner’s bonds without regard to the endorsement of the judgment made on petitioner’s bonds pursuant to the decree of this court.” From this order the city of Chicago appeals.

From the above recitals it is apparent the gist of the controversy is whether in computing petitioner’s pro rata share of the undistributed fund the judgments as entered by the decree of June 8 shall be regarded as payment of the bond pro tanto to the amount of the judgment. The prayer of the petition is that the computation shall be made “without regard to the endorsement of judgment made on said bonds pursuant to said decree.” The petitioner prays that the amount to be distributed shall be pro rated to all outstanding bonds on their original par value. The city contends the computation should be limited to the amount of obligations presently outstanding issued against the warrant and that in making the computation of the amount of money collected applicable to the bonds the judgment entered should be considered as payment; that if the judgment entered plus the money available for payment exceeds the pro rata share of total collections applicable to the bonds the excess only should be applied on the judgment.

The rules of law generally applicable have been stated in Rothschild v. Village of Calumet Park, 350 Ill. 330, 340; also in People ex rel. Anderson v. Village of Bradley, 367 Ill. 301, and in many other cases following these decisions. Under the provisions of the Local Improvement Act the city is trustee to collect the assessments for the benefit of the holders of the particular instalments of bonds, and the rules of law as to trusts are applicable. Distribution should be made equally and pro rata to holders of the bonds of a particular instalment issued against a particular warrant. Siefker v. City of Chicago Heights, 297 Ill. App. 113; Bankers Life Co. v. Village of Elmwood Park, 280 Ill. App. 524; People ex rel. Wilmette State Bank v. Village of Wilmette, 294 Ill. App. 362; Ill. Rev. Stat. 1939, ch. 24, pars. 777, 792, 799, 802, 803 [Jones Ill. Stats. Ann. 76.090, 76.106, 76.113, 76.116, 76.117]; Scribner v. Village of Downers Grove, 372 Ill. 614; Village of Downers Grove v. Harley, 372 Ill. 586.

Petitioner says the entry of the judgment does not affect the pro ration of funds collected after the judgment is entered. This contention is contrary to the decree, which petitioner, as plaintiff, procured to be entered on June 8, 1938. This decree directs the “respective bonds” shall remain outstanding “to the extent of the balance of the face value ... over and above the amount for which this decree is entered.” There follows the provision as quoted for partial cancellation, which may be accomplished by indorsement of the judgment and the decree on the bond. Petitioner, therefore, seems to be precluded by the decree entered on his own bill.

Petitioner argues the holder of a bond who has placed it in judgment should not be penalized for his diligence. The rule is invoked that equity aids the vigilant. It is not applicable here. Plaintiff by choice obtained a decree which in substance provides that a judgment entered shall amount to the equivalent of payment in so far as future collections are concerned. The legal effect of the judgment is to merge the obligation on the bond into the judgment. The judgment gives to the holder of it further rights which the owner of a bond not in judgment does not possess, one of which is that by mandamus he can now compel the city to pay his claim. Equitably, we think, he should be compelled to use this method rather than to permit other holders of bonds to go unpaid. Another advantage possessed by a holder who has obtained a judgment for a part of his bond is that he may assign the judgment and also sell the bond. The briefs of the city state that this is not an unusual practice.

For these reasons we think the court erred in directing the computation to be made disregarding the judgments entered as payment pro tanto. The judgment will, therefore, be reversed and the cause remanded with directions to enter a decree in conformity with the views herein expressed.

Reversed and remanded with directions.

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


author: Presiding Justice O’Connor.

text:
    Frank F. Tracy, Appellee, v. Ben Yost et al. Select Operating Corporation, Appellant.
    Gen. No. 41,045.
    opinion filed October 1, 1940.
    Sinden & Hassell, for appellant; Clyde C. Fisher, of counsel; Henry A. Kalcheim, for appellee; Abraham Miller, of counsel.
   Opinion by

Presiding Justice O’Connor.

“Not to be published in full.’’


author: Justice McSurely.

text:
    Thomas P. Lilly, Appellant, v. Atlas Collapsible Tube Company, Appellee.
    Gen. No. 41,100.
    opinion filed October 1, 1940;
    rehearing denied October 15, 1940.
    George E. Fidler, for appellant; Adams, Emerson & Anderson, for appellee; Dudley R. Emerson, of coujisel.
   Opinion by

Justice McSurely.

“Not to be published in full.’’


text:
    Grant Hospital of Chicago, Appellant, v. Alice Bierfield et al., Appellees.
    Gen. No. 41,145.

      opinion filed October 1, 1940.
    Rupert D. Jones and David R. Domke, for appellant; Alexander Roth-stein and Gabriel Goldberg, for appellee Nick Gene.
   Opinion by

Justice McSurely.

“Not to be published in full.”


author: Justice Matchett.

text:
    Racine Fuel Company, Appellee, v. Dr. O. A. Rawlins and Julia Nankervis, Defendants. Appeal of Dr. O. A. Rawlins, Appellant.
    Gen No. 41,016.
    opinion filed October 1, 1940;
    supplemental opinion filed and rehearing denied October 21, 1940.
    Stevens & Carrier, for appellant; Geo. M. Stevens, and Geo. M. Stevens, Jr., of counsel; Cecil C. Erickson, for appellee.
   Opinion by

Justice Matchett.

“Not to be published in full.”


text:
    George A. Bosomburg, Appellant, v. Birk Brothers Brewing Company, Appellee.
    Gen. No. 41,057.

      opinion filed October 1, 1940.
    George A. Bosomburg pro se; Henry L. Phoenix for appellee; Richard C. Murphy, of counsel.
   Opinion by

Justice Matchett.

Not to be published in full.


text:
    Sarah J. Moran, Appellant, v. Chicago Title and Trust Company, Trustee, and Cochran & McCluer Company, Appellees.
    Gen. No. 41,121.

      opinion filed October 1, 1940;
    rehearing denied October 15, 1940.
    John A. Bloomingston, for appellant; Hinshaw & Culbertson, for appellees; Oswell G. Treadway of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full.’’


text:
    Archie L. Breese, Appellee, v. Guy A. Richardson et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 41,132.
    opinion filed October 1, 1940;
    rehearing denied October 15, 1940.
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, for appellants; John R. Guilliams, of counsel; William A. Redmond, for appellee; John Knox, of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full.’ ’


text:
    Charles G. Frank, Trustee, Appellant, v. James M. Newburger et al., Appellees.
    Gen. No. 41,149.

      opinion filed October 1, 1940.
    Harry A. Biossat, for appellant; William Friedman, for appellees; Zeamore A. Ader of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full.


author: Mr. Justice Culbertson

text:
    Victor J. Herb, Appellant, v. Norman B. Pitcairn and Frank C. Nicodemus, Jr., Receivers for the Wabash Railway Company, Appellees.

      Opinion filed June 14, 1940.
    Rehearing denied and opinion modified October 23, 1940.
    Merritt U. Haydeh, of Hillsboro, Mark D. Eagleton, of St. Louis, and McGlynn & McGlynn, of East St. Louis, for appellant.

      Warnock, Williamson & Burroughs, of Edwardsville, for appellees.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment non obstante veredicto rendered by the city court of Granite City, Illinois, in favor of Norman B. Pitcairn and Frank C. Nicodemus, Jr., receivers for the Wabash Railway Company, a corporation, appellees (hereinafter called defendants), after a jury had returned a verdict for appellant, Victor J. Herb (hereinafter called plaintiff), in the sum of $30,000.

The action was instituted by plaintiff for injuries sustained by him (consisting chiefly of the loss of his left foot and a part of his left leg) while plaintiff was in the performance of his duties as a member of a switching crew in the employ of defendants, on November 23,1936. His injuries were admittedly serious and permanent. The action was predicated on the alleged violation of defendants of certain provisions of the Federal Safety Appliance Act which, it was contended, prohibited defendants from hauling or using any freight car not equipped with an efficient hand brake, and it was contended, coincidently, that both plaintiff and defendants were, at the time of the accident, engaged in interstate commerce and transportation, which subjected them to the Act of Congress commonly known as the Federal Employers’ Liability Act.

The evidence in the case disclosed that the plaintiff was 49 years of age, and had been employed as a SAvitchman by the defendants for 24 years. At the time of plaintiff’s injury he was engaged in switching operations, as a member of a switching crew of defendants, on the premises of the Staley Manufacturing Company in Decatur, Illinois. All of the switching operations of the Staley Company were conducted by the defendants, through their employees, and cars which were loaded by the Staley Company were customarily delivered by the defendants to the carriers to whom such cars were assigned for transportation and delivery to points of destination. One of the railroads to which deliveries were regularly made was the Illinois Central Railroad Company.

It was shown that shortly after noon of the day upon which the accident occurred, the plaintiff, together with other employees of the defendants, was engaged in switching operations in the Staley Company yards. Plaintiff had noticed four freight cars standing on a certain track, including one Illinois Central and one Pennsylvania freight car, upon which he noted that the brakes had been set. The engine of the unit with which plaintiff was working, was coupled to four additional cars, one of which was designated and referred to as a “U. P:” car, which had just been taken out of a track adjacent to one of the Staley Company buildings where such car had been loaded with miscellaneous feed for a consignee located in the city of Kiel, Wisconsin. Such four cars, including the U. P. car, were coupled by plaintiff to the four-car unit, which included the two cars upon which the plaintiff had noted that the brakes had been set as hereinbefore stated. After the coupling had been completed, Plaintiff gave the proper signal to the engineer to move the eight-car train westwardly, and he then climbed up the ladder on the east end of the U. P. car, which was east of the engine, and walked westwardly over the top of the cars for the purpose of releasing the brakes on the Illinois Central and Pennsylvania cars. Plaintiff testified that this was done in the customary and regular method of railroading. When plaintiff reached the end of the I. C. car where he had gone for the purpose of releasing the brake, he testified that he noted that the “dog” which was designed to prevent the brake from spinning, was meshed in the cog wheel and the brake was set. Plaintiff testified that he got onto the ladder at the west end of such I. C. car, climbed down the ladder several steps, then put his right foot on the brake platform preparatory to stepping to the brake platform for the purpose of releasing that brake. In stepping from the ladder to the brake platform, he placed his right foot on the brake platform and his right hand on the brake wheel, which he testified was customarily done by switchmen to accomplish such operations. While plaintiff was so stepping onto the brake platform, he testified, the brake wheel spun violently to the left, throwing the plaintiff from the platform to the ground where his left foot was run over by the wheels of the train. He testified that he did not touch the “dog” or rachet, nor pull on the brake wheel in any manner so as to move it, and that he did nothing to cause the brake wheel to spin. All witnesses who testified as to operations of brakes of the character involved in the instant case, stated that a brake of that type, in efficient working condition, would not spin under those circumstances.

As a result of the injuries which plaintiff sustained he was confined to a hospital for 16 weeks and 4 days, and was operated on for amputation of his left leg about 2 or 3 inches above the left ankle. He made periodical visits to the hospital after that for treatment for about 6 weeks, and was thereafter required to undergo a second operation when more bone was removed. He testified that he suffered continuous pain from the date of the injury until the time of the trial of this case. Plaintiff had previously never done any other type of work, except manual labor, and testified that he has been unable to earn any money since the date of the injury. The medical testimony in the case indicates that plaintiff will continue to suffer pain throughout his lifetime, and has been permanently disabled from performing manual labor, as the result of the injuries sustained.

The major issue upon which the case turned in the court below was, whether or not plaintiff was, at the time of the injury, engaged in interstate commerce and transportation, and whether or not the only car to which reference was made for the purpose of establishing the interstate character of such work, i.e., the U. P. car, was actually an ‘ interstate car. ’ ’ There was some conflict of testimony on this point.

Plaintiff’s evidence established that the TJ. P. car had been loaded with what was designated as a '" ‘broken lot” shipment of feed, which the Staley Company did not customarily load and keep in the yards, but immediately sent out to the customer. The evidence disclosed that this particular car had been loaded for a consignee in Kiel, Wisconsin, pursuant to a definite order from such consignee. The shipping clerk of the Staley Company testified that after the car had been loaded, he had issued the seals for the car and had given the yard master orders to take the car out. By that, he testified that he meant that the car was ready to go to the Illinois Central Railroad (to which road the car was to be delivered for transshipping to Wisconsin) on an ‘ ‘ O.K. ’ ’ Plaintiff testified that the yard master then told the foreman of the switching crew in which plaintiff was working, in plaintiff’s presence and prior to his injury, that the U. P. car was to be taken out of the particular track upon which it was then located, and that it “went to the I. C.,” meaning the Illinois Central Railroad Company. The foreman denied that such statement was made in the presence of plaintiff and prior to the injury, but stated that he did not have any disposition of such car until after plaintiff was injured, and that he was advised by the yard master as to what was to be done with the car after plaintiff had already been injured, and also, that he did not receive the bill of lading until after the time of such injury. A switching list, which was in the possession of the foreman, which referred to the particular U. P. car, contained the following with reference to such car: U. P. 78865 ic. Feed-Hold I. C. The foreman testified that the words, “Feed Hold” were stricken by him after the plaintiff was injured; that the “ic.,” shown in small letters immediately before the words “Feed Hold,” were likewise placed there by him after the plaintiff was injured. It was not established who placed the large letters “I. C.” on the list, nor when such letters were placed there.

The evidence disclosed that the “U. P.” car in the eight-car train was moved into another track to the west where a second Wabash crew was to pick it up from such track, where the crew in which the plaintiff was working had placed it, and then deliver such car to the Illinois Central Railroad. Plaintiff testified that the reason for moving the U. P. car from the track where it was first coupled into the eight-car train, to the other track, was so that it could be delivered to the Illinois Central, and that another Wabash crew would act to complete the movement of such car to the Illinois Central. At the time that plaintiff was injured, the train included such U. P. car. The evidence likewise disclosed that such car went out of Decatur on the Illinois Central Railroad on its journey toward its destination in Kiel, Wisconsin, the evening of the same day on which plaintiff was injured.

During the trial, at the close of plaintiff’s evidence, defendants moved the court for a directed verdict. Judgment on such motion was reserved, and judgment on a similar motion filed at the close of all the evidence was, likewise, reserved by the court. After the case had been considered by the jury and a verdict returned in favor of plaintiff and against defendants in the sum of $30,000, the motions were considered by the court and argued on November 30,1938. On October 13,1939, the trial court sustained the motion and entered an order finding that since the verdict had in the meantime been returned, he would and did render judgment non obstante veredicto in favor of defendants.

Plaintiff relies for reversal upon the contention that, in allowing the motion and entering the judgment non obstante veredicto, and in deciding, as a matter of law, that at the time of plaintiff’s injuries plaintiff and defendants were not engaged in interstate commerce or transportation, the court below was in error in that it was assuming to decide a question of fact which, under the law as declared by the federal courts, was exclusively one for the jury to decide in actions tried before a jury, and that the court misconceived the probative effect of the evidence presented on behalf of the defendants under the decisions and interpretations set forth in the cases decided by the Supreme Court of the United States.

A motion for a directed verdict and for judgment notwithstanding the verdict, presents to the trial court the question of law, whether from the evidence in favor of the plaintiff, and when considered to be true, together with the inferences that may legitimately be drawn therefrom, the jury might reasonably have found for the plaintiff (Russell v. Richardson, 302 Ill. App. 589; Bituminous Casualty Corp. v. City of Harrisburg, 303 Ill. App. 75). It is not the function of a trial judge (as stated in Mirich v. T. J. Forschner Contracting Co., 312 Ill. 343) to weigh the evidence and determine where the preponderance lies, but the court is strictly limited to a determination of whether there is, or is not, any evidence legally tending to prove the fact affirmed — evidence from which, if believed (and not considering any contradictory evidence), it might reasonably be inferred the fact affirmed existed.

It is, likewise, well-established that the law to be applied to the facts of a case brought under the Acts of Congress involved in the instant case, that is, the Federal Safety Appliance Act and Federal Employers’ Liability Act, is the law as declared by the Supreme Court of the United States, and by other federal courts of authority (Second Employers’ Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 32 Sup. Ct. 169; Seaboard Air Line Railway Co. v. Horton, 233 U. S. 492, 58 L. Ed. 1062, 34 Sup. Ct. 635). It has likewise been established that the Federal Safety Appliance Act imposes an absolute liability upon the carrier, and that the only question involved in a case of this character is whether the hand brake was inefficient, and whether such lack of efficiency was the proximate cause of the injury. The element of “negligence” is not in any way involved (Brady v. Terminal Railroad Ass’n, 303 U. S. 10, 82 L. Ed. 614, 58 Sup. Ct. 426). The violation of such requirement may be inferred from the failure of such brakes to function (Anderson v. Chesapeake & Ohio Ry. Co., 352 Ill. 561).

The court below, in a lengthy, and apparently carefully considered opinion, concluded that the movement of the U. P. car involved in the instant case was not within the field termed “interstate”; that the switching operation was not a “preparatory movement” in aid of interstate transportation; and that the work being done to facilitate the movement, and the movement itself, were not a “necessary incident” to interstate transportation. It was the conclusion of the court below, and it is the contention of counsel for defendants, that the movement of such car, and the other cars of the train, was simply a “yard movement” and merely an isolated incident to interstate transportation and remotely connected therewith, and that it had no general relation to interstate commerce. It was expressed that “some continuity of movement is essential” to bring it within the rules relating to interstate transportation. It is also contended that the dominant purpose of the movement was not to facilitate interstate commerce. We cannot agree with such contentions, nor with the conclusion of the court below in this matter.

It is true that a railroad employee to recover under the provisions of the Federal Act, must be engaged in interstate commerce at the moment of the injury (Chicago, B. d Q. R. R. Co. v. Harrington, 241 U. S. 177, 60 L. Ed. 941, 36 Sup. Ct. 517; Illinois Central R. R. Co. v. Behrens, 233 U. S. 473,58 L. Ed. 1051,34 Sup. Ct. 231). Under the facts in the record in the instant case, it was shown that at the very moment of plaintiff’s injury he was a member of a crew which was moving the U. P. car, which was destined to Kiel, Wisconsin. It was unquestionably shown that the U. P. car, prior to its being pulled from the track adjacent to the Staley warehouse, had been loaded with freight destined for shipment to Kiel, Wisconsin; that it had been sealed and billed in accordance therewith. It was likewise established that the defendants were to deliver such car to the connecting carrier, the Illinois Central Railroad at Decatur, Illinois, for transportation to its point of destination. The only question is whether or not plaintiff’s crew, in picking up the U. P. car from the siding adjacent to the Staley warehouse and moving it to another switch track where it was to be picked up by another crew to be delivered to the Illinois Central Railroad, was engaged in interstate transportation. It is the conclusion of this court that the facts adequately disclosed that the crew was so engaged, and that the plaintiff, at the time of the injury, was engaged in interstate transportation so as to Tiring him within the purview of the Acts of Congress referred to.

The plaintiff testified directly that his foreman was advised in his presence that the “U. P. car” was to go to the “I. C.,” meaning that the U. P. car was to go to the Illinois Central Railroad. The Staley Company’s shipping clerk testified that he had given orders to take the car out because it was loaded and ready to go out, by which he stated he meant it was “ready to go out to the I. C. railroad on an O.K. ’ ’ Further testimony of the plaintiff was to the effect that the reason for moving the U. P. car from the Staley Company’s warehouse was so that it would be delivered to the Illinois Central Railroad, and that the U. P. car was to be “switched out” for the Illinois Central, first, through the crew with which plaintiff was working which switched the car into another track, and then through another crew which picked the car up on such track and delivered it to the Illinois Central Railroad. Many cases in the Supreme Court have established the general principles relating’ to interstate transportation which have moved this court to its conclusion (Philadelphia & Reading R. Co. v. Hancock, 253 U. S. 284, 64 L. Ed. 907, 40 Sup. Ct. 512; North Carolina Railroad Co. v. Zachary, 232 U. S. 248, 58 L. Ed. 591, 34 Sup. Ct. 305; New York Cent. & H. R. R. Co. v. Carr, 238 U. S. 260, 59 L. Ed. 1298, 35 Sup. Ct. 780; Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 60 L. Ed. 436, 36 Sup. Ct. 188; Texas & Pac. Ry. Co. v. Rigsby, 24 U. S. 33, 60 L. Ed. 874, 36 Sup. Ct. 482). While no precise precedent has been directed to the attention of this court, and while this court has been unable to discover a case similar in all respects to the present case, we are unable to see any reasonable basis for the conclusion of the court below that interstate transportation had not begun at the time of plaintiff’s injury.

Transportation in the possession of a carrier, and the essential character of the commerce (not the accident of local, or through bills of lading), determines whether it is interstate in its character (Railroad Commission v. Texas & Pacific Ry. Co., 229 U. S. 336, 57 L. Ed. 1215, 33 Sup. Ct. 837; Texas & New Orleans R. Co. v. Sabine Tram Co., 227 U. S. 111, 57 L. Ed. 442, 33 Sup. Ct. 229.)

In the opinion of this court the interstate character of the U. P. car began when it was loaded and designated for a consignee at Kiel, Wisconsin, and had begun to move for the purpose of being put into a train of cars, or attached to an engine that would carry it forward on its journey. The U. P. car, in company with the other seven cars in the train upon which plaintiff was injured, was being moved from the Staley warehouse along the first step of its interstate journey. This court is unable to perceive a sound reason, or any precedent which determines that a “continuity” of movement is requisite to characterize a movement as being “interstate.” Instances may readily be cited of many and varied switching movements which may be required in facilitating the journey in interstate commerce of a car or train, and the fact of continuity of movement has apparently never been determined as an essential requisite to the determination of the interstate character of commerce (Minneapolis, St. P. & S. Ste. M. R. Co. v. Goneau, 269 U. S. 406, 70 L. Ed. 335, 46 Sup. Ct. 129).

In our opinion the fact that the U. P. car was not being taken directly to the Illinois Central Railroad at the particular moment when plaintiff was injured, is wholly immaterial. The purpose of the movement into the track was to place the car in an appropriate position for another crew to make delivery to the Illinois Central Railroad. The original step was taken by the crew with which plaintiff worked, and the final step in the delivery of such car to the Illinois Central Railroad was taken by the other crew. The ultimate object of all of such movements was to deliver such car to the Illinois Central Railroad for delivery to Kiel, Wisconsin. The destination was fixed. The interstate trip had begun at the time the car was moved away from the Staley Company warehouse, if the testimony of the plaintiff was to be believed.

As previously indicated in this opinion, neither the court below in considering a motion for a directed verdict, nor this court on appeal, may weigh the evidence and determine upon which side the preponderance lies. If there is substantial evidence upon which the verdict of the jury could be founded, as was true in the instant case, the court below had no right to enter judgment non obstante veredicto, and the entry of such judgment was clearly erroneous.

It is contended by the defendants herein that in the event this court concludes that the court below erred in entering the judgment notwithstanding the verdict, this cause should be remanded for new trial.

Under the provisions of section 68c of the Illinois Civil Practice Act (§ 192c, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.068]), it is provided that if, in the opinion of the Appellate Court, the trial court committed error in entering judgment notwithstanding the verdict, such court shall reverse such order and judgment and shall order or enter judgment in accordance with the verdict of the jury, “unless it shall appear that there was error in the case that would have entitled the party in whose favor judgment notwithstanding the verdict was entered, to a new trial if such judgment had not been entered by the trial court, in which case a new trial shall be ordered. ’ ’

It is contended by the plaintiff that pursuant to the principles announced in Kauders v. Equitable Life Assur. Society, 299 Ill. App. 152, the failure to file a motion for new trial precludes the consideration of any grounds which might have been raised in such motion, and that all right to a new trial is waived by the failure to file such motion in the lower court.

While such conclusion has been suggested by some interpreters of the Civil Practice Act, and in the case of Rose v. Meyer, 303 Ill. App. 365, we do not believe that the Kauders case necessarily requires such conclusion, nor do we believe that such rule either expresses the legislative intent of the section referred to, or is a desirable rule of practice. It will be noted that the section contains a proviso which specifically excepts cases where error would have entitled the party to a new trial, and contains a provision to the effect that in such case a new trial shall be ordered. There is no provision therein contained which expressly requires that a motion for new trial be filed after the granting of the motion for, or entering of the judgment notwithstanding the verdict. The Kauders case involved a situation where a plaintiff had appealed to the Appellate Court where the judgment had been reversed and the cause had been remanded with directions to enter a judgment upon the verdict. After the mandate had been filed in the trial court, judgment was entered on the verdict in plaintiff’s favor and against the defendant, as directed by the Appellate Court. It was not until 7 days thereafter that defendant filed its motion for new trial, and such motion was thereafter stricken on application- of plaintiff, and the defendant thereupon appealed to the Appellate Court from the order of court striking the motion for new trial filed under such circumstances. The court in such case simply concluded that the failure of the defendant to file a motion for new trial, or to urge that he was entitled to a new trial at the time that the appeal was first considered by the court, was fatal, and that not having done so, the error was waived and he could not now be heard to complain. The court therein indicated that it is the policy of courts of appeal not to review cases piecemeal, and the implication is justified that the court would have considered grounds for a new trial if presented at the time such case was first reviewed by the Appellate Court.

We believe that such conclusion is more accurate and desirable than the one that apparently has been reached in Rose v. Meyer, supra. If the precedent of that case is to be followed it would mean that a motion for new trial may be filed after the entry of judgment upon reversal, where a judgment notwithstanding the- verdict has been entered, and that a second appeal is taken to the Appellate Court for another review in the same case. Thus, in effect, the court in Rose v. Meyer is telling the parties to do what the court in the Kauders case said is ineffectual and improper. The better rule, in the judgment of this court, is one which adheres to the principle obviously intended by the court in the Kauders case, to the effect that grounds upon which a new trial could be requested must be urged in the court on appeal, or through a motion filed in the trial court prior to appeal, or any errors of such character should be considered waived. Any other rule would, in the opinion of this court, be illogical and not in accordance with the statutory intent as expressed in the Civil Practice Act. It is obvious that if a court has reserved decision on a motion for directed verdict, and thereafter sustains such motion and enters a judgment notwithstanding the verdict, it would be futile and absurd to require that the defendant thereupon file a motion for new trial within 10 days after a verdict has been entered in his favor by the court. He should, as provided by statute, be permitted to assign errors on appeal (which he would have urged in such motion for new trial had the verdict been entered against him). The parties, under such rule, will have a complete review of the cause on one appeal, and will not be required to pursue two appeals in the same case. We are, accordingly, giving consideration to the alleged errors relied upon by the defendants as grounds for granting a new trial.

It is first contended by defendants that the verdict of the jury was manifestly against the weight of the evidence in that the evidence proved that plaintiff was not engaged in interstate commerce at the time of the injury, and also, to the effect that the evidence established that the brakes on the car from which plaintiff fell, were efficient and in proper repair.

There was substantial evidence, as we have indicated in this opinion, that plaintiff was engaged in interstate commerce, or work so closely related thereto as to be practically a part thereof, at the time he was injured, and we cannot, therefore, say that the verdict of the jury is contrary to the manifest weight of the evidence.

On the issue of the violation of the Safety Appliance Act and the alleged efficiency of the hand brake, as was determined in the Chesapeake & O. R. Co. v. Gowen, 65 F. (2d) 260, the actual inefficient operation of the appliance may be shown (as was true in the instant case), and the fact that it operated efficiently thereafter at the time defendants’ witnesses undertook to test it, does not destroy the effect of the proof produced by plaintiff (Spotts v. Baltimore & O. R. Co., 102 F. (2d) 160). As stated in the case of Spotts v. Baltimore & O. R. Co., supra, at 162, “Where a jury finds that there is a violation, it will be sustained, if there is proof that the mechanism failed to work efficiently and properly even though it worked efficiently both before and after the occasion in question. The test in fact is the performance of the appliance.”

It is further contended that the court erred in giving the jury an instruction which specified that it was defendants’ “positive, absolute, unqualified, and continuous duty” to have the car equipped with an efficient hand brake. Such instruction correctly stated the law, and an instruction of similar character has been previously approved in this court (Stott v. Thompson, 294 Ill. App. 450). It is likewise contended that plaintiff’s instruction was erroneous in failing to define what is meant by ‘ interstate commerce. ” We do not believe that the jury could have been misled by such failure to define interstate commerce, particularly in view of the recital in such instruction of the consignment to the State of Wisconsin and beyond the State of Illinois, which immediately preceded the reference to interstate commerce in such instruction. The expression is likewise of such clearly understandable character that it is not necessary to define such ultimately issuable fact, under the facts and circumstances in the instant case (McNatt v. Wabash R. Co., 341 Mo. 516). We must, therefore, conclude that there was no reversible error in the giving of instructions on behalf of the plaintiff.

Defendants likewise contend that the court erred in admitting improper evidence on behalf of plaintiff, consisting of certain exhibits and testimony of witnesses referring to the destination and contents of the U. P. car. Such testimony and exhibits, in the opinion of this court, were properly admitted in evidence, under the facts and circumstances which obtained at the time and with relation to the express purpose for which the exhibits were offered, and this court feels that there was no reversible error in the admission of any such exhibits, nor of any testimony with reference to which complaint is made by defendants. It is specifically contended by defendants that the plaintiff should not have been permitted to testify and state whether he did, or did not, do anything to cause the hand brake in question to spin around and operate as it did at the time he was thrown to the ground. Such testimony was clearly proper, and in the opinion of this court, was testimony as to facts which were learned by plaintiff from observation and experience. If such testimony is characterized as opinion testimony, the experience of the plaintiff, as testified to by him (24 years as a switch-man and brakeman), was competent to qualify him as an expert on matters to which such testimony related. As a matter of fact, the record discloses that similar testimony on behalf of plaintiff was offered and introduced without objection on part of defendants, so that no prejudice could have resulted from the introduction of such testimony.

A contention was made, but not argued, that the verdict was excessive, and the result of prejudice and passion. Plaintiff points out that this court in Stott v. Thompson, supra, has stated that alleged excessiveness of a verdict in an action under the Federal Employers’ Liability Act is not for the consideration of an Appellate Court. This court would not be disposed to disturb the verdict in any event, under the facts and circumstances before it, and in view of the precedents in such cases.

This court must, therefore, conclude that there are no grounds upon which it would be justified in remanding for the purpose of a new trial. The court must likewise conclude that the action of the trial judge in rendering judgment in favor of defendants non obstante veredicto was erroneous. It is, therefore, the judgment of this court that such action be reversed, and that the judgment non obstante veredicto be set aside, and that judgment be entered on the verdict in favor of plaintiff.

This court, accordingly, will set such judgment non obstante veredicto aside, and enter judgment on the verdict in this court in the sum of $30,000 in favor of the plaintiff, and against the defendants, together with costs.

Reversed and judgment entered here.