text:
    Olof Thorin and Mary Thorin, Appellees, v. Victor Marchi et al., Appellants.
    Gen. No. 38,712.
    Opinion filed December 9, 1936.
    Rehearing denied and additional opinion filed December 28," 1936.
    Eugene K. Lutes and Eugene L. Campbell, both of Chicago, for appellants; Eugene K. Lutes, of counsel.
    Frisch & Frisch, of - Chicago, for appellees; Samuel J. Nordorf, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This action here on appeal is a proceeding to foreclose a trust deed on the estate described securing the payment of a balance of $8,500 of the principal sum and two interest coupons in default, of $255 each.

The plaintiffs on December 1,1921, conveyed certain described real estate in Cook county, Illinois, to Victor Marchi and Alice Marchi in joint tenancy in consideration of $25,000. This consideration was paid partly in cash and certain credits, partly by the exchange of a bungalow property then owned by Victor Marchi and Alice Marchi as joint tenants, and the balance by certain notes aggregating the principal sum of $13,000, dated December 1, 1921, and signed and delivered by Victor Marchi. On December 14, 1921, this defendant executed a trust deed on the real estate to secure the payment of his notes. These notes were for the balance of the purchase price. Thereafter Victor Marchi paid certain of the notes secured by the trust deed and thereby reduced the principal sum of $13,000 to $8,500. The plaintiffs received $16,500 to apply on account of the purchase price of $25,000, leaving a balance of $8,500, secured by the trust deed upon the real estate in question at the time of the filing* of the bill of foreclosure of equity of redemption of the defendant Victor Marchi in and to the real estate therein described.

On December 1, 1931, upon maturity of the $8,500 due upon the note signed by Victor Marchi, which had been extended from time to time, the note was again extended for one year thereafter to December 1, 1932, by an extension agreement signed by the plaintiffs and Victor Marchi and his wife Alice Marchi, and they also signed two interest coupons for $255 with interest at the rate of six per cent per annum for the period of the extension.

Thereafter, on October 31, 1932, the defendants conveyed the real estate in question to the Pullman Trust * & Savings Bank as trustee, to hold title for the benefit of Victor Marchi and Alice Marchi as joint tenants.

Upon the filing of the answer of Victor Marchi and Alice Marchi to the bill of complaint, the cause was referred to a master in chancery of the superior court of Cook county. The evidence having been presented to the master, a report was filed wherein the master recommended that a decree be entered finding* that the note secured by the trust deed signed by Victor Marchi was a lien only upon the half interest of Victor Marchi as a joint tenant in and to the property described, and not upon the individual half interest owned by Alice Marchi as a joint tenant at the time the note and trust deed securing payment was executed by Victor Marchi.

The plaintiffs filed objections to the master’s report, which were overruled, and upon a hearing as exceptions the chancellor sustained the objections, which appears from the decree entered by the court on November 4, 1935, finding that the notes and trust deed constituted a lien on the fee owned by Victor Marchi and Alice Marchi at the time the same were executed by Victor Marchi, one of the defendants.

The sufficiency of the pleadings is not questioned.

The defendants Marchi contend that as a legal proposition one co-tenant acting alone cannot sell, convey, or incumber the joint or common property so as to bind his co-tenants, and a mortgage will give the mortgagee no greater rights or interests than the mortgagor possessed, and will bind only the latter’s interest, citing in support of this position a number of decisions of courts of appeal in this and other jurisdictions.

The plaintiffs do not challenge the correctness of the above proposition as a rule of law, but in reply suggest that the acquisition of a title by co-tenants, accompanied by the contemporaneous execution of a purchase-money mortgage by one of the co-tenants is but one transaction and would be a lien upon the real estate of the joint tenants.

While the plaintiffs admit that the precise question has not been decided in this jurisdiction, they believe upon analysis of the legal principles involved this conclusion may be reached consonant with logic and law.

It must be admitted the plaintiffs are charged with the knowledge that they knew the title to the real estate was conveyed to the defendants Victor Marchi and Alice Marehi as joint tenants, and to secure part payment of the purchase price a trust deed and notes were executed and delivered by Victor Marehi alone, conveying' his interest in and to the real estate.

There is no charge in the bill of complaint that the plaintiffs were deceived by false representations by the defendants and induced to accept a trust deed from Victor Marehi alone securing the payment of the notes, and the receipt of subsequent payments by Victor Marehi.

It is a rule of law that of necessity a debt must exist or some obligation to pay money secured by a trust deed, and where no indebtedness exists, the mortgage is null and void. Bacon v. National German-American Bank, 191 Ill. 205; Schaeppi v. Glade, 195 Ill. 62. At the time Victor Marehi executed the note secured by the trust deed, Alice Marehi was not indebted to the plaintiffs, nor did she agree to pay the plaintiffs any sum of money, so that the plaintiffs had no pecuniary claim whatever against Alice Marehi upon which to base a mortgage, and therefore the remedy of the plaintiffs is limited to foreclosure against the undivided interest of Victor Marehi in the land in question.

The plaintiffs insist, however, that the defendant Alice Marehi by the execution of the extension agreement expressly agreed to assume and pay the mortgage indebtedness, and thereby subjected any interest she had in the premises to the lien of an equitable mortgage in favor of the plaintiffs, and in support of their contention point to the terms of the extension agreement.

Counsel for plaintiffs direct the court’s attention to the fact that both Victor Marehi and Alice Marehi constituted the “second party” under the terms of the extension agreement. The agreement specifically provides that the party of the first part (Olof Thorin and Mary Tliorin) agree to extend the payment of $8,500 for one year — so long’ as said party of the second part (Victor Marchi and Alice Marchi) shall promptly pay interest thereon — and shall further keep and perform all and singular the covenants and agreements in said note and trust deed contained. And the said party of the second part (Victor Marchi and Alice Marchi) hereby agrees to and accepts said extension upon the conditions aforesaid.

The question is largely one of construction of the provisions contained in the extension agreement. From the words used by the parties it is reasonable to construe the language as meaning that the defendant Alice Marchi did not agree to pay the indebtedness secured by the trust deed, which was the obligation of Victor Marchi. No consideration was received by her which, would prompt her to assume the obligation, nor is there any implication from the words used in the extension agreement that such was the intention of the parties. This is supported by her signature upon the two interest coupon notes, which would indicate that she only assumed payment of these notes.

The language of the Supreme Court in the case of Ogden v. Ogden, 180 Ill. 543, is pertinent upon the question of liability of Alice Marchi under the terms of the trust deed, by which she has not admitted an indebtedness by the execution of a note, and in Ogden v. Ogden, the court said:

“We cannot hold that mere proof that Edwy C. Ogden agreed to assume his father’s debt in the amount specified, and then executed this mortgage as a part of that transaction, is sufficient to authorize foreclosure of the' mortgage as made. The debt is the principal thing and the mortgage only the incident. While this court has held in several cases that the giving of renewal notes or the merging* of the notes in a judgment does not operate to release the mortgage lien, (Rogers v. Trustees of Schools, 46 Ill. 428; Citizens’ Nat. Bank v. Dayton, 116 Ill. 257;), yet it has not been held, to our knowledge, that a mortgage purporting to secure only a supposed note never made can be foreclosed as drawn, even though an indebtedness which it does not purport to secure, existed.”

The extension agreement does not extend the time of payment of a note executed by Alice Marehi, nor does the trust deed purport to secure an indebtedness of this defendant. Therefore, a decree of foreclosure cannot be entered which would be a lien against her joint interest, even thougrh an indebtedness does exist payable to the plaintiffs by Victor Marehi.

One more point remains to be considered, and that is, at the time of the filing of the bill of complaint a complete legal and equitable title to the property was in the Pullman Trust and Savings Bank, as trustee, who alone would have a right to redeem from either a sale under the trust deed or by payment of the indebtedness, and its cestui que trustent had no rights or claims severed from it.

Under the terms of the trust conveyance by Alice Marehi and Victor Marehi to the Pullman Trust & Savings Bank as trustee, the full legal and equitable title was conveyed to the latter with full power and authority to improve, manage and operate the property and with power to convey the fee simple title. The general rule is, as contended by the plaintiffs, that under the common law the legal estate in the hands of a trustee acquires only such title as is conveyed to the trustee by the trust conveyance, o

The defendants’ reply to this proposition is that if Victor Marehi’s half interest was subject to the mortgage, and Alice Marehi’s half was not so subject, the bank as grantee would take whatever title or interest its grantors had and subject to the same liens, no more and no less.

It is true, as suggested, where owners of property convey it to another, the latter takes whatever interest the former had, subject to the liens of record at the time of the conveyance.

The trust agreement does not change the contractual relations between the plaintiffs and the defendants, for the defendant Alice Marchi was not indebted to the plaintiffs, and the conveyance to the Pullman Trust & Savings Bank by its trust agreement did not enlarge or fix her personal responsibility for this indebtedness. The conveyance to the trustee was for the purpose of the trust. From this trust agreement, title in the trustee was to be held for the use and benefit of Victor Marchi and Alice Marchi, his wife, as joint tenants, and the trustee is invested with title for that purpose, but does not assume or become liable for any claim.

The question of merger could not arise, for the trustee derived title to the real estate for the purposes of the trust agreement and for no other purpose. Therefore, there was no merger of a greater with a less estate in the same person. The only title the trustee received was a title subject to the incumbrance of Victor Marchi, and does not affect the interest of Alice Marchi. The decree was against both defendants, when, as a matter of law, it should have been against only Victor Marchi, so far as his interests appear in the record, and the court erred in the entry of the decree against both defendants.

For the reasons stated in this opinion, we believe it will be necessary to reverse the decree, and accordingly, the decree of the superior court is reversed and the cause remanded with directions to the court to enter such other and further orders as may be consistent with the views herein expressed.

Reversed and remanded with directions.

Denis E. Sullivan, P. J., and Hall, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice John J. Sullivan

license: Public Domain

text:
    Lincoln Park Arms Building Corporation for Use of Ella Schroeder, Appellant, v. United States Fidelity and Guaranty Company, Appellee.
    Gen. No. 38,460.
    Opinion filed December 30, 1936.
    Rehearing denied January 12, 1937.

      George C. Bliss, of Chicago, for appellant.
    Robertson, Croave & Spence, of Chicago, for appellee; Eugene P. ICealy, of Chicago, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

This is a, garnishment proceeding brought by the Lincoln Park Arms Building Corporation against United States Fidelity & Guaranty Company for use of Ella Schroeder and is based upon a judgment for $5,000 recovered by the latter against the Lincoln Park Arms Building Corporation for the Avrongful death of her husband. Upon the trial ol the instant cause by the court Avithout a jury, judgment Avas rendered against plaintiff and in favor of the garnishee. This appeal folloAved. No question arises on the pleadings. For convenience Ave Avill designate the building corporation as plaintiff and garnishee insurance company as defendant.

August 3, 1927, Avhile plaintiff building corporation Avas engaged in the construction of the building knoAvn as the Lincoln Park Arms Hotel at 2734 — 38 Pine Grove avenue, Chicago, Charles Schroeder, husband of Ella Schroeder, an employee Avorking on the building for an independent contractor, Avas killed as the result of the fall of a hoist. In the spring of 1927, Samuel Olson and Adolph Loeffler, doing business as a copartnership under the name of Olson & Loeffler, OAvned the vacant property at the aforementioned address, and, having commenced the erection of said hotel thereon, applied for and had issued to them by defendant insurance company a public liability, indemnity policy Avhich covered the period from March 30, 1927, to March 30, 1928. Defendant in its policy agreed to indemnify assured against loss from liability imposed by laAv upon the copartnership for damages on account of bodily injuries, including death resulting therefrom, by reason of the performance of work on the building in question let by insured to independent contractors as described in the statement attached to and made a part of the insurance contract. The insurance contract covered only the construction of the hotel building at 2734-38 Pine Grove avenue and shows that the estimated cost of it was $400,000, the premium payable on the policy being at the rate of $0,073 for each $100 of cost. On or about May 2, 1927, Olson & Loeffler organized the Lincoln Park Arms Building Corporation for the purpose of taking over the erection and operation of the Lincoln Park Arms Hotel. Samuel Olson and Adolph Loeffler subscribed and paid for all the shares of stock of the corporation, except two qualifying shares, and the copartnership of Olson & Loeffler assigned to the corporation all its interest in the ownership of the premises and the construction of the hotel building. As already noted the contract of insurance by its terms covered the liability of Olson & Loeffler, the copartnership, in the erection and construction of the Lincoln Park Arms Hotel, but, although all interest which Olson & Loeffler had in the premises and construction of the hotel, and for which they were protected from liability under the terms of the contract of insurance, was transferred to the plaintiff building corporation shortly after the construction of the hotel was undertaken, not only is there no certificate attached to the insurance contract showing a substitution of plaintiff corporation for the co-partnership as assured therein, but no steps were formally taken by Olson & Loeffller or by the Lincoln Park Arms Building Corporation to give the latter the benefit of the coverage of the policy as successor to the interest of the copartnership. The copartnership of Olson and Loeffler was not in any manner covered or protected under the policy after the Lincoln Park Arms Building Corporation was formed and took over the ownership and entire interest of Olson & Loeffler in the premises and the construction of the hotel. $292, the estimated amount of the premium on the policy, was paid by Adolph Loeffler, who testified, “that [$292] I paid out of my own purse because we had no corporation funds at that time.” When the construction of the building* was completed a representative of defendant audited the books of plaintiff for the purpose of ascertaining the balance of the premium due on the insurance contract and as a result of said audit plaintiff building corporation paid defendant insurance company $211.70, the balance due on the premium. As to this, Loeffler’s testimony, which was undisputed, was: “The corporation paid the balance of an estimated bill and a second bill after the audit was paid ... by the Lincoln Park Arms Building Corporation.” It is conceded that the premium was fully paid for the policy period from March, 1927, to March, 1928.

In her action against the ownerc, of the hotel for the death of her husband Ella Schroeder named defendant as “Lincoln Park Arms Hotel, a corporation.” The summons therein was served upon “E. Brady, clerk and agent of said corporation.” This summons was delivered to one J. W. Foster, apparently the broker who arranged for the contract of insurance covering Olson & Loeffler. He in turn delivered it to defendant insurance company, which, upon its receipt, wrote the following letter to Lincoln Park Arms Hotel:

“September 25, 1931.
“Lincoln Park Arms Hotel,
2738 Pine Grove Ave.,
Chicago, Illinois.
“Be: — Lincoln Park Arms Hotel — Ella Schroeder.
‘ ‘ Gentlemen:
“This is to advise you that Mr. W. J. Foster, your insurance broker, called at this office today and presented us with a summons in the Superior Court of Cook County number 542900, returnable the first Monday in October in the case of Ella Schroeder.
“This is the first notice we received of this claim, therefore, we wish to advise you that we are accepting this summons under full reservation of rights pending an investigation.
“We are turning the summons over to our Legal Department for the attention of our Mr. Kealy, who will enter his appearance in your behalf. If the outcome of our investigation discloses that we are not responsible, you will be so advised.
“Yours very truly,
G-en’l Supt. op Claims.”

The Mr. Kealy referred to in the letter was defendant’s general counsel in charge of its Chicago litigation. He entered his appearance for the Lincoln Park Arms Hotel, a corporation. Ella Schroeder’s action naming the Lincoln Park Arms Hotel, a corporation, as defendant, was instituted September, 1931, but was not tried until September, 1933. Throughout all the time that the Schroeder case was pending and during the trial thereof, Mr. Kealy continued to represent defendant therein. After the jury’s verdict was rendered he presented and argued a motion for a new trial, which was overruled in November, 1933, and upon entry of judgment prayed an appeal to this court with leave to file an appeal bond and a bill of exceptions.

Before the trial of the Schroeder case, it was discovered that' the proper name of defendant in that action was Lincoln Park Arms Building Corporation instead of Lincoln Park Arms Hotel, a corporation, which was inadvertently used as defendant’s name, and upon Ella Schroeder’s motion leave was granted on September 26, 1933, the first day of the trial, to amend her declaration “by changing the name of defendant wherever said name appears in the declaration to Lincoln Park Arms Building Corporation.” It is fair to assume that the trial court found that although the Lincoln Park Arms Hotel, a corporation, was originally named defendant, the summons was properly served upon the agent of the Lincoln Park Arms Building Corporation at 2738 Pine Grove avenue since, when the latter was named defendant by amendment, no new summons was ordered to issue. Neither defendant insurance company nor attorney Kealy for it filed an appeal bond or perfected an appeal in behalf of plaintiff building corporation in the Schroeder case, and in January, 1934, Mr. Kealy withdrew as attorney for the Lincoln Park Arms Building Corporation without any notice by him or the insurance company to said building corporation of the entry of the judgment against it or of attorney Kealy’s withdrawal from and the insurance company’s abandonment of the further defense of that action. Execution was issued on the judgment, which was returned “no property found and no part satisfied.” February 17, 1934, this garnishment proceeding was instituted and garnishment summons issued.

Plaintiff contends (1) that by auditing its books and accepting from it the audit premium of $211.70, due under the terms of the policy or contract of insurance issued to Olson & Loeffler, defendant is estopped from asserting that such policy or contract of insurance did not cover the liability of Lincoln Park Arms Building Corporation in Ella Schroeder’s action against it; (2) that by defending the suit brought by Ella Schroeder in the first instance against the inadvertently named defendant, Lincoln Park Arms Hotel, a corporation, and after amendment of her declaration against the Lincoln Park Arms Building Corporation, up to the time of the entry of judgment therein with full knowledge of the facts, defendant is estopped from asserting that the policy of insurance did not cover plaintiff’s liability in that action; (3) that where the elements of estoppel exist as in this case, defendant is precluded from asserting that plaintiff is not the assured named in the contract; (4) that under the facts of this case defendant is estopped from asserting that there is no liability on its part because plaintiff did not pay the judgment returned against it in the Schroeder case as provided by condition I of the policy, which is as follows: “No action shall lie against the Company to recover for any loss or expense under this Policy unless it shall be brought by the Assured for loss or expense actually sustained and paid in money by the Assured . . .”; and (5) that under condition 0 of the policy defendant is obligated to pay interest on the judgment since the date of its rendition, regardless of whether it is liable under condition I of the contract.

The theory of defendant insurance company is that it never had any insurance agreement or contract in force and effect with the Lincoln Park Arms Building Corporation and is, therefore, under no duty to said corporation; that the contract of insurance herein cannot be extended by an alleged waiver to include the Lincoln Park Arms Building Corporation as an assured where such corporation was not originally included within the policy coverage; that the judgment upon which this garnishment action is based is against the Lincoln Park Arms Building Corporation and not against Olson & Loeffler, the only named assured in the policy; and that, in any event, the policy in question is an indemnity policy under the terms of which the insurance company is not liable unless and until the assured has sustained a loss, which was not the fact here, there being no evidence that the Lincoln Park Arms Building Corporation has sustained any loss by reason of the judgment entered against it in favor of Ella Schroeder.

In announcing its finding in favor of the garnishee the trial court stated: “In the alleged waiver by the acceptance of a premium, it would not substitute the Lincoln Park Arms Building Corporation .... I know your position is not without merit, but I don’t feel that there is a contract existing between the Lincoln Park Arms Building Corporation and the insurance company. There can’t be any substitution by waiver.’’ Plaintiff did not and does not seek to have the protection of the policy extended to it, either on the ground of waiver of the conditions of the policy by the insurance company or on the ground that an express contract of insurance actually existed between it and defendant. Plaintiff relies solely upon the doctrine that defendant by its conduct, with knowledge of the facts, estopped itself from asserting that the contract of insurance did not cover the liability of the Lincoln Park Arms Building Corporation in the suit brought against it by Ella Schroeder.

The liability of an insurance company is ordinarily measured by the express terms of its written contract, which terms may, however, be waived by such company through the action of its agents, but as a general rule the policy cannot be extended to cover the liability of one who is not a party to the contract. Therefore the major question presented for our determination is whether under all the circumstances of this case defendant is estopped from asserting that the contract of insurance did not cover the liability of plaintiff in the action brought against it by Ella Schroeder.

• It was the interest of Olson & Loeffler in the ownership and construction of the hotel as vested in the copartnership entity that was the subject of the protection of the insurance policy. That identical interest was vested in the corporate entity after the incorporation of the Lincoln Park Arms Building Corporation to take over the ownership, erection and operation of the hotel. It was contemplated by the policy that only a portion of the premium for same would be paid at the time of its issuance. This was the estimated premium of $292 paid by Loeffler. It was further contemplated by the policy that the balance of the premium would be paid by the owner of the premises upon the completion of the building when an audit might be made of the owner’s records to ascertain its total cost. The audit premium of $217.50 was paid by plaintiff after its records were audited by the insurance company. When Ella Schroeder brought the action for the death of her husband, the fact that she originally mistakenly named the Lincoln Park Arms Hotel, a corporation, as defendant, cannot detract in the least from the legal effect of the insurance company’s assumption of the defense of that action. In so far as the record discloses there was no Lincoln Park Arms Hotel corporation, but the owner of the premises, Lincoln Park Arms Building Corporation, simply operated the property as the Lincoln Park Arms Hotel. It is clear that the insurance company had no dealings with any “Lincoln Park Arms Hotel” corporation prior to its receipt of the summons in the Schroeder case naming the Lincoln Park Arms Hotel, a corporation, defendant. A corporation under that name was an absolute stranger to defendant and it is reasonable to infer that it would then and there have disclaimed responsibility in the Schroeder action were it not for its audit of plaintiff’s books and its receipt of the audit premium from plaintiff. We think it fair to assume that defendant confused the corporation originally named defendant in the Schroeder action with the Lincoln Park Arms Building Corporation, with which it had had previous dealings, and that its letter to the Lincoln Park Arms Hotel and its appearance for defendant in the Schroeder case by attorney Kealy can be reconciled only upon that theory. While the insurance company stated in its letter of September 25, 1931, “that we are accepting this summons under full reservation of rights pending an investigation,” it also stated “if the outcome of our investigation discloses that we are not responsible, you will be so advised.” This letter, while addressed to the Lincoln Park Arms Hotel, 2730 Pine Grove avenue, necessarily reached the hands of plaintiff, which operated that hotel. It is conceded that although more than two years intervened between defendant’s receipt of the summons in the Schroeder case and the trial of that case, the insurance company did not disclaim liability to the originally named defendant therein or to the building corporation, but continued to defend against that action by its attorney Kealy. When the inadvertence was discovered in the Schroeder case and the name of the defendant therein was changed to Lincoln Park Arms Building Corporation September 26, 1933, the first day of the trial of that case, by amendment of the declaration, the insurance company did not then disclaim responsibility but continued to defend the building association against Ella Schroeder’s claim, and, as heretofore shown, after the adverse verdict, presented and argued a motion for a new trial, which was overruled and judgment entered November 24, 1933.

It thus appears that by insurer’s failure to disclaim liability and its assumption of the defense of Ella Schroeder’s action it treated the contract as though plaintiff was the assured named therein, and plaintiff, by reason of defendant’s conduct, was justified in treating the contract of insurance as though it covered its liability, if any, to Ella Schroeder. Under paragraph 2 of the policy there is a specific agreement by defendant to defend in the name and on behalf of assured and at the cost of the insurer any suit brought against the assured to enforce a claim, whether groundless or not. Under condition C of the Policy the assured could not interfere in any negotiations or legal proceedings conducted by the company on account of any claim nor could it settle any claim except at its own cost. Under these conditions plaintiff was placed at the mercy of the insurance company, which treated it as the assured and assumed the defense of the Schroeder suit.

It must be borne in mind that while the building corporation had not had itself formally substituted as the assured in the insurance contract with the consent of the insurer, the defendant knew that plaintiff had succeeded to the interest of the copartnership which was covered by the policy. Plaintiff had the actual possession of the policy through its officers Olson and Loeffler, and, assuming that its coverage extended to it, upon the service of the summons in the Schroeder case immediately delivered it to defendant as the policy provided insured should do, and the policy was treated as covering* the building corporation both by plaintiff and the insurance company until the latter’s attorney withdrew as attorney for the Lincoln Park Arms Building Corporation in January, 1934, at which time the insurance company, without notice, abandoned further defense of that action.

Defendant’s position is that, notwithstanding* the facts and regardless of its conduct, it owed no duty to plaintiff at all inasmuch as it was not the named assured under its policy. In other words, that it might with impunity assume and continue the building corporation’s defense, ostensibly under the terms of the policy, with its knowledge of the facts as shown, and after an adverse judgment take the position that it was not liable because plaintiff was not named as an assured in the policy. Plaintiff had the right to make its own defense of the Schroeder suit if the insurance company was unwilling to assume the responsibility, not only for such defense but for its liability as well. The insurance company deprived plaintiff of its right to so defend, and having done so with knowledge that plaintiff was the grantee and assignee of the identical interest of the named assured covered by the policy, that plaintiff’s books were audited as the owner of the premises to ascertain the total cost of construction of the hotel and that plaintiff paid the audit premium, it cannot now be heard to assert that the policy of insurance did not cover the liability of plaintiff in the suit brought against it by Ella Schroeder.

The doctrine of equitable estoppel or estoppel in pais is that a party may be precluded by his acts and conduct from asserting a right to the detriment or prejudice of another (Catherwood v. Morris, 360 Ill. 473; Draper v. Oswego County Fire Relief Ass’n, 190 N. Y. 12, 82 N. E. 755); and we think that it should be invoked against defendant as being peculiarly applicable to the situation here presented. It is unnecessary that plaintiff should be actually prejudiced by the conduct of the insurer in assuming control of the defense of the Schroeder action and plaintiff need not show that it could have achieved a better result in that case had defendant not interfered. It will be conclusively presumed that plaintiff building corporation was prejudiced by the conduct of the insurer in assuming its defense.

On page 30 of its brief defendant insists “plaintiff has not cited a single case, and we believe there are none, in which a contract of insurance has been extended to cover a person or corporation not originally mentioned in said policy because of some alleged waiver on the part of a representative or agent of the company.” We repeat that it is not plaintiff’s contention that under the doctrine of waiver the policy could be extended to include an additional assured, but that by its conduct defendant estopped itself from asserting that the policy having been issued to Olson & Loeffier, the copartnership, did not cover the liability of the Lincoln Park Arms Building Corporation in the suit brought by Ella Sehroeder. Plaintiff did cite authorities which hold that one other than the assured named in an insurance contract may recover against the insurer on the theory of estoppel. In Compton Heights Laundry Co. v. General Accident, Fire & Life Assurance Corp., 195 Mo. 313, where there was an almost identical factual situation, the court said at pp. 316, 319:

“The policy was issued to John F. Winter, Louis M. Winter and Joseph N. Barthelmass doing business in St. Louis as Compton Heights Laundry. In the latter part of June, 1914, these parties, being’ desirous of organizing a corporation under the laws of Missouri, informed the general manager of defendant for the State of Missouri, and a portion of Illinois, that they were going to incorporate and requested him to see that the insurance properly covered the corporation and this the manager agreed to do. The corporation was perfected and the certificate issued on June 30, 1914, and thereafter the business was continued at the same place by the same individuals and under the same management, although there were no changes or notations made upon the policy. The premium was based upon and regulated by the amount of wages paid the employees and called the pay roll. An auditor for the defendant examined the pay roll from the week ending May 23, 1914, to the week ending February '27,1915. He also made an audit of the pay roll up to March 1,1915, when the policy was canceled. So far as the record discloses the premium was paid up to the date of the cancellation. After the accident happened and after the suit was brought by the injured person against the plaintiff here as a corporation, the defendants denied liability therefor, solely upon the ground that by reason of the rider it was not liable to plaintiffs on account of any claim made by the injured person.

ÍÍ

“The contention made in behalf of defendant that it is not liable to the plaintiff because of the fact that the policy was issued to and indemnified a partnership cannot be upheld. The same agency that was its general manager for Missouri and portions of Illinois was also engaged in and had charge of the soliciting, collecting premiums and issuing policies in the city of St. Louis. The policies did not become effective until after countersigned by the person in charge of that agency. This agency by its conduct which we have related foreclosed defendant’s right to insist on a formal written assignment of the policy and its consent indorsed thereon, as provided for in said policy.”

In J. Frank & Co. v. New Amsterdam Casualty Co., 175 Cal. 293, the court held at p. 295:

“Appellant’s first point is that it was not bound by the terms of the policy to indemnify plaintiff for any loss, because it did not, as found by the court, enter into a contract of insurance with ‘the plaintiff’ [a corporation], but with J. Frank & Company, an individual. Undoubtedly an insurance corporation may usually stand upon the letter of its contract, and where the policy is based upon a warrant of status by the person, firm or corporation seeking insurance, the insurer may in certain cases be relieved of liability by misrepresentations of the applicant even when there is an absence of fraud. But an insurance company, like any other contracting party, may waive provisions placed in the policy solely for its own benefit and may by its conduct be estopped from asserting defenses which might otherwise be available. We do not mean to say that the mere statement by the assured of individual rather than corporate status would avoid the policy if timely objection were made, but it is certain that whatever the rights of the casualty company may have been by reason of the false statement in the policy, it is now prevented by its own conduct from talcing any advantage of that representation because it undertook the defense of its assured, under the recognized duty imposed by the contract, when J. Frank & Company was sued as a corporation.”

In Illinois Indemnity Exchange v. Industrial Commission., 289 Ill. 233, where the contract of insurance indemnified the copartnership of Edlund & Dennison, and upon the dissolution of the copartnership assured the business was carried on by Harry Edlund, individually, under the name of North Side Carriage & Wagon Company, the court held at p. 241:

“Plaintiff in error also argues that the dissolution of the partnership made the policy between it and Edlund and Dennison void. Plaintiff in error did not insist upon treating the contract at an end or ineffective by reason of such dissolution but by the attempted release it sought to be released from liability from the accident, and in the release itself it was stated it was to 'cover only the case of Knut Hannibal, ’ this being at a time when Edlund ran the business alone, and plaintiff in error manifestly knew that fact. Clearly, this would be treated as a waiver of any defense on account of the dissolution of the partnership. 'Where there is a stipulation that a policy shall become void on the happening of some subsequent event and the insurer has notice that the event has occurred but does not cancel the policy, the provision is waived and the policy remains in force.’ [Kelley v. People’s Nat. Fire Ins. Co., 262 Ill. 158.] The dissolution of a partnership does not necessarily render a policy void. Allemania Fire Ins. Co. v. Peck, 133 Ill. 220; see, also, 2 Joyce on Insurance [2d ed.] sec. 2280.” Spohn v. National Fire Ins. Co. of Hart ford, 190 Wis. 446, 209 N. W. 725; Manchester v. Guardian Assur. Co., 151 N. Y. 88, 45 N. E. 381; Wood v. Rutland & Addison Mut. Fire Ins. Co., 31 Vt. 552, and Lumbermen’s Mut. Ins. Co. v. Bell, 166 Ill. 400, as well as the cases quoted from, and countless other authorities, hold that one other than the named assured in an insurance policy may recover against an insurer under the theory of ratification, waiver or estoppel.

It is true that in most of the above cited cases formal notice of the change in the interest and title of the subject matter of the insurance was given to the insurer, and that in many of the cases this was coupled with the unfulfilled promise of an authorized representative of insurer to make the necessary indorsement on the policy extending its protection to the successor in interest of the named assured. Where, as here, however, the insurer had such knowledge as shown by its audit of the books and records of the building corporation, and its receipt and acceptance of the audit premium on the policy from that corporation, it would seem that the necessity for formal notice of change in interest of the subject of the insurance was obviated. Under the principle of estoppel in pais one person cannot assume a position in his business relations with another in respect to a transaction of a pecuniary nature upon which such another, acting reasonably, has a right to rely, and after such other has so acted change his position to that other’s prejudice and obtain judicial aid to enable him to effectuate his fraudulent purposes. (Welch v. Fire Ass’n. 120 Wis. 456, 98 N. W. 227.) By its assumption of liability, evidenced by its undertaking the defense of the suit by Ella Schroeder against the owner of the premises where her husband met his death, defendant is estopped from claiming that its responsibility under the policy is confined exclusively to the named assured therein.

It is also urged by plaintiff that defendant insurance company is estopped from asserting that there is no liability on its part because the building corporation did not pay the judgment returned against it in favor of Ella Schroeder as provided by condition I of the policy, as heretofore set forth. Defendant insists that, even though it was otherwise estopped from asserting that its contract of insurance did not cover plaintiff’s liability in the Schroeder action, still it could not be held liable because such contract was an indemnifying policy under which no recovery could be had against it except for loss or expense actually sustained and paid in money by assured. Where an insurance policy contains, as the policy involved here does, an agreement to indemnify insured and a condition that no action shall lie against the insurer “for any loss or expense under this policy unless it shall be brought by the assured for loss or expense actually sustained and paid in money by the assured,” and where the contract of insurance is not breached in any material respect by insurer, it clearly provides only for the reimbursement of money actually paid by assured in satisfaction of a judgment recovered against it for a liability within the terms of the policy.

(Kinnan v. Hurst Co., 317 Ill. 251.) Defendant being estopped from claiming that the building association is not entitled to the benefits of the insurance contract, plaintiff will necessarily be considered the assured under the policy for the purpose of determining if the insurance company is also estopped from asserting that it is not liable to the building association because it did not pay the Schroeder judgment, and therefore suffered no loss. An agreement in an insurance contract “to defend” a suit does not necessarily raise an obligation to prosecute an appeal, but it has been held under the universal doctrine of good faith and fair dealing in the performance of contracts that an insurance company, by reason of its conduct, may be held liable for the expense of an appeal assured was compelled to prosecute upon refusal of insurer to do so.

In Brassil v. Maryland Casualty Co., 210 N. Y. 235, the policy contained provisions similar to those in the policy here with reference to insurer’s agreement to defend, the prohibition of assured from settling claims and the so-called “no action” clause. The extent of the indemnity under the policy there in question was $1,500 and judgment was obtained against insured for $6,000. All the claims could have been settled before trial for $1,500, but the insurer chose to defend the suit. After judgment it notified insured to pay the judgment and it would reimburse him to the extent of $1,500. Insured appealed the case at his own expense and had the judgment reversed. He brought an action against insurer to recover the cost of the appeal and in passing upon his right to recover the court said at pp. 240, 241:

“From that moment [the insurer’s election to defend and assumption of the defense] the plaintiff was no longer a free agent. By the express provisions of his contract he was denied the right to settle on his own account or to assume charge of the litigation. In these circumstances the cases proceeded to trial and judgments were rendered against him for upwards of $6,000. One would naturally suppose that, in view of the defendant’s previously declared determination to defend those actions, there would have been the prompt appeals usual in such cases. But it was not so here. The defendant, having succeeded in getting the plaintiff mulcted in damages largely exceeding the indemnity to which he was entitled under his policy, graciously announced that it ‘holds itself ready to comply with the terms’ of the contract in case the defendant should satisfy the judgments which had been recovered against him. The plaintiff was naturally indignant and retorted that he would prosecute the appeals on his own account and hold the defendant responsible for the cost.

“The mere statement of this unique situation indicates that the true measure of the rights of the plaintiff on the one hand and of the obligations of the defendant on the other is not to be found in the letter of the contract of insurance. That contract, by its very terms, -was designed to exclude any such liability. But there is a contractual obligation of universal force which underlies all written agreements. It is the obligation of good faith in carrying out what is written. The defendant’s failure to observe this requirement of the contract in suit is the thing upon which its liability may safely be predicated. ’ ’

This case is novel and the circumstances as peculiar as they were in the Brassil case, supra. As shown heretofore the insurance company, through its attorney, conducted the defense of the Schroeder case until judgment was rendered therein. Without notice to the building association that the judgment was entered it prayed and was allowed an appeal. Neither the insurance company nor its attorney filed an appeal bond or perfected the appeal. About two months after judgment was entered the insurance company’s attorney withdrew as attorney for defendant building association in the Schroeder case, and it is conceded that neither he nor the insurance company notified the building association of the judgment entered against it or of insurer’s abandonment of its defense and refusal to perfect the appeal in time to afford such building association an opportunity to prosecute its own appeal. By its conduct insurer deprived plaintiff of important and valuable rights. In our opinion defendant’s failure, under the circumstances, to continue the defense of the Schroeder case, or in any event its abandonment of such defense without seasonable notice to the building association, so that it might prosecute its own appeal from the judgment rendered therein was, in effect, a breach of its contract to defend. Where an insurance company breaches its contract to defend assured as agreed in its policy, the rule prevails that assured is released from the condition of the insurance contract that no action will lie against insurer unless for loss actually sustained and paid by insured. (Kinnan v. Hurst Co., supra; St. Louis Dressed Beef & Provision Co. v. Maryland Casualty Co., 201 U. S. 173.)

We hold that the trial court erred in finding and entering judgment in favor of defendant against plaintiff. We further hold that defendant is liable to pay garnishor for the use of Ella Schroeder $5,000, the amount of the judgment rendered in her favor against the building association November 24, 1933, and in addition thereto costs and interest on said judgment as provided in the policy from the date of its rendition, amounting to $774.28.

For the reasons indicated the judgment of the superior court is reversed and judgment entered here for $5,774.28 against defendant garnishee, and in favor of the garnishor for the use of Ella Schroeder.

Reversed and judgment here for $5,774.28.

Friend and Scanlan, JJ., concur.


text:
    In re Petition of Attilio Monaco. Attilio Monaco, Appellant, v. Felix Matarrese, Appellee.
    Gen. No. 38,586.
    Opinion filed December 30, 1936.
    Rehearing denied January 12, 1937.
    John O. Wagner, of Chicago, for appellant.

      Eocco De S tee ano, of Chicago, for appellee.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

Pursuant to a judgment of the superior court rendered against Attilio Monaco for $6,500 in an action brought by Felix Matarrese for the malicious alienation of the affections of the latter’s wife by Monaco, Matarrese caused to be issued by the clerk of the superior court a capias ad satisfaciendum, under which Monaco was taken into custody by the sheriff of Cook county. January 23, 1934, Monaco filed a petition in the county court for his release under the Insolvent Debtors’ Act, Ill. State Bar Stats. 1935, eh. 72, ft4 et seq.; Jones Ill. Stats. Ann. 109.378 et seq. March 2, 1934, Eocco De Stefano, attorney for Matarrese, filed a plea in behalf of the sheriff, alleging that malice was the gist of the superior court action, in which the judgment for $6,500 was rendered against Monaco upon the jury’s general verdict of guilty, and praying that Monaco be remanded to the custody of the sheriff “to be incarcerated as commanded, not to exceed six months or to be discharged by due process of law.”

May 1, 1934, after hearing, the county court found that malice was the gist of the superior court action and ordered the dismissal of Monaco’s petition for discharge and his remandment to the custody of the sheriff. On the same day Monaco filed a notice of appeal from the order or judgment of the county court and his appeal bond of $7,500 was approved by the court. His praecipe for record was also filed within apt time.

Prior to the entry of the judgment of the county court Monaco had sued out a writ of error from this court to review the judgment of the superior court without requesting or securing a supersedeas. The opinion of this court was filed March 28, 1935, affirming the judgment of the superior court, and Monaco’s petition for leave to appeal that cause was denied by the Supreme Court June 28, 1935.

The record does not disclose the reason but apparently it was to await the decision of this court and the Supreme Court on the superior court judgment, pending for review, that the county court granted, over a period of more than 16 months, numerous extensions of time to petitioner for filing his report of proceedings in the instant case. All such extensions were granted before the expiration of the original and extended periods allowed for such filing, the parties stipulating to many of the extensions, even the last extension of August 14, 1935, being granted upon such a stipulation. The report of proceedings presented to Judge Edmund K. Jarecld on August 14, 1935, was finally approved by the trial judge September 4, 1935, and the record was transmitted to the clerk of this court and filed within apt time.

In the meantime, on July 26, 1935, by leave of court, the petitioner, Monaco, presented and filed the following motion:

“Now comes the petitioner, Attilio Monaco, by John 0. Wagner, his attorney, and moves the Court that the petitioner in the above entitled cause be discharged in accordance with the prayer of his petition.

“The petitioner, Attilio Monaco, is under arrest by the Sheriff of this County on a capias ad satisfaciendum on a judgment in a tort action, and in the said suit, where judgment was obtained, there was no special finding of the jury, or a special finding- by the Court that malice is the gist of the action, and the petitioner has never refused to deliver up his estate for the benefit of his creditors, nor has a demand been made upon him to deliver up his estate, and the said petitioner has no estate whatsoever.

“The petitioner is, therefore, entitled to his discharge under an Act of the legislature, and approved by the governor of the State of Illinois, on the 11th day of July, 1935, a copy of which Act reads as follows :

“ ‘An Act to amend section 5 of “An Act in regard to judgments and decrees, and the manner of enforcing the same by execution, and to provide for the redemption of real estate sold under execution or decree,” ’ approved March 22, 1872, as amended.

“Be it enacted by the People of the State of Illinois, represented in the General Assembly:

“Section 1. Section 5 of ‘An Act in regard to judgments and decrees, and the manner of enforcing the same by execution, and to provide for the redemption of real estate sold under execution or decree,’ approved March 22, 1872, as amended, is amended to read as follows:

“Sec. 5. No execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by such defendant, and it shall appear from a special finding by the jury, or from a special finding by the court, if the case is tried by the court without a jury, that malice is the gist of the action, and except when the defendant shall refuse to deliver up his estate for the benefit of his creditors.”

The court after allowing petitioner’s motion to be considered a part of the transcript of proceedings and admitting in evidence a certified copy of the amendment above set forth, denied said motion, and in doing so stated: “I shall hold that the law as amended is not retroactive and shall deny the motion to discharge the appellant.”

The petitioner contends that he is entitled to his discharge under the amendment to the statute of July 11, 1935, because (1) the rule that statutes are prospective and will not be construed to have retroactive operation unless the language employed therein is so clear that it will admit of no other construction, applies only to statutes which affect some vested right or interest existing under a prior law, and does not apply to statutes which merely relate to remedies and forms of procedure; and (2) because it is also the rule that where a statute affording a special remedy is repealed without a saving clause in favor of pending- suits, it is the duty of the court to determine cases pending before it upon the law in force when it renders its decision.

Respondent’s theory is that the Insolvent Debtors’ Act does not apply to a judgment based on malice ; and that the amendment in question to the “Judgments and Decrees Act” is prospective and not retroactive.

It will be noted that the amendment of July 11, 1935, provides that “no execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by such defendant, and it shall appear from a special finding of the jury, or from a special finding by the court, if the case is tried by the court without a jury, that malice is the gist of action.” Ill. State Bar Stats. 1935, ch. 77, jf 5; Jones Ill. Stats. Ann. 107.155. There was no special finding by the jury in the superior court case “that malice is the gist of the action.”

It must be conceded that in all cases of this character filed in the county court subsequent to July 11, 1935, the court would be compelled to discharge the relators therein unless it were shown that the execution against the body of the defendants in such cases was issued pursuant to a special finding that malice was the gist of the action. It is no longer the province of the county court to determine whether malice is the gist of the action in this class of cases. That question under the amendment is squarely up to the court or jury, as the case may be, which tries the facts in the action where the tort judgment is obtained.

While it is the established rule that statutes are prospective and will not be construed to operate retroactively unless the language employed therein is so clear that it will admit of no other construction, this rule applies only to statutes which affect some vested right or interest existing under a prior law, and does not apply to statutes which relate merely to remedies and forms of procedure. (Aultman & Taylor Machinery Co. v. Fish, 120 Ill. App. 314.) No vested right of Matarrese in his superior court judgment against Monaco is affected by the amendment. This amendment clearly affects only a special remedy available to the judgment creditor under the statute as it existed prior to the enactment of the amendment, and the law is settled in this State by a long and uninterrupted line of decisions that, where a statute giving a special remedy is amended or repealed without a saving clause in favor of pending suits, all suits affected must be decided in conformity to the law then existing*.

The effect of amending or appealing* legislation that merely relates to remedies and forms of procedure is considered at length in Vance v. Rankin, 194 Ill. 625, where the court said at pp. 627-28-29:

“The act of May 10, 1901, being a public act, this court will take judicial notice thereof, without formal supplemental plea. (Wikel v. Board of Comrs. of Jackson County, 120 N. C. 451.) ‘It is well settled that if a statute giving* a special remedy is repealed without a saving clause in favor of pending suits, all suits must stop where the repeal finds them. If final relief has not been granted before the repeal went into effect, it cannot be after.’ (South Carolina v. Gaillard, 101 U. S. 433.) ‘If a case is appealed, and pending the appeal the law is changed, the Appellate Court must dispose of the case under the law in force when their decision is rendered.’ (Cooley’s Const. Lim. — 2d ed. — 381, and note.) The effect of the repeal of a statute is to obliterate the statute repealed as completely as if it had never been passed, and it must be considered as a law that never existed, except for the purposes of those actions or suits which were commenced, prosecuted and concluded while it was an existing law. (Ex parte McCardle, 7 Wall. 514; Key v. Goodwin, 4 Moore & P. 341; Thorne v. San Francisco, 4 Cal. 165; Musgrove v. V. & N. R. R. Co., 50 Miss. 677; Town of Belvidere v. Warren Railroad Co., 34 N. J. L. 193.) Pending judicial proceedings based upon a statute cannot proceed after its repeal. (Gilleland v. Schuyler, 9 Kan. 569; Wade v. St. Mary’s School, 43 Md. 178; McMinn v. Bliss, 31 Cal. 122; State v. Daley, 29 Conn. 272.) This rule holds true until the proceedings have reached a final judgment in the court of last resort, for that court, when it comes to pronounce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was correct when pronounced in the subordinate tribunal from whence the appeal was taken, if it appears that pending the appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal. (Hartung v. People, 22 N. Y. 95; Hubbard v. State, 2 Tex. App. 506; Atwell v. Grant, 11 Md. 104; United States v. Peggy, 1 Cranch, 103; Mayor of Annapolis v. Maryland, 30 Md. 112.) In Musgrove v. V. & N. R. R. Co., supra, a judgment erroneous when pronounced was affirmed because the subsequent repeal of the statute freed it from error. In Keller v. State of Maryland, 12 Md. 323, the court having affirmed a judgment in ignorance of the repeal of a statute pending the appeal, after-wards, at the same term, on its attention being called to the repeal, struck out the order of affirmance and in its place entered a judgment of reversal. In Wikel v. Board of Com’rs of Jackson County, supra, which was a petition for mandamus to compel the county commissioners to build a bridge and levy a tax for that purpose, as required by the act of 1895, which act, pending an appeal from a judgment granting a peremptory writ, was repealed, it was held that the repeal, of such act destroyed the subject matter of the action and that the suit should abate.

“The repeal of a statute conferring jurisdiction takes away all right to proceed thereunder unless it is expressly saved, (Illinois and Michigan Canal v. City of Chicago, 14 Ill. 334,) and it carries with it all prosecutions pending thereunder, ( Wilson v. Ohio and Mississippi Railway Co., 64 Ill. 542,) and except for the purposes of such suits as are begun, prosecuted and concluded while it is an existing law, the statute repealed is as if it never existed. (Eaton v. Graham, 11 Ill. 619; Van Inwagen v. City of Chicago, 61 id. 31; Menard County v. Kincaid, 71 id. 587; Town of Jefferson v. People, 87 id. 503; Holcomb v. Boynton, 151 id. 294.) In Van Inwagen v. City of Chicago, supra, on page 34 it is said: ‘The doctrine is, that inchoate rights, derived under a statute, are lost by its repeal, unless saved by express words in the repealing statute, and unless those rights have become so far perfected as to stand independent of the statute, . . . that is to say, executed. . . . The effect of a repealing statute is to obliterate the prior law as completely from the records as if it had never passed, and it must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted and concluded while it was an existing law.’ In Holcomb v. Boynton, supra, on page 297, the court say: ‘Where a statute is repealed without such saving clause, it must be considered, except as to proceedings passed and closed, as if it had never existed. ’ ” To the same effect are McNabb v. Board of Trustees, 103 Ill. App. 156; Merlo v. Johnston City & Big Muddy Coal & Mining Co., 258 Ill. 328; Wall v. Chesapeake & Ohio R. Co., 290 Ill. 227; Kenfield-Leach Co. v. Industrial Publications, 320 Ill. 449; Smolen v. Industrial Commission, 324 Ill. 32; DuQuoin Township High School Dist. No. 100 v. Industrial Commission, 329 Ill. 543.

These authorities conclusively settle the question that where a change in the law affects only the remedy or procedure all rig'hts of action are governed thereby, both in the trial and Appellate Courts, without regard to whether they accrued before or after such change, and without regard to whether suit had been previously instituted or not, unless there is a saving clause as to existing legislation.

The amendment contained no saving clause that excluded pending suits from the effect of its operation. So long as the petitioner had not been incarcerated as a result of a final judgment, he was entitled to the relief afforded by the statute as amended. Even though the motion for Monaco’s discharge had not been made in the trial court, this court would be required to take judicial notice of such amendment and direct his discharge. The trial court was bound under the then existing law to sustain Monaco’s motion and order his discharge from custody.

Respondents’ motion of November 19, 1935, to dismiss this appeal, which was reserved to hearing, is denied. Petitioner’s notice of appeal and all steps thereafter taken by him necessary to bring the appeal to this court were in strict conformity to the provisions of the Civil Practice Act and the rules of the Supreme Court and this court as has been heretofore shown.

For the reasons indicated herein the order of the county court denying petitioner’s motion for his discharge is reversed and the cause remanded with directions to sustain said motion and order petitioner’s discharge from the custody of the sheriff.

Reversed and remanded with directions.

Friend and Scandan, JJ., concur.


text:
    Medusa Portland Cement Company, Appellant, v. Illinois Central Railroad Company, Appellee.
    Gen. No. 38,617.

      Opinion filed December 30, 1936.
    Egbert E. Quirk, Clarence B. Caret and James F. Wright, of Chicago, for appellant.
    Herbert J. Deant and Elmer A. Smith, both of Chicago, for appellee; Edward C. Craig and Vernon W. Foster, both of Chicago, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

By this appeal plaintiff, Medusa Portland Cement Company (successor in interest to Sandusky Cement Company) seeks to reverse a judgment rendered against it in favor of defendant, Illinois Central Bail-road Company, in plaintiff’s common law action in assumpsit against the latter for $22,917.60 damages, alleged to be due by reason of unjust, unreasonable, excessive and discriminatory rates charged and exacted by defendant from plaintiff for the transportation of bituminous coal in carload lots from mines in the Springfield and Southern Illinois districts to the cement company’s plant at Dixon, Illinois, during the period from April 4, 1922, to and including February 29, 1928. The case was tried by the court without a jury and no question arises on the pleadings.

April 4, 1924, plaintiff’s predecessor in interest, the Sandusky Cement Company, filed a complaint with the Illinois Commerce Commission (hereinafter for convenience referred to as the commission) alleging that it operated a plant at Dixon, Illinois, and that the rates charged and collected by the defendant for the transportation of bituminous coal from the Springfield and Southern Illinois groups of mines to Dixon, Illinois, had been for two years prior to the filing of the complaint, were then and for the future would be unjust, unreasonable, excessive and discriminatory in violation of the Illinois Public Utilities Act, Ill. State Bar Stats. 1935, ch. 111a; Jones Ill. Stats. Ann. 112.001 et seq. The complaint prayed that the commission order the defendant to desist from violating the act, to establish and apply in the future reasonable and just rates to the transportation of bituminous coal between the said points and “to pay to the plaintiff herein by way of reparation for the unreasonable charges hereinbefore alleged, such sum as in view of the evidence to be adduced therein, the said commission should determine that the plaintiff herein was entitled to as an award of damages under the provisions of said act for violations thereof.”

Following several hearings on the complaint the commission entered an order October 30, 1929, finding that the rates assailed in the complaint “have been since April 4, 1922, are now and for the future will be unjust, unreasonable, excessive and unjustly discriminatory to the extent that they exceeded prior to July 1, 1922, 211 cents from the Southern Illinois group of mines and 178 cents from the Springfield group of mines, and to the extent that they exceeded or exceed from and after July 1, 1922, 190 cents from the Southern Ill. Group of Mines and 160 cents from the Springfield Group of mines.” The order required the railroad company “to put in force within forty-five days of the date of this order” and to apply in the future “rates in accord with the findings of the commission expressed herein” and found that plaintiff “paid and ultimately bore the freight charges” and has been damaged thereby. The order also found that plaintiff is entitled to an award of reparation “for the charges collected in excess of the charges which would have been collected had the said charges been predicated on the rates herein found to be just and reasonable ’ ’ and provided that plaintiff prepare and file with defendant detailed statements showing the amount of reparation due, the defendant being directed “to certify to the correctness of the statements of the amounts of reparation due” and “to file the said statements with the commission within ninety days of the receipt of said statements. ’ ’ The commission reserved jurisdiction of the subject matter and of the parties “for the purpose of entering orders awarding reparation for the charges collected in excess of the charges which would have been collected had said charges been predicated on the rates herein found to be just and reasonable, nonexcessive and free from unjust discrimination. ’ ’

November 18, 1929, which was within the time allowed by statute, the defendant filed with the commission a petition for a rehearing, the prayer of which is as follows: “Wherefore, these defendants respectfully ask this Honorable Commission to grant a rehearing in this cause, to postpone the effective date of the order herein, and to give them, after the rehearing has been concluded, an opportunity to argue this cause orally.” (There were other parties plaintiff and defendant in the proceeding before the commission.)

The minutes of the commission show that on December 3, 1929, the petition for a rehearing, was granted and December 6, 1929, the parties to the proceeding were advised by letter from its secretary “that the Illinois Commerce Commission on the 3rd day of December, 1929, granted the petition on behalf of defendants for rehearing, postponement of effective date of order and oral argument. ’ ’

On May 6, 1930, after the rehearing was concluded the commission entered a second order in which it found “that the rates herein assailed for the intrastate transportation of bituminous coal in carloads to Dixon, Illinois, have been since February 29, 1928, are now and for the future will be unjustly discriminatory to the extent they exceeded or exceed 190 cents from the Southern Illinois group and 160 cents from the Springfield group.” This order directed defendant to publish, post and file with the commission within 45 days from its date a schedule of rates consistent with the finding therein and provided that plaintiff prepare and file with defendant statements of the amount of reparation due under such finding, which the defendant was directed to certify and file with the commission within ninety days of their receipt from plaintiff. Plaintiff filed its reparation statements under the order of May 6, 1930, and following their certification by the defendant, the commission entered an order November 13, 1930, directing defendant to pay plaintiff $7,414.02 as reparation on account of unreasonable rates charged for transportation of coal from the aforementioned points to Dixon, Illinois, during the period from February 29, 1928, to and including May 21,1930. Plaintiff accepted this reparation under the order of May 6, 1930.

The instant action was tried by the circuit court upon a stipulation of facts, only the following portions of which it is deemed necessary to set forth:

“1. That if and in the event it is finally determined and found that the defendant, Illinois Central Railroad Company, is liable for damages in accordance with the findings in the order of October 30,1929, of the Illinois Commerce Commission in the case known as Sandusky Cement Company, et al., v. Illinois Central Railroad Company, et al., before the Illinois Commerce Commission, Docket No. 14009, the amount of damages payable to the plaintiff by the said defendant, Illinois Central Railroad Company, in such event is $22,917.60, this amount, however, not including such interest as plaintiff may be entitled to under the statute, and such attorney’s fees as plaintiff may be entitled to under the statute.

“2. That following the issuance of the order of the Illinois Commerce Commission of October 30, 1929, said order was duly served upon all parties to the case known as Docket No. 14009, Sandusky Cement Company, et al., vs. Illinois Central Railroad Company, et al., including the^ plaintiff and defendant herein.

“3. Following the entry of the order of the Illinois Commerce Commission of October 30,1929, in the case known as Docket No. 14009, Sandusky Cement Company, et al., vs. Illinois Central Railroad Company, et al., before the Illinois Commerce Commission, the plaintiff herein, the Medusa Portland Cement Company (formerly the Sandusky Cement Company) did not file with said Illinois Central Railroad Company statements showing the amount of reparation due plaintiff herein, nor did said Illinois Central Railroad Company certify to the correctness of the statements of the amounts of reparation due the plaintiff herein, under the findings of the Illinois Commerce Commission made in said order; and that neither the defendant, Illinois Central Railroad Company, nor the said plaintiff, the Medusa Portland Cement Company, took an appeal to the courts from said order of October 30, 1929.

“4. That the said defendant, Illinois Central Railroad Company, filed on November 18, 1929, with the Illinois Commerce Commission, in the cause before the Commission, known as Docket No. 14009, Sandusky Cement Company, et al., v. Illinois Central Railroad Company, et al., a petition for rehearing and postponement of the effective date of the order therein.

“5. That at the further hearing held before the Illinois Commerce Commission, on February 10, 11 and 13, 1930, in the case known as Sandusky Cement Company, et al., vs. Illinois Central Railroad Company, et al., before the Illinois Commerce Commission, Docket No. 14009, counsel for the plaintiff herein, the Medusa Portland Cement Company (formerly the Sandusky Cement Company) participated in the hearing without objection to it, cross-examining witnesses for the defendant, Illinois Central Railroad Company, examining in chief witnesses for the said Medusa Portland Cement Company (formerly Sandusky Cement Company), and briefing and arguing the case.

“6. That the plaintiff herein, the said Medusa Portland Cement Company, following the receipt from the said Illinois Commerce Commission of its order dated May 6, 1930, in the case known as Sandusky Cement Company, et al., v. Illinois Central Railroad Company, et al., before the Illinois Commerce Commission, Docket No. 14009, filed with the said Illinois Central Railroad Company, statements in compliance with the findings of the said Illinois Commerce Commission in its said order, showing the amount of reparation due the plaintiff herein, the said Medusa Portland Cement Company, under the findings of the said Illinois Commerce Commission expressed in the said order, and that the said Medusa Portland Cement Company accepted from the defendant herein, the said Illinois Central Railroad Company, the sum of $7,414.02 as reparation in accordance with the order of the - said Illinois Commerce Commission, dated November 13, 1930, the first supplemental order to the said order of May 6, 1930, in the case known as Sandusky Cement Company, et al., v. Illinois Central Railroad Company, et al., before the Illinois Commerce Commission, Docket No. 14009.

' “7. That neither the said defendant nor the Medusa Portland Cement Company (formerly the San-dusky Cement Company), the plaintiff herein, took an appeal to the courts from the said order dated May 6, 1930, of the said Illinois Commerce Commission in the case known as Sandusky Cement Company, et al. v. Illinois Central Railroad Company, et al., before the Illinois Commerce Commission, Docket No. 14009.”

In addition to the stipulation of facts, plaintiff offered in evidence the orders of the commission heretofore referred to and some others not material to the issues here presented, as well as a certificate from the secretary of the commission that said orders were all of the orders entered by the commission in the case of Sandusky Cement Co. v. Illinois Central Railroad Co., docket No. 14009. Plaintiff also offered in evidence a copy of the minutes of the commission of December 3, 1929, pertaining to the allowance of defendant’s petition for rehearing. Defendant introduced the following certificate in evidence:

“I further certify that the following is a true and correct copy of an entry in the Commission’s record docket in Case No. 14009:

“ ‘December 3, 1929. At conference of Commission petition for rehearing filed on behalf of defendants, postponement of effective date of order and oral argument, was granted by Commission.

“December 6, 1929. All parties interested in case advised by letter. ’

‘ ‘ Given under my hand and the seal of said Illinois Commerce Commission at Springfield, Illinois, this 21st day of March, A. D. 1932.

“Julius Johnson,

“Secretary.”

For a proper understanding of the issues presented, it will be necessary to refer to and consider the following sections of the Illinois Public Utilities Act (Ill. State Bar Stats. 1935, ch. 111a; Jones Ill. Stats. Ann. 112.098,112.099):

“Par. 91, sec. 72. When complaint has been made to the commission concerning any rate or other charge of any public utility and the commission has found, after a hearing, that the public utility has charged an excessive or unjustly discriminatory amount for its product, commodity or service, the commission may order that the public utility make due reparation to the complainant therefor, with interest at the legal rate from the date of payment of such excessive or unjustly discriminatory amount,

“If the public utility does not comply with an order of the commission for the payment of money within the time fixed in such order, the complainant, or any person for whose benefit such order was made, may file in any court of competent jurisdiction a petition setting forth briefly the causes for which he claims damages and the order of the commission in the premises. Such suit shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the order of the commission shall be prima facie evidence of the facts therein stated. If the petitioner shall finally prevail, he shall be allowed a reasonable attorney’s fee to be taxed and collected as a part of the costs of the action.

“All complaints for the recovery of damages shall be filed with the commission . . . and a petition for the enforcement of an order of the commission for the payment of money shall be filed in the proper court within one year from the date of the order.

“The remedy provided in this section shall be cumulative, and in addition to any other remedy or remedies in this Act provided in case of failure of a public utility to obey a rule, regulation, order or decision of the commission.

( (

“Par. 92, sec. 73. In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing' required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, such public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment. An action to recover for such loss, damage or injury may be brought in any court of competent jurisdiction .by any person or corporation.

“In every case of a recovery of damages by any person or corporation under the provision of this section, the plaintiff shall be entitled to a reasonable counsel’s or attorney’s fee to be fixed by the court, which fee shall be taxed and collected as part of the costs in the case.”

Plaintiff’s theory is that notwithstanding it filed its complaint before the commission under sec. 72 of the Utilities Act, for a finding that the transportation rates charged by defendant and paid by plaintiff as alleged and for the period alleged had been, were then and for the future would be unreasonable and unjustly discriminatory and for an order of reparation, the commission having found under said sec. 72 that plaintiff paid and bore excessive charges and was damaged thereby to the extent of the charges collected in excess of those which should have been collected had such charges been predicated upon rates found just, reasonable, not excessive and not discriminatory, it was entitled under sec. 73, supra, to bring a common law action in any court of competent jurisdiction to recover damages sustained by it by reason of the violation by defendant of its statutory duty and that its action was properly brought under said section 73 to compel the repayment of the unlawful excess charges collected by defendant together with interest and attorney fees; that the rehearing of the order of October 30, 1929, upon defendant’s petition of November 18, 1929, was granted December 3, 1929, without “issuance of an order as required by statute”; that its acceptance of reparation from defendant under the order of May 6, 1930, and orders supplemental thereto, “did not purport to constitute and did not constitute payment by defendant of the full amount which plaintiff claimed to be due and only covered overcharges accruing subsequent to February 29, 1928”; that the order entered by the commission May 6, 1930, did not “in terms or otherwise annul, rescind or set aside the order of the commission of October 30,1929,” but the last mentioned order remained in full force and effect in so far as the unlawfulness of the rates paid by plaintiff was concerned; that the order of the commission of May 6, 1930, did not, as contemplated by secs. 65 and 67 of the Utilities Act, rescind, annul or set aside the order of October 30,1929, and that the latter is in full force and effect and its findings binding upon the parties as to the excess rates paid by plaintiff to defendant from April 4, 1922, to February 29, 1928, the order of May 6, 1930, directing1 the payment of reparation to plaintiff only for the period subsequent to the latter date; and that it “has the right to maintain this action under the provisions of sec. 73 of the Public Utilities act because in its decision and order of October 30, 1929, the Commission found that the rates paid by plaintiff from and after April 4, 1922, were, when paid, unjust, unreasonable and excessive, and because the commission did not subsequently make any decision or enter any order to annul, set aside or abrogate the findings made by the commission in its order of October 30, 1929. ’ ’

- Plaintiff contends that the judgment of the trial court is contrary to law in that it is based upon the erroneous theory that sec. 72 of the Public Utilities Act is applicable to this action rather than sec. 73 thereof; that the court erred in holding that the rehearing granted by the commission December 3, 1929, upon petition of the defendant, without findings and order as required by secs. 65 and 67 of the Public Utilities Act, Ill. State Bar Stats. 1935, ch. Illa, TTTT 84, 86; Jones Ill. Stats. Ann. 112.090, 112.092, was equivalent to a new trial in a court of law and had the effect of nullifying the order entered by the commission on October 30, 1929; that the order of October 30, 1929, continued in full force and effect since the commission, by its action of December 3, 1929, granting the rehearing or by any subsequent action or order, did not rescind or abrogate said order as required by secs. 65 and 67 of the Utilities Act; and that the court erred in holding that this suit is a collateral attack, on the order entered by the commission May 6, 1930.

Defendant’s theory as set forth in its brief is as follows: “First: The case before the Illinois Commission was essentially one under section 72 of the Illinois Commerce Commission Law (par. 91, chap. 111a, Ill. State Bar Stats. 1935) for reparation because of the exaction by the public utility of excessive and unjustly discriminatory rates. The plaintiff’s petition seeks in substance and effect an enforcement of an order of the Illinois Commission for the payment of money. This petition was not filed in court within one year from the date of the order, and this suit is therefore barred by the one year statute of limitation contained in the third paragraph of section 72. Second: The Illinois Commission granted the defendant’s petition for rehearing, for postponement of the effective date of the order, and oral argument, following the entry of the Commission’s first order of October 30, 1929, in this case. The whole case was reopened, and came up for consideration as though no order had ever been entered. The Commission’s order of October 30, 1929, the finding in which order constitutes the basis for this suit was therefore superseded by the second order of May 6, 1930, entered by the Commission following the rehearing and reconsideration. Third: This case is in substance and effect, a collateral attack upon an order of the Illinois Commission, from which no appeal was taken by the plaintiff. Such a suit is forbidden by the very terms of the law itself. (Section 68 of the Illinois Commerce Commission Law, par. 87, chap. 111a, Ill. State Bar Stats. 1935.) ”

Since the enactment of the Public Utilities Act, sec. 72 thereof has provided the only method or remedy available in this State for determining whether rates charged by public utilities are fair and reasonable or unfair, unreasonable and discriminatory. This section of the act also authorizes the commission to award reparation to claimants if rates charged and exacted of them are determined to have been excessive and discriminatory. In its complaint to the commission plaintiff admittedly proceeded under sec. 72 to secure an award of reparation, as well as a determination of the excessiveness of the rates charged. The order of October 30, 1929, after finding that the rates charged plaintiff and collected by the railroad were excessive and that plaintiff was entitled to reparation, provided for an award of reparation, directed the preparation and filing of the necessary statements requisite to such award and reserved jurisdiction to order the actual award.

The allowance of the rehearing intervened and precluded the filing of the reparation statements and the actual award of reparation under the order of October 30, 1929. But plaintiff claims that, regardless of the allowance of the rehearing of the order of October 30, 1929, which prevented compliance with the terms of that order for reparation, and, regardless of the order of May 6, 1930, he may now predicate this common law action for damages on the finding contained in the order of October 30, 1929, that the rates charged and paid over a period of years were excessive and discriminatory.

In Terminal Railroad Ass’n v. Public Utilities Commission, 304 Ill. 312, in considering the first paragraph of sec. 72, the court said at p. 317:

“The evident intent and purpose of the legislature in providing a method by which reparation may be recovered and in requiring that an application therefor shall be first made to the commission, precludes an action at law for such reparation until the commission has heard a claim therefor. This is the view taken by the Supreme Court of the United States with reference to similar provisions in the Interstate Commerce act. (Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426.) The similarity between the Interstate Commerce act and our Public Utilities act makes the decisions of the Supreme Court of the United States persuasive as to the correct rule to he adopted in this State. ' (Public Utilities Comm. v. Terminal Railroad Ass’n, supra.) Moreover, it cannot be doubted that the Public Utilities act supersedes the common law liability of the carrier so far as rates and unreasonable discrimination are concerned.”

In State Public Utilities Commission v. Chicago & West Towns Ry. Co., 275 Ill. 555, referring to sec. 72 of the act, the court said at p. 567:

“The statute thus affords a remedy against thé continuation of excessive or unjustly discriminatory rates by establishing just and reasonable ones through the commission and at the same time empowers it to compel reparation for overcharges.”

It is manifest from these decisions, and they but follow the decisions of the United States Supreme Court construing similar provisions of the Interstate Commerce Act, that no suit may be maintained in any court in Illinois to recover reparation for excessive or unjustly discriminatory rates unless and until the commission, acting under the authority conferred upon it by sec. 72, has heard a claim therefor, has found the rates the public utility charged to have been excessive or unjustly discriminatory, and has entered an order requiring the public utility to make due reparation. The public utility has no right even to appeal to the courts from an order of the commission awarding reparation, but in case such an award is made and the utility fails to comply with it, the claimant may petition the court to compel compliance by the utility. It is only in such case that the utility is afforded a review by the court of the commission’s order, both as to its alleged unreasonable discrimination and the award of reparation.

Plaintiff concedes that the Utilities Act makes the determination by the commission of the unreasonableness of the rates assailed a condition precedent to any claim against a public utility by reason of excessive rates charged, because under said act the commission has exclusive primary jurisdiction over that question. It is only under sec. 72 of the act that the commission is authorized to make such determination. In addition sec. 72 not only provides for the filing of a complaint with the commission for reparation, hearing upon that complaint and award of reparation, but, as heretofore stated, authorizes a suit in court by the claimant upon the commission’s order awarding reparation m cases where the public utility fails or refuses to comply with such order. As authorization for its institution of the case at bar, plaintiff relies upon sec. 32 of the act, which is merely a restatement of the common law rule which declares unlawful every unjust and unreasonable charge demanded or received by a public utility for a service rendered or to be rendered, and upon sec. 72, under which plaintiff’s complaint was filed with the commission and in response to which it was found in the order of October 30, 1929, that the rates charged were excessive, as well as upon sec. 73, which provides for a right of action in any court of competent jurisdiction for violations generally of the act by any public utility.

Sec. 72 is complete in and of itself. It was unnecessary for plaintiff to resort to any other section of the act for his procedure or for his remedy. It provides for the procedure to be followed both before the commission and the courts in respect to complaints for reparation. In our opinion, the Public Utilities Act does not contemplate that in a claim for reparation for excessive rates charged by public utilities, a plaintiff may piece together his rights from various sections of the statute when sec. 72 of the act alone deals completely and specifically with reparation claims. The rule is that where there is to be found in a statute a particular enactment, it is to be held operative as against general provisions on the subject, either in the same act or in the general laws relative thereto. (Robbins v. Lincoln Parle Com’rs, 332 Ill. 571; Handtoffski v. Chicago Consol. Traction Co., 274 Ill. 282; City of Chicago v. M. & M. Hotel Co., 248 Ill. 264; City of Cairo v. Bross, 101 Ill. 475.)

Plaintiff’s claim, both before the commission and in this action, was and is for the payment of money as reparation on account of excessive and unjustly discriminatory rates which it contends the defendant charged for its service and no amount of specious reasoning or argument can change the essential nature of its claim. It clearly comes not only within the purview but within the plain terms of sec. 72 of the act. Plaintiff insists that the provision in the last paragraph of sec. 72 that “the remedy provided in this section shall be cumulative, and in addition to any other remedy or remedies in this act provided in case of failure of a public utility to obey a rule, regulation, order or decision of the Commission,” gives it the right to bring this action under sec. 73 of the act. This position is untenable. Since sec. 72 affords a specific and complete remedy where excessive rates are imposed by utility companies, any other purported remedy under the act claimed to afford similar relief could serve only to add confusion to its operation. The right of action provided by sec. 73 and contemplated thereunder must, we are certain, refer to claims for damages arising out of violation of the act or the failure or refusal of public utilities to comply with orders of the commission other than orders requiring a public utility to make reparation for excessive or discriminatory rates charged for their service. We are impelled to hold that the right of action provided in sec. 73 of the act is inapplicable and irrelevant to plaintiff’s claim and that plaintiff is confined to sec. 72 both as to procedure and the relief sought.

The conclusion reached by the Supreme Court in Terminal Railroad Ass’n v. Public Utilities Commission, supra, “that the Public Utilities act supersedes the common-law liability of the carrier so far as rates and unreasonable discrimination are concerned” effectually disposes of plaintiff’s contention-that it has the right to maintain this original common law action.

Inasmuch as the law is settled in this State since the enactment of the Public Utilities Act that a common law action will not originally lie at any time or under any circumstances for reparation on account of excessive rates charged by a public utility, plaintiff had absolutely no right to institute this action. It is, therefore, unnecessary to discuss the other points urged for reversal. However, if it be assumed but not held that plaintiff is correct in its contention that the order of May 6, 1930, did not have the effect of rescinding the order of October 30, 1929, as to the excessiveness of the rates exacted by defendant from plaintiff prior to February 29, 1928, plaintiff’s proper and only procedure was to have filed its reparation statements under the order of October 30, 1929, as provided therein for the period prior to February 29, 1928. Plaintiff accepted the reparation directed to be paid by defendant under the order of May 6, 1930. It could have appealed to the court if it deemed that order improper or erroneous. After the entry of the order of May 6, 1930, plaintiff made no attempt whatsoever to assert any claim under the order of October 30,1929, which it now claims continued in force and effect as to reparation due it for the period prior to February 29, 1928. It is reasonable to infer that after the order of May 6, 1930, was entered by the commission, plaintiff considered that order the final order and the only effective order in the proceeding. In our opinion the instant common law action instituted by plaintiff January 29, 1932, was purely an afterthought.

For the reasons stated herein the judgment of the circuit court should be and it is affirmed.

Judgment affirmed.

Friend and Scanlan, JJ., concur.