text:
    Chicago Title and Trust Company, Defendant in Error, v. Isaac Rosenberg et al., Defendants. Appeal of Advance Heating Company, Plaintiff in Error.
    Gen. No. 37,628.

      Opinion filed June 26, 1935.
    Rehearing denied July 10, 1935.
    Decker & Golden, of Chicago, for plaintiff in error; Herbert Decker and Milton Perlman, of Chicago, of counsel.
    Joseph F. Elward, of Chicago, for defendant in error.
   Mr. Justice Hall

delivered the opinion of the court.

This is an appeal by the Advance Heating Company, defendant, from a decree entered in a foreclosure proceeding brought by the Chicago Title & Trust Company, trustee in a mortgage trust deed, involving* several defendants, including* the Advance Heating Company, a corporation, which corporation claims that it has a mechanic’s lien superior to that of the mortgage lien on the mortgaged property, for certain labor and materials furnished by it. To the bill of foreclosure, the defendant, Advance Heating Company, filed an answer in which it is alleged inter alia that on the 1st day of July, 1929, it filed its claim' for mechanic’s lien, as provided by statute, in the circuit court of Cook county, Mechanic’s Lien No. 156998, against the premises described in the bill of complaint; that on or about the 22nd day of August, 1928, it entered into a contract with Isaac Rosenberg and Boruch Waintroob, wherein and whereby it agreed to furnish and install a heating system in the premises commonly known as 4227-45 Diversey avenue, Chicago, for the sum of $3,775, in accordance with the terms of the contract, a copy of which it is alleged is attached to the answer; that it furnished extra labor and material to the value of $235.40, and that there was paid on account the sum of $1,500, leaving a balance due of $2,510.40, with interest from March 26, 1928; that the labor and materials were accepted by the defendants, Rosenberg and Waintroob, and that it has a lien on the premises described prior to the lien of the trust deed sought to be foreclosed in the suit. The matter was referred to a master in chanceery to take testimony and report his findings, and after extensive hearings, commenced about March 31, 1931, and concluded about October 1, 1931, the master on January 12, 1932, filed his report. As to the defendant, the Advance Heating Company, the master found that it, together with certain other mechanic’s lienors, had valid and subsisting first liens upon the improvements made upon the premises to the extent of the enhanced value of such improvements by labor and material furnished by each and that the lien of the Advance Heating-Company is for labor and materials furnished by it of the value of $2,187.90, with interest on $2,510.40 from March 26, 1929, to September 5, 1929, on $2,494.40 from September 5, 1929, to September 16, 1929, on $2,487.90 from September 16, 1929, to December 20, 1929, and on $2,187.90 from December 20, 1929, to January 12, 1932, which interest amounts to the sum of $319.22, together with costs to be taxed. The master also found that the lien on the land of the trustee in the mortgage is prior and superior to the lien of the Advance Heating* Company. Exceptions were filed by the Advance Heating Company to the master’s report, and after a hearing, the court entered an order approving the master’s report, and entered a decree accordingly. Upon the hearing of the exceptions to the master’s report, the defendant, Advance Heating Company, sought to amend its answer, by changing the allegation as to the date of the contract between the parties from August 22, 1928, to July 20, 1928. The court denied the motion of defendant, Advance Heating Company, to so amend its answer.

It is the theory of the Advance Heating Company that it has a first and prior lien on the land and improvements in question over the lien of complainant, the trustee in the mortgage, because of the fact that the trust deed was given to secure moneys aggregating $85,000, borrowed for construction purposes, and that the contract of the Advance Heating Company with the owners of the premises was entered into prior to the advancement of any moneys under the trust deed, except the sum of $3,000. The ground for reversal is apparently based principally upon the alleged error of the trial court in refusing to allow the amendment to the answer. In support of the proposed amendment, it is claimed by defendant that the testimony taken before the master, contained in his report, shows that the contract between the parties was entered into on July 20, 1928, rather than on August 22, 1928, the date set forth in the original answer, and the date of such contract, as stated in the notice of claim filed in the circuit court of Cook county, and that, therefore, the court should have allowed the amendment to be made.

The answer to the bill was filed on December 29, 1930, and after a reference to the master, and as already stated, hearings before such master commenced on March 31, 1931, and were closed on October 10, 1931, On February 8, 1932, the court entered an order directing’ the master in chancery to file his report instanter, and that the objections filed to the master’s report stand as exceptions and it was ordered that the cause be set for a hearing on May 26,1932. On May 26, 1932, the motion for leave to file an amended answer by the defendant, Advance Heating Company, was made. The hearing before the master, in so far as the questions before this court are concerned, was had on the bill as originally filed and the answer filed. It was not until after the master’s report had been completed that any question was raised as to the date of the contract between the parties.

The testimony adduced at the hearing before the master as to when the contract between the parties was entered into was that of Samuel A. Haas, president and treasurer of the Advance Heating Company, and Boruch Waintroob, one of the defendants. Haas testified that he was present when the contract was signed, and that it was executed July 20th, 1928. Waintroob testified that the contract “was signed by me on June 25th. . . . The first part of July, I signed the contract.”

The statement and claim of lien already referred to, filed by the Advance Heating Company in the circuit court, in which it was stated that the contract was entered into on August 26, 1928, was signed by Paul Abrahamson, secretary of the Advance Heating Company, sworn to by him, and in his affidavit he stated that the facts set forth in the statement of claim, including the statement as to the date when the contract was entered into, were true.

The master had both this affidavit and the testimony of the witnesses before him when he made his report, and we are of the opinion that he was fully justified in his conclusion that the contract was entered into on August 26,1928, and not July 20,1928, and that the court was justified in refusing to allow the amended answer to be filed. This is particularly true in view of the fact, among, other things, that the matter had been pending for such a long period of time before any effort was made to amend the answer.

Defendant further insists that it is entitled to a priority of lien on the land and improvements, because the lien of the trust deed is given to secure advances to be made for construction purposes, and that such lien does not begin when the trust deed is recorded, but rather on the date and to the extent of the advances, and the amount of the debt at any given time. The record indicates that on May 10, 1928, the mortgagors made application for a loan of $85,000, to be secured by trust deed on the property described; that about May 15, 1928, the application for the loan was executed; that on June 1, 1928, the mortgagors executed and delivered the $85,000 of bonds to secure the payment of which the mortgage was given, and that on the same date, it made the trust deed dated June 1, 1928, to the Chicago Title & Trust Company, which was acknowledged on the same date by the mortgag’ors, and on June 24, 1928, was recorded in the recorder’s office of Cook county; that on June 14, 1928, an account was opened by the mortgagee for the mortgagors, and the sum of $85,000 was placed to their credit in this account; that certain payments were made out of such fund to a general contractor who was constructing the building on the premises in question on August 10 and August 28, 1928, and that all the improvements on the land were paid for out of the proceeds of the loan.

In Schimberg v. Waite, 93 Ill. App. 130, one Morrison borrowed $18,000 from one Schintz, evidenced by two promissory notes, one for $15,000, and one for $3,000, secured by separate trust deeds upon the same property. The money was to be applied as the work progressed in the erection of a building upon the property described in the trust deeds. The note for $15,000 was made payable five years after its date, and the $3,000 note was payable three years after date. The notes and trust deeds all bore the same date, and, as the court says in its statement of the case, appear to have been executed at the same time and acknowledged at the same time before the same notary. Schintz was the trustee in both trust deeds. The trust deed securing the note for $15,000 was filed for record August 26, 1932, the date of the acknowledgment of the trust deed, but the trust deed securing the note for $3,000 was not filed for record until September 3, following. Schintz opened an account with Morrison, which showed a credit to the latter of the full amount of $18,000 on account of the loan. Payments were made on account of a building contract as the work progressed. The note for $15,000 became the property of one person, and the note for $3,000 the property of another. A. bill was filed to foreclose by the owner of the $15,000 note, and a cross-bill by the owner of the $3,000 note. By the cross-bill, it was claimed that the liens of the two trust deeds were concurrent. The right of priority of lien based upon substantially the same grounds as are urged in the instant case, was involved there. The superior court of Cook county found the lien of the $15,000 trust deed to have priority, and on appeal to this court, the decree of the superior court was affirmed. In its opinion, this court said:

“It is contended by appellant’s counsel that the trust deed securing the note for $3,000 is a concurrent lien with the other trust deed securing the note for $15,000. The argument is that the lien of both trust deeds attached only when the proceeds of the notes they secured had been paid to or for the use of the borrower, and not from the date when they were filed for record; that the debt is the principal thing and the mortgage or trust deed merely an incident; that there was no debt until the money was actually paid over; that as the notes and trust deeds were concurrent in execution and delivery and payment of consideration, they are without priority over each other. It is true, that when Waite bought the note for $15,000, of Schintz, its holder, there had been paid out for account of the borrower only $10,638.30. But the entire debt or obligation had nevertheless accrued the moment the notes and trust deeds were delivered to Schintz, under an agreement with the latter that the money should be paid out upon the architect’s certificates as the progress of the work on the building should require. Schintz from that time became a depository of the fund for Morrison’s use for the purpose for which the loans were made. The conditions were the same as they would have been if Schintz had paid the money to Morrison in person at the time of the delivery of the notes, and the latter had thereafter deposited it with Schintz to be paid out in the manner agreed upon. Morrison was indebted upon the notes from their delivery, and Schintz held the money from that time, as Morrison’s agent under the conditions of the agreement. He was obligated and could have been compelled to pay, had it become necessary. Crane v. Deming, 7 Conn. 387 (p. 397).”

In Good v. Woodruff, 208 Ill. App. 147, a loan was made and a mortgage trust deed given to secure the same, the proceeds of which were to be used in the construction of a building, and to be paid out only for that purpose. Subsequently, another loan was made on the same property, and the same question arose as has arisen here, as to which had the- prior lien, in view of the fact that all the money on the first loan had not been paid out at the time the second loan was negotiated, and the trust deed to secure the same filed for record, and the court said:

“The evidence disclosed that at the time Korshak was negotiating with Wendell & Company for the loan, it was agreed that Korshak should not receive any of the money for which the bonds were given, but that Wendell & Company, as his agents, should disburse the money from time to time in payment of the building as it progressed. It was a building loan. All the money was paid out as agreed by Wendell & Company, without any knowledge of appellant’s mortgage.

“A mortgage may be made to secure future advances and become a prior lien for the amount loaned, although no money is advanced until after subsequent mortgages are in force. Schimberg v. Waite, 93 Ill. App. 130; Collins v. Carlile, 13 Ill. 254; McConnell v. Scott, 67 Ill. 274; Ackerman v. Hunsicker, 85 N. Y. 43; Platt v. Griffith, 27 N. J. Eq. 207; 1 Jones on Mortgages, sec. 372. And this is true although the mortgage does not state that it is given to secure future advances. Collins v. Carlile, supra; Shirras v. Caig, 7 Cranch (U. S.) 50; Platt v. Griffith, supra. When Korshak executed the bonds and trust deed and delivered them to Wendell- & Company, there was then a binding contract between the parties, and when the trust deed was filed for record August 30th, it was a valid lien on the premises as to appellant and all the world. Appellee’s lien was therefore superior to appellant’s.”

We are of the opinion that the court was not in error in holding that the lien of the trust deed has priority over the mechanic’s lien of the defendant, Advance Heating Company as found by the decree. Therefore, the decree of the circuit court of Cook county is affirmed.

Affirmed.

Hebel, P. J., and Wilson, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hall

license: Public Domain

text:
    Mabel Bernero, Appellee, v. Anthony Bernero et al., Defendants. Appeal of The Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago, Appellant.
    Gen. No. 37,721.
    Opinion filed June 26, 1935.
    William H. Sexton, Corporation Counsel, and George F. Mulligan, Assistant Corporation Counsel, for appellant; George F. Mulligan, of counsel.
    Joseph W. Cox, of Chicago, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.

This is an appeal from an order of the superior court of Cook county, in and by which the petitioner, the Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago, is denied leave to intervene in the case of Mabel Bernero v. Anthony Bernero et al., in the superior court of Cook county.

On July 25, 1933, Mabel Bernero filed a bill in the nature of a bill for review, in which it is recited that on April 29, 1927, John D. Bernero exhibited his bill of complaint in the superior court of Cook county against Mabel Bernero, in and by which bill, complainant prayed for a divorce from Mable Bernero on the ground of desertion; that it is alleged in the bill for divorce that on May 15,1912, John D. Bernero was lawfully married to Mabel Bernero, and lived and cohabited with her, and that on February 15,1913, Mabel Bernero unlawfully deserted said complainant. In this bill for review, it is further alleged that a summons was issued upon said bill for divorce, which summons was on June 6, 1927, returned “not found”; that John Bernero signed and caused to be filed in the proceeding an affidavit, in which it is recited that process could not be served upon the defendant in said cause, and that upon due diligence and inquiry, her place of residence could not be ascertained, and that her last known place of residence was at 3426 Indiana avenue, in the City of Chicago. The bill for review further recites that on April 29, 1927, John Bernero caused to be published a notice of the filing of the bill for divorce, and that a certificate of such publication was filed, and that a copy of the notice was mailed to Mabel Bernero at the address herein-before set forth; that a default was entered in the cause, and on June 30, 1927, a final decree of divorce was entered, based upon the charge of desertion. The bill for review further recites that the affidavit of nonresidence signed and caused to be filed by John Bernero, was false, and a fraud upon Mabel Bernero; that she never lived at the address stated in such affidavit, and had never lived at such address, and that John Bernero was well aware of these facts; that on June 30, 1927, a decree of divorce was entered in said cause, and that thereafter John Bernero married another woman, who subsequently died, and that John Bernero died in the month of May, 1933. The complainant in this bill for review recites that she never knew of the divorce until about June 29,1933, at which time she was informed by her present solicitor, who filed the bill for reviéw for and on her behalf, that such divorce had been granted. The bill for review also recites that because of such misrepresentation on the part of complainant in the divorce suit, the court was without jurisdiction to enter such decree, and the complainant prayed that the decree be reversed and set aside.

Certain alleged heirs of John Bernero are made parties to this bill for review. Service was had on one of them named Anthony Bernero. The return by the sheriff shows that none of the other defendants was found. On February 7, 1934, all of the defendants were defaulted, and a decree was entered proconfesso, in which the court found that all of the allegations in the bill of complaint were proved, that the plaintiff was entitled to the relief prayed, and the order and decree of the court was that the decree in the divorce case be opened up, reviewed, reversed and set aside, and that the rights of the parties thereto should be as though said decree was never entered. Following the entry of the decree just recited, the Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago entered its appearance in the cause, and asked leave of the court to file a petition, supported by an affidavit, in which it is recited that the petitioner is the board of trustees of the Firemen’s Annuity and Benefit Fund of Chicago; that the Firemen’s Annuity and Benefit Fund of Chicago is a pension fund created pursuant to statute for the benefit of firemen’s widows, children and parents of firemen; that John Bernero was a member of the fire department of the City of Chicago, and a participant in and a contributor to the firemen’s pension fund. In this petition, it is further recited that John Bernero died in the month of May, 1933; that the act creating the said Firemen’s Annuity and Benefit Fund provides for a pension for the widow of a fireman; that John Bernero procured a decree of divorce from Mabel Bernero, complainant in the bill of review, on June 30, 1927; that subsequent to the decree of divorce, John Bernero married'Ada Foss Bernero, who died before John Bernero’s death, and that at the time John Bernero died, he left no surviving widow. In this petition, it is further recited that the cause for the filing; of the bill for review was solely for the purpose of enabling the complainant, Mabel Bernero, to obtain a pension from the Firemen’s Annuity and Benefit Fund, as the alleged widow of John Bernero, and that Bernero, being dead, could make no defense; that the Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago is the only party in interest, and the only party who would be financially affected by the bill for review; that the petitioner had no notice or knowledge of the proceedings, and was given no opportunity to defend itself or the fund; that the petitioner is informed that John Bernero left no estate or property of any kind in which Mabel Bernero had or could have any interest, and over which the court could take jurisdiction, and .that the sole purpose for such bill for review was to obtain the pension to which she was not entitled under the law.

In Haase v. Haase, 261 Ill. 30, a bill for partition was filed in the superior court of Cook county on October 3,1912, and on February 5,1913, after approval of a master’s report, a decree of sale was entered. On the next day, a motion was made in the cause to vacate the decree, and for leave to intervene. In this petition, it was set forth that prior to the filing of the bill for partition of the real estate involved, the complainant in that suit had entered into a contract with the proposed intervenor for the sale to him of the premises involved in the suit. The court denied the petition of the proposed intervenor, and said:

“An intervention implies a suit pending between parties in which another applies to be heard. After a cause has been heard and determined between the parties there can be no intervention by a third person. Whatever rights another may then have in the subject matter of the controversy must be enforced by an original proceeding-. That course is still open to the appellant.”

We are of the opinion that the proposed intervenor, the Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago, has not chosen the proper remedy herein. The fact, however, that the solicitor for the complainant in the bill for review was the solicitor for John Bernero in his divorce proceeding, and that complainant, as she alleged in her bill for review, was first notified by him that the divorce had been granted, and that she then employed him as her solicitor to file the bill for review, suggests, something that might properly be investigated. If the contentions of the Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago are correct, then in case Mabel Bernero should attempt to collect the pension, a remedy is provided, but it is not by intervening in a suit where a decree has already been entered. The order appealed from is affirmed.

Affirmed.

Hebel, P. J., and Wilson, J., concur.


author: Mr. Justice Wilson

text:
    Lloyd Hill, as Administrator of the Estate of Karl Fugiel, Deceased, Appellant, v. Guy A. Richardson et al., Appellees.
    Gen. No. 37,838.

      Opinion filed June 26, 1935.
    Alfred O’Connor, of Chicago, for appellant; Earl J. Walker, of Chicago, of counsel.
    Frank L. Kriete, Abe ft. Peterson and Arthur J. Donovan, all of Chicago, for appellees; John R. GtUilliams, of Chicago, of counsel.
   Mr. Justice Wilson

.delivered the opinion of the court.

The plaintiff, Lloyd Hill, as administrator of the estate of Karl Fugiel, deceased, asks this court to reverse a judgment non obstante veredicto in favor of the defendants, Richardson and Cummings, as receivers of the Chicago. Railways Company, a corporation, and others.

The action in the trial court was one for the death of Karl Fugiel, arising out of personal injuries alleged to have been caused by reason of the negligent operation of a street car at the intersection of Avenue “0” and 118th street in the City of Chicago.

After the evidence had been submitted to a jury and after a motion for a directed verdict by the defendants had been overruled, a verdict was returned in favor of the plaintiff for the sum of $4,500. Judgment was entered upon the verdict, a motion in arrest of judgment was overruled and upon a motion by the defendants for a judgment non obstante veredicto, judgment was entered by the trial court in favor of the defendants. On this appeal we are asked to set aside the judgment non obstante veredicto and to enter judgment here upon the verdict in accordance with section 68, subsection (c) of the Practice Act, chapter 110, Cahill’s Ill. Rev. Stat. 1933, ff 196. That section provides as follows:

“c. If the party in whose favor the verdict of the jury was rendered shall assign error in the Appellate or Supreme Court upon the order of the trial court entering judgment notwithstanding the verdict, and the Appellate or Supreme Court shall be of opinion that the trial court committed error in ordering or entering judgment notwithstanding the verdict, such court shall reverse such order and judgment and shall order or enter judgment in accordance with the verdict of the jury, unless it shall appear that there was error in the case that would have entitled the party in whose favor judgment notwithstanding the verdict was entered, to a new trial if such judgment had not been entered by the trial court, in which case a new trial shall be ordered.”

There was no error which would have entitled the defendants to a new trial in the event of a verdict and judgment on the verdict. It is true that error was predicated by the defendants upon the admission of testimony introduced for the purpose of showing the custom of the defendants in operating its ears, to have them stop at the intersection of 118th street and Avenue “0” but we are of the opinion that this evidence was competent as bearing upon the right of the driver of the automobile, in which plaintiff’s intestate was riding, to believe that the street ear would stop before attempting to cross Avenue “0” upon which he was driving. Thomas v. Buchanan, 357 Ill. 270; Chicago City Ry. Co. v. Sugar, 117 Ill. App. 578; Chicago City Ry. Co. v. Lowitz, 218 Ill. 24.

The motorman testified that it was customary for other motormen to look around to see if the way was clear before they, crossed over the highway. Several witnesses on behalf of the plaintiff testified as to the custom and it was not disputed that Avenue “0” was a State highway.

From the facts it appears that the accident happened in the nighttime and that it was dark; that the intersection where the collision occurred was in a thinly and sparsely settled part of the city; that the ground was marshy with weeds growing in all directions; that there was no cross street between 118th street and 130th street. From the photographs in evidence it appears that 118th street was not usable for traffic and that its only purpose appears to have been that of permitting its use for street car purposes. The nearest structure of any kind was that of the Republic Steel Company, whose plant was located two or three blocks from the intersection of these two streets. Avenue “0” was a through thoroughfare and at a short distance from its intersection with the street car crossing there was a sign, not lighted, which bore the legend “R. R.” It is doubtful whether or not this sign could have been seen by a motorist on a dark night such as the night upon which the accident occurred. The photographs introduced on behalf of the plaintiff show weeds and bulrushes growing to a considerable height, except upon the corner of Avenue “0” where it approaches the intersection with 118th street. A number of witnesses on behalf of the plaintiff testified that the photographs contained a correct view of 'the place with the exception of the fact that they did not show the weeds that were present on the night of the accident.

The defendants rely upon the fact that the street car was lighted from within so that it was visible to anybody for a great distance approaching the intersection. The testimony' of the witnesses for the plaintiff would indicate that the bulrushes and weeds seriously interfered with the view of the approaching street car.

On the night of the accident Karl Fugiel, plaintiff’s intestate, was riding* home in the back seat of an automobile driven by one Tullio Paolichi. There were six men in the car, four of whom were in the back seat and plaintiff’s intestate was sitting on the lap of one of these passengers. It was a question of fact as to whether or not by reason of his elevated position in the back seat he would have been able to see the approaching car.

Paolichi, the driver of the car, testified that he had driven over this highway a number of times and had noticed that the street cars stopped at the crossing. In this he was corroborated by a number of other witnesses. He testified that he was driving* at a speed of about 25 miles an hour, and that when he first observed the street car it was about 60 feet from the crossing, and that he was of the impression that it was slowing down. He did not hear any gong and the street car struck his automobile in the side and pushed it about a car’s length and swung it along onto the other side of the track. His automobile headlights were burning and he did not observe the crossing-sign alongside of the road.

The motorman testified that the automobile struck the street car on the left side of the platform upon which he was standing. At the time of the accident the street car was proceeding in an easterly direction and the automobile was going south. If the automobile, as contended, ran into the side of the street car, it would appear that it was almost a physical impossibility for it to have reached a place south of the track on which the street car was proceeding. Both Avenue “0” and 118th street at this point were built up out of the marsh. Avenue “0” was a heavily traveled street, being one of the few arteries of traffic running’ north and south through this particular district. This fact was known, or should have been known, to the motorman operating the street car.

A witness for the plaintiff by the name of Olczak testified that he was a representative of the Metropolitan Life Insurance Company and on the night of the accident was riding in the street car as a passenger; that as the car approached Avenue “0” it was going at the rate of 40 miles an hour and did not stop before reaching the intersection; that just before the crash the motorman ran back into the car and that after the accident the car proceeded clear across the intersection and the control of the street car had not been turned off. This witness also testified that the accident happened about 11 o’clock at night and that it was dark and that there were no lig’hts at the street intersection ; that on the night of the accident there were weeds on both sides of the street which were about 30 feet high and that where he was sitting in the street car the weeds were about five feet above the window; that Avenue “0” and the street car tracks were about four feet above the level of the ground. On cross-examination he testified that the top of the weeds were more than a foot higher than the level of the tracks. Upon being* shown the photograph, he testified that he did not see the weeds in the picture as they were on the night of the accident.

The motorman, Schroeder, testified that the street car was lighted within and the headlights were burning and there were glass windows on the sides of the street car; that the automobile hit the side of the car and seemed to slide off the front corner; that he was accustomed to use his own judgment when he approached this crossing and that when he observed the automobile coming fast, it was about near the sign which was 150 feet from the crossing, and the front end of his street car was just up on the concrete of Avenue “0.” The motorman testified he was 73 years of age at the time of the accident and could see the automobile coming all the time.

We have been referred by defendants to a number of railroad crossing cases where the rule appears as to the duty of a person approaching a railroad crossing. The latest decision on this question (not cited) is that of Pokora v. Wabash Ry. Co., 292 U. S. 98, wherein an opinion delivered by Mr. Justice Cardozo comments on the opinion in the case of Baltimore & O. R. Co. v. Goodman, 275 U. S. 66, and in effect overrules it. The effect of this decision was that the conduct of the driver of an automobile at a railroad intersection is largely one of fact. The court in its opinion said: “The opinion in Goodman’s case has been a source of confusion in the federal courts to the extent that it imposes a standard for application by the judge, and has had only wavering support in the courts of the States. We limit it accordingly.”

Even though it may appear that the driver of the automobile was guilty of negligence, nevertheless, his negligence could not be attributed to plaintiff’s intestate. The same degree of caution required of a motorist approaching a railroad crossing is not the same as that of a motorist approaching a street over which a street car is being operated. The right of a street car in the use of a street is not so paramount as to give it an exclusive right of way at street intersections. Both the motorman of the street car and the driver of an automobile have relative duties each toward the other. A railroad train runs on its own right of way and is not so easily handled as a street car. A street car operated over and across city streets should be kept under control. Overstreet v. Illinois Power & Light Corp., 356 Ill. 378.

There is no direct evidence of contributory negligence on the part of plaintiff’s intestate. The most that could be said is that he might have seen the approaching street car. On the other hand, sitting as he did upon the lap of one of the other passengers in the automobile, his back may have been toward the approaching street car and he may not have seen it at all. This question was under consideration in a recent case before the Supreme Court of this State in. Thomas v. Buchanan, 357 Ill. 270. The court in its opinion in that case said:

“It is contended by the defendant, under the facts proved, that Anderson was guilty of negligence which contributed to the happening of the accident, and that therefore that question becomes one of law and not of fact. The question of contributory negligence is ordinarily one of fact for the jury to decide under proper instructions. Contributory negligence becomes a question of law only when it can .properly be said that all reasonable minds would reach the conclusion, under the facts stated, that such facts did not establish due care and caution on the part of the person charged therewith. Chicago and Eastern Illinois Railroad Co. v. Crose, 214 Ill. 602; Morrison v. Flowers, 308 id. 189.

“While the deceased was required to exercise due care and caution for his own safety while riding in the automobile of Anderson, yet, so far as the evidence discloses, he had no authority over Anderson in the operation of the automobile, and no agency being-shown, the negligence of Anderson, if any, cannot be imputed to the deceased in a suit brought by his legal representative against a third person to recover damages for injuries sustained by him which occasioned his death. (Nonn v. Chicago City Railway Co., 232 Ill. 378.) The question of due care on the part of plaintiff’s intestate is always a question of fact to be submitted to a jury whenever there is any evidence in the record which, with any legitimate inference that may reasonably and legally be drawn therefrom, tends to show the exercise of due care on the part of the deceased. We are not able to say, under the facts proved, that the conduct of Anderson at and immediately prior to the collision in question was such as to have warranted the trial judge in deciding, as a matter of law, that either Anderson or Thomas was guilty of contributory negligence. If Thomas was not guilty of contributory negligence and was merely a passenger or guest of Anderson, the trial court would not have been warranted in instructing the jury to find for the defendant.”

It cannot be said in the case at bar that plaintiff’s intestate was guilty of such conduct as to raise an inference in all reasonable minds that he was guilty of such conduct as would constitute contributory negligence as a matter of law.

There is still another factor in the case at bar which would require the submission of the question of contributory negligence to the jury. The action is one by an administrator to recover for the death of his intestate. Under such circumstances in the absence of evidence to the contrary, there is a presumption that all persons observe the instincts promoting the preservation of life. This natural and human instinct is a powerful factor in governing the action of the individual. The law recognizes it and has classed it as a legal presumption. Standing alone it is sufficient to take the question of due care to a jury. Under such circumstances it is not necessary to prove due care by direct and positive testimony, but the rule is that contributory negligence should not appear from the evidence presented on behalf of the plaintiff. The rule is well expressed in Cleveland, C., C. & St. L. Ry. Co. v. Keenan, 190 Ill. 217, where the court in its opinion lays down the rule:

‘ ‘ The question whether Kerr was guilty of contributory negligence was a question of fact to be passed upon by the jury, and while the burden of proof was upon the plaintiff to show that Kerr was in the exercise of due care for his own safety, it did not devolve upon him to establish such due care by direct and positive testimony, but such due care might be inferred from all the circumstances shown to exist immediately prior to and at the time of the injury, and in determining such question the jury might properly take into consideration the instincts prompting to the preservation of life and avoidance of danger. (Terre Haute and Indianapolis Railroad Co. v. Voelker, 129 Ill. 540; Illinois Central Railroad Co. v. Nowicki, 148 id. 29; Baltimore and Ohio Southwestern Railway Co. v. Then, 159 id. 535; Chicago, Burlington and Quincy Railroad Co. v. Gunderson, 174 id. 495.) We are of the opinion the court did not err in declining to take the case from the jury. ’ ’

Such being the case, it would answer no good purpose to remand this cause for a new trial. There are ample facts in this case which would warrant its submission to a jury and we are of the opinion that the trial court in entering the judgment non obstante veredicto', was not acting in accordance with the provisions of the Practice Act as it now exists. Therefore, the action of the superior court in entering judgment non obstante veredicto is set aside and judgment is entered here in accordance with the verdict rendered.

Judgment reversed and judgment here.

Hebel, P. J., and Hall, J., concur.


text:
    Herman Thurow v. Fred Blum et al. Chicago Title and Trust Company v. Angelus Building Corporation et al. Provus Bros. Company, Appellant, v. Metropolitan Trust Company et al., Appellees.
    Gen. No. 37,919.
    Opinion filed June 26, 1935.
    Malcolm Mecartney, of Chicago, for appellant; James J. Kilgallon, of Chicago, of counsel.
    Gottlieb & Schwartz, of Chicago, for appellee Chicago Title & Trust Co.
    Harold A. Fein, of Chicago, pro se.

    William Shapiro, of Chicago, for appellees Sigrid Richard and Ella Freudenberg; William Shapiro, of counsel.
   Mr. Justice Wilson

delivered the opinion of the court.

An action was started in the superior court entitled Herman Thurow v. Fred Blum et al., No. 513668, to foreclose a junior mortgage on an apartment building located in the City of Chicago. A receiver was appointed and later another suit was started in the superior court entitled, Chicago Title and Trust Company, as Trustee, v. The Angelus Building Corporation, Mo. 515663. This later suit was an action to foreclose the first mortgage on the same property. An order was entered in case Mo. 513668 extending the receivership to case Mo. 515663. The receiver resigned and the Metropolitan Trust Company, of Chicago, was appointed to take his place as receiver and has continued to act as such for said premises. By leave of court Provus Bros. Company, a corporation, filed its intervening petition which was subsequently amended, praying for an order directing the receiver to pay rent to Provus Bros. Company for certain furniture, furnishings and equipment in the Angelus Apartments, the title to which chattels had been retained by Provus Bros. Company as vendor under a conditional sales contract. This contract was evidenced by a memorandum of agreement between Provus Bros. Company, a corporation, party of the first part, Sig*rid Richard, on behalf of Ella Freudenberg, party of the second part, and Theodore S. Williams, party of the third part. In effect this agreement provided for the conditional sale by Provus Bros. Company for the chattels in question to Sigrid Richard on behalf of Ellen Freudenberg for a purchase price of $22,000. This $22,000 was to be paid by Theodore S. Williams. This amount was to be paid in certain instalments of which the later instalments were to be evidenced by notes. Theodore S. Williams filed his intervening petition claiming equity in said furnishings on behalf of the Angelus Building Corporation and praying that Provus Bros. Company be decreed to accept the balance due under said contract amounting to $3,775 with interest as payment in full of its claim. A trial was had before the Honorable Robert E. Gentzel, but no decree was entered in the cause by reason of the death of the chancellor. Subsequently, one Harold Fein, by leave of court, filed his intervening petition and claimed a lien upon the furniture and furnishings by reason of a judgment against Ella Freudenberg. This matter came on for hearing before Judge Harry A. Lewis and an order was entered by Judge Lewis finding that title to said furniture and furnishings had passed from Provus Bros. Company to Sigrid Richard on behalf of Ella Freudenberg and that the said Fein had a lien on said chattels by reason of his judgment.

It is contended here by Provus Bros. Company that there was no evidence to support the finding and that the court’s opinon was based entirely upon statements of counsel which were not admitted by Provus Bros. Company and that there was nothing upon which to base the order. The order of the chancellor recites that the cause came on for hearing and was considered on statements by counsel for the. parties thereto and on admissions made and recited by the various counsel and that the court heard arguments. Then follows the finding of the court in favor of Fein and against Provus Bros. Company.

The record discloses that there was no evidence of any kind heard by the court upon which to base the order. There is nothing in the record by Fein to show that there was a judgment against Freudenberg or that any steps had been taken to enforce it prior to the filing of the intervening petition. An examination of the discussion before the court fails to show that there was any stipulation as to the facts or any admission upon which the order could be predicated.

The evidence on the previous hearing before Judge Gentzel evidently had been reduced to writing but it was not considered by the court. It is insisted by Fein that there was laches on the part of Provus Bros. Company, but there is nothing in the record to substantiate such a statement. It would be useless to set out the entire controversy between the court and counsel and there is nothing before us other than this controversy. Am examination of it, however, discloses that there are no admissions against interest by Provus Bros. Company and no stipulation as to the facts.

The trial court was in error in entering the order without facts in its possession with which to substantiate it and the order of the superior court will, therefore, be reversed and the cause remanded.

Order reversed and cause remanded.

Hebel, P. J., and Hall, J., concur.


author: Mr. Presiding Justice McSurely

text:
    Charles F. Alexander, Appellee, v. State Savings Bank and Trust Company and Liberty Bank of Chicago, Defendants. Appeal of Liberty National Bank of Chicago, Appellant.
    Gen. No. 38,068.

      Opinion filed June 28, 1935.
    Rehearing denied July 8, 1935.
    WlLHARTZ, HlRSOH & ScHANEARBER, of Cllicag’O, for appellant; Samuel E. Hirsch, Jack A. Diamond and Eugene H. Nirdlinger, all of Chicago, of counsel.

      Frank 0. Hilburn, of Chicago, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Liberty National Bank of Chicago, a corporation, hereafter called defendant, appeals from a judgment for $5,991.56 entered against it by decree pro confesso upon an order of default for its failure to appear, and from the order denying its petition for the vacation of the order of default and decree.

Defendant asserts that the evidence shows it was not served with summons. Summons was issued July 18, 1934,» notifying the defendants to appear in the circuit court on or before the third Monday of August, 1934; the sheriff’s return states that the deputy served the writ on the defendant “by leaving a copy thereof with Maurice Cohn, trust officer of said corporation, this 20th day of July, 1934.” Cohn testified, upon the hearing on the petition, that a copy of the summons was not served upon him; that the first time he saw the summons was about five weeks after the entry of the decree. The deputy sheriff,Michael Smuda, testified that he did not leave a copy of the summons with the witness, Maurice Cohn; that he had served a great number of summonses upon the bank; that, the president, secretary and treasurer of defendant would not accept service of summonses but directed him to go to the trust department; that he laid the summonses before the man at the trust department counter and asked the name of the man upon whom service was made and was given the name Maurice Cohn, trust officer; that this was done in this case. We hold that this service was good. Service on any officer -or agent of the corporation would have been good, and when the deputy, as directed by the defendant’s officials, left the copy of the summons with the man at the trust department counter and returned service on Maurice Cohn, trust officer, this was service upon the defendant bank. Names by which persons are summoned are immaterial, the essential question being whether the party in interest was actually served. Pond v. Ennis, 69 Ill. 341.

The decree against the defendant was entered October 15, 1934; the defendant filed its petition to vacate the decree November 28, 1934, or a few days after the expiration of the term in which the decree was entered. Section 17 of the old Chancery Act, ch. 22, Cahill’s Statutes (1931) provided that the defendant may appear at the next term and offer to file an answer, which the court may permit upon the showing of a sufficient cause. In Hoover v. Regner, 242 Ill. App. 532, this section was held applicable to the next term after a decree pro confesso is entered. Section 17 of the Chancery Act was repealed by the Civil Practice Act of 1933 (sec. 94). However, the Civil Practice Act of 1933, ch. 110, par. 270 (Cahill) provides as follows:

“Any such judgment, decree or order may hereafter be modified, set aside or vacated after the expiration of such thirty days in the same cases, to the same extent and by the same modes of proceeding as, under the law heretofore in force, it might have been modified, set aside or vacated after the expiration of the term of court at which it was rendered. ’ ’

While the instant procedure did not technically follow the mode prescribed under section 17 of the old Chancery Act, yet the petition with the motion to vacate the judgment also alleged facts, which had the effect of an answer. If, therefore, these allegations present a meritorious defense to the complaint, the judgment should be vacated and the cause proceed to a hearing upon the issues presented.

Plaintiff sued State Savings Bank & Trust Company, assignee of Independence State Bank, and Liberty Bank of Chicago, seeking the rescission and cancellation of a contract for the purchase of land and the return of all moneys paid by plaintiff under the contract.

Plaintiff alleges that on June 14,1926, the Independence State Bank entered into a contract to sell certain real estate to Mrs. Lee DeWilt for $4,250, to be paid in certain instalments, title in the grantor to be shown by a Torrens certificate of title; that on or about September 2, 1931, Mrs. DeWilt assigned all of her rights under the contract to plaintiff; that she and plaintiff made the last payment on the contract on January 15, 1931, and at that time plaintiff requested the State Savings Bank & Trust Company to issue to plaintiff or to Mrs. DeWilt a deed and certificate of title, but defendants would not comply with the terms of the contract; that afterward, on July 7,1931, plaintiff went to the “defendant bank” requesting a deed and certificate of title, which' ‘ defendant ’ ’ refused to deliver; that August 25,1931, State Savings Bank issued a deed in the name of Lee DeWilt but failed to furnish plaintiff or Mrs. DeWilt a certificate of title, and the registrar of titles refused to accept the deed delivered to plaintiff for recording. Plaintiff also alleged that on September 14, 1931, he demanded a return of all payments but the defendants failed to comply with the demand; that at the time the contract was executed the defendants knew they would be unable to furnish a certificate of title and fraudulently received the payments with knowledge that they could not perform the contract.

It should be noted that while the complaint prayed that the contract for the purchase of the property be set aside and declared null and void and that defendants pay plaintiff such sums of money as were paid by him or Mrs. DeWilt, the decree makes no disposition of the contract and only assesses plaintiff’s damages. This leaves the contract and the deed delivered on August 25,1931, in full force and effect. The decree is inconsistent in this respect.

Defendant says the allegations of the complaint with reference to the assignment of the contract for the purchase of the real estate by Mrs. DeWilt to the plaintiff are not in compliance with section 22 of the Civil Practice Act, ch. 110, ¶ 150, Illinois Statutes (Cahill). Even if the point had merit, which in our opinion it has not (Bishop v. Dignan, 223 Ill. App. 178), an amendment supplying any deficiency has been filed and should b.e considered by the trial court upon the remandment of this cause.

Defendant argues that the complaint on its face shows laches. The complaint alleges that in January, 1931, plaintiff requested the State Savings Bank to issue a certificate of title, which it refused; that July 7, 1931, he again made such demand, which was again refused; and on September 14, 1931, he demanded a return of all payments, which was refused. The complaint was filed July 18, 1934, or nearly three years after the attempted rescission. The complaint contains no explanation of this delay, although on oral argument counsel for plaintiff stated facts which it was argued excused the delay. Plaintiff argues that laches may be invoked as a defense only where the neglect to assert a right for a lapse of time is taken in conjunction with other circumstances causing prejudice to an adverse party. It has been said that mere delay will not constitute laches unless the delay works a disadvantage to the one pleading it. Lutyens v. Ahlrich, 308 Ill. 11; Neidhardt v. Frank, 325 Ill. 596. Examination of the petition filed by the defendant clearly shows that the unexplained delay in filing the suit worked to the prejudice of the defendant, as hereafter will appear.

Defendant alleges that from December 29, 1932, to August 11,1934, it did business as a state bank, but on the latter date it received a charter from the United States authorizing it to do business as a national bank, and it was then converted into a national bank and its name changed from Liberty Bank of "Chicago to Liberty National Bank of Chicago.

The complaint alleged, in general terms, that the State Savings Bank & Trust Company was the assignee of Independence State Bank, which was “taken over and amalgamated with” State Savings Bank &. Trust Company; that State Savings Bank & Trust Company was later “taken over” by Liberty Trust $ Savings Bank, which latter bank was subsequently “taken over and amalgamated with” the defendant, Liberty Bank of Chicago. No dates are given nor is it alleged how or in what manner these various transfers were made.

Defendant’s petition denies that the Liberty Trust & Savings Bank was at any time taken over by or amalgamated with the Liberty Bank of Chicago. The petition sets up a contract under which the Liberty Bank purchased certain assets of Liberty Trust & Savings Bank and assumed certain liabilities of the last named bank. The contract recited that the Liberty Trust & Savings Bank was on the verge of insolvency and that its continuance without the replenishment of capital jeopardized the interest of depositors and other creditors; that on December 29, 1932, a contract was entered into between the Liberty Trust & Savings Bank and the Liberty Bank of Chicago, a copy of which was attached to the petition, and pursuant to the contract the Liberty Trust & Savings Bank sold and delivered to the defendant, Liberty Bank of Chicago, certain properties listed in schedule “A” attached to the contract, consisting chiefly in cash, clearings, money due from banks, bonds, and accounts receivable; that it did not include the contract upon which plaintiff bases his cause of action; that the assets transferred and sold to the Liberty Bank were only a part of the assets of the Liberty Trust & Savings Bank and that many other assets remained with the last named bank; that the Liberty Bank assumed certain liabilities of the Liberty Trust & Savings Bank as expressly specified in schedule “B” attached to the contract. This schedule of liabilities assumed by the Liberty Bank provided that only the liabilities listed were assumed by it, and the Liberty Trust & Savings Bank warranted that said liabilities included all of its deposit liabilities and current liquidated liabilities as shown by its records at the close of business on December 29, 1932. The listed liabilities do not include the liability, if any, upon which plaintiff predicates his cause of action. Neither did it appear upon the records of the Liberty Trust & Savings Bank. The contract also stated that the transaction was one of purchase and sale.

Defendant further alleged that plaintiff had not at any time demanded of it that it comply with the alleged agreements contained in the contract relied upon by plaintiff; that during June, 1931, and September, 1931, the dates of the alleged breach of the contract, defendant was not in existence and plaintiff therefore could not have made the demands upon defendant as alleged in the complaint.

It is obvious that if defendant’s allegations are true and there is no countervailing evidence presented by plaintiff, the delay in filing the complaint was such neglect as to amount to laches. Had plaintiff’s claim been filed before the defendant purchased from the Liberty Trust & Savings Bank, on December 29, 1932, defendant would have had knowledge of plaintiff’s claim and could have taken steps to protect itself.

Moreover, if defendant can prove its allegations with reference to the transaction pursuant to its contract with the Liberty Trust & Savings Bank, there can be no recovery against it. Where one bank sells certain definite assets to another bank, the purchasing-bank assuming- certain specified debts, the purchasing-bank is not liable for other debts than those it specifically assumed, In Drovers’ & Mechanics’ Nat. Bank v. First Nat. Bank of Sutton, 260 Fed. 9, the contract of purchase by one bank of the assets of another was inadvertently described as a merger. The court held that this was not the case; that every asset purchased and every debt assumed was particularly specified and that the purchasing bank did not become liable for any debt not assumed by it and mentioned in the contract of purchase. This has been the universal holding. Garvey v. Bankers Trust Company, 214 Iowa 401; Carswell v. National Exchange Bank, 165 Ga. 351; Morgan County v. Thomas, 76 Ill. 120; Bruffett v. Great Western R. Co., 25 Ill. 353; Beardstown Pearl Button Co. v. Oswald, 130 Ill. App. 290; Chicago Smelting & Refining Corp. v. Sullivan, 252 Ill. App. 259; Knass v. Madison & Kedzie State Bank, 269 Ill. App. 588. And as stated in Fletcher, Cyclopedia Corporations (Permanent Edition), vol. 15, sec. 7122:

“The general rule, which is well settled, is that where one company sells or otherwise transfers all its assets to another company, the latter is not liable for the debts and liabilities of the transferor. The purchasing or transferee company, that is to say, is not liable on the other company’s obligations merely by reason of its succession to such company’s property. To render it liable there must be an agreement express or implied, to assume the other company’s debts and obligations.”

The petition of the defendant tended to show an ample defense. The lower court, in sustaining objections of the plaintiff to the defendant’s offer to introduce evidence to establish a defense, was in error.

Other points are made which it is unnecessary to discuss.

The judgment is reversed and the cause is remanded for further proceedings consistent with what is said in this opinion.

Reversed and remanded.

Hatchett and O’Connor, JJ., concur.


author: Mr. Justice Matchett

text:
    Chicago City Bank and Trust Company, Appellant, v. Jacob Kaplan, Defendant. Amalgamated Trust and Savings Bank, Appellee.
    Gen. No. 38,143.

      McSukely, P. J., dissenting.
    Opinion filed June 28, 1935.
    Kathje, Hinckley, Barnard, Kulp & Tucker, of Chicago, for appellant; Francis E. Hinckley, of Chicago, of counsel.
    Fisher, Boyden, Bell, Boyd & Marshall, of Chicago, for appellee; Charles E. Herzog, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

On December 12, 1934, plaintiff Chicago City Bank & Trust Co. caused a judgment by confession to be entered against Jacob Kaplan. On the same day an execution was issued and returned unsatisfied, whereupon plaintiff also caused a writ of garnishment to be issued and served upon the Amalgamated Trust & Savings Bank. The garnishee appeared specially and made a motion to quash the writ. On January 25,1935, an order was entered quashing the summons and discharging the garnishee. This appeal is from that order.

The garnishee was served December 13, 1934. December 26th it filed its special appearance with motion as follows:

“The Gfarnish.ee enters its special and limited'appearance for the sole purpose of objecting to the jurisdiction of this court and moves the court to quash the writ of garnishee summons herein for the reason that there is not endorsed on the back of the copy of said summons left with said Garnishee the defendant’s business, business address and/or the defendant’s residence address, all as required by the rules of this court. ’ ’

The motion was verified. The garnishee relied on Rule 230 of the municipal court of Chicago, which provides :

“In every case the copy of the writ to be left with the garnishee shall bear an endorsement of the business and business address of the principal defendant, if any, and if he be an individual, of his residence address, if known, and, if the garnishment is based on a prior judgment, its date, and the amount, including costs, due thereon at'the date of the writ.”

Upon the hearing of the motion the garnishee produced the copy of the writ left with the agent of defendant at the time of service. It was duly identified. It bears indorsements of the date and the amount of judgment and costs, but it bears no indorsement of the business of the judgment debtor, his business address, or his residence address. Evidence was introduced to the effect that immediately after the service of the writ, Mrs. Gertz (the employee of the garnishee to whom the writ was delivered by the party served) inquired by telephone of attorneys for plaintiff (whose name and address were also indorsed upon the copy of the summons) as to the place of business of the debtor, his residence, the amount of the judgment, etc.; that this information was promptly given to the garnishee. The evidence shows that there was no substantial inconvenience to the garnishee nor prejudice to its rights resulting from the failure to make these indorsements upon the copy of the summons as directed by the rule.

Plaintiff urges that where, as here, an alleged want of jurisdiction in the court is based on matters outside the record, it is necessary to present the matter by plea in abatement in order that an issue may be formed upon which, if the verdict is for plaintiff, a judgment of quod recuperet might be entered. Since the Practice Act of 1907 the judgment in this State would be respondeat ouster. Cahill’s Ill. Rev. St. 1933, Appendix, ch. 110, sec. 45. At common law in this State, it was held that such matter should be presented by plea in abatement Greer v. Young, 120 Ill. 184; Craig v. Sullivan Machinery Co., 344 Ill. 334. These cases are cited by plaintiff and sustain its contention.

The garnishee replies, however, that by Rule 308 of the municipal court the rules and provisions of the Civil Practice Act are applicable to proceedings in the municipal court, except to the extent that the same are inconsistent or in conflict with the rules of said court. The garnishee therefore suggests that section 48 of the Civil Practice Act (Cahill’s Ill. Rev. St. 1933, ch. 110, sec. 48, ¶ 176) is applicable and controlling as to the method by which questions in the nature of a. matter in abatement should be raised in that court.

That section of the statute expressly declares that an objection that the court does not have jurisdiction of the person of the defendant may be made by a motion to dismiss the suit. The motion here was not to dismiss the suit but to quash the summons. The order that was entered was not one dismissing the suit but quashing the summons and discharging’ the garnishee. The distinction between a motion to quash the service and one to dismiss the suit, however, seems to have been thought unimportant in Wilcox v. Conhlin, 255 Ill. 604.

However, the Civil Practice Act excepts from proceedings to which it is applicable, garnishment. Cahill’s Ill. Rev. St. 1933, ch. 110, sec. 1, ¶ 129, p. 2150. The manner in which the issue was raised may not have been the best, but plaintiff made no objection. It cannot complain of a procedure in which it participated without objection. Schneider v. Allen, 259 Ill. App. 543.

For the same reason the garnishee is not in a position to urge another point upon which it insists, namely, that it is a fair inference from the record that the execution on the original judgment was returned by direction of plaintiff’s attorney, and that there was therefore no sufficient basis for the garnishment proceeding. The record shows the usual return of the officer (which is prima facie sufficient). No issue was raised on that point in the trial court. The prima facie case made was sufficient in the absence of evidence tending to disprove it. Bruhl v. Anderson, 207 Ill. App. 169; Boksa v. Buchaniec, 245 Ill. App. 602; Kelly v. Marks, 264 Ill. App. 402.

There remains for consideration the controlling question in the case, namely, whether the failure of plaintiff to comply with Buie 230 justified the order of the court which quashed the summons and discharged the garnishee. The garnishee cites North Ave. Bldg. & Loan Ass’n v. Huber, 286 Ill. 375; People v. Callopy, 358 Ill. 11, and similar cases to the effect that a rule of court when spread of record has the force of a statute and must be followed by the court and by the parties, and that the court can exercise no discretion with respect to the enforcement of the rule where it is applicable. The garnishee also points out that a rule of court must have some sanction and suggests that the appropriate sanction of Buie 230 is that noncompliance should result in the discharge of the garnishee. It points out the heavy burden which noncompliance may cast upon the garnishee, who is usually an innocent, disinterested stakeholder; that noncompliance might even compel the garnishee bank to stop withdrawals from all accounts in the same or similar names. It cites Hantman v. West Side Trust & Savings Bank, 249 Ill. App. 372. It also suggests the propriety of the enforcement of the rule for the reason that by refusing to pay or honor checks of depositors the garnishee bank might he liable in an action for slander of credit. It insists, relying on North Ave. Bldg. & Loan Ass’n v. Huber, 286 Ill. 375, that noncompliance deprives the court of jurisdiction and therefore possibly a garnishee who paid might be liable in another action by the judgment debtor. It finally suggests that failure to comply with this rule might necessitate a trial as to the identity of the judgment debtor, thus increasing the burden of the court and litigants, including the garnishee, so that instead of garnishment being a quick and efficient remedy it would become a cumbersome, inefficient and expensive process.

These observations are not without force. However, the court which made this rule did not see fit to give to it the sanction which the court applied in this case. The rule does not provide that a failure to comply with it shall be jurisdictional; that the summons shall be quashed or the garnishee discharged for noncompliance. It does not even require (as it might) that the return of the bailiff should show compliance with the rule. The facts here are clearly distinguishable from those which appear in North Ave. Bldg. & Loan Ass’n v. Huber, 286 Ill. 375, and similar cases. The method by which a court may compel observance of its rules is in the discretion of the court, where the rule itself does not provide the method or the penalty which shall follow a violation. Sometimes the cause is dismissed. Sometimes a rule to show cause is first entered. Often (as happened in this case with respect to other rules) the parties waived compliance. For instance, the record fails to show that the garnishee complied with Rule 267, which provides that application to the opposite party for his consent is a condition precedent to the right to be heard on a motion. It ignored Rule 196, in failing to give the true abode, etc., of the person executing the verification attached to its motion. It made its motion dubious and uncertain by the use of the symbol‘ and/or ’ ’ which has been repeatedly condemned By this and other courts. City Nat. Bank & Trust Co. v. Davis Hotel Corp., 280 Ill. App. 247. Before asking judgment because of the mote in plaintiff’s eye, the garnishee should cast the beam out of its own. Moreover,' the municipal court has also by rule directed how its rules should be construed. Buie 307 provides:

“The rules hereby adopted are to be liberally construed to the end that controversies may be speedily and finally determined according to the substantive rights of the parties and no complaint of a departure from any rule or rules during the proceedings in any action shall be effective when it clearly appears that notwithstanding such departure no injustice has resulted to the party complaining.” In the same spirit the Supreme Court of this State interprets its own rules. Farmer v. Fowler, 288 Ill. 494; People v. Davis, 357 Ill. 396.

We hold that notwithstanding the departure from Buie 230, no injustice resulted in this case to the garnishee, and that such departure did not deprive the court of jurisdiction. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.

O’Cohhor, J., concurs.

McStjrely, P. J., dissents.


author: Mr. Justice O’Connor

text:
    Ed. Lieberman, Inc., Appellee, v. South Side Furniture and Commission House, Inc., Appellant.
    Gen. No. 38,120.
    Opinion filed June 28, 1935.
    Charles A. Bellows and Glickman & King, all of Chicago, for appellant.
    Louis A. Smith and S.imon Herr, both of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal the defendant seeks to reverse a judgment entered by default against it on December 11, 1934, and an order entered February 4, 1935, overruling its motion to vacate the judgment and for leave to defend.

November 28,1934, plaintiff brought suit against the South Side Furniture and Commission House, Inc., a corporation, and Ethel Bronfeld. December 8, 1934, the return of the bailiff of the municipal court shows that he served the South Side Furniture and Commission House, a corporation, by delivering a copy of the praecipe and statement of claim to J. S. Arrowsmith, agent of the corporation, at the same time informing him of the contents thereof. The return also shows that the other defendant was not found. December 11th there was a default and judgment against the defendant South Side Furniture and Commission House, Inc., a corporation, for $819.19. January 12th an execution was issued and the return of the bailiff the same day was that the judgment debtor was not found; two days later an affidavit for garnishee summons was filed, the Drexel State Bank of Chicago, a corporation, being named as garnishee. It was served and filed its answer setting up that it had no funds belonging to the South Side Furniture and Commission House.

January 18th another execution was issued against the judgment debtor but whether it was given to the bailiff for service does not appear. January 24th an order was entered discharging the garnishee. January 30th notice was filed in which it was stated the defendant would move to quash the service of summons and to vacate the judgment, and on the same day an order was entered overruling the motion to quash the summons. February 1st the judgment debtor entered its appearance notifying counsel for plaintiff that it would ask leave to file a petition to vacate the judgment. The petition was filed and an order entered postponing the matter without prejudice to the levy which had apparently theretofore been made by the bailiff, and on the next day an amended petition was filed asking that the judgment be vacated and set aside, the petition to stand in lieu of an affidavit of merits. February 4th an order was entered overruling the motion, and defendant appeals from the judgment entered December 11th, and from the order of February 4th overruling its motion to open up the judgment and for leave to defend.

The defendant contends that the statement of claim fails to state a cause of action and therefore the judgment cannot stand. In reply to this contention counsel for plaintiff say that the action being one of the fourth class in the municipal court of Chicago, a statement of claim is sufficient if it apprises defendant of the nature of plaintiff’s demand, and in the absence of the report of the proceedings on the trial the court will presume that the finding and judgment were warranted by the evidence. And it is contended the record discloses that evidence was heard on the hearing of the motion to open up the judgment and for leave to defend. This contention is not borne out by the record. The order overruling defendant’s motion is as follows: “This cause coming on for hearing upon the motion of the defendants heretofore entered herein to vacate default and judgment, and the Court being fully advised in the premises overrules said motion.” This does not indicate that any evidence was taken, but on the contrary, that the matter was heard on the verified petition alone; nor was there any evidence heard at the time the default judgment was entered, so that the sufficiency of plaintiff’s statement of claim and defendant’s amended petition to open up the judgment and for leave tb defend are both' before us.

The judgment having been entered by default, if the statement of claim did not state a cause of action the judgment cannot stand because, in the absence of evidence, the default only admitted the charge made against the defendant.

The substance of the statement of claim is that on September 25, 1931, plaintiff recovered a judgment in the municipal court of Chicago against Harry Bron,,feld for $624.50 and costs; that in that suit Isadore Cohen was also a party defendant, and a judgment was likewise entered against him and Harry Bronfeld jointly; that the suit was for goods, wares and merchandise sold and delivered to the defendants who were maintaining a furniture business at 621A-24 Cottage Grove avenue during 1928 and 1929; that after the judgment was obtained and execution was issued against Harry Bronfeld and returned unsatisfied, there was also an execution issued against the two judgment debtors which had not been satisfied; that about July 7, 1934, without notice to the plaintiff, the furniture business then being conducted at 6214 — 24 Cottage Grove avenue “was transferred in bulk to the premises at 6301 Cottag*e Grove Ave., ... in which premises Ethel Bronfeld claimed to maintain a furniture business”; that plaintiff at no time received any notice of the purported transfer of the business from Isadore Cohen and Harry Bronfeld to Ethel Bronfeld or to the South Side Furniture and Commission House, a corporation. By reason of the foregoing facts, Ethel Bronfeld and the South Side Furniture and Commission House, “have become responsible to this plaintiff for the said sum of Six Hundred Twenty Four and 50/100 ($624.50) Dollars, and interest thereon from September 25, 1931, together with all costs expended by this plaintiff. ” It is obvious that this statement of claim, in any view of the law, does not state a cause of action. There is no allegation that any goods were transferred by Isadore Cohen and Harry Bronfeld to Ethel Bronfeld or to the South Side Furniture and Commission House. All that is alleged is that the “furniture business” was transferred to 6301 Cottage Grove avenue in which premises Ethel Bronfeld claimed to maintain a furniture business. The statement of claim is wholly insufficient to support the judgment.

We are also of the opinion that even if there were a good statement of claim, the court erred in refusing to open up the judgment and permit the defendant to interpose a defense. In the amended petition it is alleged inter alia that the judgment entered in the instant case was procured by fraud and collusion in that in another case theretofore pending in the municipal court, a judgment was entered in favor of plaintiff, Ed. Lieberman, Inc., against Harry Bronfeld for $624.50; that an execution was issued on that judgment and a levy made on the property located at 6301 Cottage Grove avenue, which was owned by the petitioner; that a trial of right of property was had in that case, in which it was found, and judgment entered, that the petitioner, Ethel Bronfeld, was the owner of the goods levied upon and that levy was thereupon released; that subsequently she caused the business to be incorporated as the South Side Furniture and Commission House, the defendant; that neither she nor the defendant, South Side Furniture and Commission House, ever accepted any goods in bulk or otherwise from Harry Bronfeld; that the right to the property had been adjudicated in the trial of the right of property case; that the subject matter of that suit is the same as • the subject matter involved in the instant case. There are other allegations in the amended petition which we think it unnecessary to refer to here. The allegations were sufficient prima facie to show that the defendant, South Side Furniture and Commission House, was the owner of the goods, as determined by the municipal court in the trial of the right of property-case.

The court should have allowed defendant’s motion to open up the judgment and should have given leave to defend.

The judgment and order of the municipal court of Chicago are both reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.

McSurely, P. J., and Matohett, J., concur.