author: Mr. Justice Jett

text:
    John P. Schuster and Robert T. Kelly, Trustee, v. George Elsner et al. Etna Wilkey, v. George Elsner et al. Andrew A. Scowley, Petitioner and Plaintiff in Error, v. Etna Wilkey et al., Respondents and Defendants in Error.
    Gen. No. 7,825.

      Opinion filed September 28, 1928.
    H. C. Bumbry and R. A. Green, for plaintiff in error.
    Kent J. Owens and Barr & Barr, for Public Service Company of Northern Illinois and John H. Gulick, defendants in error.
    Wilson, McIlvaine, Hale & Templeton, for Chicago Title & Trust Company, Gerald V. Cleary and Leo J. Corboy, defendants in error; J. F. Dammann, Jr., of counsel.
   Mr. Justice Jett

delivered the opinion of the court.

On July 31, 1922, John P. Schuster and Bobert T. Kelly, trustee, filed their bill in the circuit court of Will county to foreclose a trust deed against Etna Wilkey and others. The mortgaged lands and premises described in the trust deed and bill filed to foreclose the same are located in Will county and the title of record at the time of filing the bill was in the name of Etna Wilkey.

Frank C. Patten and Charles T. Knapp were alleged in said bill to have some interest in the mortgaged premises and were made parties to the bill. An affidavit of nonresidence was made by John P. Schuster and filed stating that the addresses of said Etna Wilkey, Charles T. Knapp and Frank C. Patten were unknown; that after diligent inquiry made by the affiant their respective residences could not be ascertained, and that affiant was unable to secure any information in relation thereto; that the last known residence of each of said defendants was room 610, 17 North LaSalle Street, Chicago, which place said defondants left about two months ago (meaning prior to the time of the filing of the affidavit), since which time affiant has been unable to obtain any information in relation to them.

Notice by publication was made in accordance with the provisions of the Chancery Act, Cahill’s St. ch. 22, and the clerk of the circuit court of Will county mailed copies thereof to each of said defendants, namely, to Etna Wilkey, Frank C. Patten and Charles T. Knapp, addressed to room 610, 17 North LaSalle Street, Chicago. Neither of said defendants appeared and default was entered against each of them and a decree of foreclosure pro confesso was rendered.

A sale of the lands was had pursuant to the decree and the premises were bid in by John P. Schuster and he afterwards conveyed a part of them to Harry C. Stigall, and still another portion to John H. Gulick, for the Public Service Company of Northern Illinois.

It appears that one Cleary, Corboy and the Chicago Title and Trust Company acquired some interest in the premises from Stigall pendente lite. The record discloses that Andrew A. Scowley obtained a deed from Etna Wilkey on April 18, 1923, about four months after the decree for foreclosure was entered. At the time Scowley obtained the deed he knew nothing of the foreclosure proceedings and it is very doubtful if Etna Wilkey knew anything about them. It appears that Etna Wilkey was a stenographer employed by Charles T. Knapp whose office was at 38 South Dear-born Street, Chicago. Charles' T. Knapp and Frank C. Patten occasionally had real estate deals together and Etna Wilkey did the necessary stenographic work, sometimes going to Patten’s office which was located at room 610,17 North LaSalle Street, to perform such services. Etna Wilkey had no real interest in the mortgaged premises. The title it appears was taken in her name for the convenience of Knapp and Patten and the deed made by her to Andrew A. Scowley was made at the request of Knapp and Patten. The evidence discloses that 17 North LaSalle Street is an office building and not a residence and that neither Etna Wilkey, Charles T. Knapp nor Frank C. Patten ever resided at either of the above named addresses. It is further shown that on December 24, 1925, Etna Wilkey filed a petition in the office of the clerk of the circuit court of Will county for leave to appear and defend against the bill for foreclosure, the same as though her default had not been entered, and the decree for foreclosure had not been rendered. As a reason for her petition she alleged that she had not been served with summons in the foreclosure proceedings and that she had received no notice of the pendency of the suit. Her petition is based on section 19 of the Chancery Act, Cahill’s St. ch. 22, j[ 19, which provides: “When any final decree shall be entered against any defendant who shall not have been summoned or been served with a copy of the bill, or received the notice required to be sent him by mail, and such person, Ms heirs, devisees, executor, admiMstrator or other legal representatives, as the case may require, shall, within one year after notice in writing given him of such decree, or within three years after such decree, if no such notice shall have been given as aforesaid, appear in open court and petition to be heard touching the matter of such decree, and shall pay such costs as the court shall deem reasonable in that behalf, the person so petitioning may appear and answer the complainant’s bill, and thereupon such proceedings shall be had as if the defendants had appeared in due season and no decree had been made. And if it shall appear, upon the hearing, that such decree ought not to have been made against such defendant, the same may be set aside, altered or amended as shall appear just; otherwise the same shall be ordered to stand confirmed against said defendant. The decree shall, after three years from the maMng thereof, if not set aside in manner aforesaid, be deemed and adjudged confirmed against such defendant, and all persons claiming under him by virtue of any act done subsequent to the commencement of such suit; and at the end of the' said three years, the court may make such further order in the premises as" shall be required to carry the same into effect.”

Subsequently Scowley filed a petition alleging that he had purchased the interest of Etna Wilkey in the mortgaged premises and asked leave to carry on in the name of Etna Wilkey the petition filed by her and open up the decree. Upon a hearing the court found that Etna Wilkey did not file her petition within three years from the date when the final decree was rendered ; that she did not appear in open court and petition to be heard within that time, and that the evidence does not show that she did not receive the notice required to be sent to her by mail; that her petition was without merit; that the petition of Andrew A. Scowley for leave to prosecute her petition be denied, and that Scowley pay all the costs occasioned by the petition and motion. Andrew A. Scowley has brought this record to this court by writ of error and the assignment of errors present for consideration the following questions:

Did Etna Wilkey receive the notice required to be sent by the clerk? Did Etna Wilkey appear in open court with her petition within three years after the decree of foreclosure was entered? Was said decree a binding decree against Etna Wilkey on the 15th day of December, 1922, or did said decree take effect only after same was filed on December 27, 1922? Did Etna Wilkey have the right after she had conveyed the premises to plaintiff in error Scowley to dismiss her petition over Scowley’s objection? Did Andrew A. Scowley have the right to appear, after Etna Wilkey had filed her petition and made proof that she had not received the notice mailed to her at No. 17 North LaSalle Street, Chicago, in her name and as her grantee, and make any defense that as grantor Etna Wilkey might and could have made? Lastly, did the court err in directing that plaintiff in error Scowley pay the costs of this proceeding?

We will first give consideration to the question as to whether or not Etna Wilkey appeared in open court within three years after the decree for foreclosure was rendered and petition to be heard touching the matters of said decree. The facts as disclosed by this record are that the minutes of the judge, as they appear on the docket, show that the decree was entered on December 15, 1922. The decree recites that it was entered on said date, but the filing mark indorsed on the back of said decree is December 27,1922. The petition of Etna Wilkey was filed December 24, 1925. It will therefore be observed that if the true date of the decree is December 15,1922, she did not appear in open court within the time limit provided by the statute. If the true date of the decree is December 27,1922, she did appear within that time.

The validity of a decree shown by the record to have been regularly entered in open court on a certain date is not impaired by evidence of indorsement of a file mark of a different date on the back of apparently the same decree by the clerk of the court, and such indorsement, or the fact it is apparently the same decree, cannot be regarded as contradiction of such record. The record of a court imports verity and cannot be contradicted by other evidence but is conclusive upon the parties to the suit as well as all others whose interest may be affected thereby. Harmening v. Hawley, 208 Ill. App. 487.

In Weigley v. Matson, 125 Ill. 64, at page 66, we find the following quotation: “It is the settled rule of law, that the record of a court showing a judgment by confession in open court, imports verity, and can not be contradicted by parol evidence. (Roche v. Beldam, 119 Ill. 320.) The record of such judgment is the only proper evidence of itself, and is conclusive evidence of the fact of the rendition of the judgment, and of all the legal consequences resulting from that fact, both as against the parties to the judgment and all others whose interests may be affected thereby. Koren v. Roemheld, 7 Ill. App. 646; Richardson v. Beldam, 18 id. 527; Jasper et al. v. Schlesinger et al., 22 id. 637.

“The complainant, then, by admitting that the judgments which he is seeking to have set aside purport to have been entered in open court, in term time, admits the existence of judgment records which furnish conclusive evidence that said judgments were so entered, and he has therefore precluded himself, by such admission, from insisting that the contrary is the fact. ’ ’

The case of the People ex rel. Holbrook v. Petit, 266 Ill. 628, was a mandamus proceeding in which it was sought to mandamus a judge of the circuit court of Cook county to 'expunge from the record a certain order that had been entered. The court, at page 631, among other things said: “The memoranda set out in the pleadings did not constitute the record of a judgment. They are no part of the record of the court. The rendition of a judgment is the act of the court and can ordinarily be proved only by the record. The judgment exists, however, from the time the court acts, even though the entry of the judgment may not have been formally written by the clerk, and it is not necessary to the validity of an execution that the judgment shall have been formally written upon the record of the proceedings of the court before the execution is issued.”

In Dugan v. Follett, 100 Ill., 581, it was held that a party tailing title to property need not look beyond the record of decrees or judgments and need not look to and is not bound by what may appear in the files of a case in the clerk’s office. At page 590, the court among other things said: “In the investigation of titles, purchasers look for decrees and judgments against those who appear of record to have been owners, and when it is ascertained that a particular decree or judgment does not afféct the title which is the object of inquiry, it is believed not to be customary to look further; and to hold that purchasers are affected with constructive notice of every fact relating to the purchased estate that may happen to appear in some of the files of a case, and not elsewhere, would, in our judgment, be carrying the doctrine of constructive notice to a dangerous extent. The establishment of such a rule would have a direct tendency to unsettle titles, for no one could know of a certainty when he was getting a good title, without examining the files in every case in the county where the land lay, and this would be wholly impracticable. We hold, therefore, purchasers are not bound to look beyond the judgment or decree, and the legal effect it may have on the title which is the subject of inquiry.”

In Horn v. Metzger, 234 Ill. 240, it was sought to contradict the record by the fact that the original draft of the decree had had this caption, “As of the January term,” whereas as reported in the record, it was entered in the April term as of May 18th. In the discussion of this case, the court at page 244 said: “It is contended that it is so contradicted by the fact that the original draft of the decree has at its beginning a caption as of the January term, and that the decree appears in the chancery record of the court on a page following the convening order of the January term and preceding the convening order of the April term. Such original draft of the decree is no part of the record. It is the decree actually t entered in the record which must be regarded as the decree pronounced by the court. To that record, only, can we look, and it cannot be called in question by a reference to any collateral matter or to a paper not a part of the récord. If the record does not correctly show the action of the court it can be corrected only by a direct proceeding for that purpose.”

Moore v. Shook, 276 Ill. 47, was a bill filed purporting to be in the nature of a bill of review, by the appellant in the circuit court of Madison county, praying that a decree of divorce be reviewed, and so altered that the date when the evidence was heard, and the court decision pronounced in open court, be held to be the date when the decree became effective, rather than the date when the written decree was approved by the judge, and thereafter filed with the clerk. A demurrer was interposed to the bill which was sustained by the chancellor. On appeal the case was reversed and remanded with directions, and the court at.page 53 said: ‘1 ipiie rendition of a judgment is a judicial act and the entry a ministerial one. (1 Black on Judgments,— 2d ed. — sec. 106.) ‘That which the court performs judicially or orders to be performed is not to be avoided by the action or want of action of the judges or other officers of the court in their ministerial capacity.’ (1 Freeman on Judgments, — 4th ed. — sec. 38.) Without doubt, the date of the decree would have been entered as of December 2, 1911, even though the written'document had not been presented to the judge until December 16, if the request had been made at that time to have it so entered or if the document as so presented "had stated that it was entered December 2. During Dr. Moore’s lifetime, had he filed a petition subsequent to the term at which the decree was granted to have the date changed and have it entered as of December 2, 1911, instead of December 16, the court, on proper notice to the interested parties, would have been justified in making such change.”

We have examined a great number of authorities relied upon by the respective parties. We are of the opinion that the record of the date of the entry of the decree, as disclosed by the judge’s docket, and by the decree itself, cannot be contradicted by the clerk’s file mark placed on the back of the decree. Such being the case, the petition of Etna Wilkey was not filed within the three years’ limit. We are of the opinion that the conclusion reached, that the decree was entered December 15,1922, is conclusive of all other questions involved in this proceeding excepting the question of costs.

We are of the opinion that Etna Wilkey was bound by the provisions of section 19 of the Chancery Act, Cahill’s St. ch. 22, if 19, heretofore set out in this opinion. The purpose of section 19 is to afford relief to defendants who, (1) shall not have been served with summons, (2) all those who have not been served with a copy of the bill, (3) or received a notice of the pend-ency of the suit as provided for in section 12 of the Chancery Act, Cahill’s St. ch. 22, if 12. In other words the provisions of section 19 are available only to those who have been constructively served by some means known to the law, and do not apply to anyone upon whom no service of any kind has been made. Where no service has been had upon a defendant he is not bound by a decree and need take no notice of it. Where, however, he has been served by some of the known methods, he is bound by it and must take notice of it. If the service so made was constructive only then he may avoid the binding force of the decree by appearing in open court and asking leave to defend as provided in section 19 aforesaid.

The respective solicitors have indulged in much argument over the fact that the clerk of the circuit court of Will county sent a copy of the publication notice to room 610, 17 North LaSalle Street, Chicago, Illinois, which was a business address and not a residence address. It appears to us that such argument is upon an immaterial matter, so far as it relates to this case. The affidavit of nonresidence expressly states that the places of residence of the defendants are unknown after diligent inquiry by the affiant to ascertain the same. The affidavit then proceeds to state where the last place of residence of said defendants was and in so doing states that it was at room 610, 17 North LaSalle Street. Section 12 of the Chancery Act, Ca-hill’s St. ch. 22, H12, does not require the clerk to send a copy of the publication notice to nonresident defendants, the place of whose residence is unknown. Such copy is required to be sent only when the residence is known and stated in the affidavit. Hence it is immaterial in this case whether the clerk sent any copy of the notice or not. Schaefer v. Kienzel, 123 Ill. 430, holds that an affidavit stating the address as “20 St. Louis Avenue, St. Louis, Missouri” is sufficient, and Hannas v. Hannas, 110 Ill. 53, holds that an address given as “San Francisco, California” is sufficient. The affiants in both cases gave the address as above and stated it was the residence of the defendants. In the case at bar the affidavit gave no place of residence at all, but expressly stated that the places of residence were not known, consequently the cases relied upon are not in point. We hold, therefore, that the affidavit of nonresidence filed in the foreclosure proceedings is good and sufficient; that it states the residences of the respective defendants are unknown; that due publication was had under such affidavit; that the clerk was not required to mail any copy of said notice; that his effort to mail the defendants copies thereof was of no force or effect; that service was had upon each of said defendants by publication; that the decree of foreclosure was entered on December 15, 1922, and that the petitioner Etna Wilkey and the petitioner Scowley did not appear in open court within three years from the date of said decree and petition the court to open up the decree and permit them to defend.

In addition to the questions above discussed it is suggested by the plaintiff in error Scowley that the court erred in adjudging costs against him. Costs in chancery cases are adjudged at the discretion of the chancellor and will not be reviewed unless that discretion has been abused. Merle v. Beifeld, 275 Ill. 594. The petition of Etna Wilkey was filed for the benefit of Scowley and at his instance. He was the moving cause and the costs that have been incurred were largely incurred by him or at his direction or because of his starting proceedings'in motion and therefore he should be required to pay them.

The record shows that John P. Schuster and wife, after the making of the trust deed foreclosed in this proceeding, conveyed a right-of-way over the lands described in the trust deed to John H. Glulick for the use of the Public Service Company of Northern Illinois. On the day of the conveyance by Schuster and wife of the land for the right-of-way the trustee executed a release to the premises conveyed to Glulick. In order that no question might arise relative to the lands included in the right-of-way Scowley, the plaintiff in error, John H. Glulick and the Public Service Company of Northern Illinois entered into and filed a stipulation in this court in which it was stipulated among other things that Scowley, plaintiff in error, for a consideration of $750 agreed to convey by warranty deed, his wife joining therein, to the Public Service Company of Northern Illinois, the lands and premises previously conveyed for a right-of-way by Schuster and wife, and the said Scowley in said stipulation further covenanted and agreed to relinquish any and all claim, right, title or interest in and to the premises included in the right-of-way and agreed that any decree, order or judgment which might thereafter be entered in this suit or proceeding which should affect the title to the real estate involved should not in any way affect the title of Grulick or the Public Service Company of Illinois.

We hold, therefore, that the order of the court in dismissing the petitions of Wilkey and Scowley was correct and that the order should be affirmed, which is accordingly done.

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The County of Whiteside, Illinois, Appellant, v. The County of Lee, Illinois, Appellee.
    Gen. No. 7,716.
    Opinion filed May 24, 1928.
    Rehearing denied October 12, 1928.
    Robert W. Besse, for appellant.
    Mark C. Keller, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

This is a suit instituted by Whiteside County, appellant, against Lee County, appellee, to recover from Lee County a proportionate share of the money laid out and expended by the appellant in repairing and painting the Howland Creek Bridge which constitutes a part of a public highway alleged to be within 80 rods of the county line which divides the counties of appellant and appellee. The ■ declaration consists of one count and is as follows:

“First Amended Declaration sets forth that the Howland Creek Bridge was located in Whiteside County and that it was necessary to repair the bridge by painting the steel, removing the old plank floor, furnishing and installing a new three-inch creosoted pine floor, with an asphalt paint coat wearing surface; that Lee County was properly notified of the necessity of such repairs and requested to pay its proportionate share of the expenses; that Lee County refused to pay its proportionate share; that Howland Creek Bridge is on a road used as a public highway within eighty (80) rods of the County line in Whiteside County that divides the political subdivision of the County of Whiteside from the County of Lee; that the statutory laws of the State of Illinois as set forth in Chapter 121, Paragraph 41, of the Smith-Hurd Illinois Revised Statute, states.that the bridges and culverts on roads on county lines and on roads within eighty (80) rods of county lines shall be built and repaired by such Counties, and the expenses of such construction and repair shall be borne in proportion to the assessed value of the property, real and personal, in the respective counties according to the latest preceding equalized assessment thereof prior to such construction or repairs; that the construction and repairs on the Bridge were reasonable in kind and cost; that Lee County refused to make the repairs or pay its proportionate share of the expense of construction and repairs ; that the total cost' of making the repairs was Eight Hundred Sixty-seven and 50-100 Dollars ($867.50); that forty-nine (49) per cent should be paid by Whiteside County and fifty-one (51) per cent should be paid by Lee County; that Whiteside County repaired said bridge and paid for the same; that a statement of expenses was submitted to the County of Lee and request made for payment; that the County of Lee failed and refused to pay its proportionate share of such expenses and still does refuse, therefore it brings its suit.”

To the declaration the appellee pleaded the general issue. The trial was had by the court without the intervention of a jury, and a finding had in favor of appellee and this appeal followed.

It appears from the record that Whiteside County and Lee County adjoin, Whiteside County being west of Lee County. There is a public highway, a portion of which is wholly within Whiteside County, in which portion of the highway there is a bridge known as the Howland Creek Bridge. It became in need of repairs. Lee County was notified of the necessity of such repairs and requested to pay a proportionate share of the expense. Lee County refused to pay a proportionate share. The repairs were made at an expense of $867.50, and in view of the taxable property in each of the counties, it is the contention of Whiteside County that it should pay only 49 per cent of the cost of said repairs and that 51 per cent should be paid by Lee County. The record further discloses that after Whiteside County had repaired said bridge and paid for the same a statement of the expenses was submitted to Lee County and a request made for payment ; that the said County of Lee refused and failed to pay any portion of the expense and the result was the institution of this proceeding.

The result of this suit depends upon the construction to be placed on Cahill’s St. ch. 121, if 41, paragraph 41, chapter 121, Smith-Hurd Statutes, which reads as follows:

“Bridges or culverts on roads on county lines, and bridges or culverts on roads within eighty rods of county lines shall be built and repaired by such counties and the expense of such construction and repair shall be borne in proportion to the assessed value of the property, real and personal, in the respective counties according to the last preceding equalized assessment thereof prior to such construction or repair.
“And when any county desires to construct'or repair any such bridge or culvert and has appropriated its share of the cost of constructing or repairing the same, it shall be the duty of such other county to make an appropriation for its proportionate share of the expense of such construction or repair. And if the other county fails or refuses to make such appropriation, any court of competent jurisdiction, upon a petition for that purpose, shall issue an order to compel such other county to make such appropriation; or the county which has made its appropriation, may, after giving due notice to the other county, proceed with the construction or repair of the bridge or culvert, and, if the construction or repair is reasonable in kind and costs, recover from the other county by suit, such proportionate share of the expense as the other county is liable for, with costs of the suit and interest from the time of the completion of the construction or repair; but, if the expense of the construction or repair of the bridge or culvert is unreasonable then the county may recover only the other county’s proportionate share of an amount equal to a reasonable expense for the construction or repair.”

It is not claimed that the road in question is entirely within 80 rods of the county line between the counties of Whiteside and Lee. The road is of the width of 60 feet. The bridge is located west of the center of the road. This fact is not disputed. The record discloses that a point 80 rods due west from the county line dividing the two counties will not include any part of the bridge, but will include about twelve and a half feet of the road. In other words, there is but a part of the public highway or road on which said bridge is maintained that comes within the 80-rods limitation.

It is the contention of the appellant that when the legislature used the words “on a road within 80 rods of a county line,” it meant that if any portion of the road was within 80 rods that a bridge built on that road should be built at the expense of both counties proportionately; that the purpose of the legislation was to fix a liability on adjoining counties where, in all probability, such county derived a proportionate benefit from the use of the bridge, and to say that the entire road must be within the 80-rods point before it could come within the meaning of the statute, would, in effect, do away with the intent of the legislature in the passage of the act.

It is contended by appellee that it was the intent of the legislature, when enacting said statute, that it should be restrictive in its application to bridges on roads on county lines and bridges on roads leading from one county to another, and within said prescribed limit of 80 rods from the county line dividing such counties, and that the duty to repair such bridges would be, in such cases, but a correlative of the beneficial use of said bridges by the public, the inhabitants of said counties, which in this proceeding would be the inhabitants of Whiteside and Lee Counties, and the repairs and upkeep of same properly chargeable, under the statute, to both counties. However, the Howland Creek Bridge and the road on which it is located, in the instant case, it is insisted by appellee, does not fall within this class of bridges and roads, and, therefore, the court did not err in so finding.

The only question is whether or not under a proper interpretation of the statute, Lee County can be compelled to pay a portion of the cost of repairing the bridge when the entire roadway is not within 80 rods of its boundary and no part of the bridge is within 80 rods of the county line. In controversies involving the construction of this statute, the distance to be computed is the distance between two designated points— i. e., a point on the county line and the bridge. (County of Stark v. County of Henry, 326 Ill. 535-539.) In County of Stark v. County of Henry, supra, in construing the section of the statute involved in this proceeding, the court among other things at page 539 said: “That this construction is the one intended by the legislature at the time it passed the original act containing the words in question is evidenced by the fact that the former statute on this question was by its express terms limited to bridges ‘over streets or roads extending from one county or town into another county or town and crossing county or town lines.’ When the legislature struck out the words quoted this limitation was removed, and the act then applied to a bridge within 80 rods of the county or town line whether the highway on which it was, crossed a county or town line or not.”

The record discloses that the bridge in question is not within 80 rods of the county line. Since the bridge is not within 80 rods of the county line, in view of the construction placed upon the statute, we conclude that the judgment of the circuit court of Lee County should be affirmed, which is accordingly done.

Judgment affirmed.


author: Mr. Presiding Justice Jones

text:
    Lewis V. Gustin, Appellant, v. Homer Barney, Appellee.
    Gen. No. 7,879.

      Opinion filed August 28, 1928.
    Rehearing denied October 2, 1928.
    Roscoe Herget, for appellant.
    Fred W. Potter, for appellee; George W. Hunt, of counsel.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

Lewis V. Gustin filed a bill in chancery against Homer Barney, praying that Gustin be decreed to be the tenant of Barney under a certain lease between W. A. Rowe and the said Gustin, dated August 13,1921, and ending March 1, 1926, with a five year renewal privilege. The complainant further prayed that he should be decreed to have a right to use and enjoy the premises described in the lease, and that an injunction should issue restraining the defendant from interfering with the complainant, his friends or companions in the use of the premises.

A temporary injunction was issued, but afterwards dissolved on motion of defendant and $210 damages wer adjudged against Gustin. The defendant filed an answer in which he denied the allegations of the bill. He also filed a cross bill to remove the alleged lease, as a cloud on his title and for an injunction to restrain the complainant from going upon or using the said premises.

The facts were stipulated by the parties and it was agreed that the only questions involved are, first, whether the instrument in question is, under the law, a lease or a license, for the use of the premises, and, second, whether or not a tender of rent made February 24, 1927, was necessary, and if necessary, whether such tender was valid.

The master found the instrument to be a lease and not a license, and also that the tender of rent was good. But upon a hearing, the chancellor sustained exceptions to the master’s report, dismissed the original bill for want of equity and granted the relief prayed for in the cross bill.

By the stipulation it is agreed that complainant received the instrument in question dated August 13, 1921, from W. A. Rowe, and proceeded to use the premises under its terms and conditions; that he paid $90 a year for the first five year’s use of the premises and prior to March 1, 1926, tendered defendant $140 for the use of the premises from that time to March 1, 1927, later keeping the tender good in court; that complainant’s attorney thereafter tendered Fred W. Potter, attorney for defendant, a further sum of $140 for the use of the premises for the next year, which tender was refused; that the money so tendered was deposited in a bank for defendant and the defendant and his attorney were notified of such deposit; that when such last mentioned tender was refused, Potter told complainant’s attorney he could do with the money whatever he pleased and supposed he would want to put it in the bank.

The premises are adapted for hunting purposes, and the greater area thereof is substantially under water at all times of the year, and at certain times of the year they are entirely covered by water; that there are no permanent farm buildings or outbuildings on the premises; that on November 21, 1925, and prior thereto, complainant constructed and placed on the premises three blinds of cut willows to hide hunters in boats, also three circular feeding pens, inclosed by 150' feet of chicken wire five feet high, attached to poles stuck in the ground; that each of these pens contains a raft or float, upon which is a box of feed for live call ducks, and there were approximately 25 live call ducks in each pen; that complainant in September, 1925, without the knowledge or consent of Eowe, constructed a large ditch on the premises from the river to the inner lake, so that water would flow through; that he put up on trees and stumps on the premises “No Trespassing” signs with his name thereon.

Eowe conveyed the premises to Barney November 21, 1925, and the deed was recorded February 6,1926. At that time the records of Marshall county contained no notice of any lease, license or letting of the premises. The complainant used the premises for the hunting season of 1926, which commenced on October 1, 1926, and ended January 15, 1927.

The instrument in question is in the ordinary form of a lease, signed and sealed by Eowe. It recites that Eowe, in consideration of the covenants of Gustin, leases to Gustin the said premises, to have and to hold the same from October 1, 1921, to March 1, 1926, with the privilege of extension for five years more, one year at a time. It provides for the payment of rent in consideration of the leasing, and forbids any subletting or assignment of the lease without the consent of the lessor, and for forfeiture and distress in case of nonpayment of the rent. It also contains the following paragraph:

“And it is further covenanted and agreed between the parties aforesaid that the said lessee shall have the exclusive right only to hunt on said demised premises and to take and carry away any game he may kill, and the lessor reserves all other uses of said premises and agrees to so use the premises so as to interfere with the privileges hereby demised, as little as possible; and that he will not give any license to others to hunt thereon during the term of this lease; and it is further agreed that the lessee shall have the right to renewal of this lease.”

It is the contention of the defendant that the instrument is a license only, revocable at any time, and that it was revoked by Rowe’s deed to him.

The case of Senachwine Club v. Green, 246 Ill. App. 629, was before this court at the April term, 1927. In many respects it is similar to this case and the instrument there in question was held to be a lease. That lease differs from this one in that it contains no express reservations in favor of the lessor such as this one does. However, we are of the opinion that where the demise limits the rights granted to a particular use, all other uses not inconsistent with those granted are reserved to the lessor whether the instrument specifically so provides' or not. In exercising the uses reserved, the grantor must always do so in such manner as not to unnecessarily interfere" with the grantee’s rights.

Whether the instrument here involved is a lease or á license must be determined from the facts stipulated by the parties. It provides for the payment of a certain fixed rent at definite periods. The use granted was for a definite term- with privilege of renewal. It was exclusive as to that use and did not merely confer a privilege under the owner.

We held in the Senachwine Club case that the instrument could not be construed to be a mere license simply because the premises were to be used only for certain purposes. We also held that the instrument, being for a definite term and based on' a valuable consideration, carried with it an interest in the land and could not be revoked at will. We think the conclusion reached in that case is correct and consequently we hold that the instrument here in question is a lease and not a mere license which can be revoked at will.

The agreements of the lessor not to interfere with the privileges demised, and not to give any license to others to hunt are to be regarded only as covenants for quiet enjoyment. Under the reasoning in Macy v. Brown, 326 Ill. 556, and Webster v. French, 11 Ill. 254, the tender to defendant’s attorney was sufficient. The blinds, pens and other physical evidences of complainant’s possession were notice of his claim of right and it was not necessary for him to place his lease of record.

The decree of the trial court must be reversed and the cause remanded with directions to enter a decree granting the relief prayed for in the original bill and dismissing the cross bill for want of equity.

Reversed and remanded with directions.


author: Mr. Presiding justice Jones

text:
    Eugene Brown, Appellee, v. Milton N. Pierson, Appellant. Milton N. Pierson, Appellant, v. Eugene Brown, Appellee.
    Gen. No. 7,933.

      Opinion filed October 15, 1928.
    Miller, Elliott & Westervelt, for appellant; Bruce E. Dwinell, of counsel.
    Barnett, Wilson & Tichenor, for appellee.
   Mr. Presiding justice Jones

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Peoria county, granting an injunction against an alleged encroachment upon a restricted building line, and commanding appellant to remodel his dwelling so as to conform to the building restrictions contained in his deed to the premises.

Eugene Brown and Deloss S. Brown platted a subdivision known as “Fairmount” within the corporate limits of the city of Peoria. Through mesne conveyances, Milton N. Pierson became the owner of lot 17 and a portion of lot 16 in said subdivision. The various deeds in the chain of title from Eugene and Deloss S. Brown to appellant contained certain conditions and restrictions, all of which were required to be kept by the grantees for a period of 25 years from July 16, 1918. Among such restrictions is the following:

“No building shall be erected or used thereon for the sale or manufacture of intoxicants. No garage, stable, shed or building for manufacturing purposes shall be erected thereon nearer than fifty feet of front line.
“The main wall of dwellings on the premises herein conveyed shall be at least twenty-five feet from the front lot line thereof. No dwelling shall be constructed on such lot or lots in this Subdivision unless said dwelling shall exceed in cost the sum of Three Thousand Dollars.
“The foregoing restrictions, covenants and conditions are made for the benefit of the owners and purchasers of any and all lots in said Fairmount Subdivision. ’ ’

The plat of Fairmount shows that it is laid out on both sides of Summit Boulevard. Some of the lots abut Summit Boulevard; some abut Farmington Road; some abut Main Street; and some abut two of these streets. Summit Boulevard runs generally north and south and its shape is somewhat like a hairpin, the inner portion being reserved mainly as a sodded parkway, leaving the driveways on either side thereof.

The lots owned by Pierson fronted on Farmington Road. At the time the original bill herein was filed, he was constructing a two-story brick dwelling house. Attached to and made a part of the building is a one-story structure, a portion of which is designed to be used as a sun parlor and the remainder as a porch. It is this sun parlor and porch which are the source of the controversy in this case, as they extend closer to the front line than 25 feet. The corner of the porch nearest Farmington Road on the north is 14.73 feet therefrom, and the corner on the south is 17.6 feet from said road.

There being no dispute as to location, the principal question in the case is whether or not the structure falls within the inhibition of the building restriction. In determining what the extent of a restriction is, the language of the clause creating it must be decisive. The restriction in this case amounts to a prohibition against the erection of main walls of a building within 25 feet of the front line of lots 16 and 17 abutting Farmington Road. The contention between the appellant and appellee is whether or not the walls of the porch are “main walls.” It inevitably follows that if they are held to be main walls of the dwelling, they violate the restriction, and if they are held not to be main walls of the dwelling, the restriction has not been violated.

It is therefore necessary to inquire into the structural character of the porch and sun parlor. The dwelling is chiefly of brick construction and is 40 feet in width facing Farmington Road. The porch extends almost the entire width of the building, there being an offset of about 8 inches at both ends of the porch. It is built of the same materials as the rest of the house. In dimensions the porch is approximately 39 feet long and 13% feet wide. The house does not squarely face the east, but is parallel with Farmington Road, which runs in a northwesterly and southeasterly direction. For the sake of convenience we will speak of the building as facing east and the porch as running north and south.

The sun parlor is on the south and is 16.3 feet by 13.35 feet. It is entirely inclosed with brick walls and pillars, except that which is provided with windows. The roof over the entire porch is 11 feet from the ground. The walls are brick, 8 inches thick not including the plaster. They begin 18 inches below grade and rest on a footing 12 inches wide and 2 inches thick. There is a door connecting the sun parlor with the two-story part of the house. Immediately north of the sun parlor are steps leading from the porch to the ground in front of the house. At either end of the porch are large brick piers running from the ground to the roof. The open portion of the porch on the north has a brick wall extending above the floor about 2 feet. In symmetry, design and construction, this porch, including the sun parlor, conforms to the rest of the house. The chief variation is that the walls of the two-story portion are 12 inches thick, while the walls of the sun parlor and porch are 8 inches thick. On that account, it is urged by appellant that the walls of the two-story structure are the only ones which can be considered main walls. The restriction applies to main walls only, but it seems to us that in interpreting building restrictions, every wall which supports any part of the structure proper is to be deemed a main wall.

The photographs in evidence, marked exhibits 3 and 4, give a better and more definite idea of the construction than we are able to give. From our examination of the oral and documentary evidence, we have reached the conclusion that the sun parlor and the porch constitute an integral part of the dwelling house or building.

An ordinance of the city of Peoria was introduced, which requires that main walls of two-story dwellings of brick construction shall be at least 12 inches in thickness, and 8 inches in thickness for second or upper story. The superintendent of the department of buildings of the city of Peoria was examined as an expert witness in behalf of appellant. He testified that the main walls of the dwelling in question were the 12-inch walls which support the two-story structure. This testimony was offered for the purpose of defining the term “the main walls” of the dwelling. It was objected to by appellee on the ground that there is no ambiguity in the term “main walls.” We think the objection was well taken, but without regard to whether it was or not, the testimony of the witness, when considered in the light of the ordinance above referred to, was of little assistance to the court in determining the meaning of the term.

The ordinance provides that main walls of two-story dwellings constructed of brick shall be at least 12 inches thick for the first floor and 8 inches thick for the second floor. The obvious purpose of the ordinance is to require a wall of a standard thickness, where it is to support an upper story. Where there is no second story to be supported by a wall, the ordinance does not require a thickness of 12 inches. The character of a main wall is not to be determined by whether or not it supports an upper story. If it is a wall which supports an integral part of the building proper, it is to be deemed a main wall. The sun parlor and porch as designed and constructed in this instance are as much a part and' parcel of the dwelling as if they had a second story above them and they are not rendered otherwise, simply because their exterior walls are 8 inches thick instead of 12 inches thick.

In determining what is meant by the restrictions contained in a deed, it is proper to look into the circumstances surrounding the parties at the time of its execution and inquire what were the objects and purposes to be subserved. (Turney v. Shriver, 269 Ill. 164.) One purpose in establishing a building line is to insure a certain degree of uniformity in the appearance of buildings erected on the property where such line has been established. The establishment of a building line also creates an easement of unobstructed light, air and vision for the benefit of the public and for the benefit of the owners upon whose property the restricted area is laid out. (O’Gallagher v. Lockhart, 263 Ill. 489.) Building line restrictions are generally in the nature of limitations upon the use of property, and will not be enlarged by construction. If there be a doubt as to whether or not the condition has been violated, that doubt must be resolved in favor of the grantee. (Eckhart v. Irons, 128 Ill. 568.) Following this principle of law, ordinary porches, bay windows and steps have been held not to be a part of a building proper and accordingly they have been excluded from the operation of the restrictive clause in a deed. (Hawes v. Favor, 161 Ill. 440; Brandenburg v. Lager, 272 Ill. 622.)

In our judgment, it requires no liberality of interpretation to hold that the walls of a porch such as exist in this case are a part of the main walls of the building. According to our view, it is plain that they are to be so classified. If that be true, their existence is in violation of the building restrictions contained in the deed.

Appellant filed a cross-bill in which he alleged that appellee is the owner of lots 46 and 47 in Fairmount, under a deed which contains the above-mentioned restrictive covenants; that appellee has himself violated such restrictions by erecting a dwelling house on lot 47, within 17 feet of the front line thereof; that he is also the owner of lot 4 in said subdivision under a deed containing the same restrictions; and that he has violated them by erecting a garage within 10 feet of the front line of said lot. The cross-bill prays for an injunction to compel appellee to move the dwelling house on lot 47, so that it will not extend beyond the prescribed building line, and, also, to compel him to move the garage on lot 4 so that it will not extend beyond the 50-foot line prescribed for garages and certain other buildings.

The answer to the original bill set forth the same alleged violations of the restrictive clause by appellee and that it has been generally violated and not observed by others,.to wit: Charles Anderson has constructed a garage on lot 3 within 5 feet of the front line thereof; Beulah W. Garrard has constructed a garage on lot 2 within 50 feet of the front line thereof; and Sarah B. Drake has constructed a garage on lot 7 within 50 feet of the front line thereof. The answer also alleges that William B. Winters received a deed from appellee to lots 5 and 6 in said subdivision and that said deed contained no building line restrictions.

With respect to the allegation that appellee has violated the building line restriction on lot 47, the proof shows that the front of the lot is on Summit Boulevard. Its side line is on Main Street. The building objected to is not within 25 feet of Summit Boulevard, although it is within that distance from Main Street. Consequently the structure does not violate the building line restriction.

The topography of lot 4, together with the uses made of that lot and adjoining lots, causes it to also front on Summit Boulevard. The garage complained of is not within 50 feet of the front line of said lot. The same situation obtains with respect to lot 3 owned by Charles Anderson, as well as to lot 2 owned by Beulah W. Garrard and lot 7 owned by Sarah B. Drake. Along Summit Boulevard the elevation of lots 1 to 7 inclusive is much greater than it is along Farmington Road. None of the structures complained of by appellant in any way interfere with the light, air or prospect of adjoining dwellings or violate the letter or the spirit of the building restrictions.

Appellant’s contention with respect to the deed to William B. Winters is not well grounded. The deed recognizes that the lot fronts on Summit Boulevard and expressly prohibits the building of any main wall of a dwelling at a distance less than 25 feet from, the lot line thereon.

Under the situation and circumstances shown by the evidence in this case, the chancellor would have been justified in compelling the removal of all that portion of the building used as a sun parlor and porch which extends beyond the 25-foot building line. As it was, he ordered the same to be remodeled, so as to make the portion thereof, which is within 25 feet of the street line, an open porch within a specified time fixed by the decree. Appellee does not complain of the decree in this regard and we are not disposed to modify it.

Decree affirmed.


author: Mr. Presiding Justice Gridley

text:
    Frank J. Killilay, Defendant in Error, v. William Hawk, Plaintiff in Error.
    Gen. No. 32,472.

      Opinion filed October 11, 1928.
    John E. Kehoe, for plaintiff in error.
    Joseph D. Ryan, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

It is sought by this writ of error to reverse a judgment of $15,000, entered against defendant on April 30, 1927, in an action for damages for personal injuries received by plaintiff in an automobile accident on August 30, 1925, on Central Avenue near its intersection with Eighty-fifth Street,. Cook county, Illinois. The jury returned a verdict in plaintiff’s favor for $20,000, but, upon the court’s demand, plaintiff remitted $5,000, and the judgment for $15,000 followed.

Plaintiff’s declaration consisted of five counts, to which defendant filed a plea of the general issue. During the trial the fourth and fifth counts were withdrawn, and the case was submitted to the jury on the remaining counts. The first count averred in substance that on the day mentioned plaintiff was driving his automobile southward along and upon Central Avenue, a public highway; that defendant was driving his automobile in the same direction behind plaintiff’s and endeavoring to pass it; and that, while plaintiff was exercising due care, etc., defendant so carelessly and negligently drove his automobile “toward and past plaintiff’s * * * and in such close and dangerous proximity thereto” that, in consequence thereof, “plaintiff’s automobile was, then and there, overturned upon and into a certain ditch,” whereby plaintiff suffered serious and permanent injuries, etc. The second count charged that, while plaintiff was in the exercise of due care, etc., defendant so carelessly and negligently drove his automobile toward, alongside of and past plaintiff’s that, in consequence thereof, defendant’s automobile “was caused to and did then and there run upon and against and strike plaintiff’s automobile,” which was overturned, etc. The third count charged that defendant, not regarding his duty and “with a conscious indifference to surrounding circumstances and conditions,” so wilfully and wantonly drove and managed his automobile along and upon said highway “up to, toward and past” plaintiff’s automobile, and “upon and against plaintiff’s automobile with great force and violence,” that, in consequence thereof, plaintiff’s automobile was crowded from the highway and overturned in the ditch.

On the trial plaintiff and his brother-in-law, George Hahn, a passenger in plaintiff’s car, testified as to the details of the accident. Defendant and three young women, who were in his car, testified as witnesses for him. The accident happened on a Sunday morning, about 11:30 o’clock. The weather was good and the road dry. Between Eighty-fourth and Eighty-fifth Streets, the center portion of Central Avenue, for a width of about 12 or 14 feet, was a hard roadway, on each side of which for a width of 5 or 6 feet there was loose crushed stone and gravel Beyond this loose material, on each side, were ditches, paralleling .the highway. Plaintiff was driving his car south in Central Avenue, in the center of the hard portion of the road, at a speed of about 25 miles per hour. Shortly after passing Eighty-fourth Street, he heard the honk of an automobile horn behind him, and, turning his car slightly to the right, he proceeded south at about the same speed ,on the extreme west side of the hard portion of the road for a distance of 100 or 200 feet, but not so that any wheels were running in the loose stone and gravel. Defendant continuing to sound his horn, plaintiff so moved his car at a diminished speed that its right wheels travelled south in the loose stone and gravel, about a foot or two west of the hard portion of the road. Defendant’s car then proceeded to pass plaintiff’s car to the left, going at a speed of about 35 miles per hour. Before it had passed completely, it turned sharply to the right and cut in front of plaintiff’s car, with the result that plaintiff’s car went into the ditch and was overturned. The testimony was conflicting as to whether defendant’s car hit any portion of plaintiff’s car. On direct examination plaintiff testified: “When he got over half by me, he cut right in front of me, cut me right off the road. He hit the front of my car and throwed the front of it toward the ditch, and I turned over. I cannot tell what part of his car came in contact with me, it was too quick.” On cross-examination he testified: “I can’t say that I saw * * * any part of my car get struck. I felt a jar. I felt it scrape. * * * I remember my steering wheel partly slipping.out of my hand and me grabbing for it. * * * At the time the steering wheel got out of my hands, * * * all four of my wheels were on the road, but the right-hand wheels , were in the soft gravel.” On re-direct examination he testified: “This car cut in front of me and the jar of the bump knocked the wheel out of my hands.”' Hahn, plaintiff’s witness, testified: “When we first turned to the right there was enough space left on the hard road for another car to pass. I saw this other car just as it went past. When it passed it seemed like it came right in front of us. It turned to the right. * * * I felt a jar — I couldn’t say just the part it hit * * *. At the time I felt the jar we were going straight and the other car turned right in a right- angle. * * * After it turned we did not go over 15 feet before we were overturned.”

Defendant’s testimony was to the effect that when he passed plaintiff’s car there was at all times a space of not less than 3 feet between the cars; that he did not turú his car shortly to the right in front of plaintiff, and that he had no knowledge of anything having happened to plaintiff’s car until one of the young women, riding in his car, made some exclamation and he looked back, -at which time he was approximately 400 feet south of where plaintiff’s car went into the ditch. He admitted on cross-examination that the right front fender of his car was bent down after the accident, but he claimed that this had been caused early in August, 1925, several weeks before the accident, by his wife’s careless driving of the car while attempting to enter a garage. All three of the young women gave testimony, corroborative of defendant’s, to the effect that when their car passed plaintiff’s there was a space of about 3 feet between the two cars and that their car did not at any time strike plaintiff’s car. In December, 1925, more than a year prior to the trial, a representative of plaintiff took the signed statements of the three women. These statements, introduced in evidence by plaintiff, were at variance in material particulars to their testimony given on the stand, and tended to impeach their credibility as witnesses. The testimony of plaintiff, Hahn, and Mrs. Emma Schwartz further disclosed that on the afternoon of the day of the accident defendant called on plaintiff at the hospital and stated in substance that he was very sorry he had'hit him, and that he didn’t intend “to cut him off like that.”

Plaintiff remained in the hospital, confined in bed, for more than a month and continuously suffered much pain. X-ray pictures were taken and the attending physician discovered that the seventh cervical vertebra was driven back more than half an inch. Plaintiff was placed under an anaesthetic and given treatments. During the month of October, 1925, after he returned home, he was in bed much of the time and continued to suffer pain. He went back to work in December, 1925, with his former employer, but found he could not work as he formerly did on account of the condition of his neck and back and that he tired easily. He lost more than 20 pounds in weight, which he had not regained at the time of the trial. Neither prior to the accident nor since had plaintiff suffered any other serious injuries or serious illness. There was evidence of serious permanent injuries caused by the accident. Certain X-ray pictures of plaintiff’s neck and spine were introduced in evidence by him and commented upon by physicians. Two were taken during September, 1925, three on April 11, 1927, and two on April 18, 1927. One picture taken in September,. 1925, in addition to showing the dislocation of the seventh cervical vertebra, disclosed an abnormality in the sixth cervical vertebra. One of the pictures taken in April, 1927, showed callouses of the sixth lamina and the sixth process, and also that the seventh cervical vertebra was still out of alignment. Dr. Walter E. Schussler, a surgeon of- wide experience and connected with several-hospitals and called as plaintiff’s witness, testified to the effect that an act of violence sufficiently severe to cause a dislocation of the seventh cervical vertebra backward for more than half an inch, together with the fracturing of the sixth lamina and process, would necessarily result in the tearing of muscles, ligaments and nerves, and that the dislocated-condition of said vertebra and surrounding structure in April, 1927, was permanent. No medical testimony as to.plaintiff’s condition was introduced by defendant. .

We are unable to agree with the. contention of defendant’s counsel that the verdict is against the manifest weight of the evidence on the question of defendant’s negligence in so driving his car as to strike plaintiff’s car and force it into the ditch, where it was overturned. Nor can we agree with counsel’s further contention, that the evidence disclosed that at the time and immediately before plaintiff’s car went into the ditch plaintiff was guilty of such contributory negligence as bars a recovery by him. Furthermore, under all the facts and circumstances disclosed, we think that the court was fully justified in refusing to instruct the jury, as requested by defendant, to find him not guilty as to the third (wilful and wanton) count. There was sufficient evidence to go to the jury on the question whether defendant, in driving his car in the manner he did, was guilty of wilful and wanton conduct. In Heidenreich v. Bremner, 260 Ill. 439, 446, it is said: “Whether a personal injury has been inflicted by gross or wanton negligence is a question of fact to be determined by the jury. * * * It is hot always easy to state what degree of negligence the law considers equivalent to wanton or gross negligence. The character of an act as being wanton or gross is greatly dependent upon the circumstances of each case. * * * An entire absence of care for the life, person, or property of others, if such as exhibits indifference to consequences, makes a case of constructive or legal willfulness, such as charges a person whose duty it was to exercise care with the consequences of a legal injury.” In Brown v. Illinois Terminal Co., 319 Ill. 326, 331, it is said: “A willful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of the impending danger, to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.” In Mueller v. Dewey, 159 Minn. 173, 176, it is said: “To cut in ahead of another car in passing and crowd it off the road is sheer recklessness. One guilty of such conduct is not in a position to complain if a jury finds that he was wantonly indifferent to the safety of the occupants of the car he passed. His act put them in peril of injury.”

Counsel also contend that the court erred in admitting in evidence, over objection, the five X-ray pictures of plaintiff ’s spine, taken in April, 1927, and also in allowing Dr. Schussler to answer, over objection, a certain hypothetical question put to him. We have carefully considered these contentions, and the arguments of respective counsel pertaining thereto, and are of the opinion that no reversible error was committed by the court in either of the rulings. And we are unable to say, as further urged by counsel, that the verdict, as remitted, is excessive, or that the verdict of $20,000, as originally returned by the jury, indicates such passion and prejudice on their part as requires a new trial of the case.

Complaint is made of the giving of certain instructions offered by plaintiff, and of the refusal to give certain other instructions offered by defendant. We have considered these instructions, in connection with all given instructions, and are of the opinion that no reversible error was committed by the court in any of the particulars mentioned. We think that the jury were fully and fairly instructed.

Finding no reversible error in the record the judgment of the superior court is affirmed.

Affirmed.

Scanlan and Barnes, JJ., concur.


text:
    Chicago Railway Equipment Company, Appellee, v. Anna Wilson et al., Appellants.
    Gen. No. 32,671.

      Opinion filed October 11, 1928.
    Rehearing denied October 23, 1928.

      William E. Rodriguez, for appellants; John M. Humphrey, of counsel.
    Musgrave, Oppenheim & Price, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

In a forcible detainer proceeding, upon a second trial had in November, 1927, the court instructed the jury to find defendants guilty of unlawfully withholding from plaintiff the possession of the premises, viz, 4500 S. Robey Street, Chicago, Illinois, and, on January 21, 1928, entered judgment upon the verdict. The present appeal followed.

The action was commenced ■ originally on December 16,1925, against James Wilson, Sr., as sole defendant, by the filing of the usual complaint. At that time he was occupying with his family, and was in possession of, the premises, which consisted of a two-story dwelling house and some land about it. His family consisted of his wife, Anna Wilson, and their four minor children, James, Jr., John, Irene and Robert Wilson.

In January, 1926, there was a trial as against James Wilson, Sr. (hereinafter referred to as Wilson) resulting in the court instructing the jury to return a verdict in plaintiff’s favor, which they did. The usual judgment against him followed, and he appealed to this Appellate Court, Case No. 30,986. On October 5, 1926, the judgment was reversed and the cause remanded for a new trial. (242 Ill. App. 640; majority opinion not published.)

The common-law record discloses that on December 4, 1926, after the cause had been redocketed in the municipal court, Wilson filed a motion to dismiss the action ‘ for want of jurisdiction of the subject matter. ’ ’ The motion was accompanied by his affidavit, as follows;

“Affiant says that the controversy and issue between the plaintiff and this defendant is not merely one of right of possession of the dwelling house and the five acres of land upon which it is situated, but one of the title to said premises; that he (affiant) has been in the continuous, hostile, adverse, visible and exclusive possession of the premises, under claim of title inconsistent with that claimed by plaintiff, for a period of more than 20 years next before the commencement of this action, and during all of the time defendant, together with his family, consisting of his wife and children, has occupied the premises as his homestead, all of which is well known to plaintiff; that by reason thereof affiant is possessed of a prescriptive title to the premises, superior and adverse to the pretended title claimed by plaintiff; and that neither plaintiff nor its grantor has ever been in possession of the premises, and the same not being unoccupied lands.”

The court denied the motion, and counsel for the present defendants here contend that this was error. We do not think so; (1) because defendants are in no position to raise the point, as no bill of exceptions relative to the motion is contained in the present transcript; and (2) because the action of forcible entry and detainer, under our statute, is a purely possessory civil remedy for the restitution of premises of which a plaintiff is unjustly deprived, and the right to possession is all that is involved or that can be determined. (Shulman v. Moser, 284 Ill. 134, 137.) In Doty v. Burdick, 83 Ill. 473, 475, it is said: “This court has ever uniformly held that, in an action of forcible entry and detainer, or in a forcible detainer only, the title to the premises is not involved, nor can it be inquired into on the trial.” In Thomasson v. Wilson, 146 Ill. 384, 392, it is said: “It is no answer to say, that a detention of the premises by appellant, after demand in writing to surrender them up, was not unlawful because he entered under and held by virtue of a superior title. What may be proved may be disproved, and if defendant be permitted to show that he entered under superior title, the plaintiff may, by evidence, overcome such proof, and thus the title be involved.”

Before a second trial was had, Wilson died on February 22, 1927, and on April 2, 1927, after notice, plaintiff appeared, suggested Wilson’s death and asked that the action be revived against his heirs, the present defendants, that summons be issued, etc., and that a guardian ad litem be appointed, etc. On April 4th plaintiff filed an amended complaint. The only difference between it and the original was that it alleged that Anna Wilson and the four children (naming them) unlawfully withhold possession of the premises from plaintiff. On the same day summons was issued. It appears from the return of the bailiff that he served it personally upon Anna Wilson on April 7th, by delivering to her a copy thereof, together with a copy of the complaint, and that on the same day he also served it upon the four children “by leaving a copy thereof, together with a copy of the complaint, with Anna Wilson, mother, a person of the family of said defendants, of the age of twelve years and upwards, and informing such person of the contents thereof, at the usual place of abode of said defendants in the city of Chicago.” On April 18th, on plaintiff’s motion and after notice, the court appointed Anna Wilson guardian ad litem for the children. At this time the oldest child, James Wilson, Jr., had reached'legal age. On April 28th, the general appearance of Anna Wilson and the four children was entered by their attorney and a jury trial demanded. On November 17, 1927, Anna Wilson accepted her appointment as guardian ad litem for the three minor defendants, and entered her appearance. The common-law record further discloses that on November 18th, while the cause was actually on trial and plaintiff had introduced its evidence in chief, Anna Wilson, one of the defendants, filed a written motion that the court dismiss the suit “for want of jurisdiction of the subject matter.” The motion was supported by her affidavit, which is practically the same as that filed by Wilson in support of his similar motion, filed December 4, 1926. We think that the court properly denied the motion for the reasons above stated.

Defendants’ counsel here contend that the death of Wilson abated the action and that the court should not have revived it. We do not think there is any merit in the contention. In section 11 of our Abatement Act, Cahill’s St. 1927, ch. 1, ¶ 11, p. 46, it is provided: “When there is but one defendant in an action, proceeding or complaint, in law or equity, and he dies before final judgment or decree, such action, proceeding or complaint shall not on that account abate, if it might be originally prosecuted against the heir, devisee, executor or administrator of such defendant, but the plaintiff, petitioner or complainant may suggest such death on the record, and shall, by order of the court, have summons against such person or legal representative, requiring him to appear and defend the action, proceeding or complaint, after which it may proceed as if it had been originally commenced against him.’’ In St. Louis Nat. Stock Yards v. Wiggins Ferry Co., 102 Ill. 514, 520, it is decided that, while an action in forcible detainer under our statute is not a common-law action, “it is nevertheless an action at law, relating to real property.” And in Rutter v. Maher, 147 Ill. App. 622, 625, it is decided that the action of forcible detainer survives as against the heirs of a sole defendant in possession of the premises at the time of his death, where, as here, it appears that his heirs succeeded him in that possession and retain it. Anna Wilson testified that after Wilson’s death she and the children continued to occupy the premises and were occupying them at the time of the trial in November, 1927.

Defendants’ counsel further contend that no legal service of summons was had upon the children. The argument is that the service on them, by leaving a copy of the writ and of the complaint with Anna Wilson, their mother, and a member of the Wilson family over 12 years of age, and informing her of the contents thereof, at the usual place of abode of the children, is not a sufficient service. In view of the provisions of section 48, as amended, of the Municipal Court Act, Cahill’s St. 1927, ch. 37, ¶ 436, p. 845, and of the provisions of section 9 of the Forcible Entry and Detainer Act, Cahill’s St. 1927, ch. 57, ¶ 9, p. 1329, and of the decision in MacLean Drug Co. v. Stoeffhas, 229 Ill. App. 492, 497-499, we do not think the contention has any substantial merit.

At the first trial in January, 1926, plaintiff’s only witness was Irving D. Chandler, who for many years had been its representative in its real estate transactions, and Wilson was a witness in his own behalf! Before the time of the second trial both had died, and it was stipulated that their testimony, or parts thereof, as contained in a stenographic transcript, might be read in evidence at the second trial, subject to objections to any portions as to competency, relevancy and materiality. Much of Chandler’s testimony was introduced by plaintiff without objection; portions were not admitted upon objection; and other portions properly admitted over objection. Such of Wilson’s testimony as was offered was admitted without objection. We are of the opinion that the testimony was properly admitted, as on each trial the issue involved was the same between the parties or their privies, viz., the right to the possession of the premises. In Chicago & E. I. R. Co. v. O’Connor, 119 Ill. 586, 595, it is said: “It was entirely competent to prove, as was done, what O’Connor testified on the former trial. The issues were unchanged, in any respect, by his death. * * * And that being so, all the authorities concur that it was competent to prove, on the last trial, what he testified to on the first.” In London Guarantee & Accident Co. v. American Cereal Co., 251 Ill. 123, 131, it is said: “It may therefore be regarded as the settled law of this State that in order to render the testimony of a witness in a former action admissible in a subsequent action on the ground that the witness has died since giving his testimony, it must appear that both actions involved the same issue between the same parties or their privies, * * *.” (See, also, McInturff v. Insurance Co. of North America, 248 Ill. 92, 94-96; Stephens v. Hoffman, 263 Ill. 197, 203.)

At the second trial plaintiff, in addition to introducing the testimony of Chandler and Wilson, called as a witness a surveyor, Rudolph, who testified as to a survey of the premises and other adjoining land, which he had made in 1908, and as to the particular location of the dwelling house, etc. Plaintiff also introduced a deed (dated in 1907) of certain land, including the land on which the dwelling house stands, from Thomas Carey and wife to James Miles; also a deed of the land from Miles and wife to John A. Spoor and Frederick S. Winston, trustees, upon certain trusts therein expressed, with power in the trustees, or their .successors, to lease or sell any part of the land; also a lease of the premises, including adjoining land, dated July 1, 1907, from the trustees to the plaintiff, Chicago Railway Equipment Company, for a period of five years, ending July 1,1912, with an option to purchase the same; also an instrument showing the death of pne of the trustees, Winston, in 1909, and the appointment of one Leonard as his successor; and also a warranty deed, dated May 9, 1912, of said Spoor, as trustee, and Leonard, as successor in trust, conveying the premises with the other land to plaintiff. These deeds, etc., were properly introduced to show plaintiff’s succession to the rights of Thomas Carey. None of them was introduced at the first trial.

From plaintiff’s undisputed evidence it appears that in 1904, and prior thereto, Thomas Carey was the owner of the premises and the house. They were a part of an unsubdivided tract of about five acres, occupying the northeast corner thereof, which was south of what was then, or afterwards became, Forty-fifth Street, Chicago, and west of what was then, or after-wards became, South Eobey Street. Carey then and afterwards owned other land adjoining, and operated a brickyard business. Wilson was then, and until 1909, an employee of Carey. Thereafter the house and the land upon which it stands became known as 4500 South Eobey Street. Wilson’s testimony on the first trial (admitted in evidence on the second) was that he lived with his family at 4500 South Eobey Street, and that he and they had been living there since June, 1905,. when he was married to his wife, Anna; that in 1905, and thereafter until 1909, when the brickyard closed down, he was “barn boss” for Carey, and, when there was no work in the barn, he worked “on the dump”; that before he moved into the house in 1905, he had a talk with Carey; that Carey said: ‘ ‘ There is the house over there for you, * * * * move in there and you can stay there, and it is yours as long as you like, and you take charge of the barn”; that he (Wilson) immediately after his marriage moved into the house and has remained there ever since; and that he “never paid any rent to anybody.” Chandler’s testimony on the first trial (admitted in evidence on the second) was in substance that he met Wilson and had a conversation with him on the land in 1907, about the time plaintiff had received the lease above mentioned; that Wilson said he was on the property to watch the garbage which was being dumped thereon; that he (Chandler) gave Wilson instructions as to where the loads of garbage should be put, etc.; that in 1912, after plaintiff had received the deed above mentioned, he (Chandler) had another conversation with Wilson; that “Wilson wanted to know if he could continue in the house”; that he (Chandler) replied that he thought so, provided Wilson would continue to watch and care for the property, but that plaintiff’s president would have to be consulted; that shortly thereafter he again saw Wilson and informed him that the president had said that, if he would continue to watch the property and make regular reports, he (Wilson) could continue in the house until the premises were needed or were sold; that in the year 1919 Chandler told Wilson that plaintiff was thinking of selling the property and that if the deal was consummated he would have to move; that Wilson inquired if he could' not have the house and move it onto another piece of property nearby, which his mother owned; that Chandler replied that if the deal was consummated (which it was not) he would endeavor to have Wilson’s request granted; that in the year 1923, while other negotiations were pending for a sale by plaintiff of the property, Chandler informed Wilson of the facts and suggested that Wilson accept a lease from plaintiff of the house, etc., for a short term, together with plaintiff’s agreement to the effect that if it sold the entire property Wilson, at the expiration of the lease, might move the house off; that Wilson finally refused to sign or accept the proposed lease; that plaintiff’s said other negotiations for the sale of the property came to naught, but Wilson continued to occupy the house and to watch the dumping on the property and to report to Chandler; that thereafter Chandler made frequent demands of Wilson to move out of the house but he refused to do so, and that Wilson, during the many conversations had with Chandler, never claimed that he was the owner of the premises. Plaintiff’s evidence on the second trial further disclosed that on December 10, 1925, prior to the commencement of the present action, plaintiff caused to be served upon Wilson, personally, its formal written demand for the “immediate possession of the premises, to-wit, 4500 South Eobey Street, Chicago, Illinois.”

We are of the opinion that plaintiff’s evidence, including the testimony of Wilson, clearly discloses that Wilson entered upon the premises in 1905 as a tenant of Thomas Carey at will or at sufferance, when Carey was the owner; that plaintiff subsequently became the owner of Carey’s reversionary interest or estate; that thereafter Wilson recognized plaintiff as owner of the premises, and as his landlord; that thereafter plaintiff elected to determine Wilson’s tenancy, as it had a right to do; that at the time of the commencement of this action on December 16,1925, after plaintiff’s written demand for possession, Wilson unlawfully withheld that possession from it; that the present defendants, being the heirs of Wilson and remaining in possession after his death, had no greater rights to possession than he had, and that plaintiff is entitled to recover possession of the premises in this action of forcible detainer. In Thomasson v. Wilson, 46 Ill. App. 398, 402, it is said: “The grantee of the landlord’s reversionary interest or estate, is the proper person to bring the action of forcible detainer after determination of the lease.” In Fisher v. Smith, 48 Ill. 184, it is decided that the action of forcible detainer lies in favor of the purchaser of the fee of the demised premises from the landlord, as the grantee, in such a case, succeeds to all of the rights of the landlord, by operation of the conveyance. In Thomasson v. Wilson, 146 Ill. 384, 389, it is said: “But the same right to terminate the tenancy, ánd upon its termination to proceed for the unlawful detention of the premises, existed in the grantee as the original landlord might have exercised.” It follows, we think, that the court did not err in instructing the jury to return a verdict for plaintiff and in entering the judgment appealed from. There were no disputed facts to be passed upon by the jury.

At the second trial defendants called three witnesses, ■ who were acquaintances of Wilson during his lifetime. They each attempted to testify to certain declarations or statements made by Wilson in their hearing to the effect that he was the owner of the house and the land on which it stood, but the court would not admit the testimony. The court did not err in the rulings, for the offered testimony was clearly incompetent and improper. Mrs. Anna Wilson, a defendant and the widow of Wilson and mother of the four children, was called as a witness. After testifying to her marriage to Wilson in June, 1905, her living in the house since that time, the character and size of the house, her meetings with Chandler and her husband’s employment by Carey, she attempted to testify to a conversation which she claimed she and her husband had in 1905, shortly after they moved into the house, with a “Mr. Stahulak,” and to a further conversation she and her husband had shortly thereafter with Thomas Carey, and to her thereafter paying a sum of money to Stahulak. The court would not allow the testimony to be admitted. Thereupon, out of the presence of the jury, defendants’ attorney offered to prove by the witness that Stahulak called at the house, saw the witness and her husband in possession thereof, and stated to them that it belonged to him and demanded that they pay him for it, which they then refused to do; that they immediately had a conversation with Carey; and that, as a result of that conversation, they shortly thereafter again saw Stahulak and “closed the transaction with him, paid him $200 for the property and continued in possession.” The court did not err in refusing to admit this somewhat extraordinary testimony. In view of the undisputed testimony of Wilson, her husband, that he entered into the possession of the house and premises as Carey’s tenant, and in view of the fact that defendants made no attempt to show who Stahulak was or that he ever had possession of the premises, and for other apparent reasons, we think that the testimony was clearly incompetent and improper. If it was sought by this testimony to show a right to possession of the premises in defendants, by a title paramount to that of Carey, Wilson’s former landlord, or to that of plaintiff as Carey’s grantee, they clearly could not be allowed to do so, for it does not appear that Wilson, while a tenant of either Carey or plaintiff, ever attempted to surrender his possession to either. Even in an action of ejectment, before Wilson or the present defendants could assail the title of the party, of whom Wilson was a tenant, the possession of the premises should first have been surrendered. (Tilghman & West v. Little, 13 Ill. 239, 242; Lowe v. Emerson, 48 Ill. 160, 163; Sexton v. Carley, 147 Ill. 269, 272.)

And we do not think that, a formal written demand for the possession of the premises having been served by plaintiff upon Wilson before the commencement of the action in 1925, it was necessary that another demand should have been served upon Anna Wilson and the children after Wilson’s death. Nor do we think that the description of the premises, as stated in the complaints, viz., “4500 S. Robey Street, Chicago, Illinois,” was an insufficient description, as contended. (Szulerecki v. Oppenheimer, 299 Ill. 68, 72.)

Our conclusion is that the judgment of the municipal court should be affirmed, and it is so ordered.

Affirmed.

Scanlan and Barnes, JJ,, concur.


author: Mr. Justice Barnes

text:
    Samuel L. Brown, Appellee, v. Thomas McKean, Appellant.
    Gen. No. 32,558.
    Opinion filed October 11, 1928.
    Newman, Poppenhusen, Stern & Johnston, for appellant.
    Edelson & Paullin and Samuel M. Come, for appellee; Hyland J. Paullin, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

The judgment appealed from was entered on a directed verdict for defendant in a forcible detainer suit.

The controlling question on this appeal is whether the court erred in rejecting proof offered by defendant of the lease under which he obtained, and claims the right to, possession of the premises involved, and proof of his exercise of an option therein provided for.

Plaintiff is the grantee of the purchaser of the premises at the judicial sale had pursuant to partition proceedings, to which defendant was made a party and in which he was defaulted for nonappearance. The decree entered therein, which was introduced over defendant’s objections, finds, among other things, that the premises in question, a storeroom on a certain lot No. 18, “is used and occupied by Thomas McKean under a written lease expiring September 30, 1927; that said Thomas McKean' has no right, title or interest in or to the said lot 18 except as such tenant,” and orders, adjudges and decrees “that under and by virtue of his lease hereinabove mentioned, defendant Thomas McKean is entitled to occupy the store room on the first floor of the two-story frame building located on lot eighteen (18) hereinabove described, for and during the period of his said lease and upon the terms and conditions of said lease.”

It is appellee’s theory that by such proceedings appellant’s right, to possession under the lease was adjudicated to have expired September 30, 1927, and that the attempt to introduce the lease and his exercise of an option therein given constituted a collateral attack upon the decree, which, of course, it is conceded cannot be made. It is appellant’s theory that by proper construction the decree on its face places no such limitation upon his rights and recognized them as they exist under the terms of the lease, one of which gives the lessee an option to extend the period beyond September 30,1927, and, therefore, the lease and proof of compliance with its terms are proper evidence to determine his right of possession. In this construction we concur. While the lease is described in the finding as “a written lease expiring September 30, 1927,” nevertheless the decree is that McKean as the lessee is entitled to occupy the premises “for and during the period of his said lease and upon the terms and conditions of said lease.” In our opinion it thus plainly recognizes the rights of both the lessee and the lessor under its terms and conditions, which, in the absence of any attempt in the decree to define them, are determinable only by an inspection of the lease itself.

It appears from the lease that its term is from, “for and during the term commencing on the first day of October, A. D. 1924, and ending the thirtieth day of September, A. D. 1927, upon the terms and conditions hereinafter set forth.” One of those terms reads: “Option is hereby given the lessee to renew this lease at its expiration for a further term of two (2) years, by giving the lessor sixty (60) days written notice.” We cannot concur in appellee’s contention that this provision is ambiguous. The exercise of such an option, of which competent proof was offered and rejected, would operate to extend the period of the lease. This provision was manifestly one of the conditions under which it was accepted by the lessee, and we think the decree contemplated the assertion and not the restriction of his rights under the terms and conditions of the lease. We think, therefore, that proof of the lease and the notice given thereunder was competent and should not have been rejected.

A -party purchasing at a judicial sale is charged with notice of such material facts as the record of the proceedings under which he derives title discloses, and he will be presumed to have examined the same before becoming a purchaser. (Webber v. Clark, 136 Ill. 256; Huber v. Hess, 191 Ill. 305.) The record here informed the purchaser — to whose rights appellee succeeded— of an adverse possession under a written lease according to its terms, and that the lessee was entitled to occupy the premises during the period of the lease and upon its terms. Surely its terms could be ascertained only from the lease itself, and one of them extended that period for two years beyond September 30, 1927, on the lessee giving notice as therein required.

There being no ambiguity in the terms of' the lease, in our opinion there was no occasion for proof resorted to by plaintiff of the master’s report of the evidence for interpretation of the decree. It speaks for itself in no uncertain terms and, in our opinion, does not restrict defendant’s right of possession to a period expiring September 30,1927. When the decree was entered there were several months left within which defendant could exercise the option. Manifestly the decree could not properly and did not purport to cut off that right.

Accordingly the judgment will be reversed and the cause remanded for a new trial.

Reversed and remanded.

Gridley, P. J., and Scanlan, J., concur.


text:
    Jolan Toth, Appellee, v. Samuel Phillipson & Company, Appellant.
    Gen. No. 32,644.

      Opinion filed October 11, 1928.
    Church, Haft, Robertson & Crowe, for appellant.
    I. E. Korn and Charles L. Mahony, for appellee; Charles L. Mahony, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

This is a suit brought to recover for personal injuries. It was dismissed for want of prosecution February 19, 1925, and reinstated January 28, 1928, upon overruling defendant’s demurrer to plaintiff’s motion in the nature of a writ of error coram nobis provided for by section 89 of the Practice Act, CahilPs St. ch. 110, 1189. Defendant elected to stand by its demurrer and appealed from the judgment vacating and setting aside the judgment of February 19, 1925.

The motion was founded upon the following facts as set forth therein and supported by affidavits:

February 19, 1925, the cause of action was on the trial call of that day before Judge Caylor of the superior court. Plaintiff’s attorneys also had other cases on other trial calls for the day in other branches of that court and in the circuit court. Among them was the first case on the trial call of Judge Pam of the superior court, which required their immediate personal attendance. At 10 a. m., the usual time for the opening of said courts, their clerk, one Kencke, was directed to answer the calls of the cases in other courts, including the case in question. He went first to Judge Caylor’s court room at said hour and the judge not having opened his court he notified the minute clerk of said court that he would return in a few minutes to answer the call, hut in the event the case was reached before his return to inform the court that plaintiff’s attorneys were about to he engaged before Judge Pam. He returned to Judge Caylor’s room about fifteen minutes later, after having attended to calls in the other court rooms, and asked the minute clerk as to the status of the case, and was informed by him that it had been continued to March 2, 1925, the opening date of the following term, and he communicated such information to plaintiff’s attorneys. They paid no further attention to the case until March 2, when they ascertained that it had been dismissed for want of prosecution the previous February 19. Inquiry developed the fact, as sworn to also by the minute clerk, that on February 19, several cases on Judge Caylor’s trial call were continued to March 2, and that the minute clerk when giving such information labored under the misapprehension that the ease in question was among them, but as a matter of fact the cause was dismissed after he gave such information.

Appellant contends that the court was without jurisdiction to set aside the judgment because entered at a previous term, and cites cases not pertinent,. either because the proceeding was not under said section or the facts did not bring it within the scope of its remedy. The statute itself permits resort to the remedy under said section at any time within five years after rendition of the judgment. (See section 89, Practice Act, Cahill’s St. ch. 110, ¶ 89; Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516.)

The primary question is whether the admitted facts present such a mistake of fact as may be corrected by motion under said section. The order of dismissal for want of prosecution was entered, as therein stated, because neither party appeared when the case was called for trial. It was said in Cramer v. Illinois Commercial Men’s Ass’n, supra, that the error in fact which may be assigned under the motion must be some fact unknown to the court which, if known, would have precluded the rendition of the judgment. Had the judge understood that as a matter of fact plaintiff in effect had appeared to respond to the call, and was misinformed by the duly officiating clerk that the cause had been continued to a future date, the order undoubtedly would not have been entered.

Nor under the admitted state of facts, and the well known conditions existing in this county where attorneys often have cases called for trial in different courts on the same day and depute members of their clerical force to represent them in answering the calls, do we think negligence could be imputed to plaintiff so as to defeat his right to the remedy. It is well known in this county where numerous trial courts are sitting at the same time the exigencies of such a situation require that trial attorneys be represented by their clerical force to respond to some of the calls, and that the court acts upon their response the same as if the attorneys of record themselves appeared in person. The litigant or his attorney in such instances is treated as having appeared, the court recognizing that it is impracticable and impossible under such circumstances for the trial attorney to respond to each call in person or to employ a force sufficient to try every case as it is called. Under the recognized practice, of which we take judicial cognizance, plaintiff’s attorneys appeared in the instant case to notify the court of readiness to prosecute the case when released from a cotemporaneous engagement in another branch of the same court, and had actually so notified its clerk. That the order, therefore, was entered under a misapprehension of the court as to the fact of their appearance and intention to prosecute, constitutes, we think, such a mistake of fact as comes within the scope of said section.

Whether the misinformation given by the clerk technically constitutes misprision we deem immaterial. The mistakes of fact upon which such a mgtion may be predicated are not confined to omissions or misprisions of the clerk. Here the mistake of fact was dismissing the case on the supposition that plaintiff had not appeared for trial, whereas he had, and that fact was unknown to the court when it entered the order. In principle the case is similar to that of Madden v. City of Chicago, 283 Ill. 165. It there appeared that on the general call of the calendar the case was stricken under a rule of court when plaintiff’s attorneys did not appear and make known their request for trial. Such a request was made to the clerk but not correctly noted by him. After having been assured by the clerk that the request was understood plaintiff’s attorneys left and were not present when the case was called. It was not only held to be such a mistake of fact as comes within the purview of said section, but the attorneys were warranted in assuming that the cause would be placed on the trial calendar and tried in due course by reason of the clerk’s assurance. That the present case came up on the trial call and not under rules pertaining to a general call presents no valid distinction in principle between this case and that. The clerk is an officer of the court and it is his duty to note its orders that are to be subsequently spread of record. He was the proper one to consult as to the status of the case and was supposed to know and note the orders of the court, and we think plaintiff was warranted in relying upon his statement as to what they were and was not required to verify the same by consulting his minutes. The clerk, however, was mistaken and here as in the Madden case misled plaintiff and indirectly the court. We think, therefore, the case was properly reinstated.

Affirmed.

Gridley, P. J., and Scanlan, J., concur.