author: Mr. Justice Friend

text:
    In re Estate of Anton Jirovec, Deceased. Antonie Schwab, Administratrix of the Estate of Anton Jirovec, Deceased, Appellee, v. Bohumil J. Kvidera, Appellant.
    Gen. No. 38,625.

      Opinion filed May 26, 1936.
    George J. Holek and Theodore A. Spence, both of Chicago, for appellant; John A. Cervenka, Jr., of Chicago, of counsel.
    Richard E. Dooley and George Stedronsky, both of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

Antonie Schwab, administratrix of the estate of Anton Jirovek, deceased, filed a petition for a citation in the probate court charging Bohumil J. Kvidera, the respondent, with possession of certain securities belonging to the estate, which he had refused to turn over to the petitioner as part of the assets of the estate. Respondent filed an answer and a hearing was had in the probate court resulting in an order, entered on March 14, 1935, finding the issues in favor of petitioner and directing respondent to turn over the se-, curities in question. From this order respondent appealed to the circuit court, where a trial de novo was had without a jury, and the order of the probate court was affirmed. Despondent appeals.

The essential facts disclose that Anton Jirovee died, intestate, on June 28, 1934, at the age of 84 years, and left him surviving three children, Mary Keclik, James Jirovee and Antonie Schwab. Mary Keclik, one of the surviving children, is the mother of respondent. Jirovee’s wife predeceased him in September, 1922. Despondent, whose father died before he was born, was brought up in the home of his grandparents, with whom he lived until he was eight years of age. Jirovec was quite fond of “Bob,” as he called the respondent, and referred to him as “his boy. ’ ’ Ten days after the death of his wife Jirovee and respondent went to the American Safety Deposit Co. for the purpose of engaging a box in its vault. An application card was prepared and signed by both parties, bearing date September 23,1922. On the face of the card appeared the names of Anton Jirovee and Bohumil J. Kvidera, as corenters, their residence, business and other information pertaining to their ancestry, birth place, residence and date of birth. It also bears the signature of the corenters, and contains a receipt for the rental “paid for safety deposit box No. 1805, which is leased by us, subject to all the rules and regulations of said bank as endorsed on said receipt.” On the face of the card appears the following: “Either or the survivor,” which was stamped thereon by one Lillian Sokol, a clerk in the vault, who testified that she rented the box to Jirovee and respondent and affixed the stamp at the time the application was made for rental of the box in the presence of both parties, and at their request. On the back of the card appeared the names of the corenters and a notation of the fees paid for rental of the safety deposit box on various dates between December, 1922, and 1933.

It is conceded that ever since the renting of the box all the contents placed therein, which consisted mainly of real estate bonds of various denominations, were the sole property of deceased, and that respondent never placed or deposited any of the securities in the box which were found there after decedent’s death. During Jirovec’s lifetime he frequently visited the box, withdrew securities, replaced them with others, and handled the same as his sole property. Kvidera had access to the box as a corenter, but never exercised any acts of ownership over the contents thereof.

Respondent takes the position that the card, signed by both parties and bearing the words “either or the survivor,” constitutes the agreement of the parties and sufficiently indicates an expressed intention in writing, as contemplated by the statute, to create a joint tenancy in the contents of the safety deposit box, with the right of survivorship, so that upon the death of Jirovec respondent, as the survivor, became the owner of the securities contained in the box. Ca-hill’s Ill. Rev. St. 1933, ch. 76, secs. 1 and 2, read as follows:

“Sec. 1. Estates in joint tenancy — Presumption of tenancy in common — Survivorship. That no estate in joint tenancy in any lands, tenements or hereditaments shall be held or claimed under any grant, devise or conveyance whatsoever heretofore or hereafter made,

. . . unless the premises therein mentioned shall expressly be thereby declared to pass not in tenancy in common but in joint tenancy; ...”

“Sec. 2. Abolition of survivorship rights. . . . Except . . . where by will or other instrument in writing expressing an intention to create a joint tenancy in personal property with the right of survivorship, the right or incident of survivorship as between joint tenants or owners of personal property, is hereby abolisked, and all such joint tenancies or ownerships shall, to all intents and purposes, be. deemed tenancies in common. ...”

Respondent relies on several Illinois decisions and cases in other jurisdictions to support his contention. In re Peterson’s Estate, 239 Mich. 452, is stated as being “more squarely in point with the instant case than any we have read.” The court was there called upon to give effect to the words, “either or the survivor, ’ ’ used in connection with the rental of a safety deposit box. The box had been rented by the deceased in the name of himself and wife and the contents of the box were, as evidenced by the bank records, to be surrendered accordingly. The key to the box was taken to his home by deceased and placed for safekeeping* in the bedroom where he and his wife both had access thereto. Upon objection made to the final account of the administratrix, who claimed that the widow had failed to account for certain bonds, the ownership of the securities was questioned, and the court held that “the bench law of this State does not forbid ‘the creation of the right of survivorship in personalty where it is created by the express act of the parties,’ ” and that “the statute nowhere forbids it,” citing Lober v. Dorgan, 215 Mich. 62. It is argued that the only act creating the right of survivorship in the Peterson case was the rental of the box by deceased in his name and that of his wife, ‘ ‘ either or the survivor,” according to the records of the bank. From the reported opinion in the case we find the following additional facts not cited in respondent’s brief:

“Mr. Peterson recognized his state of health, and declared his purpose in this transaction, as shown by the testimony of the cashier of the bank:

“ ‘He wished to have it so she could have access to it, in case he couldn’t; but in the meantime, as long as he was talcing care of the — able to take care of the business, that she very seldom got over to do any business, and she would probably not use it. . . . He said that she would not be active in the affairs of that box probably, as long as he was able to, but in case something happened to him, sickness or death, he wished the contents of that box to be hers.’

“. . . Mr. Peterson deposited the bonds in the names of himself and wife. He directed the depositary to surrender them either to himself or his wife, or the survivor of them. He placed the key in their bedroom to the knowledge of both of them. He or his wife at any time might have withdrawn the bonds. He did all that he could to carry out his intention. He intended to give to her a present interest in the bonds equal to his own, and, in the event of his death, which he must have anticipated, to give her the entire fund. He parted with dominion over the property to the full extent permitted by a transaction of this character. There was delivery.”

The parol evidence of the bank cashier, which was evidently competent under the laws of Michigan, clearly indicates the intention of Peterson to create in the contents of the safety deposit box a joint ownership of the bonds deposited therein, with the right of survivorship in his wife. He made this arrangement in 1920, when, as appears from the court’s opinion, he was ill with diabetes, which, progressing, resulted in his death in 1923, and knowing the serious nature of his illness, he deposited the bonds in this manner as a protection to his wife. The intention to create a joint tenancy in that case is clearly indicated by the circumstances, and the court merely held that neither the bench nor statutory law of Michigan forbade the creation of the right of survivorship in personalty where it was created by the express act of the parties.

Another case cited by respondent is Graham v. Barnes, 259 Mass. 534, where there was a specific written agreement that the right of access or control to the contents of a safety deposit box should not pass to the legal representatives of deceased, but should remain exclusively in the survivor or survivors. The court there indicated that “all the evidence, both oral and documentary, is before us,” and relied on the agreement of the parties entering into “an arrangement in writing with the bank to deposit the bonds in their joint names.” No such situation is presented in the instant case.

Reder v. Reder, 312 Ill. 209, involved a gift inter vivos, relating solely to a joint bank deposit, and parol evidence was admitted to prove the gift. It was there contended that original and subsequent deposits and an agreement made between Peter Reder and his wife created a joint tenancy with a right of survivor-ship, but the court held that the question “is of no importance whatever. The joint right of ownership, with the right of both or either, or the survivor, to withdraw the deposit was the subject of contract. Any question of joint tenancy or tenancy in common is entirely outside the issue. The question to be determined is whether the contract is valid. ’ ’

In New Jersey Title Guarantee & Trust Co. v. Archibald, 91 N. J. Eq. 82, there was a written agreement providing that the bank account and all the moneys to be credited to it belonged to the parties as joint tenants and was to be the absolute property of the survivor, with the privilege of either to withdraw any part thereof during his lifetime. That case has no bearing on the question here under discussion.

In Erwin v. Felter, 283 Ill. 36, a controversy arose as to the ownership of four certificates of deposit issued by the State Bank of Jerseyville, which Martha D. Erwin claimed as her individual property as against the estate of Emily C. Busk. The certificates were the same except as to the dates and amounts thereof, and recited that Emily C. Busk had deposited in the bank money payable to the order of herself or Mrs. Martha D. Erwin, or the survivor of either. Upon the deposit of these certificates the bank executed receipts acknowledging deposit of the various sums involved and reciting that ‘1 said certificate of deposit is payable to Mrs. Emily C. Busk or Martha D. Erwin, or the survivor, and in the event of the death of Emily C. Busk before the death of Martha D. Erwin the State Bank of Jerseyville is authorized by Emily C. Busk to pay the amount due on said certificate of deposit to Martha D. Erwin.” It appears from the opinion that the money represented by the certificates belonged to Mrs. Busk. The court held that the form of the certificates indicated an intention to create a joint tenancy in the money and that joint tenancy was not confined to real estate but may exist in personal property as well. The opinion in that case was filed in 1918, and while it appears that the statutory provision allowing joint tenancy in personal property was not in effect at the time, the court in a later decision (Illinois Trust & Savings Bank v. Van Vlack, 310 Ill. 185) justified the conclusion reached in Erwin v. Felter, upon the ground that, aside from the statute, the right of survivorship became effective by reason of the contractual expression of the parties.

Subsequent to the decision in Erwin v. Felter, the legislature in 1919 enacted the present statute relating to joint tenancy in personal property, and the transaction in Illinois Trust & Savings Bank v. Van Vlack is discussed within the contemplation and provisions of the statute. A bill of interpleader was there filed to determine the ownership in a bank account under a written contract wherein two persons agreed with the bank that the deposit should be owned by them jointly or severally, and that the amount of the deposit withdrawn at the death of one should be payable to and be the property of the survivor. The court discussed Erwin v. Felter, called attention to the fact that the statute was regarded as not applicable to the contracts involved in that case, and after citing and considering- various other cases, including Chippendale v. North Adams Savings Bank, 222 Mass. 499; Wisner v. Wisner, 82 W. Va. 9; New Jersey Title Guarantee & T. Co. v. Archibald, 91 N. J. Eq. 82, and other decisions, said that “if Erwin v. Felter, supra, was decided right, the decree of the circuit court in this case was not wrong.” It concluded by holding that the right of survivorship in personal property, where by will or other instrument in writing an intention is expressed to create a joint tenancy, comes within the provisions of the statute and is valid.

In neither Erwin v. Felter nor "the Van Vlack case was the question of joint tenancy or the right of survivorship in the contents of a safety deposit box discussed or considered. The court simply held in the first case that the parties had created the right of survivorship by their express written agreement, and in the second case that the statute was clearly followed in the expressed written intention of the parties to create a joint tenancy in the bank account in question.

After a careful consideration of the authorities and the circumstances involved in the instant proceeding, we have concluded that the card bearing the words “either or the survivor,” which is admitted to have been the sole contract of the parties, is not such an instrument in writing as can be construed to express an intention to create a joint tenancy in the securities found in the safety deposit box following Jirovec’s "death. We think that under the circumstances of this case it was at best only a rental arrangement, and the words “either or the survivor,” placed upon the card at the direction of the parties, were intended to merely authorize the bank to allow access to the box to both Jirovec and respondent, and to protect the bank in allowing respondent to withdraw securities. The right of survivorship, which is and always has been the principal and distinguishing incident of joint tenancies, has several times been the subject of legislation in this State. Joint tenancies have been looked upon with disfavor, and the courts, regarding the right of survivorship in personal property as productive of injustice because it makes no provision for posterity, will carefully scrutinize the circumstances for evidence of a clearly expressed intention to create a joint tenancy under the statute, where one exists. There is nothing in this proceeding, aside from the rental of a box by two parties, to sustain the contention that a joint tenancy, with a right of survivorship, was created or that Jirovec, who was admittedly the sole owner of all the securities contained in the safety box, intended to create a joint tenancy with respondent. It has been frequently pointed out that there are four essential characteristics of a joint tenancy: (1) unity of interest; (2) unity of title; (3) unity of time; and (4) unity of possession. Most, if not all, of these elements are lacking in the instant case, and we hold, therefore, that the circuit court properly directed respondent to turn over the securities to petitioner as administratrix of the estate.

The judgment of the circuit court is affirmed.

Affirmed.

Scanlan, P. J., and Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice John J. Sullivan

license: Public Domain

text:
    Elizabeth H. Ballard, Administratrix of the Estate of Thomas L. Ballard, Deceased, Appellee, v. James J. Trainor, Appellant.
    Gen. No. 38,190.

      Opinion filed May 26, 1936.
    Charles J. Trainor, of Chicago, for appellant.
    Stevens, Carrier & Griffith, of Chicago, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

By this appeal defendant, James J. Trainor, seeks to reverse a judgment for $6,884.16, rendered against him January 10, 1935, in an action of assumpsit brought by Elizabeth H. Ballard, administratrix of the estate of' her husband. The cause was tried by the court without a jury.

The declaration filed February 10, 1932, alleged that on or about August 23, 1929, for value received, defendant executed and delivered to Thomas L. Ballard, plaintiff’s intestate, his principal promissory note for $5,000, due six months after date with interest at the rate of seven per cent per annum; and that, although he had been often requested to pay said note since it became due, defendant refused to pay the amount specified therein or any part thereof to Ballard during his lifetime or to plaintiff since his death. A copy of the note was attached to and made part of the declaration, which also included the consolidated common counts.

Defendant filed a plea of the general issue supported by his affidavit of merits wherein he alleged that he executed and delivered the note in question to Ballard to be used by him as collateral security for a loan Ballard proposed to obtain; that such loan was obtained by Ballard and thereafter paid by him; that upon said payment plaintiff’s collateral note was surrendered to Ballard to be canceled and returned to defendant; and that there was no other and different consideration for the note.

When this case was reached for trial January 4, 1935, defendant’s motion for leave to file additional pleas of payment and accord and satisfaction was denied. The trial court did, however, permit defendant to present evidence as an offer of proof of the allegations of his proffered additional pleas, with the understanding that, if the evidence warranted, leave might later be granted to file such pleas.

January 10, 1935, at the close of all the evidence, defendant renewed his motion supported by his affidavit for leave to file the additional verified pleas of payment and accord and satisfaction.

The plea of- accord and satisfaction which defendant sought leave to file averred that only $2,000 was advanced to defendant by Thomas L. Ballard, plaintiff’s intestate; that said Ballard, payee of the note in question, was on November 1, 1931, indebted to the Super Cinder Block Company, a corporation, of which he was president; that defendant was a director of and attorney for the same corporation, which was indebted to him in the sum of $15,000 for legal services rendered; that it was agreed between plaintiff’s intestate, defendant and officers and directors of said company that the corporation would credit Ballard with $2,000 and interest thereon upon his indebtedness to the corporation and at the same time charge “against defendant’s account against said corporation” such $2,000 and interest; that it “was then and there agreed between this defendant and said Ballard that said arrangement would be in full accord and satisfaction of any and all moneys which said Ballard had advanced on the note sued upon in this, cause”; that “such credits were accordingly entered by the said corporation in favor of said Ballard and the same were accordingly charged against the account of this defendant by said corporation and thereupon said Ballard agreed with the defendant that he would immediately cancel and return the said note made by the defendant, and frequently thereafter said Ballard agreed to deliver said note to the defendant, but he died before having done so. ”

The plea of payment, which defendant was refused leave to file, alleged that Ballard had accepted and received from defendant divers sums of money aggregating the total amount advanced by him under the note set forth in plaintiff’s declaration in full satisfaction and discharge of everything due thereunder.

In denying defendant’s motion at the close of all the evidence for leave to file these additional pleas and in striking out all the evidence offered in support of same, the trial judge stated that he was 1 ‘ satisfied that it would be an abuse of discretion to allow the amendments on this state of the record.”

After offering in evidence without objection a certified copy of the letters of administration issued to plaintiff and defendant’s note of August 23, 1929, for $5,000, plaintiff rested. It was stipulated that one General Guy M. Wilson would, if present as a witness, testify in defendant’s behalf to the same effect as the witness George A. Kelly as to certain conversations between Wilson, Kelly, Ballard and the defendant.

Kelly testified that at a meeting between himself, Ballard and General Wilson sometime in August, 1929, in Wilson’s office in Flint, Michigan, Ballard said, “ ‘I agree to finance Mr. James Trainor’ on an oil deal that he was working on, finance him up to $5,000, and advance the money as is needed by Mr. Trainor. A note was given, was to be given or given for the full amount of the $5,000, although the $5,000 was not paid at that time. It was to be paid, $1,000 was to be paid that week and later on another thousand to be paid, and that constituted the entire amount that was paid on the $5,000 note. ... In fact the first thousand was paid before we ever got to Flint. ... I remember General Wilson suggesting that since Mr. Trainor did not know how fast he wanted the money or in what amounts he wanted the money, that he give a note for the whole amount and credit it for payment as it was received; and the note was given for the whole amount so that the note could be used by Mr. Ballard as he wanted to use it. . . . For his credit, if he wanted to use it he could get money on his account.”

Kelly testified further that he knew Thomas L. Ballard for several years prior to his death, December 7, 1930; that Ballard was president of the Super Cinder Block Company; that General Wilson was a director and attorney for that company; that defendant was a director and also performed legal services for the corporation; and that the witness was vice president of the company.

He also testified that the note in question was drawn by General Wilson in Flint, Michigan, and brought by the witness to Chicago where it was signed by defendant and delivered to Ballard; that the oil deal did not go through and no more money was paid defendant by Ballard on the $5,000 note; that “I was not in their oil deal”; that Wilson, Ballard and the defendant met frequently, through the witness, on other matters; and that “in the meantime this office, of course, was opened on this Cinder Block business in New York City.”

He then testified that “Ballard had agreed to take $25,000 worth of stock in my company and I owed Mr. Trainor $15,000 on attorney’s fees for work previously done. . . . Ballard had subscribed $25,000 of stock in the Cinder Block Company. . . . Mr. Ballard had a note for $5,000 from Mr. Trainor upon which he had paid only two, had not paid the whole five, Mr. Trainor suggested that I get everybody concerned together and settle this unfinished business. I got these men together at the Hamilton Club here in Chicago at a noon-day luncheon . . . not long before Mr. Ballard died, I should say about four to six weeks. . . . Mr. Trainor says, ‘Tom, you have my note for $5,000; and the Super Cinder Block Company owes me $15,000 which they are to pay me when they get the funds; and that you have agreed to invest $25,000 in the Super Cinder Block Company. When that investment is made, that or any other investment, when the compány gets this money from the sale of stock, you can credit the $2,000 that I owe you on the oil deal against what the company owes me for attorney’s fees.’ Mr. Ballard says ‘That is agreeable, and I will return the $5,000 note to you, Mr. Trainor.’

. . . I was to go with Mr. Ballard and bring that note from Mr. Ballard’s office to Mr. Trainor. . . . And that afternoon we never went to his office. And the next day, I went home and did not get the note. Now Mr. Ballard shortly, right , after that time, had some work down in St. Louis or Cincinnati or Louisville, Kentucky, where he was, he had work in those parts of the United States, that is in addition to working with municipal engineers here in Chicago, and when I got down he was not here in his office the next week. . . . Mr. Ballard often drove over on

. . . Jackson Boulevard, . . . pick me up at the Club and I would ask him about the note until it got— I had asked it so many times it got to be embarrassing. The last time I remember talking to him about it, he says ‘Well, George, I got that note from the office, I took that note home to my house last night knowing I have got to come here tomorrow and now this morning that note is at the house. ’ I remember that conversation definitely. That was just prior, probably the last time that I saw Mr. Ballard before he died. ’ ’

Kelly further stated that Ballard died suddenly of some heart ailment and that “he never did succeed in getting the note back” from him prior to his death.

George M. Stevens, one of the plaintiff’s attorneys, testifying in her behalf, identified copies of three letters, which he stated he had sent to defendant prior to the commencement of this action, demanding payment of the $5,000 note. These letters were not answered, but defendant called on Stevens in his office and said, among other things, that he had not received the entire consideration for the note- from Ballard.

Defendant in relating his version of his conversation with Stevens testified, in part, as follows: “I said to Mr. Stevens, I realized I gave Mr. Ballard the $5,000 note; that the $5,000 note was given for the purpose of defraying certain expenses; Mr. Ballard’s share in the promotion of the sale of the Wagner property in Texas and that I had to go away in the east considerably on negotiations with the Chase National Bank; and that Mr. Ballard at the time had told me that he was short of cash himself and happened to be a director of the Exchange State Bank, that he felt that he himself could not make any advance for himself but he could use my note for that purpose, get the money. And I said, up to that time I got $2,000, $1,000 in New York and $1,000 in Baltimore. When the deal did not seem to be satisfactory in its progress, the Chase Securities Company refused to go any further and I concluded not to go any further, not to use any more money, waste any more money on it. ’ ’

In addition to his version of his conversation with Stevens defendant also attempted to testify to certain conversations he claimed to have had with deceased, which testimony was properly excluded.

Defendant’s contentions, as stated in his brief, are (1) that the evidence contained in his offer of proof “shows conclusively that only $2,000 was advanced by Ballard to defendant, and that said sum was advanced by Ballard as his share of the expenses of promoting the ‘ oil deal ’ and for no other purpose and on no other consideration”; (2) “that the note given by defendant to Ballard was to enable Ballard to use it as collateral if he needed to do so”; (3) that, if there was any obligation on defendant’s part to repay Ballard the $2,000 which he advanced on the “oil deal,” then there was a complete accord and satisfaction and the court erred in refusing to permit defendant to file the additional pleas and “make proof of that fact”; and (4) that the note being still in the hands of the payee’s personal representative was evidence only of the actual debt, if any, owing by defendant.

Plaintiff’s theory is that under the pleadings the introduction in evidence without objection of the letters of administration issued to her in the estate of Thomas L. Ballard and the $5,000 note described in the declaration made out a prima facie case; that the defense set up in the affidavit of merits could not be shown by defendant under his plea of the general issue and in any event such defense was not sustained by the evidence offered on the trial; that the additional pleas of payment and accord and satisfaction sought to be filed were not proper pleas in view of the evidence offered in their support; that the trial court properly denied defendant’s motion for leave to file the additional pleas when first made because no showing was made that defendant could not have filed such pleas before the case was called for trial, assuming that they presented a real defense, and furthermore that they were inconsistent with the affidavit of merits already on file, which was neither withdrawn nor amended; that, when the motion for leave to file the additional pleas was made at the close of all the evidence, it was again properly denied because such pleas were inconsistent with the affidavit of merits theretofore filed and with the evidence offered by defendant himself; and that the affidavit presented January 10, 1935, in support of defendant’s motion to file the additional pleas contained no ground upon which the court could have granted the motion.

Defendant’s last mentioned affidavit of January 10, 1935, was as follows:

“James J. Trainor, being duly sworn, deposes and states that he is the defendant in the above case.

“He further states that at the time he was served by process in this case, he submitted the same, together with all facts in connection with the transaction, to Mr. James E. McGrath, an attorney of many years standing, and asked Mr. McGrath to prepare the pleadings in the case.

“That his information to Mr. McGrath disclosed the circumstances under which the note was given, the manner of its payment, substantially as testified to in this case by Mr. George A. Kelly, and this affiant assumed that the pleadings were correctly framed, and did not know to the contrary until the day this case was reached for trial.”

The summons in this cause was served on defendant June 26, 1933. It will be noted that, when he was served with summons, he submitted same with all the facts “in connection with the transaction” to one James E. McGrath, “an attorney of many years standing,” with instructions to prepare the proper and necessary pleadings in the case, at the same time disclosing to him “the circumstances under which the note was given, the manner of its payment, substantially as testified in this case by Mr. George A. Kelly.” It will be further noted that in this same affidavit the defendant states that he assumed that the pleadings were correctly framed, notwithstanding that he, a practicing attorney, personally executed and verified the affidavit of merits filed with his plea of the general issue, July 19, 1933, which set forth as his only defense that the note was without consideration and given to Ballard purely as an accommodation.

It is true that under the statute of Amendments and Jeofails (Illinois State Bar Stats. 1935, ch. 7, sec. 1) trial courts are granted broad power and discretion in allowing amendments to pleadings in pending cases in furtherance of justice at any time before judgment. But are the salutary provisions of this act applicable to the situation presented here? As stated above, the defendant himself signed and swore to the affidavit of merits in July, 1933, and although his affidavit of January 10, 1935, asserts that he apprised attorney McGrath in June, 1933, of all the matters concerning which the witness Kelly testified, Trainor’s affidavit of merits is absolutely silent as to both the alleged payment of the note and accord and satisfaction. In addition to alleging that there was no consideration given by Ballard for the note and that it was given to him by defendant merely as an accommodation note to be used by Ballard as collateral for a loan, the affidavit of merits went further and averred that Ballard used the note as collateral for a loan, which he paid in due course, and that the note was returned to Ballard to be canceled and returned to defendant. There is no evidence in the record that Ballard ever used the note as collateral for a loan.

Defendant relies upon the testimony of Kelly to sustain his right to file the additional pleas of payment and accord and satisfaction. According to Kelly, Ballard said that he “would finance James J. Trainor on an oil deal up to $5,000 and advance the money as needed.” Kelly also stated that the defendant, after executing the note, gave it to him to deliver to Ballard and that Ballard advanced $2,000 to Trainor. Trainor insists that the $2,000, which he claims is all that Ballard advanced to him, was advanced as Ballard’s share of the expense of financing the “oil deal.” If all that Ballard advanced to him was $2,000 and if Ballard was legally obligated to pay Trainor that amount, then why does defendant concede that he owed Ballard anything! Defendant must concede on the record that he was indebted to Ballard because his witness Kelly testified that Trainor said to Ballard, “You can credit the $2,000 that I owe you on the oil deal against what the company owes me for attorney’s fees.”

Under section 55 of the Practice Act, as amended in 1907 (Cahill’s 1931 Ill. Rev. St. ch. 110, f 55), and under sec. 57 of the Civil Practice Act (Ill. State Bar Stats. 1935, ch. 110, If 185), if plaintiff in an action upon a contract for the payment of money files with his declaration an affidavit showing the nature of his demand and the amount due him, he shall be entitled to judgment as in case of default, unless the defendant shall file with his plea an affidavit specifying the nature of the defense which he intends to rely upon. It has repeatedly been held that an affidavit of merits must make it plain and clear to the plaintiff just what is relied upon by defendant to meet the proof which plaintiff is required to make against him and that defendant is restricted in the presentation of his defense to proof of matters which he has notified plaintiff would constitute his defense. (Manufacturers State Bank v. American Surety Co., 230 Ill. App. 474; McGovern v. City of Chicago, 202 Ill. App. 139; Kadison v. Fortune Bros. Brewing Co., 163 Ill. App. 276; Clinton Co. v. Stiles, 197 Ill. App. 505; Beddig v. Looney, 208 Ill. App. 413; Goddard Tool Co. v. Crown Electrical Mfg. Co., 219 Ill. App. 34.)

In Manufacturers State Bank v. American Surety Co., supra, the court said at pp. 481, 483:

“Before the amendment [1907] was adopted the gates were wide open to the defendant to offer any proper proof under any plea filed by him but since the adoption of that amendment the gates are closed against him as to all proofs not tending to support the specific defenses set up in the affidavit of defense. We have held in Reddig v. Looney, supra, that matters of defense not set out in the affidavit' of merits are waived and that a defendant will not be permitted to give in evidence any matter of defense not stated in his affidavit. í Í

“It is settled under the authorities in this State that the defenses available under section 55 are limited to those which are set out in the affidavit of defense.”

Defendant’s affidavit of merits alleged want of consideration and such a defense is not available under the general issue. (Kent v. Thelin, 195 Ill. App. 440.) Want of consideration to be made available as a defense must be pleaded specially. (Wadhams v. Swan, 109 Ill. 46.) Defendant can prove only such defense as is stated in his affidavit of merits, but he cannot prove that or have a finding upon that unless he has a pleading appropriate to that defense. The proof and finding must be under proper pleadings but no proof can be admitted or availed of under the pleadings unless it is supported by a proper affidavit of merits. (Reddig v. Looney, supra.) Even though there had been an appropriate pleading defendant utterly failed to prove either want of consideration or that the note was an accommodation note. Kelly’s testimony, which was not admissible under the only plea on file in the cause and which was inconsistent with the affidavit of merits, did no more than tend to show only partial want of or partial failure of consideration. Kelly testified that at least $2,000 was advanced to Trainor on the note. The defendant did not specially plead either partial want or partial failure of consideration, which he was required to do to avail himself of such defenses and neither did he allege same in his affidavit of merits. Therefore defendant was precluded from relying on either of those defenses.

Did the trial court err in refusing to permit defendant to file the additional pleas of payment and accord and satisfaction? Would such pleas have been of any avail to defendant as the record stood? As heretofore stated defendant is a practicing lawyer and he personally swore to the affidavit of merits in July, 1933. The matters set forth in the special pleas which he proffered in January, 1935, both at the opening and close of the trial, surely were fresher in his mind in 1933 than they were a year and a half later. In fact, he stated in his affidavit of January 10, 1935, that in June, 1933, he informed his attorney, Mr. McGrath, of the matters substantially as testified to by the witness Kelly. Still defendant swore to an affidavit of merits averring only that the note was given without consideration and purely as an accommodation and did not incorporate therein or see that there was incorporated therein either the defense of payment or of accord and satisfaction. The evidence offered by defendant and the pleas sought to be filed by him placed him in an inconsistent and contradictory position. His affidavit of merits alleged that the note was without any consideration. The evidence offered by him was to the effect that there was a partial want or partial failure of consideration. The proffered pleas averred that the note was paid. Special pleas of payment or accord and satisfaction were unnecessary if the affidavit of merits contained suitable averments, because both of these defenses might be made under the general issue. (Benes v. Bankers Life Ins. Co., 282 Ill. 236; Hunziker v. Mulcahey, 215 Ill. App. 508.)

Even though competent under proper pleadings, the evidence offered in support of plaintiff’s claim of payment and accord and satisfaction did not establish either of those defenses. There was no evidence offered to show that General Wilson, Kelly, Ballard and defendant, the parties to the purported arrangement, which is claimed to have constituted payment or accord and satisfaction, could bind the corporation known as the Super Cinder Block Company to carry out the agreement testified to by Kelly as having been entered into between Ballard and Trainor, and there is no evidence in the record that the purported arrangement was consummated.

No motion was ever made to either withdraw or amend the original affidavit of merits and with that affidavit on file limiting the defense to want of consideration, it would have been no more than an idle gesture for the court to have granted leave to defendant to file the additional pleas.

Thus we have the defense of want of consideration alleged in the affidavit of merits, and defendant’s own evidence -discloses that there was at least some consideration for the note. The most that can be gleaned either from the evidence of defendant that was admitted or from his offer of proof is that there was a partial want or partial failure of consideration for the note. There was neither special plea nor anything in the affidavit of merits upon which either of these defenses could be made available. With appropriate allegations in the affidavit of merits defendant could have availed himself of the defense of payment and accord and satisfaction under the general issue. However, regardless of what pleas were on file, defendant was restricted to the defense of want of consideration, which was the only defense specified in his affidavit of merits, which he neither withdrew nor amended or attempted or offered to withdraw or amend at any stage of the proceedings.

We are of the opinion that the trial court properly refused defendant leave to file the additional special pleas of payment and accord and satisfaction.

For the reasons indicated herein the judgment of the circuit court is affirmed.

Affirmed.

Scanlan, P. J., and Friend, J., concur.


text:
    Glenn Thompson, Appellant, v. Florence Otis et al., Defendants. Edward E. Kleinschmidt, Appellee.
    Gen. No. 38,439.

      Opinion filed May 26, 1936.
    H. H. Patterson, of Chicago, for appellant; Edmund C. Maurer, of Chicago, of counsel.
    Wendell H. Sbanner, of Chicago, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This is an appeal by plaintiff, Glenn Thompson, from a judgment for costs entered against him June 15j 1935, in favor of Edward E. Kleinschmidt, one of three defendants to an action brought by plaintiff to recover damages for personal injuries sustained by him.

Plaintiff filed his suit July 20, 1933, under the former Practice Act, which was in effect prior to January 1, 1934, making Kleinschmidt, Florence Otis and Webber Cartage Line, Inc., a corporation, defendants. Each of the two counts of the original declaration filed August 24, 1933, alleged that plaintiff was injured March 24, 1933, while riding as a guest in an automobile driven by Kleinschmidt when it collided with another automobile operated by defendant Florence Otis and with a truck operated by defendant Webber Cartage Line, and charged that defendants Otis and Webber Cartage Line were guilty of negligence and that Kleinschmidt was guilty of wilful and wanton conduct.

To both counts of the declaration Kleinschmidt filed a general and special demurrer, the latter averring inter alia that a charge of wilful and wanton conduct against Kleinschmidt could not properly be joined in the same count with a charge of negligence against the other two defendants. Although it does not appear in the record, the parties to this controversy agree in their briefs that at the conclusion of the argument on the demurrer the trial judge indicated that he would sustain same. Thereupon, on November 8, 1933, before any order was entered on the demurrer, on plaintiff’s motion the cause was dismissed as to the defendant Kleinschmidt and leave was granted to plaintiff to file an amended declaration.

Such amended declaration was filed November 14, 1933, and consisted of four counts, the first three of which charged negligence against each of the remaining defendants and the fourth count charged them each with wilful and wanton conduct. Pleas were thereafter filed by the defendants Otis and Webber Cartage Line, and the case was at issue.

On March 21, 1935, before the statute of limitations had run against plaintiff’s claim, and after due notice to defendants Otis and Webber Cartage Line, the following order was entered by the trial court:

“On motion of Grlenn Thompson, plaintiff in the above entitled cause, it is hereby ordered:

“(1) That Edward E. Kleinschmidt be and he is hereby made an additional party defendant in the above entitled cause.

“ (2) That summons issue directed to said defendant returnable to the first Monday in April, 1935.

“(3) That the trial of this cause and the pleadings filed herein proceed in conformity to the provisions of the new Civil Practice Act. -

“ (4) That plaintiff be given leave to file his Second Amended Complaint instanter.

“(5) That the defendants, Florence Otis and Webber Cartage Line, Inc., a Corporation, be ordered to file their respective answers.or motions to strike said amended complaint within a period of ten (10) days from- this date.”

On the same day and pursuant to the above order, plaintiff filed his second amended complaint naming Florence Otis, Webber Cartage Line and Kleinschmidt as defendants, and charging Florence Otis with five acts of negligence and also with wilful and wanton conduct, Webber Cartage Line with four acts of negligence and Kleinschmidt with four acts of wilful and wanton conduct.

Summons was issued to Kleinschmidt as directed by the order of March 21, 1935, and was personally served upon him.

Defendants Otis and Webber Cartage Line answered the second amended complaint, and on April 8, 1935, Kleinschmidt filed a special and limited appearance “for the sole purpose of contesting the jurisdiction of the court over my person.” April 13, 1935, Kleinschmidt filed a verified motion to dismiss the cause as to him on the ground that “the court does not have jurisdiction of the person of said defendant.” His affidavit filed in support of this motion stated the facts as hereinbefore set forth, including the fact that on November 8, 1933, “the court allowed said plaintiff to take a voluntary nonsuit as to affiant; that the order entered in said cause allowing plaintiff to take a voluntary nonsuit did not give leave to the plaintiff to move to set aside.” After several hearings Kleinschmidt’s motion was sustained June 15, 1935, and the cause dismissed as to him. It is from this order and judgment that plaintiff appeals.

Plaintiff contends that his voluntary dismissal of defendant Kleinschmidt (hereinafter for convenience referred to as the defendant) was not a bar to a subsequent suit by him against the defendant, and that it is immaterial whether such subsequent suit was a separate new suit filed against Kleinschmidt alone or whether he was made an additional party defendant in the same action from which he had been theretofore dismissed.

The defendant contends that after he had once been voluntarily dismissed from the case by plaintiff, the court lost all jurisdiction over him in that action and that the procedure followed by the plaintiff was not the commencement of a new suit.

It is conceded that-plaintiff “had the unqualified right to dismiss Kleinschmidt from the suit” as he did and that after such dismissal he had the further right to file a new suit against him on the same cause of action at any time before the statute of limitations had barred his claim. .

Did the procedure followed by plaintiff pursuant to the trial court’s order of March -4, 1935, in making Kleinschmidt an additional party defendant in the pending cause, in procuring summons to issue and having it personally served upon him and in filing his second amended complaint as to the two defendants who remained in the ease, as well as to Kleinschmidt, constitute or was it in effect the commencement of a new suit as to Kleinschmidt?

Where a party takes a voluntary nonsuit against the sole defendant or against all of the defendants in a cause and thereby extinguishes the entire case, the well established rule in this State is as set forth in Weisguth v. Supreme Tribe Ben Hur, 272 Ill. 541, where the court said (p. 543):

“In case of a voluntary nonsuit upon motion of a plaintiff the court has no power to set aside the order of dismissal and reinstate the cause unless at the time the nonsuit is taken leave is given the plaintiff to move to set it aside. (Barnes v. Barber, 1 Gilm. 401; Lombard v. Cheever, 3 id. 469.) The reason for this rule is apparent. If a plaintiff by his deliberate and voluntary act secures the dismissal of his suit he must be held to have anticipated the effect and necessary results of this action and should not be restored to the position and the rights which he voluntarily abandoned. Having taken a nonsuit, his only recourse is to begin his action anew.”

The instant case was not nonsuited but still survived and was pending, only one of the defendants having been voluntarily dismissed from it by plaintiff, and it might well be said that as to Kleinschmidt the action stood upon the same footing it would have occupied had he not been made a party in the first instance. No attempt was made to vacate the order of dismissal or to reinstate Kleinschmidt as one of the original defendants. Since his dismissal the Civil Practice Act with its more liberal provisions as to practice and procedure had gone into effect “to the end that controversies may be speedily and finally determined according to the substantive rights of the parties. ’ ’

Plaintiff, a guest in Kleinschmidt’s car, was precluded under the statute from recovering from him except for Ms wilful and wanton conduct, and although the vehicles of all three of the original defendants were alleged to have been involved in the same occurrence out of which plaintiff received his claimed injuries, he was virtually compelled to dismiss as to Kleinschmidt under the strict rules of common law pleading which prevailed under the Practice Act of 1907 and the amendments thereto. Plaintiff was entitled to have his claim against the three defendants adjudicated in one trial, and we think it was the unmistakable intention of the legislature in adopting the salutary provisions of the Civil Practice Act to obviate situations such as arose in the case at bar, necessitating the dismissal of one of the defendants.

Does the Civil Practice Act sanction the procedure followed by plaintiff? It will be noted that the order of March 21, 1935, provided “that the trial of this cause and the pleadings filed herein proceed in conformity to the provisions of the new Civil Practice Act.” (Rule 1, Rules of Practice and Procedure of the Supreme Court.) The then defendants acquiesced in this order and Kleinschmidt had no right to object to it, because he was not a party to the cause at the time of its entry. The order itself and the amended complaint filed in pursuance thereof made him an additional party defendant.

The following provisions of the Civil Practice Act, we think pertinent and applicable to the question under consideration (ch. 110, Ill. State Bar Stats. 1935) :

Par. 133, sec. 5 (in part):

“Every civil action, unless otherwise expressly provided by statute shall be commenced by the issuance of a summons.”

Par. 152, sec. 24:

“ (Joinder of defendants.) (1) Any person may be made a defendant who, either jointly, severally or in the alternative, is alleged to have or claim an interest in the controversy, or in any part thereof, or in the transaction or series of transactions out of which the same arose, or whom it is necessary to make a party for the complete determination or settlement of any question involved therein, or against whom a liability is asserted either jointly, severally or in the alternative arising out of the same transaction or series of transactions, regardless of the number of causes of action joined.

(2) It shall not be necessary that each defendant shall be interested as to all the relief prayed for, or as to every cause of action included in any proceeding against him; but the court may make such order as may be just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he may have no interest.

“(3) Where the plaintiff is in doubt as to the person from whom he is entitled to redress; he may join two or more defendants, and state his claim against them in the alternative in the same count or plead separate counts in the alternative against different defendants, to the intent that the question which, if any, of the defendants is liable, and to what extent, may be determined as between the parties.”

Par. 153, sec. 25:

“ (Bringing in new parties.) Where a complete determination of the controversy cannot be had without the presence of other parties, the court may direct them to be brought in. Where a person, not a party, has an interest or title which the judgment may affect, the court, on application, shall direct him to be made a party. A new party shall be brought in by the service of a summons, which shall be drawn in the usual form with the addition of the statement, preceding the teste thereof, that this summons is issued pursuant to an order of the said coprt made on a date named.”

Par. 154, see. 26:

“(Non-joinder and mis-joinder of parties.) No action shall be defeated by non-joinder or mis-joinder of parties. New parties may be added and parties misjoined may be dropped by order of the court, at any stage of the cause, before or after judgment, as the ends of justice may require.”

Par. 174, sec. 46:

“(1) At any time before final judgment in a civil action, amendments may be allowed on such terms as are just and reasonable, introducing any party who ought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant, changing the cause of action or defense or adding new causes of action or defenses, and in- any matter, either of form or substance, in any process, pleading or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand. ’ ’

It cannot be disputed that bringing Kleinschmidt. into the cause as a new party defendant by the service of a summons upon him pursuant to the order of March 21, 1935, was the commencement of a new suit as to him. That the above quoted sections of the act governing the joinder of defendants and amendments contemplated the right of a plaintiff to proceed in one action against all persons as defendants who were proper or necessary for a complete determination of any and all questions involved, there can be no question. That Kleinschmidt was a necessary party for the full determination of the questions growing out of his alleged collision with the other automobile and truck must be conceded.

But Kleinschmidt insists that having been one of the original defendants he cannot be considered and treated as a new defendant and that plaintiff’s only recourse, having once dismissed him from the cause, was to have brought an entirely new suit against him, separate and apart from the original action. Numerous authorities are cited by the defendant in support of this contention, but practically all of them are inapplicable in that they are cases which through non-suit were abandoned in their entirety as to the one or more defendants sued. Obviously nothing was left, in those cases to amend or add to. No case has been called to our attention and we have been unable to find one which decides the precise question presented. The only case cited which is at all comparable with the situation here is Zukowski v. Armour, 107 Ill. App. 663. In that case plaintiff brought an action April 19, 1899, for personal injuries against Philip D. Armour, Jonathan 0. Armour and Philip D. Armour, Jr., doing business as Armour & Company. January 22, 1901, plaintiff obtained an order of court “changing the name of defendant to Armour & Company, a corporation.” An additional count was filed against the corporation as sole defendant. December 12, 1901, the corporation filed a plea that it was not incorporated until April 7, 1900, and, therefore, was not in business on the date of the alleged accident. December 14, 1901, plaintiff obtained an order of court granting him leave to amend his declaration by substituting Jonathan O. Armour, Philip D. Armour, Sr., and Philip D. Armour, Jr., doing business as Armour & Company as defendants, in place of the corporation, and on the same date he amended his declaration by substituting such individuals as defendants and dismissing as to the defendant Armour & Company, a corporation, and prayed for summons. March 5, 1902, Jonathan O. Armour, having been served with summons, appeared specially and moved the court to enter an order declaring the cause to have been dismissed and terminated by the order of December 14, 1901, substituting the individual defendants for the corporation and by the amendment filed to the declaration on the same day. Jonathan 0. Armour’s motion was allowed, the trial court holding that the effect of the order substituting the individual defendants for the corporation defendant was to dismiss and terminate the cause. In affirming the order of the trial court, this court, after quoting the then pertinent sections of the Statute on Amendments and the Practice Act, said at p. 666 of its opinion:

“It will be observed that the amendments permitted by section 1 of chapter 7 relate to an action ‘pending’; and that by section 23 of chapter 110 any necessary party may be ‘joined’ as plaintiff or defendant, and that the cause may be discontinued as to any ‘joint plaintiff or joint defendant.’ The plain reading of the latter section is that in order to add a necessary party to either side of the case there must he a plaintiff or a defendant already there to whom the neto party may he joined; and that when a discontinuance is ashed as to plaintiff or as to defendant, there must then he another plaintiff or another defendant from whom the party discontinued may he severed. Unless these essentials exist, the common law rule applies that to add a plaintiff or a defendant or to take away a plaintiff or a defendant, abates the action. The purpose of this statute is to cure the defect of misjoinder or of nonjoinder of proper parties without turning the case out of court, and not to substitute new parties for all of the plaintiffs or for all of the defendants. This statute is in derogation of the common law, and if the sole defendant he dismissed out, no case remains in court.” (Italics ours.)

That case instead of sustaining defendant’s contention rather supports plaintiff’s right to make Kleinschmidt an additional defendant in the pending action. The conclusion reached by the court in the Armour case that the individual defendants theretofore dismissed out of the case could not be brought into the case again as defendants was not based on their previous dismissal, but on the fact that the dismissal out of the case of the corporation, which was the sole defendant at that time, left no case and left no defendant to whom the Armours as individual defendants might.be joined. The inference can readily be drawn from the language of the opinion that, if the case itself was still pending, additional defendants, even though they had been previously dismissed from the same action, might be joined to any still remaining in the cause.

Kleinschmidt “ought to have been joined” as a defendant in the original action and was, but, when the exigencies of the situation prompted his dismissal he was effectively out of the case, but the case itself was still pending. He was a stranger to the proceeding when the Civil Practice Act went into effect January 1, 1934, and it seems clear to us that plaintiff commenced a new suit against him just as efficaciously by making him an additional party defendant in the pending action, by causing summons to issue and by filing an amended complaint against him and the other two defendants as if he had filed a new independent action against him. Indeed, the course pursued was in harmony with the provisions of the Civil Practice Act, whereas if plaintiff had filed a new independent suit against Kleinschmidt it would undoubtedly have been consolidated for trial by the court with the pending cause upon motion of either of the parties.

As heretofore shown, plaintiff is entitled to a complete determination of the issues involved in one action against the three defendants. At any time after January 1, 1934, and before his right of action had been barred by the statute of limitations plaintiff might have taken a nonsuit as to the other two defendants and joined Kleinschmidt and the others as defendants in a new action under the Civil Practice Act, but the law does not require litigants to do useless and unnecessary things.

It is the tendency of modern jurisprudence to get away from many of the harsh rules of the common law. It would be inequitable and against both the spirit and the letter of the Civil Practice Act to compel plaintiff to try his action piecemeal: one case against Kleinschmidt alone and another case against the other two defendants. We fail to see where it would be of any real benefit, even to Kleinschmidt, to have forced plaintiff to take a nonsuit as to the remaining defendants and proceed all over again against the three defendants with the advent of the new Practice Act.

We are of the opinion that the order of the trial court allowing defendant Kleinschmidt’s motion to dismiss this cause as to him for lack of jurisdiction was improperly and erroneously entered, and for the reasons indicated herein said order is reversed and the cause is remanded with directions to overrule defendant’s motion of April 13, 1935, and for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

Scanlan, P. J., and Friend, J., concur.


text:
    Hattie D. Stubbs, Appellant, v. William B. Austin et al., Appellees.
    Gen. No. 38,512.

      Opinion filed May 26, 1936.
    Irvin 0. Mollison, of Chicago, for appellant.
    Deming, Jarrett & Mulfinger, of Chicago, for appellees.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This appeal seeks to reverse an order of the superior court entered July 10, 1935, which directed the issuance of a writ of assistance commanding the sheriff of Cook county to dispossess plaintiff, Hattie D. Stubbs, from the premises described in her complaint.

Plaintiff, the vendee under a real estate sales contract, filed her complaint January 25, 1934, against William B. Austin, the vendor named in said contract, in which she prayed an accounting, the setting aside of an alleged wrongful and unlawful forfeiture of the sales contract and an injunction restraining Austin from prosecuting a forcible entry and detainer proceeding then pending in the municipal court for the possession of the same premises. On the day the complaint was filed an order was entered for the issuance of the injunction as prayed without notice and without bond.

Shortly thereafter William B. Austin died and the First Union Trust & Savings Bank, a corporation, and Elizabeth H. Norman, as trustees, and Elizabeth H. Norman, as executrix, were substituted as parties defendant. The substituted defendants filed an answer to the complaint and a counterclaim. Plaintiff filed an answer to the counterclaim and a motion to strike defendants’ answer to her complaint. Thereafter defendants filed an amended and supplemental answer to the complaint, which plaintiff also moved to strike. Plaintiff’s motions to strike the original answer and the amended and supplemental answer to her complaint have never been heard or disposed of, and were still pending before the court at the time of the entry of the order directing the issuance of the writ of assistance.

June 11, 1934, defendants’ motion to dissolve the injunction theretofore issued and to dismiss the complaint was argued but no evidence was offered and the court entered the following order:

“On motion of attorney for defendants this cause coming on to be heard on motion of defendants to dismiss the injunction heretofore entered herein and to dismiss complainant’s complaint, the court being fully apprised in the matter and having had [heard] arguments of counsel,

“It Is Hereby Ordered that the hearing on the above motion be continued until June 15, 1934, without further notice. It is further ordered that the complainant, Hattie D. Stijbbs, procure on or before June 15, 1934, either a surety company bond or turn over to the clerk of this court an amount of cash equivalent to the amount admitted to be due to the defendants as set forth in complainant’s bill.”

June 15, 1934, passing upon the same motion, an order was entered, the pertinent portions of- which are as follows:

“On motion of attorney for defendants, this matter coming on to be heard on defendant’s petition to dismiss complainant’s bill and to dismiss the injunction heretofore entered herein, and the court being fully advised in the premises,

“It Is Hereby Ordered, Adjudged and Decreed, that the order and Writ of Injunction ordered issued and entered on January 25, 1934, in this cause be, and the same is hereby set aside, dissolved and held for naught, and the defendants herein are hereby given leave to proceed in the Municipal Court of the City of Chicago in Writ #2577503 as if the above mentioned Injunction had not been entered.”

June 19,1935, before the case was at issue, plaintiff’s motions to strike defendants’ original and amended and supplemental answers to the complaint not having been heard or disposed of, defendant Elizabeth H. Norman, as executrix of Austin’s estate, filed a petition for a writ of assistance predicated upon the alleged failure of plaintiff to comply with the order of June 11, 1934, “that the complainant, Hattie D. Stubbs, procure on or before June 15, 1934,, either a surety company bond or turn over to the clerk of the court an amount of cash equivalent to the amount admitted to be due to the defendants as set forth in complainant’s bill.”

June 24, 1935, plaintiff filed her written motion to strike the last mentioned petition of defendant Elizabeth H. Norman, as executrix, for a writ of assistance, alleging inter alia that the court had no jurisdiction to order such writ to issue prior to a determination of the issues involved in the cause and without a final order or decree adjudicating which of the parties had the right to the-possession of the premises.

Numerous grounds are urged for reversal, but we deem it necessary to consider only plaintiff’s contentions (1) that the trial court had no jurisdiction to direct the issuance of a writ of assistance before a hearing on the issues in the case and before the entry of a final decree finding and determining the right to the possession of the premises involved in the real estate contract in question, and (2) that the order entered July 10, 1935, directing the issuance of a writ of assistance was erroneous in that the court had no jurisdiction to enter the same because it was based on the order entered June 11, 1934, which made no findings of fact and especially no finding as to the right to possession.

A careful examination of defendants’ brief and argument reveals that not only was no attempt made to answer the foregoing contentions but that other major errors pointed out and argued by plaintiff were entirely ignored. Such failure and refusal to meet and answer vital grounds for reversal urged by plaintiff confess the error of the proceedings resulting in the order directing the issuance of the writ of assistance.

Plaintiff’s motions to strike defendants’ answer and amended and supplemental answer were still pending and undisposed of. The legality of the forfeiture by the vendor of the real estate sales contract under which plaintiff was in possession of the premises had not been determined, and, in fact, could not be determined without an accounting as prayed by plaintiff. There could be no finding of the right to possession until the legality of the forfeiture had been decided and the vendor had no right to possession unless his forfeiture was rightfully declared and made.

The court was clearly without jurisdiction to try the title to the premises in dispute under a petition for a writ of assistance and just as clearly was without jurisdiction to direct the issuance of such a writ when no final decree had been entered finding the right of possession in the executrix petitioner. Even the order directing the issuance of the writ did not purport to determine the right to the possession of the premises. The very name of the writ itself implies that it is to be used only as an aid to the enforcement of an order or decree that has determined the right of possession. The writ of assistance will never be issued where there is any reasonable prospect that the party in possession may make a successful defense of his possession either at law or by the aid of a court of equity. (Flowers v. Brown, 21 Ill. 270.) An application for such writ is a summary proceeding, the sole object of which is to put a person in possession who had purchased property at a judicial sale under a decree in chancery. (McDonell v. Hartnett, 323 Ill. 87; Kerr v. Brawley, 193 Ill. 205.) The writ of assistance is properly employed wherever a court of equity having jurisdiction of the persons and property in controversy has determined the rights of the litigants to the title or possession of real estate or has decreed a sale of the property, the writ being part of the process employed in enforcing the decree itself. If the decree has not fully and finally determined the title or right to possession, the writ will not issue since these matters cannot be inquired into on an application for the writ. (5 0. J., sec. 3, p. 1317.) The writ should not issue where the rights of the respective parties have not been fully and finally adjudicated in the principal suit. (5 C. J., sec. 4, p. 1317.)

The petition of defendant executrix for the issuance of the writ of assistance averred primarily that it should issue because of plaintiff’s failure to comply with the order o£ June 11, 1934, heretofore set forth. That order was entered upon defendants’ motion to dissolve the injunction secured by plaintiff January 25, 1934, without notice and without bond and in addition to continuing the motion to dissolve the injunction until July 15, 1934, directed plaintiff to “procure on or before June 15, 1934, either a surety company bond or turn over to the clerk of this court an amount of cash equivalent to the amount admitted to be due to defendants as set forth in complainant’s bill. ’ ’ The record discloses no motion before the court for the direction contained in the foregoing quoted portion of the order, and, regardless of the reason for its inclusion therein, the order of June 11, 1934, made no finding of the right of Austin’s executrix to the possession of the premises which could possibly have given the court jurisdiction to enter the order of July 10, 1935, which directed the issuance of the writ of assistance. Such writ was improperly and erroneously issued and the order or decree of the superior court of July 10, 1935, directing its issuance is therefore reversed and the cause is remanded to that court with directions to quash the writ of assistance and to take such steps as are proper and necessary to restore plaintiff to the possession of the premises involved.

Reversed and remanded with directions.

Scanlan, P. J., and Friend, J., concur.


text:
    Maceo Coleman for the Use of Howard Haberman, Trading as Morton Clothiers, Appellee, v. American Sheet and Tin Plate Company, Appellant.
    Gen. No. 38,638.
    Opinion filed May 26, 1936.
    Knapp, Beye, Allen & Cushing, of Chicago, for appellant; Harlan L. Hagiibebt, of Chicago,"of counsel.
    Clarence A. Samuel, of Chicago, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This action upon an assignment of wages was brought July 18, 1935, in the name of Maceo Coleman, the assignor, for the use of Haherman. the assignee (hereinafter for convenience referred to as plaintiff) against defendant, American Sheet & Tin Plate Company, Coleman’s employer. The case was tried by the court without a jury and judgment was entered September 9, 1935,. against defendant for $63.90. This appeal followed.

Coleman, the assignor, is a married man, residing at Gary, Indiana. He was employed by defendant in one of its plants at Gary under a contract of employment entered into in that city. His employment was confined to that plant and all wages earned by him were paid to him there.

Plaintiff runs a clothing store on the south side of Chicago. His business is conducted exclusively in the State of Illinois. April 20, 1935, Coleman went into plaintiff’s store and purchased clothing, executing as security for the purchase price a judgment note and an assignment of all wages earned or to be earned by him from defendant. The clothing was delivered to Coleman in Chicago and the transaction between him and plaintiff was carried on entirely in Chicago. Coleman defaulted in his payments for the clothing and judgment was confessed against him in the municipal court of Chicago upon the note he had given to plaintiff. June 19, 1935, notice of the assignment of Coleman’s wages was served upon defendant at its Chicago office. On that date defendant was indebted to Coleman only for wages earned since June 1, 1935. The wages then due with the wages thereafter earned to the date of the filing of this suit are more than sufficient to satisfy plaintiff’s claim.

Indiana statutes received in evidence in the trial court provide, in part, as follows:

“40-201. Assigning wages. The assignment of future wages, to become due to employees from" persons, companies, corporations or associations affected by this act, is hereby prohibited, nor shall any agreement be valid that relieves said personSTcbmpanies, corporations or associations from the obligation to pay weekly, the full amount due, or to become due, to any employee in accordance with the provisions of this act; Provided, That nothing in this act shall be construed to prevent employexs-advancing money to their employees.” (Burns 1933 Annotated Indiana Statutes — Acts 1899, p. 193. In force April 27, 1899.)

Other provisions of the Indiana statutes impose penalties for violation of the foregoing section (secs. 40-202, 40-203); require the signature of the employee’s wife arid her acknowledgment to an assignment of wages permitted under the act (sec. 40-208); and require notice to the employer within 10 days from the date of the assignment (sec. 40-209). Only sec. 40-201 is applicable to the issue presented here, the other sections, although in evidence, have value merely as showing the public policy of the State of Indiana.

This is the first time this Indiana statute and its effect upon purported assignments of unearned wages executed in Illinois by men living and employed in Indiana has been presented for consideration to a court of review in this State, and the issue presented by this appeal is purely a question of conflict of laws as to whether the rights of the parties are .to be determined by reference to the law of Illinois or to the law. of Indiana.

Defendant contends that the purported assignment of wages was an attempt to assign a right arising under Coleman’s contract of employment^ that the assignability of any such rigbt must be determined by reference to the law which governs that contract of employment, namely, the law of Indiana, where Coleman lives, was hired, works and is paid; and that under the Indiana law the wages involved were not assignable and the attempted assignment did not vest in plaintiff any enforceable right against defendant.

Plaintiff’s theory is that since the assignment of wages was executed in Chicago, Illinpis law controls and the assignment in controversy is enforceable; and that the doctrineof comity should not be applied because the enforcer¿eñF~üf~ffhe Indiana statute would be prejudicial to the general interests of the citizens of this State and contrary to good morals.

Under the law of Illinois wages to be earned in the future under an existing contract of employment are assignable and an assignment of unearned wages is valid, while under the law of Indiana the assignment of unearned wages is prohibited. Defendant insists that the assignability of unearned wages and the validity of an instrument by which, if assignable, such wages are attempted to be assigned are not only entirely distinct questions but that the rules of law applicable to these questions, developed under the principles of conflict of laws, differ from each other.

A careful examination of the cases and textbooks cited convinces us that the question of the assignability of unearned wages, as a right arising out of a contract of employment, is controlling here and should be determined by the same law which governs the contract of employment, which in the instant case is the law of Indiana. By its adoption of sec. 40-201 of its statutes, heretofore set forth, the State of Indiana determined as a matter of public policy that the future wages.of its citizens were not assignable. In International Text-Book Co. v. Weissinger, 160 Ind. 349, where this statute was attacked as an unreasonable restraint on the power and right to contract, in sustaining the constitutionality of the act and declaring the reasons underlying the public policy of the State as expressed in the statute, the court said at pp. 351-52-53-54 and 55:

“These sections do, unquestionably, limit and restrict in a very marked degree the liberty of the citizen to enter into contracts which, in the absence of the statute, he would have the right to make. By sec. 4 [now 40-201] he is absolutely disabled from mailing an assignment of future wages to be earned by him. Such a prohibition can be sustained only on the ground that some public interest is involved, and that it is of such a character as to render it a legitimate subject of legislative regulation or control. The wages of laborers have been the subject of legislative solicitude and action in this State for many years, and in a great variety of forms. .

“A large proportion of the persons affected by these statutes of labor are dependent upon their daily or weekly wages for the maintenance of themselves and their families. Delay of payment or loss of wages results in deprivation of the necessaries of life, suffering, inability to meet just obligations to others, and, in many cases, may make the wage-earner a charge upon the public. The situation of these persons renders them peculiarly liable to imposition and injustice at the hands of employers, unscrupulous tradesmen, and others who are willing to take advantage of their condition. Where future wages may be assigned, the temptation to anticipate their payment, and to sacrifice them for an inadequate consideration, is often very great. Such assignments would, in many cases, leave the laborer or wage-earner without present or future means of support. By removing the strongest incentive to faithful service, — the expectation of pecuniary reward in the near future,- — -their effect would be alike injurious to the laborer and his employer. It is clear that the object of the act of 1899, supra, was the protection of wage-earners from oppression, extortion, or fraud on the part of others, and from the consequences of their own weakness, folly, or improvidence. We can not say that no just ground existed for such legislative interference for so commendable a purpose. C Í

“The act of February 28, 1899 (Acts 1899, p. 193), applies equally to all citizens, and is not subject to the objection of a partial or improper classification. The sections before us do not extend to wages which have been earned, but merely suspend the right to dispose of wages by assignment until they are earned. They render void an agreement into which no prudent man, ordinarily, would wish to enter. ’ ’

From the language of that case, “he (employee) is absolutely disabled from making an assignment of future wages to be earned by him,” the Supreme Court of Indiana, in our opinion, construed the statute as not merely rendering the employee incapable of making an assignment of his unearned wages but as making the unearned wages nonassignable.

Coleman’s right to receive his future wages was of the essence of his contract of employment, which was entered into in Indiana and was to be performed in its entirety in that State. The rule that the assign-ability of a contractual right is determined by the law which governs the contract under which the right arises is stated in Beale’s Conflict of Laws (1935, sec. 348.2), pp. 1251-52, as follows:

“Sec. 348.2. Assignability. — Whether a right under a contract can be transferred so as to give the transferee a right similar to that previously held by the transferor is determined by the law of the place where, the contract to be transferred was made, not by the law of the place of transfer or assignment, since this is really a question of the effect of the original contract, not of the contract of assignment. It is so held whether the place of assignment is the same as the place of contracting and performance of the original contract, or the same as the place of contracting only of the original contract, or the same as the place of performance only of the original contract, or different from both the place of contracting and the place of performance. ’ ’

We are not concerned with what plaintiff’s rights may be against Coleman, but only with the question as to whether Coleman had a right in his unearned wages of such nature that it could be transferred to plaintiff. Whether such a right under his contract of employment was capable of effective assignment is determined by the law of the place of making that contract. If capable of effective assignment, then the question as to whether or not there has been an effective assignment and what the effect thereof is on the rights of the assignor and assignee as between themselves, depends on the place of assignment. (American Law Institute Bestatement, Conflict of Laws, secs. 348-350.)

Differences in law do not necessarily constitute a sufficient basis for the assertion that the rule of a foreign State is contrary to the public policy of the forum. There is, rather, in the law of every jurisdiction a strong policy in favor of recognizing and enforcing rights and duties validly created by a foreign law. (Beale’s Conflict of Laws, 1935 ed., p. 1651.)

That the Indiana statute in question is not entirely obnoxious to the public policy of Illinois is evidenced by the recent enactment of legislation in this State (Ill. State Bar Stats. 1935, ch. 48, (1 22, sec. 4), limiting the amount of an employee’s wages collectible under an assignment to 25 per cent. For many years the policy of this State to protect salaries of wage earners has been exemplified in our statute (Ill. State Bar Stats. 1935, ch. 52, jf 22, sec. 4), affording nonresident debtors the same exemption of their wages from garnishment as is allowed them by the law of the State in which they reside.

We are impelled both as a matter of comity and in consonance with the “full faith and credit” clause of the federal Constitution (Art. IV, sec. 1) to give effect to the Indiana statute as a complete defense to plaintiff’s claim. A learned exposition of the doctrine of comity and the “full faith and credit” clause is found in Bradford Electric Light Co. v. Clapper, 286 U. S. 145, in which the reasoning of the court and the conclusions reached are peculiarly applicable to this case. There the court said at pp. 154-55-58-60-61-62:

“But the conflict here is between the laws of two States; and the Company in setting up as a defense a right arising under the Vermont statute, invokes Art. IV, sec. 1, of the Federal Constitution, which declares that ‘full faith and credit shall be given in each State to the public acts ... of every other State.’ That a statute is a ‘ public' act ’ within the meaning of that clause is settled. Modern Woodmen of America v. Mixer, 267 U. S. 544, 550, 551; Aetna Life Ins. Co. v. Dunken, 266 U. S. 389, 393. See Tennessee Coal, Iron & R. Co. v. George, 233 U. S. 354, 360; Chicago & Alton R. Co. v. Wiggins Ferry Co., 119 U. S. 615, 622. A federal court sitting in New Hampshire is bound equally with courts of the State to observe the command of the full faith and credit clause, where applicable. The precise question for decision is whether that clause is applicable to the situation here presented. < <

“The relation between Leon Clapper and the Company was created by the law of Vermont; and as long as that relation persisted its incidents were properly subject to regulation there. For both Clapper and the Company were at all times residents of Vermont; the Company’s principal place of business was located there; the contract of employment was made there; and the employee’s duties required him to go into New Hampshire only for temporary and specific purposes, in response to orders given him at the Vermont office. The mere recognition by the courts of one State that parties by their conduct have subjected themselves to certain obligations arising under the law of another State is not to be deemed an extra-territorial application of the law of the State creating the obligation.

“It is true that the full faith and credit clause does not require the enforcement of every right conferred by a statute of another State. There is room for some play of conflicting policies. . . . But the Company is in a position different from that of a plaintiff who seeks to enforce a cause of action conferred by the laws of another State. The right which it claims should be given effect is set up by way of defense to an asserted liability; and to a defense different considerations apply. Compare Home Ins. Co. v. Dick, 281 U. S. 397, 407, 408. A State may, on occasion, decline to enforce a foreign cause of action. In so doing, it merely denies a remedy, leaving unimpaired the plaintiff’s substantive right, so that he is free to enforce it elsewhere. But to refuse to give effect to a substantive defense under the applicable law of another State, as under the circumstances here presented, subjects the defendant to irremediable liability. This may not be done. Compare Modern Woodmen of America v. Mixer, 267 U. S. 544, 550, 551; Aetna Life Ins. Co. v. Dunken, 266 U. S. 389; Royal Arcanum v. Green, 237 U. S. 531. See also Western Union Telegraph Co. v. Brown, 234 U. S. 542; Atchison, T. & S. F. Ry. Co. v. Sowers, 213 U. S. 55, 69.

“Moreover, there is no adequate basis for the lower court’s conclusion that to deny recovery would be obnoxious to the public policy of New Hampshire. No decision of the state court has been cited indicating that recognition of the Vermont statute would be regarded in New Hampshire as prejudicial to the interests of its citizens. In support of the contention that the provision of the Vermont Act is contrary to the New Hampshire policy, it is urged that New Hampshire’s compensation law is unique among workmen’s compensation acts in that it permits the injured employee to elect, subsequent to injury, whether to bring a suit based upon negligence or to avail himself of the remedy provided by the Act; and that the legislature of New Hampshire has steadily refused to withdraw this privilege. But the mere fact that the Vermont legislation does not conform to that of New Hampshire does not establish that it would be obnoxious to the latter’s public policy to give effect to the Vermont statute in cases involving only the rights of residents of that State incident to the relation of employer and employee created there.”

Where a contract of employment is made and is to be performed in one State, the substantial rights of the parties thereunder, including the transferability of the right of the employee to his wages to be earned in the future, is determined by the law of that State, regardless of where the parties may litigate their differences. Future wages were not assignable under the Indiana statute, which, in our opinion, we are bound to recognize and enforce. Therefore, Coleman’s attempted assignment to plaintiff of his future wages transferred no rights against defendant.

We have carefully considered the other points urged and have examined the numerous authorities cited, but in the view we take of this cause we think that further discussion would only unnecessarily lengthen this opinion.

For the reasons indicated the judgment of the municipal court of Chicago is reversed.

Judgment reversed.

Scanlah, P. J., and Friehd, J., concur.