author: Mr. Justice McSurely

text:
    Foreman Trust & Savings Bank, Administrator of the Estate of Edwin Dale Houghton, Deceased, Appellant, v. Chicago Rapid Transit Company, Appellee.
    Gen. No. 33,084.

      Opinion filed March 11, 1929.
    H. A. Barnhardt, for appellant.
    Addison L. Gardner and Willliam G. Wood, for appellee; John A. Rose, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Edwin Dale Houghton (hereinafter called plaintiff), while standing on the platform of the Fullerton avenue station in Chicago, was struck by a passing express train owned and operated by defendant as part of its elevated railway system, and received injuries from which he died. His administrator brought suit against the defendant to recover compensation and at the conclusion of the evidence offered-by plaintiff the court instructed the jury orally to the effect that it was the law of Illinois that, where a person stands too close to a railroad train on a platform, as plaintiff did, he is guilty of contributory negligence which bars a recovery, and thereupon directed the jury to return a verdict of not guilty. From the judgment on the verdict plaintiff appeals.

The accident happened about 5:30 p. m., January 31, 1927. A witness testified it was an extremely clear day. The station platform runs north and south, and plaintiff was struck by a northbound express train which did not stop at this station.

A witness who was on the platform at the time of the accident testified that he noticed plaintiff standing on the side of the platform where the express trains pass. The witness walked southward, passing plaintiff, and noticed that he was in a dangerous position. When he saw the approaching express train he turned to plaintiff and called to him to “get back,” but the warning was too late and plaintiff was struck on the head by the front end of the first car on the express train and fell back on the platform. He subsequently died from the injuries received. At the time this witness passed plaintiff he saw him “spit over the platform; he was facing west, straight west; he was bent over.” The witness had gone about 20 feet south of plaintiff when the train struck him. The speed of the train was estimated at 30 to 35 miles an hour. The elevated trains make considerable noise. The witness did not remember whether a whistle was blown or not. He further testified that one would have a clear vision of the oncoming trains for a distance of a mile or three-quarters of a mile along a straight track.

Another occurrence witness testified that he saw plaintiff standing on the platform facing west but did not notice anything about the position of his head and did not notice what he was doing.

Plaintiff presents the well-known rule that on a motion of the defendant for a directed verdict all evidence most favorable to the plaintiff, together with all reasonable inferences that may be drawn therefrom favorable to the plaintiff, must be taken as true. Questions of contributory negligence as well as the defendant’s negligence must ordinarily be left to the determination of the jury. Ames & Frost Co. v. Strachurski, 145 Ill. 192; Lake Shore & M. S. Ry. Co. v. Enright, 129 Ill. App. 223; Baltimore & O. S. W. Ry. Co. v. Then, 159 Ill. 535. It is also the rule that, where all of the evidence and legitimate inferences therefrom favorable to plaintiff show that plaintiff was not in the exercise of due care and that his own negligence contributed to the accident, the trial court is justified in instructing the jury to return a verdict for the defendant. Greenwald v. Baltimore & O. R. Co., 332 Ill. 627; Wilson v. Illinois Cent. R. Co., 210 Ill. 603; Beidler v. Branshaw, 200 Ill. 425.

A person standing so near to the edge of a railroad platform as to be struck by a passing train is guilty of contributory negligence which bars a recovery. In Chicago B. & Q. R. Co. v. Mahara, 47 Ill. App. 208, Mr. Justice Cartwright used this apt language:

“A railroad track along which a train may pass is necessarily a place of danger. Platforms along such places are designed to afford a means of passage along and approach to the trains. Every person knows that it is not safe or prudent to stand on the edge of a platform while a train is passing, if the train does not overlap the platform at all, and only comes even with its edge. To be safe for such purpose a platform would have to be some distance away, so as to be unserviceable as a platform. Such a platform as a person of reasonable prudence would stand on the edge of while a train would pass him would be of no use in alighting from or getting on cars.”

To the same effect are Myers v. Northwestern El. R. Co., 227 Ill. App. 599; Hutchinson v. Boston & Maine R. R., 219 Mass. 389; Matthews v. Pennsylvania R. Co., 148 Pa. St. 491; Dotson v. Erie R. Co., 68 N. J. L. 679; Pennsylvania R. Co. v. Bell, 122 Pa. St. 58; Zumault v. Kansas City R. Co., 175 Mo. 288; Chicago & E. I. R. Co. v. Weir, 91 Ill. App. 420; St. Louis Southwestern R. Co. v. Douglas, 119 Ark. 33, 175 S. W. 518.

Plaintiff’s evidence tended to show that he was suffering from a cold at the time which caused him to cough, and it is argued that presumptively he was leaning over and coughing when struck by the train. This, however, is only speculation as no eyewitness testified as to his position at or just before the instant he was struck.

Plaintiff argues that under the 1 ‘ doctrine of last clear chance,” even if plaintiff was guilty of contributory negligence, yet it was the duty of defendant’s motorman to see the danger plaintiff was in and to refrain from running Ms train without slackening speed or sounding any warning. So far as the record shows, plaintiff was not in a position where he would be struck until the moment before he was struck. Whether “the doctrine of last clear chance” can be said to obtain in this State is not important in the instant case. It is established by a large number of decisions, without any dissent, that where a party seeks to recover damages he must be able to show that-his own negligence has not concurred with that of the other party in producing the injury, and the burden of proof is upon Mm to show that he was not guilty of negligence contributing to the injury. West Chicago St. R. Co. v. Liderman, 187 Ill. 463; City of Macon v. Holcomb, 205 Ill. 643; Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544; Carson, Pirie, Scott & Co. v. Chicago Rys. Co., 309 Ill. 346. The rule is otherwise where the defendant “is charged with the wanton and wilful infliction of an injury, which is not this case.

It is claimed to be reversible error for the trial court to instruct the jury orally directing a verdict. While it is the better practice to give peremptory instructions in writing, yet the failure so to do does not necessarily constitute reversible error. If the verdict and judgment are clearly right, it is immaterial whether the instruction is oral or written. Daily v. Boudreau, 231 Ill. 228; French, Potter & Wilson v. Wolf, 22 Ill. App. 525; Greathouse v. Summerfield, 25 Ill. App. 296; Derby v. Peterson, 128 Ill. App. 494; Fisher v. Dunn, 200 Ill. App. 63; Sears v. C. C. Emmerson & Co., 182 Ill. App. 522.

Under the evidence the instruction of the trial court was proper and as upon the record there could be no other proper result, the judgment is affirmed.

Affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    De Luxe Motor Cab Company et al., Defendants in Error, v. William E. Dever, Mayor of City of Chicago, et al., Plaintiffs in Error.
    Gen. No. 33,169.

      Opinion filed March 11, 1929.
    Rehearing denied March 25, 1929.
    Samuel A. Ettelson, Corporation Counsel, for plaintiffs in error; James I. McCarthy, Assistant Corporation Counsel, pro se and Roy S. Gaskill, of counsel.
    Stebbins, L’Amoreaux & Hurtubise, for defendants in error; J. E. Hurtubise and Paul C. L’Amoreaux, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

By this writ of error the defendants seek the reversal of a decree which inter alia enjoined them from prosecuting certain drivers of taxicabs charged with violating the Illinois Motor Vehicle Act and one of the ordinances of the City of Chicago in operating cabs without a city license.

Complainant’s bill also prayed for a mandatory order requiring the mayor of Chicago to issue and deliver to the De Luxe Motor Company 200 vehicle licenses duly licensing 200 taxicabs to operate for hire on the streets of Chicago. A temporary injunction was ordered and the cause was referred to a master in chancery who took proof and reported the same with his conclusions and recommendations, and the decree followed his conclusions.

Defendants assert that the reason the De Luxe Motor Cab Company (hereafter called complainant) was refused the licenses was that it was not the actual owner of the cabs for which licenses were sought. This is the crucial question involved. If complainant is not the owner within the meaning of the State statute and the Municipal Code, the decree should be reversed. If, on the contrary, complainant is the owner, the decree should be affirmed.

The master found that the complainant, about July 23, 1925, bought the auto taxicabs and received bills of sale for them; that at the time of the filing of the bill it was the owner of 310 cabs, 60 of which were operated in Kalamazoo, Michigan, and the balance in Chicago; that their approximate value, with other personal property of complainant, was about $500,000; that Joseph F. DeGraff and William Merkel, named as complainants, are each drivers of the De Luxe Motor Cab Company and are joined with complainant company in a representative capacity; that complainant entered into a contract with its various drivers in which it was described “for convenience as the lessor” and the driver operating the cab as “the lessee.” The contract provided that the lessee would pay the lessor a certain stipulated price per day for the use of the cab and also the expenses of operating the same, such as gas, oil, repairs, etc. It also provided that the lessee should pay a certain amount down when the contract was signed and give his note for a certain amount, and when the lessee had paid to £he lessor the sum agreed upon, pursuant to the provisions of paragraph 2 of the contract, the lessor agreed to accept in full payment of the cab the sum of one dollar, and the lessee would then be entitled to a bill of sale for the cab; that at the time the prospective employee or driver applied to the complainant company for a position, he filled out an application furnished by the company and if he was accepted as an employee, he signed the lease contract and also a copy of the rules and regulations of the complainant company closely printed on both sides of a sheet of paper, which were to be followed by the driver, and stating that it was made a part of the lease of the cabs and binding on the drivers.

The master also found that complainant had paid the City of Chicago the vehicle license fees on approximately 200 cabs, receiving receipts on the same which recited that the city had received from the De Luxe Motor Cab Company the vehicle license fees for the license year 1927, in accordance with the provisions of the city ordinances, which receipts were signed by the mayor and city clerk. The master also found that in December, 1926, complainant paid to the Secretary of State $2,424 for 303 license plates, as per application, and that the Secretary of State issued the plates to complainant; that complainant made an application for the approval by the Secretary of State of the bonds or policies of insurance tendered under the provisions of the Illinois Motor Vehicle Law, which application gives the De Luxe Motor Cab Company as the owner operating the respective vehicles, together with the address and garage number in Chicago and all the other required details with reference to engine number, model, horse power, date of purchase, etc.; said application also stated that the De Luxe Motor Cab Company was the owner and operator of the respective cabs; that the complainant furnished the required bonds with the New York Casualty Company as surety to the Secretary of State of Illinois for each of the 205 cabs, providing in each instance a penal sum of $2,500 running to the People of the State, in conformity with the various sections of the Motor Vehicle Law of Illinois, and filed the same in the office of the Secretary of State. To guarantee the surety company for furnishing the bonds the complainant deposited with it a total of $22,500 as collateral and also paid said surety company premiums for furnishing the bonds at various dates of approximately $20,000.

In the early part of January, 1927, complainant applied to the city collector’s office of Chicago for 200 cab-stand licenses and tendered the required fees for the same, and also applied to the secretary of the Public Vehicle License Commission of Chicago for said licenses, which licenses were refused. Subsequently a letter was received by the complainant company from the secretary of the Public Vehicle- License Cominission stating, in substance, that the reason for refusing the licenses was that investigation had developed that the De Luxe Motor Cab Company “is the lessor and not the operating owner of any public vehicle.” The master found that the tender of the required amount of fees for the licenses was made and kept good by the complainant.

The master also found that after various conferences between the attorneys for the complainant and the attorney representing the city, in which the complainant was informed that the city was interested only in the protection accorded the public, the attorney for the complainant informed the city’s representative that, if the arrangement then existing with complainant’s-drivers did not contemplate such protection they would devise some plan which would effect this. Subsequently, about February 12, 1927; complainant made a new form of contract with its drivers, by the terms of which complainant agreed to employ the driver and the'driver accepted employment on the terms and conditions contained in the contract. The company agreed to allot to the driver a certain taxicab, giving the number and detailed description of the same, to be operated by the driver as a taxicab for hire in the City of Chicago during the life of the cab, the complainant company to cause said cab to be duly licensed and bonded in accordance with the ordinances of the City of Chicago and the State laws. The driver agreed to make certain payments for the use of the cab and to keep and obey the rules and regulations of the company, a copy of which was attached to the contract of employment,

The master also found, and it is not disputed, that a number of the drivers were arrested and some of them rearrested several times and charged with operating their vehicles without the required city license. The master found that all of the cabs driven by the drivers arrested were properly bonded with the Secretary of State, as required, and that each of said cabs was duly licensed under the State Motor Vehicle Law; that the complainant duly applied to the proper department of the City of Chicago for the licenses required for cab- - stand licenses, tendering the proper fees and keeping said tender good; that the name properly appearing on the doors of the taxicabs is the “De Luxe Motor Cab Company”; that proper application for the licenses was made but illegally refused; that complainant has at no time contended that it was not the owner of the cabs where damage suits were brought on account of accidents; that the so-called lease contracts between it and the drivers did not release the complainant from responsibility and liability to the public on account of accidents.

The master further found that the business of the complainant was irreparably damaged by the arrests and that should said arrests continue complainant would suffer greater damages and that said arrests were illegal and unwarranted. The master concluded that legally the relationship of master and servant existed between complainant company and its drivers under the contracts above described since February 12, 1927, on which date all the drivers of the complainant company signed said contracts and that so far as the public or third persons were concerned the relationship of master and servant existed between complainant company and its drivers under the so-called lease contract used prior to February 12, 1927. The master found that the complainant company was the owner of the cabs in question and had complied with all the re^quirements of the Motor Vehicle Laws of the City of Chicago concerning motor vehicles for hire and recommended that the prayer of the bill of complaint be granted.

We are of the opinion that the record justified the findings and conclusions of the master and the decree entered in accordance with his recommendations. We hold that complainant company owned the cabs in question within the meaning of section 42a of the Motor Vehicle Act, .Cahill’s St. ch. 95a, If 44, and section 3917 of the' Chicago Municipal Code. The statute provides, in substance, that it should be unlawful for any person, firm or corporation to operate any motor vehicle on the streets for hire unless there shall be on file with the Secretary of State “a bond of the owner of said motor vehicle” with a responsible surety company. Each of the bonds should be conditioned “that the owner of said motor vehicle” will pay all final judgments recovered against such owner for any injury to or death of any person resulting from the negligence of “such owner or his agent” in the operation of such vehicle. Section 3917 of the Chicago Code provides that applications for licenses for public vehicles shall be made by “the owner.”

The word “owner” usually signifies one who has the legal or rightful title, but this is not always the sense in which it is employed. It is not rigid in meaning, especially in ordinances and statutes, and frequently is used to denote one in control but having less than the absolute title. The meaning usually depends, in great measure, upon the context and the subject matter to which it is applied; in statutes defining duties of railroads and fixing a penalty against the corporation “owning the railroads” or exacting requirements of companies “owning the tracks’’ it has been held that the corporation in control of or operating the railroad, though simply a lessee of the property, is an “owner” within the meaning of such statutes. State for use of Ray County v. St. Joseph, St. L. & S. F. R. Co., 46 Mo. App. 466; Baltimore & O. R. Co. v. Walker, 45 Ohio St. 577; Chicago, R. I. & P. R. Co. v. State, 84 Ark. 409.

Having in mind the object of our statute and the ordinance, which is to protect any of the public who may sue to recover damages for injuries received in or by public vehicles, we have little difficulty in arriving at the conclusion that the complainant company is the owner of the vehicles in question and that it may be subjected to the payment of damages where a person recovers a judgment for injuries received through the negligence of one of its drivers. It is not necessary to determine with nicety the precise legal relations between the complainant and its drivers. The important point is the relation of complainant to the public. One of the factors strongly supporting our conclusion is the requirements of the rules and regulations which the drivers must accept as a condition of employment; these prescribe in almost every conceivable particular their duties with reference to their personal habits, clothing, manners, how to manage the cabs and also their conduct towards passengers. If found guilty of the violation of any of the rules, the company has the right to determine and impose a penalty upon the violator. These rules and regulations are inconsistent with any claim that the driver is merely a lessee or the owner of the vehicle.

It may be pertinent to suggest that if we are affirmed in our conclusion that the complainant is liable as owner to respond in damages caused by the negligence of its drivers, complainant could hardly, in any suit at law, plead nonownership of the vehicle in the face of this decision.

Defendants argue that a court of equity has no jurisdiction to interfere with the public duties of the departments of government; that its jurisdiction pertains only to questions involving property rights. Undoubtedly under certain limited circumstances this is the rule; but here we have a broad situation involving not only property rights but the rights of many individuals. The record shows that police officers of the City of Chicago arrested a large number of the complainant’s drivers; at one time 6 drivers were arrested whose cases were not tried; again, some 17 drivers; at another time, on a holiday, 26, and at another time 34 men. Under such circumstances a court of equity will assume jurisdiction on the ground that the determination of the equity proceeding will prevent a multiplicity of suits. In Clark Teachers’ Agency v. City of Chicago, 220 Ill. App. 319, another division of this court had under consideration a bill in equity filed to enjoin the enforcement of an ordinance providing that certain employment agencies should pay license fees. The court held that there were 348 agencies affected and that if the city officials were not enjoined they would close up all of these agencies and that their business would be substantially destroyed. It was there held, after citation and consideration of a number of cases, that under such circumstances a court of chancery to avoid a multiplicity of suits has jurisdiction to settle the controversy at one hearing. The reasoning which moved this court in that case is controlling in the instant case.

. Defendants argue that no irreparable injury or damage is shown. It is obvious that the continued arrest of complainant’s drivers and interference with the operation of their vehicle's would have the inevitable effect of destroying their business. Passengers would not venture to ride in cabs whose drivers would be constantly subject to arrest.

“Irreparable injury, as a ground for injunction, is that which cannot be repaired, returned, put back again, atoned for. ... 28 Fla. 387; it does not necessarily mean that the injury is beyond the possibility of compensation in damages, nor, that it must be very great. Newell v. Sass, 142 Ill. 104.” Bouvier’s Law Dictionary, vol. 2, p. 1683.

To justify injunction the injury need not be impossible of compensation in damages. Although an actual and substantial injury must be shown to justify relief by injunction, the irreparable injury necessary to give a court of equity jurisdiction is not one so great as to be impossible of compensation in damages, but is one of such a character that the law cannot give adequate compensation for it. ’ ’ Syllabus 2 in Winhold v. Finch, 286 Ill. 614.

“But by irreparable injury is not meant that the injury is beyond the' possibility of repair by money compensation, but it must be of such -a nature that no fair and reasonable redress may be had in a court of law and that to refuse the injunction would be a denial of justice. ’ ’ High on Injunctions, vol. 1, sec. 22.

It is apparent that complainant had no complete or adequate remedy at law, and this is sufficient to entitle it to come into the equity court.

The decree has our approval and is affirmed.

Affirmed.

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


text:
    Western Cold Storage Company, Defendant in Error, v. Charles Keeshin and Sam Somerman, trading as Somerman & Company, Plaintiffs in Error.
    Gen. No. 33,237.

      Opinion filed March 11, 1929.
    Rehearing denied March 25, 1929.
    Benjamin E. Cohen and Samuel Berke, for plaintiff in error Charles Keeshin.
    Edward H. Stearns and Robert V. Jones, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

By this writ of error Charles Keeshin, one of the defendants, brings in review the proceeding in the municipal court which resulted in a judgment against him in the sum of $26,357.76 entered by confession under a power of attorney in a judgment note. Defendant subsequently filed his motion to vacate the same, which was denied.

April 18, 1928, plaintiff filed its statement of claim declaring upon five judgment notes purporting to be signed by Somerman & Company, by Sam Somerman. The name of the defendant Keeshin does not appear on the notes. On the same day, under the power of attorney in the notes, judgment was entered against both defendants in the sum of $26,214.46. May 5, Keeshin filed his motion supported by affidavits to vacate the judgment and for leave to appear and defend. May 24, defendant’s motion was sustained, the judgment was set aside and vacated, and leave was given to plaintiff to file an amended statement of claim and cognovit within five days. May 28, plaintiff filed an amended statement of claim and on June 7 judgment by confession was entered against defendants for $26,357.76. September 7, Keeshin filed his motion supported by affidavit to vacate this judgment, which was denied.

Respective counsel have presented in their briefs a number of questions touching the proper practice in cases involving a judgment entered by virtue of a power of attorney to confess judgment, but in the view we take of the case it is not necessary to pass upon these points.

It is quite evident that, when the court by its order of May 24 sustained defendant Keeshin’s motion to vacate the judgment and to permit him to make a defense to the suit, and plaintiff was given leave to file an amended statement of claim, the cause then stood as the ordinary case which is proceeding to a trial. Under the proper practice, after plaintiff filed his amended statement of claim, defendant should have been ruled to plead or answer to the same within a day certain, or an order should have been entered that his petition to vacate the judgment should stand as his answer to the amended statement of claim and the cause should then have been set down for trial. After a judgment by confession has been vacated and a defendant permitted to defend in the action, it is obviously irregular to proceed against him under the power to confess judgment. The second judgment against him was improperly entered and the motion to vacate the same should have been allowed.

The judgment will therefore be reversed and the cause remanded with directions to proceed with a trial in accordance with what we have said in this opinion.

Reversed mid remanded with directions.

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


author: Mr. Justice Matchett

text:
    The People of the State of Illinois ex rel. George L. Millard, Appellee, v. William Hale Thompson et al., Appellants.
    Gen. No. 33,127.

      Opinion filed March 11, 1929.
    Samuel A. Ettelson and Francis J. Vurpillat, for appellants.
    James J. O’Toole, for appellee; McMahon & Graber, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

This cause is now before us on rehearing granted. The cause is one in which the relator Millard filed a petition for mandamus against the mayor, the fire commissioner, the civil service commission and the board of trustees of the firemen’s pension fund of the City of Chicago, praying that the civil service commission be required to restore relator’s name to the payroll of the fire department of the city and that the trustees of the pension fund be required to remove his name from the pension roll.

A demurrer was interposed to the petition by the defendants and overruled by the court. Defendants electing to stand by their demurrer, judgment was entered in favor of the relator as prayed. The question for decision is whether the court erred in overruling the demurrer.

The petition averred by way of inducement facts tending to show that the relator Millard on May 31, 1926, and long prior to that time, was on the payroll of the City of Chicago as a member of the classified civil service and as a fireman entitled to the protection of the Civil Service Law and other laws and ordinances applicable; that appropriations for his salary were duly made; that in February, 1926, relator became ill and unable to work on account of rheumatism or arthritis caused by hardships and exposures suffered by him in the fine of his duties as a fireman, and that he was confined to his bed as a result of this illness up to May 31,1926; that his disability was certified to the fire commissioner by the city physician; that on May 31, 1926, Connery, the then fire commissioner, notified Millard that his name would not appear on the payroll of the fire department after that date; that notwithstanding Millard’s protest his name was removed from said payroll at that time without any charges being filed under the Civil Service Act, Cahill’s St. ch. 24, if 685 et seq., and without inquiry as to whether his illness arose out of the discharge of his duties as fireman; that Millard was then, as aforesaid, confined to his bed; that he had a wife and three children to support and had no property or income other than his wages; that Connery falsely represented that there was no provision for carrying disabled firemen on the regular payroll of the department; that Millard relied on this representation of Connery and at his suggestion applied for a pension under paragraph 950, section 9,' chapter 24 of the Statutes of Illinois, known as the Firemen’s Pension Act, Cahill’s St. ch. 24, If 950.

The petition further averred that at that time section 1199 of article 7, chapter 29 of the Municipal Code of Chicago provided:

“Any member of the fire department receiving any injury or becoming disabled while in the discharge of his duties and by reason of or as a consequence of the performance of such duties as such member of the fire department, shall for the space of twelve months provided his disability shall last that time, o.r for such portion of twelve months as such disability shall continue, receive his usual salary.”

The petition further averred that prior to its filing the relator made -a demand on the defendants for restoration of his name to the payroll of the fire department ; that on February 1, 1927, the relator recovered his health and has ever since been physically qualified to perform the duties and sustain the exposures required of one working in.the fire department; that on November 16,1927, prior to filing the petition, relator made a demand on defendants in writing for the immediate restoration of his name to the payroll of the fire department of the City of Chicago and to his office or position as first-class fireman and for the removal of his name from the list of pensioners of the City of Chicago, asserting in said notice that his purported removal from the payroll was violative of the Civil Service Act and the provisions of the Municipal Code, as above set forth, and that his inclusion on the pension roll or list of the City of Chicago was procured by coercion and duress and was violative of the Civil Service Act and chapter 29 of the Municipal Code of Chicago. This notice also stated that the relator intended to demand compensation for the time during which his name was left off the payroll.

The gist of the case set up in the petition is that the removal of the name of the relator from the payroll as fireman and the placing of his name upon the roll of the city as a pensioner was illegal, oppressive and void, and brought about through the false representations of Connery upon which the relator relied.

Section 9 of the Pension Fund Act, Cahill’s St. ch. 24, if 950, provides: .

“If any fireman of any such city while in active service or on leave of absence shall become and be so physically or mentally disabled as to render necessary his retirement from active service, said board shall order the retirement of such disabled fireman and he shall be paid a monthly pension equal to one-half the amount of salary attached to the rank which he may have held in such fire service at the date of his retirement: Provided, further, that the pensions so paid shall not exceed the sum of three thousand ($3,000.00) dollars per annum, nor be in any case less than six hundred ($600.00) dollars per annum. Provided, however, that no pension shall be allowed to any fireman who has been so physically or mentally disabled while on leave of absence without pay for more than thirty days during any year.
“If, after placing a fireman on the pension roll, the board shall become satisfied that such retired fireman has recovered from such physical or mental disability, said board shall order the suspension of the payment of his pension and that said fireman report back to the marshal or chief of the fire department of such city, who shall thereupon order the reinstatement of such fireman in active service in the same rank or grade that such fireman held at the time of his retirement. If any fireman of any such city receive any compensation or allowance from such city under and by virtue of the law known as the Workmen’s Compensation Act or other similar Act, the pension herein provided for such employee shall be reduced by the amounts so received if they be less than the amounts of such pension, and if any employee receive a sum or sums as compensation or allowance in excess of the pension herein provided for such employee, he shall not receive any pension until after the expiration of the period of time during which pension payable at the rate herein stated would equal the amount of such excess sum or sums.”.

It is conceded by the parties that the ultimate power in legislation is with the State; that ordinarily and as a general rule in case of conflict between a statute of the State of Illinois and an ordinance of the City of Chicago, the statute must prevail. The power of the city is derived from the State, and the State may, when it wills to do so, assume the power theretofore granted to a municipality. City of Chicago v. Burke, 226 Ill. 191; Lowenthal v. City of Chicago, 313 Ill. 190. If the ordinance here in question is in conflict with the statute, it is of course invalid and the statute alone would be applicable. In such case the alleged representation of Connery was not false, but true, and the placing of Millard’s name on the pension roll (unless in violation of some other statute) was not illegal but proper and justifiable.

Is there a conflict between this statute and this ordinance, or can the ordinance and the statute be construed as supplementary to each other? A comparison discloses that the subject matter of the ordinance forms the subject matter of a paragraph of the statute. This subject matter is disabled firemen in the service of the City of Chicago. The ordinance is by its terms applicable to a limited class of firemen, namely, such as are disabled in the discharge of their duties as firemen. The statute is broader and by its terms covers firemen disabled for any cause or reason, unless the disablement occurs while the fireman is on leave of absence for more than 30 days. As to time, the ordinance is limited to disablement for one year or less. The statute is unlimited in this respect. A further analysis discloses that the statute is limited to such firemen as are disabled to such an extent “as to render necessary” their retirement from active service. The ordinance is not so limited. It may, we think, reasonably be construed to refer to all firemen of the classes therein described whose retirement has not been rendered necessary. In other words, the moment it appears that it is necessary for a fireman to retire, section 9 of the Pension Act, Cahill’s St. ch. 24, If 950, becomes applicable and supersedes any and every provision of the ordinance. The ordinance covers the cases of disabled firemen whose retirement has not been found necessary. The statute is applicable to all disabled firemen whose retirement has been found necessary. If we thus construe the ordinance as being limited to firemen whose retirement has not been found necessary, there is not and cannot be any conflict between the provisions of the ordinance and the provisions of the statute, each being applicable to a distinct and different class of disabled firemen. Upon reflection, such seems to be the proper construction and interpretation of the ordinance and the statute, and this interpretation removes the possibility of any conflict in the provisions, of the same and therefore the ordinance is valid,

It was contended by the relator in his original briefs and in .his petition for rehearing that the ordinance should be construed to cover only the cases of firemen injured or disabled in the discharge of their duties by reason of and as a consequence of the performance of such duties, while the statute should be construed to cover firemen whose disability did not arise out of or was not caused by the discharge of their duties. We held in the former opinion and now hold that there is no basis in the language of the statute for such classification or interpretation. Relator also then, as now, argued that this construction might be inferred from the language of section 9 of the Pension Fund Act, Cahill’s St. ch.'-'24, If 950, which in substance declares that if any fireman receives compensation or allowance from the city under the Workmen’s Compensation Act “or other similar Act” his pension should be reduced by the amount so received, if that should be less than the amount of such pension", and that if any employee receives as compensation or allowance a sum in excess of the pension therein provided, he should not receive any pension until after the expiration of the period of time during which the pension payable at the rate stated would equal the amount of such excess sum.

It was further argued then, as now, that this construction should also be inferred from a consideration of section 5 of the Workmen’s Compensation Act as amended in 1923, Cahill’s' St. ch. 48, if 205 (see SmithHurd’s 111. Rev. Stat. 1925, chap. 48, p. 1267), which provides in substance that an employee of a municipal corporation who is or shall be entitled to a pension or benefit for or on account of disability or death arising out of or in the course of his employment shall be entitled to receive only such part of such pension or benefit as is in excess of the amount of compensation recovered and received by such employee. We then said, and now hold, that such inference may not be justly drawn from the language of these statutes. Section 9 of the Firemen’s Pension Act specifically directs the allowance which may be deducted shall be “by virtue of the law known as the Workmen’s Compensation Act or other similar Act.” Neither the Firemen’s Pension Act nor the Workmen’s Compensation Act can be construed as being similar to a municipal ordinance. A municipal ordinance is in its nature essentially different from a statute enacted by the legislature of a State.

Neither can the relator’s further contention that his removal from the payroll of the fire department was illegal because in violation of section 12 of the Civil Service Act, Cahill’s St. ch. 24, ff 697, be sustained. There are no violations of that act to be inferred from the facts set up in the petition of relator. The petition avers no facts from which a cause for removal of the relator could be inferred. A fireman transferred to the pension roll at his own request cannot be said to have been removed within the meaning of section 12 of the Civil Service Act and that section of the act is not applicable to such a case.

Notwithstanding our construction of the statute and the ordinance as supplementary to each other, and notwithstanding our holding that the ordinance is valid as applied to a certain class of disabled firemen, it does not, in our opinion, necessarily follow that the petition sets up facts showing that the relator is entitled to the relief prayed, for the reason that when the relator’s petition was filed on May 31 the applicability of the ordinance was ended and the statute alone thereafter became applicable. The petition does not aver that the relator’s retirement was not necessary on May 31, 1926, and it therefore fails to show that the alleged statement of Connery, upon which the relator relied, was in fact false. It is therefore unnecessary to discuss the further point raised by the respondent that at any rate the relator was presumed to know the law and that there could be no misrepresentation in that respect. Fowler v. Black, 136 Ill. 363; Williams v. Thwing Electric Co., 160 Ill. 526.

However this may be, we do not hesitate to hold that the petition is fatally defective in so far as it attempts to aver facts showing fraud, coercion and duress. For instance, it nowhere avers that relator did not have knowledge of the existence of the ordinance. It nowhere avers that the relator, upon discovery of the alleged fraud, asked for leave to withdraw his petition or refused to accept and retain the benefits conferred upon him by the granting of its prayer. A general allegation of fraud is not sufficient.

The relator, however, further contends that at any rate the judgment is right since the petition alleges that on February 1, 1927, relator recovered his health and has ever since been physically qualified to perform the duties and sustain the exposures incident to service in the fire department. It is urged that since the demurrer admits this fact and the pension trustees are defendants to the petition, the trial court did not order them to determine the fact as to whether petitioner had recovered his health hut that they elected and chose to admit that fact. Therefore, it is urged that under section 9 of the Pension Act, Cahill’s St. ch. 24, If 950, relator is entitled to reinstatement in the active service and it is urged that the judgment of the court that he be reinstated should be affirmed. In other words, having demanded reinstatement upon the theory that through fraud and violation of the law relator’s name was removed from the active roll and placed on the pension list, and having demanded not only restoration but' salary during the time his name .was on the pension list, he also seeks (while retaining the benefits of his petition) to further recover upon the inconsistent theory that there was nothing illegal in the transaction. He cannot be permitted to thus blow hot and cold. The judgment entered upon the demurrer adjudicated relator’s right on the theory of his petition, which was that he had been wronged. The judgment cannot now be sustained on the theory that he has not been wronged.'

What was said in our former opinion we now repeat:

“We assume that upon request to the trustees they will investigate the facts as to the relator’s present capacity to perform the duties of an active fireman. The petition fails to disclose such request.”

For the reasons indicated the judgment of the trial court is reversed.

Reversed.

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


author: Mr. Presiding Justice Jones

text:
    Eno Bachechi, Appellant, v. Inlander Paper Company, Appellee.
    Gen. No. 7,829.
    Opinion filed March 20, 1929.

      Klaas & Porter, for appellant; Harry H. Porter, of counsel.
    Douglas C. Gregg, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

This is an appeal from a decree dismissing an amended bill of complaint and dissolving a temporary injunction. The bill charged that on October 8, 1926, a summons was issued by a justice of the peace of Lake county, in the suit of Inlander Paper Company v. Eno Bachechi and Palmerl Gianbastini, doing business as “Highwood Grocery & Market”; that the summons was returned as having been personally served on appellant, Eno Bachechi; that at the time of the alleged service, Bachechi was absent from the county and was never served with summons in such suit; that when he learned of the alleged service, he communicated immediately, through his attorney, with the justice of the peace and objected to the return; that the justice of the peace of his own motion continued the cause until October 27, 1926, in order to investigate the matter, with the express understanding that such continuance was not at appellant’s motion.

The bill further alleged that on October 24,1926, the justice of the peace called appellant’s attorney by telephone and informed him that the suit would be dismissed as to appellant and continued as to Gianbastini; that appellant’s attorney agreed to such dismissal; that notwithstanding such agreement, appellee’s attorney on October 27, 1926, exhibited an execution to appellant showing that judgment had been entered against appellant on October 20, 1926.

It was also charged that appellant, by his attorney, immediately thereafter communicated with the justice of the peace and was informed by the justice that an error had been made in entering the judgment and that steps would be taken at once to rectify the error; that afterwards, on several occasions, appellant, by his attorney, communicated with the justice of the peace and each time was assured by the justice that the error would be rectified; that appellant once thereafter wrote a letter to the justice inquiring if the error had been rectified, but received no reply; that nothing was done with the execution until December 23,1926, when a levy was made thereunder upon appellant’s goods and chattels at his place of business. The bill also alleged that appellant never ordered, purchased, or received any of the goods concerning which the suit was brought; that he got no benefit therefrom, and had nothing whatever to do with the transaction; and did not owe appellant any money. A supporting affidavit made by the justice of the peace was filed with the bill of complaint setting forth most of the matters alleged in the bill and with greater detail.

The motion by appellee to dissolve the temporary injunction and dismiss the bill operated as a demurrer and admitted all the material allegations of the bill. (O’Donnell v. Gearing, 291 Ill. 278.) It is disclosed that appellant was diligent in his efforts to have the justice of the peace set aside or vacate the service, because the return on the summons was untrue. Therefore the only question to be determined is whether the bill states a cause of action cognizable by a court of equity.

Appellee claims that appellant had an adequate remedy at law and should have pursued his remedy there and not in equity. Appellant knew on October 27 that judgment had been entered against him on October 20. He had thirteen days thereafter in which to appeal, if he cared to do so. It is the further claim of appellee that an injunction does not lie to restrain the collection of a judgment entered by a justice of the peace where the defendant had ample opportunity to appeal. This claim is based on Lasher v. Annunziata, 119 Ill. App. 653; and Grossman v. Davis, 117 Ill. App. 354. In the first case, the summons was returned by a constable as served on the defendant. The service was denied and a proceeding instituted to enjoin the collection of the judgment. It appeared from the record in that case that when the bill for an injunction was filed, the twenty days allowed for taking an appeal from the judgment in the justice court had not expired. Among other things, the court said: “The matters set forth in the bill, taken as true, naturally excite sympathy with appellee, because they tend strongly to establish an intention to secure a judgment against him without giving him a chance to defend. When such judgment was once obtained, Annunziata would be obliged to give security on appeal, — perhaps a very inconvenient thing for him to do — or to lose his day in court, which is the right of every person sued. But nevertheless we cannot sustain the injunction granted in this cause. ... A court of equity cannot properly interfere by an injunction against the enforcement of a judgment obtained without due service of process, or otherwise either void or voidable, so long as there remains open an adequate remedy at law by appeal, or even by writ of error or certiorari.”

In Grossman v. Davis, supra, it is said on page 355:

“While the acts and doings of appellants as shown by the bill, which on this hearing must be taken as true, are unjust and inequitable, we are compelled to reverse the decretal order for the following reasons: First. Appellee had a complete remedy at law. He knew of the entry of this judgment by the justice of the peace the day it was rendered. He then had the indisputable right to appeal the case to the circuit court. It would there have been tried de novo. This he failed to do. No circumstance of fraud, accident, or mistake is set forth which prevented him from availing himself of this ample remedy. Such negligence bars relief in a court of equity.”

In an opinion heretofore filed by us in this cause we followed the above-mentioned cases. But upon further consideration, after petition for rehearing, we find that those cases are not in harmony with other cases of the Appellate Court upon the same point, and are in direct conflict with several decisions of the Supreme Court. By the weight of authority and the altogether better view of the law, appellant has no adequate remedy at law whereby he can take advantage of the defective service upon him in the justice’s court. An appeal, as proposed in" Grossman v. Davis, supra, instead of furnishing a remedy to appellant, would have effectively destroyed his right to object to the defective service. The error in the Grossmom case evidently arose from a belief that, on a trial de novo in the circuit court, the question of jurisdiction over the person of appellant could be raised. In such belief the court was mistaken, for the reason that by taking an appeal, the appellant would waive his*objection to the defective service and submit himself to the jurisdiction of the circuit court.

In Reynolds v. Town of Foster, 89 Ill. 257, it is said:

“But if no summons had been served, the appearance of defendant by his attorney, and taking an appeal to the circuit court, would supersede the necessity of any summons. . . . An appeal from a judgment of a justice of the peace gives the appellate court jurisdiction of the party, although he was not served with process in the case appealed from, and the appellate court can proceed to trial on the merits.”

Where a defendant files an appeal bond, he thereby enters his appearance in the cause in the circuit court, and, by so doing, waives all defects in the process, the want of process, defects in the service or want' of service, before the justice. (Village of Coulterville v. Gillen, 72 Ill. 599; Swingley v. Haynes, 22 Ill. 214.) The Supreme Court has said: “It is unnecessary to discuss the question whether or not the appellant . . . was properly served with summons to appear in the justice’s court, where the cause was originally tried, for, having joined in the appeal taken from the judgment there rendered to the circuit court, he thereby waived any objection to the service of the summons to appear before the justice.” (Harmison v. City of Lewistown, 153 Ill. 313; also same case, 46 Ill. App. 164.) To the same effect are Olsen v. Stark, 94 Ill. App. 556 (First District); Waterbury v. Hobbs, 84 Ill. App. 37; Willerton v. Shoemaker, 60 Ill. App. 126; Schofield v. Pope, 104 Ill. 130.

Nor did the appellant have any remedy by certiorari. The office of certiorari is to bring up the proceedings of the court below on the record. In this case the record would disclose that the summons had been returned with the following indorsement by the constable, to-wit: “Personally served the within writ by reading the same to the within named defendant, Eno Bacheehi, and leaving him a true copy thereof, this 11th day of October, 1926. ’ ’ The return is regular and imports verity. It cannot be questioned on certiorari. Courts do not, by virtue of the writ of certiorari, review the decisions of the inferior bodies or determine the facts. (City of Aurora v. Schoeberlein, 230 Ill. 496.) Where the return to the writ of certiorari shows that the inferior tribunal has jurisdiction, the same is conclusive and an assignment of want of jurisdiction is not permissible. (Encyc. of Pleading and Practice, vol. 4, page 226.) The hearing in the absence of statutory authority to. the contrary is on the record as returned and the reviewing court confines itself to an inspection of such record. (Hyslop v. Finch, 99 Ill. 171.) It may be stated as a universal rule that the province of the writ of certiorari is to review a record of an inferior court or tribunal and to determine from that record whether such court or tribunal has exceeded its jurisdiction. Evidence dehors the record, and contradicting it is not permitted in the absence of statutory authority. (5 R. C. L., “Certiorari,” H16.)

Under the circumstances disclosed by the record in this case, appellant had no adequate remedy either by appeal or certiorari. We therefore conclude that the circuit court erred in dismissing the amended bill and in dissolving the temporary injunction. This cause is accordingly reversed and remanded for. further proceedings in conformity with our views as herein expressed.

Reversed cmd remanded.


text:
    William Greenwald, Appellee, v. Caroline Lee and Ralph B. Haas, Appellants.
    Gen. No. 7,978.

      Opinion filed March 20, 1929.
    H. M. Murray and L. C. Sieberns, for appellants.
    F. A. Ortman and B. R Thompson, for appellee.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

On January 23, 1928, Joseph Greenwald executed a chattel mortgage on all his personal property to William Greenwald, his brother, to secure the payment of a note for $5,000. The mortgage contains the following certificate of acknowledgment:

“State of Illinois, Livingston County, SS.
“E. A. Jamison, a Justice of the Peace in and for and residing in the town of Pontiac, in said county and state, do hereby certify that this mortgage was duly acknowledged before me by Joseph Greenwald, the mortgagor therein named this 23rd day of January, 1928.
■ Witness my hand and seal.
(Seal)”

The mortgage was entered on the docket of the justice of the peace and filed for record in the recorder’s office of Livingston county on the day of its purported acknowledgment. On January 25,1928, two executions were issued out of the circuit court of Livingston county on judgments against Joseph Greenwald in favor of Caroline Lee and Ealph B. Haas, respectively.

On February 9, 1928, appellee, William Greenwald, foreclosed his chattel mortgage, took possession of the property and advertised it for public sale on February 23,1928. On February 10, 1928, the sheriff levied on the mortgaged property. Notice of a trial of the rights of property was given the parties to this suit. A jury was waived, the causes were consolidated and tried by the county court, and a judgment was entered in favor of appellee.

The controversy in this case arises over the certificate of acknowledgment. The justice of the peace did not sign his name on the blank line provided for that purpose in the printed form, and the words “entered by me” contained in the statutory form are omitted from the certificate. The name of the justice appears in the body of the certificate and over the objection of appellant, he was permitted to testify that the failure to put his signature in the usual place was a clerical error; that he did write his name at the beginning of the certificate; that it appears’ there in his own handwriting and is his signature. He also testified that he wrote the words “this 23rd day of January 1928” in the certificate. The court admitted the docket entry of the mortgage over objection.

No question is raised as to the bona tides of the mortgage transaction. The only issue is whether or not the chattel mortgage is valid and binding as against appellants. The question is not free from difficulty. The general rule adopted by the courts of review in this State is expressed in National Cash Reg ister Co. v. Riley Advertising System, 329 Ill. 403. The opinion in that case states: 6 ‘ Chattel mortgages are in derogation of the common law and must be strictly construed. (Lyons v. People’s Bank, 317 Ill. 44; Kimball Co. v. Polakow, 268 id. 344.) In order that a chattel mortgage be established as a prior lien as against judgment creditors, the holder of such chattel mortgage must prove that it complies with all the technical requirements of the statute. (Talty v. Schoenholz, 323 Ill. 232; Lyons v. People’s Bank, supra.) Unless such chattel mortgage is executed and acknowledged in strict compliance with the statute, it is void as to third persons even though they may have notice of the existence of it. (Blatchford v. Boyden, 122 Ill. 657; Frank v. Miner, 50 id. 444.)”

An examination of the above-mentioned cases will show that in the National Cash Register case the mortgage did not disclose who was the mortgagor. In the Lyons case, the Tally case, and the Frank case the mortgage was not acknowledged before a justice of the peace of the town where the mortgagor resided, as then required by statute. In the Kimball case, the mortgage was acknowledged by an attorney in fact, before the statute made provision for such acknowledgments. The good faith of a transaction was involved in the Blatchford case, where it was claimed that a chattel mortgage had been foreclosed and the property resold to the mortgagor, who made a new mortgage to the same parties.

Appellants insist that a defective acknowledgment cannot be aided by parol, and in support of their contention cite Ennor v. Thompson, 46 Ill. 214. In that case a deed did not convey the homestead. There was an attempt to prove by parol what the grantor’s wife did acknowledge when she was before the justice of the peace. It was held that under the statute, everything essential to an acknowledgment must appear in the certificate, as the statute has declared that in that mode, and that alone, can the wife bar her rights of homestead. The defect in the acknowledgment was one of substance and not a mere clerical error. Obviously, the conveyance of an interest in land cannot be established by parol. In Clark v. Wilson, 127 Ill. 449, a notary public’s certificate of acknowledgment to a deed was unsigned and was held insufficient, but in that case the notary made no attempt to sign or execute the certificate.

Section 2 of the Chattel Mortgage Act before its amendment in 1915 provided: “The certificate of acknowledgment may be in the following form, ’ ’ followed by a blank form. Since the amendment of 1915, Cahill’s St. ch. 95, If 2, the section provides: “The certificate of acknowledgment shall be in the following form.” It is argued by appellants that the statute is mandatory and that the acknowledgment to a chattel mortgage must follow literally the statutory form. Before the amendment of 1915, it was held that the word “may” as used in this statute was imperative. (First Nat. Bank of Chicago v. Baker, 62 Ill. App. 154; Henderson v. Morgan, 26 Ill. 431; Ticknor v. McClelland, 84 Ill. 471.) So the substitution of the word “shall” for the word “may” made no change in the law as interpreted by the courts.

The words “and entered by me” are contained in the statutory form of acknowledgment of chattel mortgages, but-although the word “may” was construed to be imperative in the cases cited, it has been held that the omission of the words “entered by me” does not raise any substantial objection. (Schroder v. Keller, 84 Ill. 46; Harvey v. Dunn, 89 Ill. 585.)

In Durfee v. Grinnell, 69 Ill. 371, a chattel mortgage was in fact executed and acknowledged in 1871, but the justice dated the certificate of acknowledgment in 1872. It was held that it is to be presumed that any person examining the justice’s docket would have found the mortgage described by the proper date. In Cox v. Stern, 170 Ill. 442, an affidavit for the extension of a chattel mortgage was signed by the mortgagors and the agent of the mortgagee. To the affidavit there was a jurat in regular form as to the mortgagee’s agent, but the jurat as to the mortgagors was unsigned. The affidavit was held to be sufficient. A mortgagee is not estopped to show that the mortgagor’s residence is different from that recited in the mortgage, when a creditor did not claim to have relied upon the recital or to have done or suffered anything because of it. (Terhune v. Matson, 40 Ill. App. 296; Gilbert v. Sprague, 196 Ill. 444; Lassen v. Lake, 132 Ill. App. 609.)

Other departures from the literal requirements of the statute have been held not to invalidate a chattel mortgage. It is required that the justice of the peace who takes an acknowledgment to a chattel mortgage shall enter the same on his docket, and the statute prescribes the form of entry, embracing the words “Acknowledged this-day of-, 19 — .” In Jesse French Piano & Organ Co. v. Meehan, 84 Ill. App. 262, a docket entry reciting that the mortgage was signed, sealed and delivered was held to have the legal effect of a certificate that it was acknowledged, although that word did not appear. It was said that the object of the entry on the docket was to give notice; that this was as fully accomplished by certifying that the mortgage was signed, sealed and delivered, as by certifying that it was acknowledged, and the mere fact that the justice did not make a proper entry on his docket could not invalidate the mortgage.

It has been frequently decided that neither the mortgagor nor the mortgagee is to suffer for the mistakes or misprisions of officers charged by law with the performance of duties connected with the acknowledgment, docketing and recording of chattel mortgages, when such mortgagor or mortgagee has done all that the law requires of him. In Pease v. L. Fish Furniture Co., 176 Ill. 220, two chattel mortgages to the furniture company had been entered by a justice of the peace, and the mortgagee was erroneously described in- the entry as “L. Fish.” In the opinion, on page 223, it is said: “The object of the statute requiring the justice before whom a chattel mortgage may be acknowledged to enter upon his docket the names of the mortgagor and mortgagee and a description of the property, was to afford notice to such persons as might prefer to examine the record of the justice of the peace within their township in preference to going to the county records. Here the entry made by the justice showed clearly the name of the mortgagor, amount of the two mortgages and a substantial list of the property mortgaged. The entry was ample to notify any person who might desire to give the mortgagor credit or buy any of her property that she had mortgaged it. The fact that the justice had made a mistake in the name of the mortgagee was of little consequence. The main inquiry was whether Abby Pinkston had mortgaged her property, and if so, the amount. These facts were fully disclosed by the entry on the docket of the justice. Moreover, the mortgagee in this case did all that could properly be required to make the mortgages valid instruments. The mortgages were drawn in proper form, duly acknowledged as required by statute and placed on record, and the mere fact that the justice failed to make a proper entry on his docket could not invalidate the mortgages. The mortgagee had no control over the justice in regard to the entry to be made on his docket, and should not be made to suffer on account of his incompetency and mistakes. This court has held in at least three cases (Cook v. Hall, 1 Gilm. 575, Merrick v. Wallace, 19 Ill. 486, and Nattinger v. Ware, 41 id. 245) that the failure of the recorder of deeds properly to record a deed will not invalidate the title of the grantee who has done all that is required of bim by law in leaving the deed for record. The principle decided in those cases applies here. The mortgagee did all that could be required on its part, and it should not be prejudiced by the mere failure of the justice of the peace to make a proper entry on his docket.” To the same effect are Crescent Coal & Mining Co. v. Raymond, 57 Ill. App. 197; Guest Piano Co. v. Moore, 152 Ill. App. 529; and Martin & Co. v. Heilman Machine Works, 89 Ill. App. 159.

Where the acknowledgment to a chattel mortgage, by mistake and inadvertence, showed that it was taken before a justice of the peace of Peoria county, when in fact the justice resided in Marshall county, the residence of the mortgagor, it was held in Martin & Co. v. Heilman Machine Works, supra, that the parties ought not to be prejudiced by the mere inadvertence of the officer taking the acknowledgment, where they had done all that the law requires of them to comply with its provisions.

A case in point is Fisk v. Hopping, 169 Ill. 105. The closing words in an acknowledgment to a deed were “Before me Benjamin Pinney, Commissioner of Deeds for the State of Illinois.” It was held that it is just as reasonable to say that this was a signature as to say it was a mere recital.

In Eaton State Bank v. Flesher, 243 Ill. App. 532, the recorder by mistake showed the maturity of one of the notes secured by a chattel mortgage to be on the date of the mortgage, instead of one year later, the correct date. In the course of the opinion, the court says: “An examination of the Chattel Mortgage Act discloses that such mortgages require for validity and legal effect certain acts to be done by the parties to the transaction. ... If the rights of the respective parties to this transaction are governed by their conduct, and if their conduct was in harmony with the law regulating it, there can be no basis for the contention that the recorder’s misconduct affected their rights in any way. . . . The entire transaction is statutory and the mortgagee and mortgagor complied with it in every particular. While the statute declares the lien of the mortgage shall be effectual from the date of its filing, and the recorder is required to record it, yet when the mortgagee has complied with the statute so far as lies in his power, the mortgage is regarded as recorded from the time it was deposited for that purpose. The mortgage is not affected by the errors or misprisions of the recording officer. ... It would be a harsh rule to punish an individual, who in the prosecution of a right, has done everything that the law required him to do, for omission by a public officer to comply with forms prescribed to him as his duty.”

Although an examination of the certificate of acknowledgment would have disclosed to appellee the alleged defect, still, in a number of the cases above cited, defects in the mortgage or acknowledgment were apparent on the face of the instrument and the mortgages were not declared invalid.

We do not agree with the contention that it was error to admit testimony to aid the certificate. In Cox v. Stern, supra; Martin & Co. v. Heilman Machine Works, supra, and Gilbert v. Sprague, supra, testimony for such purpose was admitted. Appellant claims that the testimony of the justice of the peace, even if competent, was insufficient to show that the mortgage was in fact acknowledged. His testimony tended to show that the mortgage was acknowledged before him, and his docket entry further evidences the fact. The docket was properly identified and being a public record, required by law to be kept, was admissible. (Lurton v. Gilliam, 1 Scam, 577; Merchants’ Nav. Co. v. Amsden, 25 Ill. App. 307; 22 C. J., “Evidence,” p. 791.)

The mortgagor and the mortgagee in the instant case did all that was required of them by law. The mistake of the justice was a mere clerical error. His name, as it appears in the certificate, was his signature and the testimony discloses that he attempted in good faith to execute the certificate in its statutory form. It does not appear that appellants relied upon the record in the recorder’s office or that they suffered anything because of it. The fact that the record showed an apparently unsigned certificate of acknowledgment is not a controlling factor. Under the settled rule in this State, if the certificate had in fact been regular in all respects, but the recorder had failed to copy the signature at the end of the certificate, the mortgage would not have been invalidated on that account. The record would afford as much notice in one case as in the other.

While the general rule is that the provisions of the Chattel Mortgage Act are mandatory, a review of the decisions, announcing that rule, shows that its application concerns only substantial departures from the requirements of the statute. The exceptions to the rule are as well established as the rule itself. We are of the opinion that the mortgage in question comes within that class of cases which the courts of this State have repeatedly held valid.

The judgment of the trial court is affirmed.

Judgment affirmed.


author: Mr. Justice Jett

text:
    Mrs. F. Borgmier, Appellant, v. William Wood, Appellee.
    Gen. No. 7,949.

      Opinion filed March 21, 1929.
    Shelby E. Hood, for appellant.
    Hall & Dusher, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

Mrs. F. Borgmier, appellant, instituted this suit in. the county court of Winnebago county against William Wood, appellee, to recover damages to her automobile, occasioned by the alleged negligence of appellee. A jury trial was had and at the close of the evidence on the part of the plaintiff the court directed a verdict for defendant. This appeal followed.

For the purposes of this opinion appellant will be called plaintiff and appellee defendant.

It is charged in the declaration that William Wood, the defendant, by his employee or agent, one Richard Dobratz, was driving an automobile truck upon and along a public highway known as State Highway 5 and that the defendant then and there negligently and carelessly ran, drove, managed, operated and controlled his said truck so that by and on account of said negligence and carelessness of the defendant the' said truck of the defendant ran into and struck the automobile of the appellant.

To the declaration the defendant pleaded the general issue and a special plea denying that he was driving, operating, running or in control of the motor vehicle as charged by the plaintiff in her declaration.

It is insisted by the plaintiff that Dobratz was an employee or agent of the defendant in the control of the truck. It is the contention of the defendant that Dobratz had rented the truck from him and that it was being used in connection with the building of a hard road where Dobratz had been employed. Dobratz testified that he rented the truck from Wood and agreed to pay him for its use one-half of the net profits realized in his work.

The directing of the verdict at the close of the evidence on the part of plaintiff is the principal point involved in this proceeding.

The question is whether or not Dobratz, who was driving the truck which caused the damage to the automobile of the plaintiff, was the agent or servant of the defendant?

The evidence shows that while the defendant was the owner of the truck, he had rented it to Dobratz, and that Dobratz, at the time of the accident, was the bailee of the truck for hire. The bailment contract, which the defendant had with Dobratz, was that Dobratz would use the truck, keep it in repair, keep account of the expenses of operation and repair, and would pay the defendant, as rent for the use of the truck, one-half of the net proceeds received from the construction company, by whom he was employed; that Dobratz, when returning from Rockford to his work at Mt. Carroll, with the truck, after the body had been'repaired, was within the terms of his bailment contract.

The contract concerning the work for the construction company was made by Dobratz; the work with the truck was done by Dobratz, individually, and payment for this work was made to Dobratz, himself. The defendant had nothing to do with procuring the employment, with the care and upkeep of the truck, or with repairs to be made thereon. The defendant had no control or authority over Dobratz concerning the work Dobratz was doing for the construction company.

The authorities cited by the plaintiff cannot apply under the facts in this cause. The cases relied upon by her are to the effect that where the plaintiff proves that the defendant is the owner of the truck, which caused the damage, that is sufficient to make a prima facie case.

On the trial the plaintiff proved that the defendant was the owner of the truck; she also proved that while the defendant was the owner of the truck, he had rented it to Dobratz, and that Dobratz, at the time of the collision complained of, was bailee of the truck for hire.

To render one liable in tort for the action of another, alleged to have been his servant, it is necessary to show that the tort-feasor was, in fact, the defendant’s servant; that the relation existed at the time of the injury, and with respect to the particular transaction from which the tort arose. Roll v. Springfield Consol. Ry. Co., 225 Ill. App. 411-416.

One cannot be held liable as master under the doctrine of respondeat superior, who does not have the power of discharging the party whose negligent act caused the injury. Connolly v. People’s Gas Light & Coke Co., 260 Ill. 162-166; Harding v. St. Louis Nat. Stock Yards, 242 Ill. 444-450.

The owner of a motor vehicle, who rents it to a bailee, is not responsible to a third person for its negligent use by the bailee, where the bailee is given the sole custody and control of the car. City of Rockford v. Nolan, 316 Ill. 60-66; Mansfield v. Shapiro, 234 Ill. App. 596-603.

It is complained by plaintiff that the court erred in refusing to admit certain testimony that was offered by her. There were some questions we think the court should have permitted to have been answered, but the general ruling of the court in the admissibility of testimony was correct.

The principal complaint arises from the court’s having sustained a number of objections to questions propounded to Dobratz by the plaintiff.

We have examined the record, and it shows that the witness was put upon the stand by the plaintiff, and her counsel proceeded to cross-examine him, to lay the foundation for impeachment. This, of course, he could not be permitted to do with his own witness.

The ruling of the court on the question of the costs of repairs was erroneous, but it was correct in not limiting the plaintiff to show the difference in the value of the car before the injury and after its repair. The measure of damages where "an automobile can be reasonably repaired is the cost of such repairs, and if the automobile, after it is repaired, is not in as good condition as it was prior to the time of its being injured and damaged, then the plaintiff, as we understand the rule, may show the difference in value before the injury and after the repairs were made. Koch v. Pearson, 219 Ill. App. 468-471; McNamara v. Melson, 237 Ill. App. 279-283.

But regardless of any error there may be in this record bearing upon the question of damages, the plaintiff is not entitled to a reversal of the judgment, if the court was right in directing a verdict.

We are of the opinion the court did not err in directing a verdict because no recovery could be had against Wood, the defendant.

The judgment of the county court of Winnebago county is affirmed.

Judgment affirmed.


text:
    Gust Larson, Defendant in Error, v. James J. Ford and Mary E. Ford. Mary E. Ford, Plaintiff in Error.
    Gen. No. 7,971.
    Opinion filed March 21, 1929.
    North, Linscott, Gibboney & North, for plaintiff in error.
    Large & Reno, for defendant in error; Wilbur E. Johnson, of counsel.
    Hyer & Gill and Hall & Dusher, for James J. Ford.
   Mr. Justice Jett

delivered the opinion of the court.

The defendant in error, Gust Larson, filed his hill for specific performance against James J. Ford and Mary E. Ford, his wife. In the bill of complaint it was alleged that Larson, on April 10, 1925, entered into an agreement for a warranty deed, by which Larson agreed to buy and James J. Ford,and Mary E. Ford agreed to sell lots 18, 19 and 20, as designated upon the plat of J. J. Ford subdivision, being a sub-, division of a part of the south one-half of the southeast quarter of section 11, township 44 north, range 1, east of the third principal meridian, situated in the county of Winnebago and state of Illinois; that he agreed to pay $3,000 for the lots; that upon the execution of the contract he paid James J. Ford and Mary E. Ford, $500; on October 15, 1925, he paid James J. Ford $500 and $75 interest; on May 13, 1926, he paid James J. Ford $60 interest; on August 10, 1926, he paid James J. Ford $500; that on October 13, 1926, he paid James J. Ford $45 interest and a further sum of $45 interest on April 18, 1928; that the complainant understands the above property is the subject matter of litigation between the Fords; that from time to time he has endeavored to pay the Fords the balance due on the lots, but that James J. Ford has represented that he has spent a large part of the money so paid to him by the complainant in paying taxes and insurance and making repairs on the premises; that James J. Ford refuses to sign a deed unless the complainant will deposit with some bank or disinterested person the sum of money so due, said sum to be awarded by the court, to such person or persons as may be entitled to the same upon a hearing of the issues involved in this cause; that Mary E. Ford refuses to execute a deed unless she is paid $1,250 as her share of the purchase price of the property; that he has made a tender of the amount due to James J. Ford and Mary E. Ford, but that each of them refuses to convey their interests in the premises; that the complainant is ready and willing to pay the balance of the purchase price in such manner and in such proportions, to each of the defendants, as the court may determine.

The bill concludes with a prayer for relief, asking that James J. Ford and Mary E. Ford be compelled to specifically perform their agreement to convey, and that if it appears necessary to the court, to have an account between the Fords to determine who is entitled to the residue of the purchase money, or to determine the proportion which each is entitled to receive, then the court shall order the money to be paid to a disinterested person or persons to hold the same for the use of the person or persons who may be entitled to receive the same upon a hearing.

James J. Ford and Mary E. Ford each answered the bill; each admitted the execution of the contract. The defendant James J. Ford admitted the payments as stated in the bill of complaint, and also that there is litigation between himself and Mary E. Ford, and admits that he has requested that the balance of the purchase price be deposited with some disinterested person to be held to await the litigation between himself and Mary E. Ford, which is a bill for an accounting.

Mary E. Ford, by her answer, not only admits the execution of the contract, but states that she was, at the time of the execution thereof, the owner of an undivided one-half interest in said.premises; she admits $500 was paid at the time of the execution of the contract; that she has received lio part of the payments of principal or interest due on the contract; she states that James J. Ford is not her agent to accept money, or any part thereof, due on said contract; that she is ready and willing, and now offers, to execute a deed to said premises, on payment to her of $1,250, and interest thereon, as her share, which she claims is due and payable to her.

A hearing was had and the chancellor decreed specific performance and that the sum remaining due should be deposited with the clerk of the court to be kept by him in a bank, and to be finally distributed in pursuance with the decree to be entered in the accounting suit. The decree further provides that in the event the defendants in the original bill, James J. Ford and Mary E. Ford, refuse to make a deed to Larson, within five days from the date of the decree, the master in chancery should execute it. Mary E. Ford has brought the case to this court on writ of error.

The evidence discloses that on or about April 10, 1925, James J. Ford and Mary E. Ford entered into a contract of sale of the said lots in question to Gust Larson. The evidence further shows $500 was paid by Larson when the contract was executed, which was deposited to the joint account of James J. Ford and Mary E. Ford. Larson made further payments to James J. Ford thereafter, until there remained due, including interest, $1,545. Larson was willing to make payment of this amount upon the execution of a deed to him by James J. Ford and Mary E. Ford, his wife. That prior to the institution of this suit Larson offered to pay to the said defendants the said sum of $1,545 on their making, executing and delivering of a good and sufficient warranty deed of the aforesaid premises in accordance with the terms of the written agreement, and that the said James J. Ford and Mary E. Ford failed and refused to accept the payment of the said amount of money, and failed and refused to execute a good and sufficient warranty deed to the said premises.

It is further shown that Larson, at the beginning of the trial of this cause, again tendered to James J. Ford and Mary E. Ford, in open court, the said sum of $1,545 and deposited the same with the clerk of the court for payment to the said defendants, namely, the said James J. Ford and Mary E. Ford, and that the said James J. Ford and Mary E. Ford refused and failed to accept the same, and to make, execute and deliver a deed in accordance with the terms of said contract.

Some time before the making of the offer of the final payment by Larson, James J. Ford and Mary E. Ford were in dispute with respect to an accounting, and she filed a suit against her husband, James J. Ford, to enforce an accounting concerning matters between them, and involving the above subject matter in controversy in this proceeding. Said suit between the Fords is now pending and undetermined.

The objection made to the decree, by Mary E. Ford, is that it should have provided for the payment of $1,250, and interest, to her. Larson has complied with the terms and provisions of the contract.

The court ordered the money deposited with the clerk, and the court, upon a hearing in the accounting case, between the Fords, can make such order relative to such money as it may appear to be just and equitable.

We are of the opinion the decree is a proper one. The dispute between Ford and his wife should not be permitted to interfere with the rights and interest of Larson. He is entitled to a deed, and the court made proper provisions to obtain one for him. It may take some time for the adjustment of the controversy between Ford and his wife, and the final payment can be awarded as the decree in the suit for accounting may direct. The decree of the circuit court of Winnebago county is therefore affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Gridley

text:
    Birdie Robinson, Conservatrix of the Estate of Max Robinson, Plaintiff in Error, v. Roy J. Stewart, Defendant in Error.
    Gen. No. 33,015.

      Opinion filed March 26, 1929.
    Frank Michels, for plaintiff in error; James Rosenthal, Sidney Levy and Howard M. Oberndorf, of counsel.
    George Kandlik, for defendant in error; Elmer M. Leesman, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On July 5, 1922, Max Robinson, an attorney at law residing in Chicago, commenced an action in case, in the superior court of Cook county, for damages for false imprisonment' against Roy J. Stewart (sheriff of McHenry county and a resident of that county), the Chicago and Northwestern Railway Company, a corporation, and S. A. Dickson and James McCarthy (residents of Cook county). In the declaration it was averred in substance that on June 1, 1921, defendants seized plaintiff in Chicago and compelled him to go to a police office; that afterwards he was taken by train to Woodstock, McHenry county, and there imprisoned in the county jail of McHenry county for a period of 20 hours; and that thereby he suffered public disgrace and was injured in his credit and reputation and in his practice as an attorney. Each of the defendants filed separate pleas of the general issue.

On April 21, 1926, Max Robinson having been duly adjudged insane and Birdie Robinson (his sister) appointed as his conservatrix, the court ordered that she, as conservatrix, be substituted as plaintiff, etc. On November 28, 1927, when the case was called for trial, the Railway Company was dismissed as a defendant and the trial proceeded as to the three remaining defendants, Stewart, Dickson and McCarthy.

On the trial plaintiff testified, as did several witnesses for her, and she introduced certain documentary evidence. Dickson and McCarthy testified, but Stewart was not called as a witness. On November 29, 1927, the jury returned two verdicts, in one of which they found Dickson and McCarthy not guilty, and in the other found Stewart guilty and assessed plaintiff’s damages at $10,000. Stewart, by his attorney, at once orally made a motion for a new trial. Neither at that time nor at any subsequent time did plaintiff make a motion for a new trial or in arrest of judgment. Apparently, she acquiesced in the verdict finding Dickson and McCarthy (the resident defendants) not guilty. Before Stewart’s motion for a new trial had been passed upon, he, on January 14, 1928, filed a motion, supported by his affidavit, “to quash the service made upon him in the county of McHenry, Illinois.” In the affidavit he stated that at the time the writ of summons was served upon him he was a resident of McHenry county, Illinois, that said writ was served upon him on July 13, 1922, “at his office in the city of Woodstock, McHenry county, Illinois, ... on which date he was then the duly qualified and acting sheriff of McHenry county and residing therein”; and that “no other service ever was had on this affiant.” No further proceedings were had in the cause until March 10, 1928, when the following so-called “order” (entitled in the cause) was signed by the trial judge and filed:

“Motion for a new trial was made immediately upon the return of the verdict; pending the hearing of said motion the defendant Stewart moves to quash the summons herein; motion for a new trial overruled and judgment on the verdicts; exception by defendant Stewart.
“Motion by defendant Stewart to vacate judgment and that the service of the summons herein upon defendant Boy J. Stewart be quashed, sustained; exception by plaintiff.
“Judgment vacated and service of writ quashed; exception by plaintiff.
“Suit dismissed, exception by plaintiff.
“Appeal prayed by plaintiff to the Appellate Court of Illinois, First District, allowed; appeal bond $250 in 30 days and bill of exceptions in 60 days.”

The transcript does not disclose that on March 10, 1928, or at any time thereafter, the court entered any judgments in form, in accordance with the two verdicts of the jury. We regard the statement, “motion for a new trial overruled and judgment on the verdicts” (contained in the first paragraph of said order) as a mere memorandum or guide to the clerk in making up his record, and not a judgment or judgments. (City of Alton v. Heidrick, 248 Ill. 76, 80.) As stated in Martin v. Barnhardt, 39 Ill. 9, 13: “It does not state, by implication even, that it was found, ordered, considered or adjudged by the court that the one or the other party should have or recover anything of the other. ... It fails to state in whose favor or against whom it was rendered, nor does it even award execution.” And, as stated in Faulk v. Kellums, 54 Ill. 188, 191: “The ideo consideratum est is wanting — it has no element of a judgment other than a bare recognition of the finding of the jury.” (See also Metzger v. Morley, 184 Ill. 81, 84; People v. Chicago, B. & Q. R. Co., 306 Ill. 166, 167.) It is apparent from the order that the court intended to enter a judgment on the one verdict against Stewart and in favor of plaintiff for $10,000, and another judgment on the other verdict against plaintiff and in favor of the two resident defendants (Dickson and McCarthy) for costs, but such judgments were not entered. As to the two resident defendants we think it clear that, after the rendition of the verdict in their favor (no motion for a new trial having been made by plaintiff) they were entitled to have a judgment for costs rendered in their favor and against plaintiff. The order further discloses that the court sustained Stewart’s motion to quash the service of the writ, which had been made upon him in McHenry county, and also dismissed the suit. On September 10, 1928, plaintiff sued out the present writ of error.

The errors assigned by plaintiff are substantially three, viz., that the superior court erred (1) in vacating the judgment in favor of plaintiff and against the defendant, Stewart; (2) in quashing the service of the summons had upon said defendant; and (3) in dismissing the suit.. As to (1), it appears that there was no formal or proper judgment rendered against Stewart, and, hence, there was no judgment against him to vacate. As to (2), it is evident that the court’s order quashing said service was based upon section 6 of the present Practice Act of 1907, Cahill’s St. ch. 110, ft 6, which is in part as follows:

“It shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found, except in local actions, and except that in every species of personal actions in law where there is more than one defendant, the plaintiff com-' mencing his action where either of them resides, may have his writ or writs issued directed to any county or counties where the other defendant, or either of them, may be found: Provided, that if a verdict shall not be found or judgment rendered against the defendant or defendants, resident in the county where the action is commenced, judgment shall not be rendered against those defendants who do not reside in the county, unless they appear and defend the action, nor then if the action is dismissed as to the defendant or defendants resident in the county. . . . ”

In Shomide v. Brewerton, 306 Ill. 365, the Supreme Court had occasion to construe this statute. In that case Shomide began an action in case for personal injuries against Brewerton and three others in the circuit court of Sangamon county. All defendants except Brewerton were residents of that county. Brewerton was a resident of Cook county and was served with process in Cook county. All defendants appeared and filed pleas of the general issue. On the trial, 'at the close of plaintiff’s evidence, each of the three resident defendants made a motion that the court instruct the jury to find him not guilty, and the motions were allowed. Thereupon Brewerton, the remaining and nonresident defendant, entered a motion that the service upon him be quashed, and that the action against him be dismissed, since he was a resident of Cook county. The court denied the motion and evidence was introduced in Brewerton’s behalf. The jury returned a verdict finding him guilty and assessing plaintiff’s damages at $1,750. On the motion for a new trial plaintiff remitted $500, the motion was overruled and judgment was entered against Brewerton for $1,250. This judgment was affirmed by the Appellate Court for the Third District, a writ of certiorari was awarded by the Supreme Court, and on December 19, 1922, the judgment was reversed by the Supreme Court (p. 369) and the cause was remanded to the circuit court “with directions to quash the service of summons.”

It will be noticed that practically the only difference between the facts in the Brewerton case and those in the present case (bearing on the point now under discussion) is that in the former the trial court at the close of plaintiff’s evidence directed the jury to find all the resident defendants not guilty, while in the latter the jury at the close of all the evidence returned a verdict finding all of the resident defendants not guilty. In the opinion in the Brewerton case the court, after quoting the statute, says (p. 367):

“The evident purpose of the statute is to protect the defendant against being sued out of the county where he resides or may be found except upon joint causes of action, where he is so sued with residents of the county in which the action is brought. If a verdict. shall not be found or judgment rendered against the resident defendants in such a case, judgment shall not be rendered against the non-resident defendants,— that is, unless there actually is a joint cause of action the resident defendants who are discharged of liability in the action cannot be used to retain jurisdiction of the non-resident defendant.”

The court then calls attention to the fact that said section of the statute, prior to 1907, did not contain the words, “nor then, if the action is dismissed as to the defendant or defendants resident in the county,” and says that the section before the amendment, for certain reasons given, “was a delusion.” And the court, after referring to the contention of counsel for Shomide, viz., that the dismissal mentioned in the statute is a dismissal of the resident defendant by the plaintiff after having joined him for the purpose of procuring service on the nonresident and then proceeding against the latter alone, further says (p. 368, italics ours):

“If the section refers only to a dismissal by the plaintiff, the amendment is a useless thing and accomplishes no purpose whatever. The plaintiff has only to let his cause go to its submission to the jury and the non-resident defendant has no way to escape submission to the action outside the county where he resides or may be found, — the thing against which the section purports to secure him.
“Dismissal is not necessarily the act of the plaintiff. Actions are constantly dismissed by the court, and the instruction to find the defendant not guilty was a dismissal of the case as to the defendants named, within the meaning of this statute, which disposed of the case as completely as a technical order of dismissal as to them. The statute says nothing about the good faith of the plaintiff in joining the resident defendants, but makes the jurisdiction over the non-resident defendant depend upon the outcome of the case as to the residents.”

In view of the manifest purpose of the statute as amended, and the decision and holdings in the Brewerton case, we think that the trial court in the present case was fully warranted in quashing the service of an mm our upon the defendant, Stewart. When the jury returned their verdict finding all of the resident defondants not guilty, and no motion for a new trial as to this verdict was made by plaintiff, it seems to us that the case as to them, within the meaning of the statute, was disposed of as completely as it could have been by any order of dismissal by plaintiff or by the court. It was not until this verdict had been returned that Stewart was in a position to make his motion to quash the service of the summons, which had been made upon him in McHenry county. (Brewerton case, p. 369.)

But, as to the assignment of error No. 3, we think that the trial court erred in dismissing the suit. As said in the Brewerton case (p. 369) the defendant, Stewart, “may be served with an alias summons should he be found in the county.”

Our conclusions are (1) that the portion of the court’s order of March 10, 1928, wherein the court quashed the service of summons had upon the defendant, Stewart, should be affirmed, and it is so ordered; (2) that the portion of said order, wherein the court dismissed plaintiff’s suit, should be reversed, and it is so ordered, and the cause is remanded to the superior court for further proceedings against the defendant, Stewart, if by an alias summons he may be found in Cook county; and (3), inasmuch as it is apparent that the court intended to enter a judgment, upon the verdict in favor of the resident defendants (Dickson and McCarthy), against plaintiff for costs, but did not properly do so, the court is further directed to enter such a judgment as should have been entered in favor of said resident defendants and against plaintiff. (See McNulta v. Ensch, 134 Ill. 46, 56.) The costs in this Appellate Court will be taxed against the plaintiff in error.

Affirmed in part and reversed in part and remanded with directions.

Sgarlar and Barres, JJ., concur.