text:
    Ercole Monacelli, Appellant, v. John E. Traeger, Sheriff, Appellee.
    Gen. No. 30,089.
    1. Agency — sufficiency of evidence to show authority of agent under power of attorney to indorse check payable to principal. In an action against a former sheriff to recover a balance alleged to be due to plaintiff as the proceeds of a judicial sale conducted by the sheriff to satisfy the lien of a judgment recovered by plaintiff against a third party, evidence held sufficient to sustain a finding that a check drawn by the sheriff in payment of the balance due plaintiff as aforesaid, the proceeds of which were paid to plaintiff’s attorney of record in the former suit, who absconded therewith, was cashed upon the indorsement of plaintiff’s name thereon by plaintiff’s attorney in fact, acting under a valid power of attorney.
    2. Attobneys and counselobs — delivery by sheriff to attorney of judgment creditor of check payable to latter as satisfaction of claim for proceeds of judicial sale. The delivery to plaintiff’s attorney of record of a check for the proceeds of a judicial sale held to satisy the lien of a judgment, by the sheriff who conducted the sale, held good as a payment of the obligation of the sheriff to plaintiff, where the check was made payable to plaintiff’s order, notwithstanding the fact that after fraudulently securing an indorsement of plaintiff’s name upon the check, plaintiff’s attorney absconded with the proceeds thereof.
    Appeal by plaintiff from the Superior Court of Cook County; the Hon. Mabcus Kavanagh, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 2, 1925.
    McMahon & Graber, for appellant.
    O ’Shaughnessy & O’Shaughnessy, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendant, John E. Traeger, individually and as former sheriff of Cook county, to recover $1,462.91, which plaintiff claimed belonged to him and was held by the sheriff. The defense interposed was that the sheriff had drawn his check for the amount claimed, payable to plaintiff’s order and delivered it to plaintiff’s attorney of record Joseph B. Gecan. The evidence discloses the check was cashed by Gecan, who absconded with the money, and plaintiff’s position is that his name was indorsed on the check without his authority and was, therefore, a forgery. The controversy on the trial, which was before the court without a jury, was whether plaintiff’s name was indorsed on the check without his authority. The court found that the indorsement on the check was authorized and, therefore, the plaintiff could not recover.

The record discloses that plaintiff, who was a resident of Detroit, recovered a judgment for $809.72 in the circuit court of Cook county against his brother and the latter’s wife; that subsequently, for the purpose of perfecting his judgment lien, plaintiff advanced to the sheriff $559.99 “for redemption interest and costs”; that on or about December 1, 1918, the former sheriff sold the interest of the judgment debtor in certain premises for $3,250 out of which there was due plaintiff $1,462.91; that on February 21, 1919, the former sheriff issued his check payable to plaintiff’s order for $1,462.91, and delivered it to Gecan who was counsel for plaintiff in the suit in which the judgment was entered in the circuit court; that plaintiff’s name was indorsed on the check by Samuele Crisorio, who claimed to have done so under a written, power of attorney which had been given to him by plaintiff. The check was then indorsed by Gecan, deposited in his bank and through the regular course of business paid by the bank on which it was drawn. Gecan converted the money to his own use and disappeared. He was afterwards disbarred. In November, 1919, plaintiff not having received his money came to Chicago, consulted another attorney with whom he went together with Samuele Crisorio to see the former sheriff at which time the defendant, Traeger, produced the check which he had given to' Gecan, showing that he had paid the money. Plaintiff there admitted that he had given a power of attorney to Crisorio and did not then repudiate Crisorio’s indorsement of the check. Nothing further appears to have been done until the suit was brought in June, 1922.

The evidence further shows that plaintiff had executed a power of attorney to Crisorio and that plaintiff had on deposit with the Commercial Bank of Chicago Heights $800, which was drawn out by three checks signed by Crisorio under the power of attorney. The first check dated June 18, 1918, was payable to the order of Gecan for $250. It was signed “Ercole Monacelli, by Samuele Crisorio.” The next check was dated September 12, 1918, drawn on the same bank, payable to the order of Gecan for $545 and signed in the same way by Crisorio. The third check was for $5, payable to the order of one Cohen, signed in the same manner. Gecan indorsed the two checks for $250 and $545, drew the money from the bank and part of this was deposited by him, with the sheriff in perfecting plaintiff’s judgment lien as above stated. The evidence further shows that the written power of attorney was delivered by Crisorio to Gecan at the time Crisorio indorsed the check in question and this power of attorney was submitted by Gecan to his bank when he deposited the check. The exact terms of this power of attorney did not appear for the reason that it was kept by Gecan and, therefore, could not be produced on the trial. There is considerable evidence in the record as to whether Crisorio had the authority under the power of attorney to indorse the check in question, which we think it is unnecessary to state here. The court found as a fact “that Ercole Monacelli executed and delivered to Samuele Crisorio a power of attorney in and by which said Monacelli' authorized the said Crisorio to endorse the name of the said Monacelli upon the check offered in evidence in this case,” and held as a matter of law that Crisorio was the agent of Monacelli and had authority to indorse the name of Monacelli on the check in question. We think the evidence warranted the finding of fact made by the learned trial judge and while there was some conflict in the evidence, we are clearly of the opinion that we would not be warranted in disturbing such finding as being against the manifest weight of the evidence. The indorsement upon the check having been authorized by plaintiff, of course, he could not recover in this case.

But there is another reason why the judgment must be affirmed. There is no contention that the sheriff was not authorized to deliver the check to Grecaa as attorney for plaintiff, nor could there be any such contention successfully mad© under the law (Custer v. Agnew, 83 Ill. 194), but it is assumed that the sheriff properly delivered the check. Even if the indorsement of plaintiff’s name on the check was a forgery, no recovery could be had against Traeger. McFadden v. Follrath, 114 Minn. 85; Sage v. Burton, 84 Hun. 267, 32 N. Y. Supp. 1122; Allen v. Tarrant, 7 App. Div. (N. Y.) 172, 40 N. Y. Supp. 114; Morris v. Hofferberth, 81 App. Div. (N. Y.) 512, 81 N. Y. Supp. 403; Burstein v. Sullivan, 134 App. Div. (N. Y.) 623, 119 N. Y. Supp. 317; Morrison v. Chapman, 155 App. Div. (N. Y.) 509, 140 N. Y. Supp. 701.

In the McFadden case plaintiff sued the defendant for goods sold and delivered. The defense was payment by giving a check payable to plaintiff to one of plaintiff’s traveling salesmen, who was authorized to receive payment in cash or by check. The salesman without authority indorsed plaintiff’s name on the check and obtained the money, but did not account for the proceeds to plaintiff. He was not authorized to indorse plaintiff’s name on checks. The court held that no recovery could be had and said (p; 90): “It would be a novel burden if the drawer of a check, given in the usual course of business to the authorized agent of the payee, upon such cheek being endorsed by such agent, were charged with the duty of determining that’ the endorsement on the check was authorized. To establish such a rule would make payment by check a matter of uncertainty and some risk. * * * If the check is improperly paid, because of the dishonesty of the agent that the payee intrusts with the check, and the negligence of the bank, there would seem to be no sufficient reason for placing the responsibility therefor on the drawer of the check. The drawer of the check parted with control over it in the usual course of business, and in this case in the exact manner the payee requested. If either the drawer or payee must suffer because of the dishonesty of the agent, the one who designated him to receive the check and intrusted him with it should suffer, rather than the drawer, who had no voice in the selection of such agent, and who is in no^ way responsible for his acts.” The court there further said that the question there involved had been decided in Sage v. Burton and Burstein v. Sullivan, supra, and on page 91 quoted from the Sage case, as follows: “While a check of the debtor does not, until paid, ordinarily amount to payment of the debt, it does, after payment of the check, extinguish the debtor’s liability, if the same is paid to the creditor, or to the agent of the creditor authorized to receive the check of the debtor, for the reason that, after he had parted with the check to the creditor, or his agent, he has no further duty in the matter, except to see that funds are in the bank on which it is drawn for its payment.” The court quoted with approval from the Burstein case, as follows: “But where a debtor delivers his check to the creditor, or his agent duly authorized to receive it, and has funds in the bank to meet the check, the transaction as between the debtor and the creditor should be treated as a payment precisely as though cash had been paid, even though the agent forges an endorsement and steals the money.”

In the Sage case suit was brought to recover a balance claimed due for the sale of merchandise. The defense was that the- defendant had delivered a check payable to plaintiff’s order to one of its agents authorized to receive the check. The agent without expressed authority indorsed the check, received the money from the bank, but did not pay it over to plaintiff. The court held that no recovery could be had and said (p. 270): “The plaintiffs having authorized the agent to receive the check, and thus removing it beyond the control of the defendant, took, as between them and the -defendant, the risk of the acts of their own agent; all the risk that the defendant took in the matter was that of establishing that the agent had power and authority to take the check in settlement, and that the drawer had funds in the bank with which to pay it on presentment. He did not even take the risk of a forged endorsement. That, probably was the risk of the bank.”

In the Allen case suit was brought to recover a claimed balance due for goods sold and delivered to the defendant. The defense was payment by giving a check to plaintiff’s salesman who was authorized to receive the check or money. It appeared that one of the checks had been indorsed by one of the salesmen, the money received by him and appropriated to his use. The court held that no recovery could be had and said (p. 174): “The deEvery of a check to the principal or his authorized agent and the subsequent payment of the same operates to discharge an indebtedness for which it is given,” and further said that the case could not be distinguished in principle from Sage v. Burton, supra.

In the Burstein case suit was brought to recover for the repairing of an automobile. The defense was payment. The evidence showed that the defendant made a check payable to plaintiff’s order and delivered it to plaintiff’s manager who indorsed the check and appropriated the money to his own use. The court held that no recovery could be had against the maker of the check. In the discussion of the case the court said that plaintiffs sought to support the judgment on the authorities of Bernheimer v. Herrman, 44 Hun 110; Dowdall v. Borgfeldt & Co., 113 N. Y. Supp. 1069; Thomson v. Bank of British North America, 82 N. Y. 1; Robinson v. Chemical Nat. Bank, 86 N. Y. 404, and said in reference to Bernheimer case that the agent who made the indorsement in that case was not a general manager as in the case before it and then showed that the authorities were not in point and said (p. 319): “A payment to Melle in cash would have been a payment to the plaintiffs, though he had stolen the money, and the defendant should not be compelled to pay twice or subjected to the hazard of a lawsuit with the bank, for having taken the precaution to protect the plaintiffs by making a check payable to their order. * * * But where a debtor delivers his check to the creditor or his agent, duly authorized to receive it, and has funds in the bank to meet the check, the transaction, as between the debtor and the creditor, should be treated as a payment, precisely as though cash had been paid, even though the agent forges an endorsement and steals the money. * * * Upon the delivery of the check to Melle, in payment of the bill rendered by him, it became the plaintiffs’ property; and, if their agent by a forged endorsement, or one made without sufficient authority, obtained the cash and appropriated it to his own use, they should settle the question with the bank,” citing the Sage and Allen cases.

In the Morrison case suit was brought against a firm of stock brokers by a customer for a balance claimed to be due. The defense was that they had paid the amount to plaintiff’s agent by delivering their stock payable to plaintiff’s, order. It appeared that the agent had wrongfully indorsed the check and obtained the money. The court there reviewed the authorities and held that no recovery could be had, and that the agent having authority to receive the check, and the check having been paid, the defendants should not be charged with the agent’s rascality in appropriating the money to his own use.

Plaintiff relies on the case of Bernheimer v. Herrman, supra, where an action was brought to recover for goods sold and delivered. The defense was payment by showing that a check was given to its agent payable to plaintiff’s, order and paid the agent without authority, indorsed plaintiff’s name, received the money which he appropriated to his own use, and it was held that this did not constitute a payment. That case was, in effect, overruled by the New York authorities which we have above cited. We think the opinion in the Bernheimer case is unsound and prefer to follow the other opinions rendered by the same court in New York, which in our opinion are in accordance with common sense and sound reasoning.

In the instant case the defendant having delivered his, check payable to plaintiff’s, order to plaintiff’s agent, who was authorized to receive it and the check having been paid, the rascality of plaintiff’s agent should not fall upon the defendant.

The judgment of the superior court of Cook county is affirmed.

Affirmed.

Thomson, P. J., and Taylob, J., concur.


source: Caselaw Access Project

author: Mr. Justice Taylor

license: Public Domain

text:
    Adeline Allen, Appellee, v. Chicago Great Western Railroad Company, Appellant.
    Gen. No. 29,917.

      Continuance — recognition of injunction issued by court of sister state restraining prosecution of action in courts of this state. Where an action for damages for personal injuries due to, the negligence of the defendant railroad company was commenced in the courts of a sister state, wherein the alleged negligence and resultant injury occurred, and thereafter and while such action was pending in the courts of that state, the same plaintiff instituted a like action upon the identical cause of action and against the same defendant in the superior court of Cook county, it was an abuse of the discretion lodged in the judge of the superior court to deny defendant’s motion therein to continue the cause pending the determination by the court in which the former action was pending of an injunction issued out of said court restraining the plaintiff and her attorney from prosecuting the action in the superior court.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1924.
    Reversed and remanded.
    Opinion filed December 2, 1925.
    Rehearing denied December 18, 1925.
    Winston, Strawn & Shaw, for appellant; Ralph M. Shaw, Walter H. Jacobs and Charles J. McFadden, of counsel.
    W. W. McCallum and John A. Bloomingston, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.

As we view the record in this case, the decisive question is whether the plaintiff, Adeline Allen, a resident and citizen of Waterloo, Iowa, who began suit on December 23, 1921, in the district court of Blackhawk county, Iowa, for damages for personal injuries alleged to have been received at Waterloo, Iowa, on November 16, 1921, as the result of being run into by a train belonging to the defendant, the Chicago Great Western Railroad Company, was entitled, later, on March 2,1923, while the above-mentioned suit in Iowa was pending and at issue, to begin suit in the superior court of Cook county, Illinois, on the same cause of action and prosecute it to judgment, notwithstanding, meanwhile and before the trial in the superior court which led to judgment, an injunction had been issued by the district court of Blackhawk county, Iowa, and served on the plaintiff and her attorney, restraining them from taking any further steps in the prosecution of the suit in the superior court of C'ook county.

The matters involved in the question referred to arise as the result of a motion made by the defendant in this cause in the superior court to continue the case until the injunction, issued by the district court of Waterloo, Iowa, restraining the plaintiff from prosecuting it, be- quashed, dismissed or modified. That motion was supported by an affidavit made by C. J. McFadden, one of the attorneys for the defendant.

The affidavit contained, in substance, the following representations: That the plaintiff, Adeline Allen, a resident of Waterloo, Iowa, on December 23, 1921, through her attorneys Edwards, Longley, Ransier and Harris, began suit in the district court of Blackhawk county, Iowa, against the Chicago Great Western Railroad Company, for $2,900 as damages for alleged personal injuries sustained by her through the alleged negligence of the defendant on November 16, 1921, at its Franklin street crossing in Waterloo, Iowa; that a summons was duly served, and on January 9, 1922, the defendant filed its answer, and the suit became and then was at issue and has so remained continuously and is still pending in that court, although nine terms of said court have passed since it was begun, at any of which it might have been tried; that on February 26,1923, W. W. McCallum, a Chicago attorney, served notice on the defendant that the plaintiff had placed in his hands a claim for damages alleged to have been received by her at Waterloo, and advised the defendant that he had a contract with her by which she was to pay him for services one-third of any amount recovered; that, thereafter, on March 2, 1923, the plaintiff, by her attorney, McCallum, began suit in the superior court of Cook county for $40,000 against the defendant and on March 23, 1923, filed, through McCallum, a, declaration based upon-identically the same,, cause of action set-up in the suit then and still pending between the same-parties indhe. district court of Blackhawk county. Iowa : that on March 21, 1923, the defendant filed in the superior court a general and special demurrer to the declaration, which were later confessed by the plaintiff; that the plaintiff then filed on April 26,1923, leave having been obtained, an amended declaration, to which on May 1, 1923, the defendant filed a general and special demurrer, which has not been passed upon, but is still pending; that on July 30, 1923, in the district court of Blackhawk county, at Waterloo, Iowa, the defendant filed its petition for an injunction praying that an order be entered and a writ of injunction issue, restraining the said Adeline Allen and her attorney, W. W. McCallum, from doing any act or thing in furtherance of the prosecution or trial of the suit then and there pending in the superior court of Cook county, Illinois, and on July 30, 1923, a temporary injunction order was entered by the district court of Blackhawk county, Waterloo, Iowa, restraining the said Adeline Allen, her attorney, W. W. McCallum, their agents and attorneys, from prosecuting her suit in the superior court of C'ook county, Illinois, case No. 387098, in conformity with the prayer of said petition; that thereafter, on July 30, 1923, a certain writ of injunction was issued in said case directed to the said Adeline Allen and the said W. W.- McCallum, her attorney, restraining them, or either of them, from taking any steps with relation to the transaction of said case pending in the superior court of Cook county, and said writ of injunction was on July 30, 1923, served upon the said Adeline Allen by delivering a true copy thereof to her in the City of Waterloo, County of Blackhawk and State of Iowa, as appears from the exemplified copy of said injunction order and injunction writ and return thereto attached, filed in the superior court of Cook county on November 12,1923; that said writ was served on McCallum on August 8,1923, in the City of Chicago.

That, although John A. Bloomingston and A. Gr. Reid, attorneys, on October 1,1923, filed an answer to the injunction proceedings in the district court, on behalf of Adeline Allen and W. W. McOallum, the injunction is still unmodified, and in full force and effect; that the defendant has been at all times ready and willing to try out the issues involved in the injunction suit; that on October 31, 1923, in violation of the injunction, a motion was made (for the plaintiff) in the superior court, supported by affidavit, to advance the cause in that court, but no action was taken thereon; that on November 23, 1923, the plaintiff filed three additional counts to her amended declaration, and on November 24, 1923, the defendant filed a general and special demurrer thereto; that no action has been taken thereon; that the suit of the plaintiff against the defendant, pending in the district court of Blackhawk county, Iowa, is based upon the identical alleged injuries and cause, of action upon which this suit in the superior court is based; that in the suit for damages in the district court, the plaintiff is represented by Edwards, Langley, Bansier and Harris; that the defendant, although denying liability, has offered to compromise and settle the suit in the district court by paying $250; that her attorneys, above mentioned, recommended and urged the plaintiff to accept the offer; that, although the accident is alleged to have occurred in Waterloo, Iowa, where practically all the witnesses reside and where she resides and has her home, she is urging and insisting, despite the injunction- of the district court is in effect and outstanding, that the defendant be compelled to transport from Waterloo, Iowa, to Chicago, approximately fifteen to eighteen -witnesses — at large expense — a majority of whom are employees of the defendant railroad, engaged in interstate commerce; that their absence would seriously impair the defendant’s interstate transportation service and cause disadvantage, pecuniary loss and irreparable injury to the defendant in carrying out its duties to the public as a common carrier; that the institution of the suit in the superior court, while there was a suit for the identical cause of action at Waterloo, Iowa, is unwarranted, and constitutes vexatious litigation.

That the alleged accident and injuries were not caused by any fault or negligence of the defendant; that Waterloo, Iowa, the locus in quo, is approximately 272 miles west of Chicago, Illinois, and if the case has to be tried in Chicago and the defendant obliged to transport its witnesses, it will also be obliged to maintain them in Chicago at great expense; that by reason of the facts recited, the cause of action in the superior court should be continued until the injunction proceedings in the district court of Iowa are quashed, dismissed or modified, and the defendant’s general and special demurrer in the superior court are disposed of. No answer appears to have been made to the defendant’s affidavit.

On February 15, 1924, the motion in the superior court for a continuance was denied, and the cause ordered for trial on February 18,1924. To that order, the defendant excepted.

The record before us contains an interlocutory bill of exceptions which was signed and sealed by the trial judge, and filed on March 25, 1924.

The record, also, contains a bill of exceptions dated August 25, 1924, showing that on February 18, 1924, a trial was had in the superior court; that there was a verdict for the plaintiff in, the sum of $25,000; that there were motions for a new trial and arrest of judgment, which were overruled; that judgment for the amount of the verdict was entered, and an appeal taken by the defendant.

Did the trial judge err in denying the motion of defendant to continue the case until the injunction issued by the district court of Blackhawk county, Iowa, was quashed, dismissed or modified? We are impelled to answer that question in the affirmative.

In considering the matter generally, it may be asked, why, in such a case, without good and sufficient reason ignore the judicial command of the district court of a-sister State. "What, in such a matter, does comity mean, if not reasonable mutual recognition and sanction of each other’s courts and their legitimate. and authenticated judicial processes. A judgment of a foreign State may be sued upon. It is recognized as a judicial result, and has certain binding and substantial qualities. And why should not an injunction pendente lite, a direct command to' a resident of the State in which the court which issues the injunction, sits, also, in such a case as this, be recognized as having some substance, and capacity to produce in another State some appropriate estoppel? The States are not foreign to each other in the sense of being completely segregated nations; they are parts of one general government, one national entity; they have their separate courts for certain domestic matters for various reasons, such, for example, as convenience and expediency, and to facilitate the administration of what may be called local domestic justice. That does not mean, however, that the judicial acts of a State court may not be recognized in certain apt circumstances as having some extraterritorial effect. The plaintiff here in personam, was under an injunction issued by the court of the State in which she resided and where she had already a suit pending, and where the tort, if any, was committed and where the witnesses lived, not to continue at the same time in another State a cause of action for the same claim.

It has been urged in many cases that to give such recognition as is here contended for by the plaintiff, violates section 2 of article IV of- the Federal Constitution, which provides that: “Citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” There seems to be considerable disagreement in the authorities as to the extent to which section 2 operates as a limitation upon the power of a State court in the exercise of its discretion to refuse to entertain actions by citizens who are residents of other States where such actions are based on torts occurring in foreign jurisdictions. But it has been held that that provision of the Federal Constitution does not legally deprive a State court of the right in its discretion in certain exceptional cases to decline to exercise jurisdiction of foreign transitory tort actions where the parties are nonresidents and citizens of another State. That subject and the decisions thereon are elaborately treated in a discussion of the case of Gregonis v. Philadelphia & R. Coal & Iron Co., in 32 A. L. R. 6.

In Hunter v. Wenatchee Land Co., 36 Wash. 541, which was a suit for a breach of a contract made in Minnesota, the parties being nonresidents of the State of Washington, the court said, in considering the defense that the parties to the action were nonresidents of the State of Washington and, therefore, had no right to bring the action, but should be relegated to the courts of the State where the contract was made and where the parties resided: “Upon this question of the rights of aliens to litigate in the courts of different States, there is a wilderness of authority, and a great diversity of judicial opinion, some courts holding that, in the absence of statutory provision, foreign corporations are suable in domestic tribunals only upon causes of action arising within the jurisdiction; while others hold that it is an absolute constitutional right of the citizen of any State to seek redress in the proper court of any State, regardless of the question of residence; while still others hold that it is altogether a question of comity, and depends entirely upon the attitude of the particular State on that question. ’ ’ And that court further said: “It may be conceded, we think, that the general rule is that, if it appears that the action is brought by the alien in a foreign jurisdiction for the purpose of obtaining any undue advantage in that jurisdiction, the courts will not lend themselves to the investigation and determination of such a case.”

The situation here is well illustrated by what the court said in Davis v. Farmers’ Co-operative Equity Co., 262 U. S. 312. In that case, where the court was considering the constitutionality of a statute of Minnesota which provided that any foreign corporation having a certain kind of agent within that State might be sued by delivering the summons to such agent, Mr. Justice Brandéis said:

“That the claims against interstate carriers for personal injuries and for loss and damage of freight are numerous; that the amounts demanded are large; that in many cases carriers deem it imperative, or advisable, to leave the determination of their liability to the courts; that litigation in States and jurisdictions remote from that in which the cause of action arose entails absence of employees from their customary occupations; and that this impairs efficiency in operation, and causes directly and indirectly, heavy expense to the carriers; these are matters of common knowledge. Facts, of which we, also, take judicial notice, indicate that the burden upon interstate carriers * * * is a heavy one; and that the resulting obstruction to commerce must be serious. During federal control absences of employees incident to such litigation were found, by the Director General, to interfere so much with the physical operation of the railroads, that he issued General Order No. 18 (and 18A) which required suit to be brought in the county or district where the cause of action arose or where the plaintiff resided at the time it accrued. That order was held reasonable and valid in Alabama & Vicksburg Railway Co. v. Journey, 257 U. S. 111. The facts recited in the order, to justify its issue, are of general application, in time of peace as well as of war. * * * But orderly, effective administration of justice, clearly does not require that a foreign carrier shall submit to a suit in a State in which the cause of action did not arise, in which the transaction giving rise to it was not entered upon * * # and in which the plaintiff does not reside. The public and carriers are alike interested in maintaining adequate, uninterrupted transportation service at reasonable cost. * * * Avoidance of waste in interstate transportation, as well as maintenance of service, have become a direct concern of the public. By requiring from interstate carriers general submission to suit, it unreasonably obstructs, and unduly burdens, interstate commerce.”

In Ferguson v. Neilson, 11 N. Y. Supp. 534, the court said:

“All the parties to this action were and are residents of the State of Rhode Island, and the action is brought for personal injuries sustained by the plaintiff, through the alleged negligence of the defendant at Newport, R. I. Under these circumstances the court was asked to refuse to entertain jurisdiction of the action. The court denied this request. * * * It seems to be clear that the court erred in denying the request of the defendant to refuse to proceed with the action. It is the well settled rule of this state that unless special reasons are shown to exist which make it necessary or proper to do so, the courts will not retain jurisdiction of and determine actions between parties residing in another state for personal injuries received in that state. Burdick v. Freeman, 46 Hern. 138, and cases cited there.
“The reason of the rule is obvious, — because the courts of this state should not be vexed wdth litigation between nonresidents over causes of action arising outside of our own territorial limits. Our courts are not supported by the people for any such purpose. * * * Every rule of comity and natural justice and convenience is satisfied by giving redress in our courts to nonresident litigants, when the cause of action arose or the subject matter of the litigation is situated within this state.”

Counsel for the defendant have cited Royal League v. Kavanagh, 233 Ill. 175; Thorndike v. Thorndike, 142 Ill. 450; Illinois Life Ins. Co. v. Prentiss, 277 Ill. 387; Hawley v. State Bank of Chicago, 134 Ill. App. 97, and Harris v. Pullman, 84 Ill. 20. In the Royal League case, where, however, the question was whether an injunction should issue to restrain a person over whom the court had jurisdiction from bringing suit in another State, the court said :

“There is no question as to the right to restrain a person over whom the court has jurisdiction from bringing a suit in a foreign state. (Harris v. Pullman, 84 Ill. 20.) The courts do not, in such cases, pretend to direct or control the foreign court but the decree acts solely upon the party. The jurisdiction rests on the authority vested in courts of equity over persons within the limits of their jurisdiction and amenable to process, to stay acts contrary to equity and good conscience. The State has power to compel its own citizens to respect its laws even beyond its own territorial limits, and the power of the courts is undoubted to restrain one citizen from prosecuting in the courts of a foreign state an action against another which will result in a fraud or gross wrong or oppression.”

Likewise, in the Thorndike, Illinois Life, Hawley and Harris cases, the matters involved pertain to the question whether an injunction should issue, and not to the discretionary recognition of an extraterritorial injunction already outstanding.

It is true that there is nothing in the affidavit for the defendant, upon which the motion to continue was based, showing in detail, or in any way, the reason why the court of Blackhawk county issued the injunction. Counsel for the defendant in their brief state that the injunction was based upon the statute of Iowa' prohibiting the solicitation of personal injury suits where the injury occurred within that State, and prohibiting the prosecution of such suits outside of that State. That seems to be a voluntary statement unsupported by anything in the record. We are left, therefore, to consider the effect of the general facts which are recited in the affidavit, including the fact that there was an injunction outstanding against the plaintiff and her attorney.

The Kavanagh, case announces that a court in this State may, in certain situations, enjoin a citizen here from prosecuting a case in another State; and by parity of reasoning that implies that a court of Iowa, for example, may exercise a similar authority. And a consequenc&__of_J3-oilL_thQsn^ deductions. ls,-thah-.in p roper, cases the_c.Qiixts.~oiL.ench_S.tat.e-JoiaY..xecognize the injunctions ofJ:he-coiixts-.o£-fhenther.

■ The Iowa court having, issued the injunction, the sole question then is whether the trial judge in this case, as a matter of discretion, considering all the circumstances, should have recognized it as a justification for granting the defendant’s motion. We think that the law and the reason of the case impel the conclusion that the motion should have been allowed. The judgment, therefore, will be reversed and the cause remanded. ■

Reversed and remanded.

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


author: Mb. Justice Taylob

text:
    Julius Limbach, Appellant, v. William Reinbold et al., Appellees.
    Gen. No. 29,987.
    Libel and slander — campaign document imputing inefficiency and misconduct to incumbent of office seeking re-appointment. Posted, published and circularized typewritten documents issued by defendants in the course of a campaign for the election of village officers in a village in which plaintiff was acting as village attorney, imputing inefficiency and misconduct held not to constitute a libel upon plaintiff as a citizen, voter and resident of such village or as attorney for the same.
    Appeal by plaintiff from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 2, 1925.
    Julius Limbach, pro se.

      Edmond W. Pottle and Edwin K. Walker, for appellees.
   Mb. Justice Taylob

delivered the opinion of the court.

This is an appeal in a libel suit from a judgment sustaining a general demurrer to the plaintiff’s declaration, and dismissing the suit.

The declaration contains three counts. The alleged libel consists of certain posted, published and circularized typewritten documents which were issued by the defendants in the course of a campaign in the Village of Villa Park, Cook County, Illinois, for the election of a village trustee and a president of the board of trustees.

The claim of the plaintiff is that as a citizen, voter and resident of Villa Park, and as attorney for that village, he was injured in his character, reputation and practice.

The document which it is charged constitutes the libel is too long to be set forth verbatim. The following is sufficient, however, in its substance and shows its general tenor:

“Introducing the Progressive Party to the Voters oe Villa Park.
Bead Our Platform and See What We Stand for.
“We ask for your vote because:
“We are opposed to extravagance in the use of public funds.
* * *
“We believe that no one man should be allowed to dictate the policies and acts of the Village Administration. The officers of the Village are the servants of the people, and should he guided by their wishes.
'Sfc
“We believe the czar should be forced to abdicate. jb •R1 W VP
Progressive Party Campaign Committee.
Progressive Party Platform 1923.
“We believe the best interests of the Village would be served by the appointment of a new Village attorney.
*.v. Jb W W
In Our Opinion There Should Never Be a Discrepancy of $100,000.
“It will be our policy never to take the 6% maximum allowed by the Public Utility Law, unless the actual work to be done entitled those receiving a percentage compensation to that amount.
*4b 4b W *JP
A Few Questions.
The Answers to Which Would Be of Interest to the Voters of Villa Park.
“1. Has the present Village Board ever enacted any legislation without orders from the czar?
“2. Should the affairs- of the Village be directed by a non-voter?
“3. Why has President Baker been so obedient to ‘his master’s voice,’ and why has he so persistently ignored the wishes of the people?
“4. Did any of the candidates who are up for election this spring receive any of the 6% on the sewer? If so, how much?
“5. Why did Mr. Baker appoint himself a Commissioner on the sewer with a fee of $1,500? And why did the Court disallow the fee?
“6. Why were the Great Western and the Chicago, Aurora & Elgin Railroads not assessed on the original spread of sewer assessment? (Ask the ring).
“7. Why were the assessments against those two roads reduced after the amounts were' fixed by the court ?
“8. Why did the present administration spend Village funds (your money and mine) trying to force the sewer project through at a cost nearly $100,000 above what it should have been? (Ask the ring, they know).
‘9. Do you know that the Village Board has already spent nearly $1,000 of the taxpayers’ money for the preparation and publication of three ordinances, covering the proposed new water plant, at least two-thirds of which was wasted as two of the ordinances were wrong?
“10. How does Mr. Haas explain the fact that many of the catch basins in the north side streets were set two or three feet too low and were O. K.’d by him as Inspector on the Street Improvement projects. # # * 5 9

The declaration, in addition to setting up the words of the document claimed to be a libel, alleges that the plaintiff for the last seven years lived with his family in Villa Park, DuPage County, a suburb eighteen miles from Chicago; that he had practiced law for twenty years, and had built up a practice in Villa Park; that he was a voter and voted in the Village of Villa Park; that for the last six years preceding- the election of April, 1923, he was, by appointment, the acting attorney for the village; that he prepared all the ordinances, and was. influential with the village administration; that the defendant, Reinbold, was on and prior to April 17, 1923, a candidate for president of the village, andi as such was opposed to the one whu was then the incumbent of that office ; that the latter as- president had given out that if re-elected on April 17, 1923, he would favor the reappointment of the plaintiff to succeed himself as village attorney; that the defendant, Frederick, was a candidate for trustee in opposition to the one who was the incumbent of that office; that the plaintiff during his term of office had conducted the legal proceedings pertaining to the’ installation of a village sewer system and a village water plant; that the defendants constituted themselves to be a “Progressive Party Campaign Committee,” to prosecute their campaign, and, as such, wickedly and maliciously intending to injure the plaintiff, and to bring him into public scandal and disgrace, and to further their own political designs, on April 1, 1923, published the alleged libel in the Village of Villa Park.

It is urged for the plaintiff that there are five statements in the publication which, when taken together and considered with the context, constitute libelous matter. They are as follows:

“1. Should the affairs of the Village be directed by a nonvoter?
* # #
“2. Did any of the candidates who are up for election this spring receive any of the 6% on the sewer? If so, how much?
*4fc 4* Tr "Jr
“3. Why were the Great Western and the Chicago, Aurora & Elgin Railroads not assessed on the original spread of sewer assessment? (Ask the ring). Why were the assessments against those two roads reduced after the amounts, were fixed by the court, and who worked to get them reduced?
“4. Why did the present administration spend Village funds (your money and mine) trying to force the sewer project through at a cost nearly $100,000 above what it should have been? (Ask the ring, they know).
“5. Do you know that the Village Board has already spent nearly $1,000 of the taxpayers’ money for the preparation and publication of three ordinances covering the proposed new water plant, at least two-thirds of which was wasted, as two of the ordinances were wrong?”

(1) As to the first charge, that the plaintiff was a nonvoter and directing the affairs of the village, it is urged that it was intended thereby to charge him. with having voted unlawfully, or having failed to exercise his right to vote. Although it may well be that charging one who acts as attorney for a village and," therefore, takes part in the administration of the village affairs, with being a nonvoter, may, if untrue, to some extent scandalize him, we do not feel justified in concluding that the use of such words tend “to disgrace and degrade plaintiff or hold him up to public hatred, contempt or ridicule, or cause him to be shunned or avoided.” Foster v. Boue, 38 Ill. App. 613. In the latter case it is stated that “the court ought to be able to see that a party’s reputation was liable to be injured in some serious and material manner.”

(2) The words of the publication, “Did any of the candidates who are up for election this spring receive any of the 6% on the sewer? If so, how much?” obviously did not refer to the plaintiff, as he held the position of attorney for the village, and held that position by appointment, and not by election.

(3) The words of the publication which pertain to the assessments of the Great Western and the Chicago, Aurora & Elgin railroads and which asked why those railroads were not assessed on the original spread of the sewer assessment and why their assessments were reduced after the amounts were fixed by the court, and who worked to get them reduced, cannot be said, necessarily, to imply, if interpreted fairly, anything that would tend to disgrace the plaintiff, or to injure him in any serious and material manner.

(4) The words, “Why did the present administration spend Village funds (your money and mine) trying to force the sewer project through at a cost nearly $100,000 above what it should have been? (Ask the ring, they know),” were a criticism of certain conduct of the administration, including the plaintiff in connection with a sewer project, but they cannot fairly be said, interpreting the words as they are, to reflect in any way on the good reputation of the plaintiff, or to hold him up in any way to public hatred, contempt or ridicule.

(5) The words, “Do you know that the Village Board has already spent nearly $1,000 of the taxpayers ’ money for the preparation and publication of three ordinances covering the proposed new water plant, at least two-thirds of which was wasted, as two of the ordinances were wrong?” constitute merely a suggestion that in the judgment of the defendants certain work was not well done, as a result of which the Village lost money. That, of course, may be considered as unfair criticism, but it cannot be said that it contains, interpreted according to the normal meaning of the words, what may result in a serious and material hurt to the plaintiff’s reputation.

A consideration of the following cases, City of Chicago v. Tribune Co., 307 Ill. 595; Sullivan v. Illinois Publishing & Printing Co., 186 Ill. App. 268; Herrick v. Tribune Co., 108 Ill. App. 244, leads to the conclusion that the publication in question was not libelous. Printed and published criticism of an official, such as a village attorney, is not necessarily libelous, simply because it is unjust. To be actionable, a fair interpretation of it must bring about the conclusion that the one to whom the publication pertains may be hurt in some serious and substantial manner.

All good men in offices of public trust are, and should be, hypersensitive to unjustifiable derogatory criticism; and that they generally are is evidence of their anxiety that the truth alone should be known and published; nevertheless, the law having regard to what is efficacious and practical, as well as to what is right and true, does not shield them, at least in political campaigns, from all that hurts, but only from that which being untrue tends quite directly to material and substantial harm.

Considering not only the most conspicuous elements of the publication, but the whole of it, and that it was a campaign document, with all that imports, it is our judgment that, under the law as it exists now in this state, it does not constitute a libel.

The judgment, therefore, will he affirmed.

Affirmed.

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


text:
    The People of the State of Illinois ex rel. Eva Meyers, Appellee, v. John Glees, Appellant.
    Gen. No. 30,043.
    1. Bastards — sufficiency of complaint to show relatrix unmarried when child conceived. A complaint in a bastardy proceeding wherein the relatrix alleged that on a certain date she was “delivered of a child which by law would be deemed a bastard, and that at the time she was so delivered of said child she was still an unmarried woman,” held sufficiently to allege that at the time of the conception of the child the relatrix was unmarried.
    2. Bastards — sufficiency of evidence to show relatrix unmarried at time of conception. Where the relatrix in a bastardy proceeding alleged that on a certain date she was “delivered of a child which toy law would be deemed a bastard, and that at the time she was so delivered of said child she was still an unmarried woman,” and she testified at the trial that she was single and no question was raised at the trial as to her status at the time of conception, and she further testified that she did not have intercourse with any other than defendant, as to the marital status of the relatrix the evidence was sufficient to satisfy the statutory requirements.
    3. Bastards — sufficiency of evidence to support judgment against alleged father. Evidence in a bastardy proceeding held not to show that the story of the relatrix was so manifestly unreasonable as to he incredible, and hence not to warrant reversal of a judgment against defendant.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Joseph Bhbke, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 2, 1925.

    Harold L. Feigenholtz, for appellant.
    Robert E. Crowe, State’s Attorney, for appellee; Henry T. Chace, Jr., and Edward E. Wilson, Assistant State’s Attorney, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.

On March 17, 1924, Eva Meyers, the relatrix, filed a complaint in the municipal court, representing that on December 31, 1923, she was delivered of a male child, which by law would be deemed a bastard; that at the time she was so delivered, she was and still is an unmarried woman, and that John dees of Chicago is the father of the child. The defendant was, pursuant to an order of court, taken into custody. There was a trial, and on June 21, 1924, a jury being waived, the court found that the relatrix, Eva Meyers, was on the 31st day of December, 1923, delivered of a bastard child born alive, and that the defendant was the father of the child. On August 23,1924, judgment was entered that the defendant was the father of the bastard child, and that he pay to the clerk of the court for the support of the child the sum of $1,100, in certain instalments. From that judgment this appeal was taken.

The relatrix testified that she was a working girl, 22 years old, and lived with her father and brother at 1712 Larrahee street, and was single; that her mother was dead; that she had known the defendant six years; that she first had intercourse with him in October, 1922; that he came to her room, which was ón the first floor, getting in through the bedroom window, every week, sometimes about three times a week, between October, 1922, and sometime in April, 1923; that her last menstruation was March 7, 1923; that her child (male) was born on December 31, 1923; that she first discovered she was pregnant about the middle of April; that about the middle of April, 1923, in her room, she told the defendant she was pregnant, and after that he never came back; that' the defendant is the father of the child; that she did not go out with anybody else during that time, or have sexual intercourse with anyone else; that on January 12, 1924, she went to the store of the defendant and told him that the child was born and that he ought to help her, and if he did not she would go home; that he said he would not help her, and endeavored to persuade her not to go home, as it ■ would disgrace him.

The defendant testified that he was 29 years old, unmarried, and owned a meat market; that he had known the relatrix about six years; that his father owned the building in which she lived; that he never had sexual relations with her at any time; that she never spoke to him about her pregnancy or about the birth of a child; that in January, 1924, she called on him at the store and said, “Well, the baby is born”; that he asked her, ‘ ‘ What baby are you talking about ? ’ ’ and she told him it was his; that he told her that was not possible; that he asked her what she wanted, and she said, “I want you to support the child”; that he told her to leave, and he did not see her again until just before he was arrested.

He further testified that he never crawled through the window and had sexual intercourse with her.

One Stelzner, a friend of the defendant, testified that the defendant and he were out motoring every night between March 1 and April 7,1923; that they would get back from eleven to twelve o’clock at night, and the defendant, when they got back would go upstairs to his own home; that he did not see him from April 7 to April 21, 1923.

One Holmes testified that he had known the defendant from eight to ten years; that on April 7, 1923, the defendant and he went on an automobile trip and did not get back until April 21,1923.

It is contended for the defendant that the record fails to show that the relatrix either pleaded or proved that at the time of the alleged conception she was unmarried. The words of the statute (Cahill’s Stat. chap. 17, sec. 1) are, “When a woman who shall be pregnant, or delivered of a child, which, by law, would be deemed a bastard.”

In the complaint it was stated that she was “delivered of a child which by law would be deemed a bastard, and that at the time she was so delivered of said child she was still an unmarried woman. ” That fulfills the requirements of the statute. She testified at the trial that she was single. No question was raised at the trial as to her status at the time of conception; and, so, applying the principle laid down in Erskine v. Davis, 25 Ill. 256, that: “The presumption of coverture is prospective from the time when coverture is shown to exist, and not retrospective,” it follows that not only are we not entitled to presume that at conception she was married, but on the other hand to presume that she was not married. Further, she testified that she did not have sexual intercourse with any one else. Assuming that to be true, it follows that she was, in the words of the statute, “delivered of a child which by law would be deemed a bastard,” and at that time was still unmarried. The words of the present statute are not quite the same as those of the statute in force when the case of People v. Griffin, 142 Ill. App. 588, was decided. Then section 1 began with the words, “That when an unmarried woman who shall be pregnant.” The present statute begins with the words, “When a woman who shall be pregnant or delivered of a child, which by law would be deemed a bastard”; the word “unmarried” being elided. In the Griffin case the court held that the relatrix, being a married woman when she conceived the child which was alleged to be a bastard, was not entitled to prosecute under the Bastardy Act. It was stipulated in that case, however, that she was married at the time of conception, while, here, the presumption is that she was not. With the statute as it is, with the word “unmarried” elided, and the evidence showing that the relatrix was delivered of a child which by law would be deemed a bastard, we think both the complaint and the evidence as to the status of the relatrix fulfilled the statutory requirements.

It is contended that the relatrix’s case was not shown by a preponderance of the evidence. Counsel urges that the story of the relatrix is unreasonable and therefore incredible. The trial judge saw the witnesses. We are deprived of that important advantage; and as the matter involved is one purely of credibility, we do not feel justified, considering all the evidence as the record discloses it, in reversing the judgment.

The judgment will be affirmed.

Affirmed.

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


text:
    The People of the State of Illinois for use of E. R. Dickes, Appellee, v. Dennis J. Egan, Bailiff, and United States Fidelity & Guaranty Company, Appellants.
    Gen. No. 30,086.
    1. Sheriffs and constables — admissibility of transcript of judgment in action to recover attached property, in suit to recover damages for wrongful detention of attached property. In a suit for the use, etc., against the bailiff of the Municipal court of Chicago and his bond, for damages to the usee resulting from the alleged unlawful taking by said bailiff of two automobiles belonging to said usee, under a writ of attachment issued against a third person, the transcript of a judgment in an action by said usee brought in Municipal court against the said bailiff and the attachment creditor, such action being entitled “Trial right of property,” and the judgment therein being that “plaintiff have and recover of and from the defendants the possession of the property,” and the same being affirmed on appeal and the automobiles in suit having been returned to plaintiff pursuant to the mandate of the Appellate court, held competent as evidence to show ownership of the automobiles.
    2. Former adjudication — judgment in action to recover attached property as res adjudicata of title to property in subsequent suit to recover damages for wrongful detention by attaching officer. Where following the taking by the bailiff of the Municipal court of two automobiles under a writ of attachment issued out of that court, the plaintiff brought an action against said bailiff and the attachment creditor to recover possession of the automobiles, claiming that when the same were attached they were the property of plaintiff and not of the attachment debtor, such action being entitled “Trial right of property,” and plaintiff therein recovered a judgment that he “have and recover of and from the defendants the possession of the property,” which judgment was affirmed on appeal and delivery of the automobiles to plaintiff enforced by the mandate of the Appellate court, such judgment was res adjudicata as to the plaintiff's right to the property in his subsequent suit as usee of an action on the bond of said bailiff for damages consequent upon the unlawful taking thereof.
    3. Trusts — right of trustee to sue in own name. The right of the owner of property to maintain in his own name an action upon the bond of a bailiff for damages resulting from the unlawful taking of such property toy the bailiff under a writ of attachment is not affected by the fact that his title to the property is that of trustee under a trust agreement.
    4. Damages — sufficiency of evidence to support award for cost of recovering wrongfully attached property and depreciation in value while retained. Evidence, in an action upon the bond of a bailiff for the unlawful attachment of automobiles belonging to plaintiff, for damages for the expense of recovering them and for their depreciation in value while thus unlawfully retained, held sufficient to justify the damages assessed by the court in plaintiff’s favor.
    Appeal by defendants from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed December 2, 1925.
    Louis J. Behan and William J. Corrigan, for United States Fidelity and Guaranty Company, appellant; Charles F. McElroy, for Dennis J. Egan, appellant; Levisohn & Levisohn, of counsel.
    William McKinley and Paul E. Price, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.

This is a suit in the name of the People of the State of Illinois for the use of E. R. Dickes against Dennis J. Egan, bailiff of the municipal court, as principal, and the United States Fidelity and Guaranty Company, as surety. The claim is that in an attachment suit by Magill-Weinsheimer Company against the Holmes Automobile Company, Egan took two automobiles which were the property of Dickes, and as a result, although the automobiles were, after certain litigation, returned, Dickes was put to expense and the property meanwhile had depreciated in value, and as a consequence he was entitled to damages. There was a trial before the court, without a jury, and a judgment for the plaintiff in debt in the sum of $50,000, to be discharged on payment of $1,876.50. This appeal is therefrom.

The declaration, consisting of one count, alleged that Egan was elected bailiff of the municipal court and gave a bond with the United States Fidelity and Guaranty Company, as surety, which bond provided for the faithful discharge of all the duties of that office; that on January 30, 1922, at the complaint of the Magill-Weinsheimer Company, a certain writ of attachment was issued out of the municipal court which directed the bailiff Egan to attach the property of the Holmes Automobile Company; that accordingly, Egan, on January 30, 1922, attached two automobiles, a Holmes coupé and a Holmes sedan, which automobiles were at that time the property of Dictes and not the property of the Holmes Automobile Company; that on February 23, 1922, Dictes began suit in the municipal court against Egan and Magill-Weinsheimer Company, setting up his, Dictes, ownership of the two automobiles; that afterwards on April 4, the court in that case found that the property which was attached by virtue of the attachment writ of the Magill-Weinsheimer Company against the Holmes Automobile Company was the property of Dictes, the plaintiff; that on an appeal to this court from the finding in that case, the judgment of the municipal court finding title to the property to be in Dictes, was affirmed; that subsequently, pursuant to the mandate of the Appellate Court, the cause was redocteted and Egan, the bailiff, on March 14, 1923, turned-over and restored to Dictes the property which he had wrongfully seized and withheld; that by reason of an unlawful levying of the attachment writ upon the property in question, Dictes has been put to great expense and damage in and about endeavoring to secure the restoration of his property and by reason of the depreciation in the value of the property from the date of its wrongful attachment until the date of its return and restoration.

Various other pleadings were filed, but the cause went to trial on the declaration and plea of non damnificatus, and replication thereto.

The proof showed that the bailiff Egan having made a levy on two automobiles, Dickes sued him and the Magill-Weinsheimer Company in the municipal court in a case entitled, “Trial right of property,” and obtained a judgment that “the plaintiff have and recover of and from the defendants the possession of the property”; and an execution issued for the restoration of the property to the plaintiff; and that upon an appeal from that judgment to this court, the judgment of the municipal court was afirmed. It further showed that the two automobiles consisted of a Holmes coupé and a Holmes sedan; that the fair market value of the coupé in February, 1922, was $2,530, and that of the sedan, $2,646; that the coupé was sold after some effort for $1,200 and the sedan, as the result of a stipulation, was sold for $2,100; that the difference or loss to the plaintiff was $2,530, minus $1,200, on the coupé, or $1,330.50; $2,646, minus $2,100, or $546, on the sedan, making a total difference, or loss, of $1,200 plus $546, or $1,876.50, the amount for which the court entered judgment in the plaintiff’s favor.

It is urged for the defendants that the trial court erred in permitting the introduction of a transcript of the judgment entered in the municipal court in the case of Dickes v. Egan et al. as showing a trial of the right to the property that is to the two automobiles in question; and the reason assigned for this contention is that the record of that case does not constitute a former adjudication as to any of the issues raised by the pleadings in the present case.

Although a number of pleas and demurrers were filed in the course of this litigation, the only plea that finally remained for the defendants was one which recited that the plaintiffs “ought not to have or maintain their action because they have not in any manner been damnified by reason of any matter or thing.”

It will be seen that the plea does not directly deny the allegations of the declaration that the plaintiff was the owner of the property described, nor that Egan wrongfully seized the property, nor that a trial of the right of property was instituted in which Dickes claimed to be the owner of the property, and that the issues were determined in favor of Dickes and the judgment of the municipal court affirmed by the Appellate Court.

It seems to be claimed, notwithstanding there is no direct denial of those allegations of the declaration, that the defendants were still entitled to show that Dickes was not the owner of the property; that Egan did not wrongfully seize the property, and that there was not a trial of the right of property and a finding and judgment in favor of Dickes in the municipal court. The record here shows that there was offered in evidence a transcript of a judgment in the municipal court in an action entitled, “Praecipe, Statement and Affidavit of Claim in Trial of Eight of Property,” brought by Dickes against the Magill-Weinsheimer Co. and Egan, the bailiff. The statement of claim in that case recites that Dickes is the owner of the two automobiles, which had been levied upon, and were then in the possession of Egan. The affidavit of merits denied that Dickes was “the owner of the property,” and denied that he was entitled to possession. The judgment order is “that final judgment be entered on the finding herein, and that the plaintiff have and recover of and from the defendant, the possession of the property described in plaintiff’s statement of claim.”

Evidently, the case in the municipal court was tried under paragraph 437, chap. 37, Cahill’s St., which provides that: “Proceedings for the trial of the right of property may be instituted in every case in which an execution or writ of attachment issued out of any court of record is levied by any sheriff or coroner, or is levied by * * * a bailiff of the municipal court upon personal property within the City of Chicago.”

That paragraph provides, also, that “if, upon the trial the claimant shall be found and entitled to the property, or to any part thereof, judgment shall be entered in his favor for the property, or such part thereof as he shall be found entitled to, and he shall be awarded execution therefor.”

In People v. Crowe, 130 Ill. App. 349, which was an action against a sheriff and the sureties on his official bond for a wrongful levy, it was held that the trial judge erred when he refused to admit in evidence a record of the county court which purported to show that in the trial of the right of property a judgment had been entered in favor of the plaintiff. The court in that case said: “We think the judgment was competent evidence * * * showing that the ownership of the property had been judicially and finally adjudged to be in Sholtey (the plaintiff).” Citing People v. Ward, 41 Ill. App. 464; Ilg v. Burbank, 59 Ill. App. 291. The court further said: “The proceeding of the trial to the right of property is summary in its nature, and no particular form of judgment is essential. It is sufficient if it be final. Johnson v. Gillett, 52 Ill. 358. In a collateral proceeding, when the transcript shows it to be the adjudication of a court or judge having jurisdiction over the parties and subject matter, the judgment or decree, however defective in form, is conclusive upon the parties.” The court further said: “By such a judgment a right of action against the sheriff was clearly established and the only question remaining to be determined was the amount of damages, if any, sustained by appellant by reason of the unlawful seizure and retention of the property.”

In People v. Ward, supra, where the admissibility of a record showing the prosecution of a trial of the right of property to a final determination was considered, it was held that the trial court “erred in excluding from the jury the record evidence to show the prosecution of the trial of the right of property to a final determination in favor of the claimant, which if shown would be conclusive upon appellee.”

In our opinion, the judgment in the case in the municipal court was competent evidence, and, as to the right to the property, res adjudicata. The plaintiff in the municipal court claimed to be the owner of the property in question, and the court found that he was; that we think was sufficient to justify the introduction of a transcript of the judgment and to show the ownership. Further, as showing what the judgment accomplished, in a stipulation in the municipal court, signed by the attorney for Magill-Weinsheimer Company and Egan, it was recited that the order of the court of April 5,1922, found the “right of property” in Dickes.

It is further contended for the defendant that Dickes had no personal interest in the cause of action, and that the testimony showed that he, in his capacity of trustee under a trust agreement, was the only person entitled to maintain such an action. It has been held many times that a trustee may maintain an action in his own name for the recovery of property, the title to which he holds as trustee. McHenry v. Ridgely, 3 Ill. (2 Scam.) 309. In Lee v. Pennington, 7 Ill. App. 247, it is stated that: “A court of law will not inquire whether the plaintiff sues for himself or as trustee for some other person; it is sufficient if he has the legal title in the subject matter of the suit.” Also, in Union Coal Co. v. City of La Salle, 136 Ill. 119, the court said: “It is the duty of the trustee to defend and protect the title to the trust estate, and as the legal title is in him, he alone can sue and be sued in a court of law. ’’ Atkins v. Moore, 82 Ill. 240; Chapin v. Foss, 75 Ill. 280. In the latter case, where it was claimed that the suit should have been by the plaintiff as trustee, the court said, what is pertinent here: “We do not perceive that it would affect the defense, or concern the defendants, in which capacity she sued.” There are a number of cases cited by counsel for the defendant, but an examination of them,shows that they are not apt. Further, however, in considering this contention, we do not find that the insufficiency of the description of the capacity in which the plaintiff maintained his suit was at any time raised in the trial court. Ada St. M. E. Church v. Garnsey, 66 Ill. 132; Franklin Union No. 4 v. People, 220 Ill. 355.

It is further urged for the defendant that the evidence introduced was not sufficient to justify the assessment of damages made by the court. We do not agree with that contention. The witness Dickes testified that, as to his experience, he had done approximately $300,-000 worth of automobile business up to February, 1922; that the fair market value of the coupé in 1922 was $2,530.50, and that of the sedan, $2,646; that he received, upon sale, $1,200 for the coupé, and $2,100 for the sedan. We think the evidence amply shows the fair market value of the two automobiles when they were taken and, also, that there was no controversy as to the reasonableness of what was received for them when they were finally sold; and that being true, it follows that the difference, being $1,876.50, which is the amount of the judgment, was the proper measure of the plaintiff’s damages.

A number of other contentions are made on behalf of the defendant. We have considered them and are compelled to conclude that they are untenable. The judgment, therefore, will be affirmed.

Affirmed.

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


text:
    National Plumbing and Heating Supply Company, Appellee, v. Illinois Wood Preserving Company, Appellant.
    Gen. No. 30,816.
    1. Cbeditobs’ suits — return of execution nulla bona as ground for suit in equity, 'Where a judgment has been obtained and an execution thereon has been duly issued and returned nulla bona, a creditors’ bill in aid of execution will lie.
    2. Cbeditobs’ suits — municipal court judgment as basis for creditors’ bill in superior court. Where execution has been duly issued on a judgment in the municipal court of Chicago, and returned nulla bona, a bill of complaint against the judgment debtor for discovery, for a decree requiring payment of the judgment, for the appointment of a receiver, and for general relief, filed in the superior court of Cook county, is not open to attack as not sufficiently showing that plaintiff has exhausted its remedy at law because it fails to allege that the judgment debtor has no' property in Cook county outside the jurisdiction of the municipal court, which might be taken at law to satisfy the claim of the judgment creditor.
    3. Equity — sufficiency of verification of creditors’ bill. A bill of complaint in a creditors’ suit for discovery and the appointment of a receiver for the judgment debtor held sufficiently verified by an affidavit wherein the affiant stated that he had read the bill and knew the contents, and that they were true of his own knowledge “except as to the matters stated on information and belief, and as to those he believes it to be true.”
    4. Reoeivebs — necessity that order appointing receiver without giving of bond by complainant show judicial determination of non-necessity of bond. Where the record of a creditors’ suit for discovery and the appointment of a receiver for a judgment debtor, although showing grounds for the appointment of a receiver, fails to show that the appointment of the receiver ordered by the court was after a full hearing upon which the court determined that the giving of a bond by the complainant should be dispensed with, no such determination being recited in the order of appointment, such order of appointment was erroneous and must be reversed.
    Interlocutory appeal by defendant from the Superior Court of Cook county; the Hon. Wobth E. Cayloe, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1925.
    Reversed.
    Opinion filed December 2, 1925.

      Francis A. Harper, for appellant.
    Frisch & Frisch, for appellee; Abel Levy, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.

On July 9,1925, the National Plumbing and Heating Supply Company, complainant, filed a bill of complaint in the Superior Court of Cook county, in which it is alleged that on May 26, 1925, the complainant recovered judgment against the defendant, the Illinois Wood Preserving Company, in the sum of $298.93, on an indebtedness contracted on or about April 1,1924; that an execution was duly issued and delivered to the sheriff of said county and by him returned wholly unsatisfied, and that that judgment is still in full force and effect.

It is further alleged that the complainant was informed and believed that the defendant has real estate or personal property which is concealed, or title thereto held by others, so that the complainant is unable to levy thereon; that the defendant has, since May 26, 1925, put out of its hands or possession certain property which should be disclosed and used to pay the judgment, and that the bill of complaint is not exhibited in collusion with the defendant or any other person.

The prayer of the bill of complaint is for a full discovery and for a decree requiring the defendant to pay the judgment, and for a receiver, and for general relief.

The bill of complaint was verified as follows:

“Alex Frankstein, being duly sworn, says that he is the agent of the complainants named in the foregoing bill of complaint; that he has read said complaint and knows the contents thereof and that the same is true of his own knowledge, except as to the matters stated on information and belief, and as to those he believes it to be true. ’ ’

Before the chancellor, a motion by the solicitors for the complainant for the appointment of a receiver was made, and continued to July 14, then to July 31, then to August 7, 1925.

On September 2, 1925, the bill of complaint was amended by striking out the words, “Sheriff of Cook County,” and substituting in lieu thereof the words, “Bailiff of the Municipal Court.”

On September 2, 1925, an order was entered as follows : “On motion of Frisch and Frisch, Solicitors for Complainant in the above entitled cause, supported by the sworn bill of complaint herein; it is ordered that in accordance with the prayer in said bill of complaint Chicago Title and Trust Company be appointed receiver for all of the assets of the defendants herein to take possession of the same and collect arid receive all rents, issues and profits therefrom, and hold the same until the further order of the court with all of the usual powers of receiver in Chancery upon filing herein its bond for the faithful performance of his duties as such Receiver, in the sum of one thousand dollars ($1,000.00) with a surety to be approved by the court.”

On September 3, 1925, an order was entered approving receiver’s bond; and, also, an order was entered defaulting the defendant for failure to answer the bill of complaint.

This is an appeal from the interlocutory order of September 2, 1925, appointing the receiver.

That the interlocutory order of the chancellor should be reversed, three reasons are urged: First, that the allegations of the bill of complaint do not sufficiently set forth that the complainant had exhausted its remedy at law; second, that the verification is insufficient; and, third, that there was not a “full hearing before the chancellor and, therefore, he was without power under the statute to appoint a receiver.”

First. When a judgment has been obtained and an execution thereon has been duly issued and returned nulla bona, a creditor’s bill, such as this, will lie. Chapter 22, Sec. 49, Cahill’s Stats. 1925; Durand & Co. v. Gray, Kingman & Collins, 129 Ill. 9; Edwards v. Rodgers, 41 Ill. App. 405. And, according to Hart v. Oliver, 296 Ill. 209, it is in its nature an equitable proceeding, and the principles of that jurisdiction apply. It is urged that it is not alleged that the complainant had exhausted his remedy at law, because there is no claim that the judgment • debtor had no property in Cook county outside of Chicago which might be taken at law to satisfy the claim of the judgment creditor. That is answered by Mr. Justice Graves in Corn v. Greenberg, 181 Ill. App. 669. In that case the learned justice said:

“It is urged by appellant that as the judgment here relied on was obtained in the Municipal Court, the territorial jurisdiction of which is limited to the city of Chicago, and the bill was filed in the circuit court which has jurisdiction not only in the city of Chicago, but in the balance of Cook county, the judgment is not in the same jurisdiction, and that the bill cannot be maintained in the circuit court, at least not until an execution has been issued on such judgment and placed in the hands of the sheriff of Cook county. We think this is a misconception of the rule. The circuit court has jurisdiction in the entire territory where the Municipal Court has jurisdiction, and the fact that it has also jurisdiction in more territory does not constitute the territory included in the jurisdiction of the Municipal Court a foreign jurisdiction.”

There is nothing to the contrary in Durand & Co. v. Gray, Kingman & Collins, 129 Ill. 9; Detroit Copper & Brass Rolling Mills v. Ledwidge, 162 Ill. 305, and Hart v. Oliver, 296 Ill. 209.

Second: As to the verification. The affiant stated that he had read the bill and knew the contents and that they were true of his own knowledge, “except as to the matters stated on information and belief, and as to those he believes it to be true.” This court has already held that this form of verification is entirely proper and in accordance with the law. Althausen v. Kohn, 222 Ill. App. 324; George C. Peterson Co. v. Asphalt Sales Corporation, 235 Ill. App. 592.

Third: It is urged that there was no “good cause shown” upon notice and a “full hearing,” and, so, the chancellor erred in appointing a receiver without first requiring the complainant to give a bond to the defendant.

Paragraph 55, ch. 22, Cahill’s St. 1925, is as follows :

“That before any receiver shall be appointed the party making the application shall .give bond to the adverse party in such penalty as the court or judge may order and with security to be approved by the court or judge, conditioned to pay all damages including reasonable attorneys’ fees sustained by reason of the appointment and acts of such receiver, in case the appointment of such receiver is revoked or set aside; provided, that bond need not be required, when for good cause shown, and upon notice and full hearing the court is of the opinion that a receiver ought to be appointed without such bond.”

The record shows the following: The bill was filed on July 9, 1925. On July 17, 1925, on motion of the solicitors for the complainant, it was ordered that the motion of the complainant for a receiver be continued until Friday, July 24,1925, without further notice. On July 24,1925, on motion of the solicitors for complainant, it was ordered that the motion for the appointment of a receiver be continued to July 31, without further notice. On July 31,1925, a similar motion, and continuance until August 7, 1925, without further notice.

On September 2,1925, on motion of solicitors for the complainant, leave was given to amend the bill of complaint by striking the word “Sheriff,” wherever it appears, and inserting in lieu thereof the words, “Bailiff of the Municipal Court.” On the same day an amendment to the bill of complaint, pursuant to the leave given was filed. On the same day, September 2, 1925, on motion of the solicitors for the complainant, “supported by the sworn bill of complaint herein,” it was ordered that “in accordance with the prayer in said bill of complaint the Chicago Title and Trust Company, be appointed receiver for all the assets of the defendants herein * * * with all the usual powers of receiver in Chancery, upon filing herein his bond # * * in the sum of $1,000.”

On September 3,1925, an order was entered approving the bond of the receiver. On the same day an order was entered that the defendant be required to plead, answer or demur instanter, and that as no answer or demurrer was interposed as a defense, defendant was defaulted; and it was further ordered that the bill of complaint be taken pro confesso against the defendant for want of an answer, and that the cause be referred to one of the masters in chancery of the court.

On September 4,1925, on motion of the solicitors for the complainant, it was ordered that the motion of the defendant for the approval of an appeal bond be denied, and that the exception taken to the order of appointment of a receiver “is stricken from the files, since the defendant was not properly in court at said hearing. ’ ’

On September 10, 1925, on motion of the solicitors for the defendant, it was ordered that the bond of the defendant in the sum of $600 for appeal to the Appellate Court of the First District from the order of September 2,1925, appointing a receiver for the assets of said defendant be approved.

This appeal, as we have said above, is from the order of September 2,1925, appointing the Chicago' Title and Trust Company receiver for the assets of the defendant.

The question, therefore, arises whether, on the face of the record, we are entitled to hold, as contended for by the defendant, that the chancellor erred in appointing the receiver without first requiring a bond from the complainant. It is urged that it is not shown that there was a “full hearing” of the matter before the chancellor, and that, therefore, a bond should have been required. The question then arises whether, the record failing to disclose anything more than certain continuances and the order in question, we are entitled to assume, and therefore to hold, that the statute was complied with and there was a “full hearing.”

In Watson v. Cudney, 144 Ill. App. 624, where an appeal had been taken to reverse an order appointing a receiver, and where the same section of the statute was involved, the court said:

“The record fails to disclose that the applicant gave the bond required by the foregoing section. Neither can we find from the record that the court upon notice and a full hearing was of the opinion that the bond called for by the statute should be dispensed with. The record conveys no intimation of the opinion of the court upon this subject. To entitle appellee to the appointment of a receiver, he must as a sine qua non to the enforcement of that right give the bond required by the statute, unless it is the opinion of the court that a receiver ought to be appointed without bond, and then the court’s opinion must affirmatively appear in the order making the appointment. The statutory requirement in this regard cannot be dispensed with. ’ ’

In Staar v. Koon, 145 Ill. App. 341, the foregoing quotation from the Watson case was approved, and the court said in the Staar case that if the chancellor thought or was of the opinion that a receiver should be appointed without requiring the complainant to give a bond “he should have incorporated his finding to that effect in his order.”

In Ayres v. Graham Steamship Coal & Lumber Co., 150 Ill. App. 137, the court said: “Courts are without power to appoint receivers without first requiring the complainant to give a bond * * * unless the necessity of giving bond is ’dispensed with in the order of appointment. ’ ’

In Aevermann v. Rizek, 160 Ill. App. 648, where an order of the superior court appointing a receiver was reversed, the court said: “The order appointing a receiver in this case does not state that in the opinion of the court a receiver ought to be appointed without the complainant giving bond.” Mason v. Hooper, 166 Ill. App. 537. Fluke v. Phelps, 177 Ill. App. 95.

It follows, therefore, that although a record may show sufficient grounds for the appointment of a receiver, if the court appoints a receiver without requiring a bond from the moving party, under the exception in the statute, unless it is expressly stated in the order of appointment that the receiver is to be appointed without such bond, the order is erroneous; in other words, the order of appointment of a receiver in such a case must itself show that the necessity of giving a bond by the moving party is expressly dispensed with.

Such having been the consistent interpretation by this court of the statute in question, it follows that the order of September 2,1925, appointing a receiver, must be reversed.

Reversed.

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


author: Mr. Presiding Justice Barnes

text:
    Evelyn Cohen, Appellee, v. Chicago & Western Indiana Railroad Company, Appellant.
    Gen. No. 29,311.
    1. Pleading — duplicity of declaration predicating duty to light passage under viaduct upon several distinct grounds. The declaration. in an action of negligence for personal injuries sustained in the collision of an automobile with one of the supporting columns in an unlighted passageway under a railroad viaduct over a street, which predicates a duty on the part of the railroad company tg light such passageway upon three grounds, (1) contract by the railroad company with the city, (2) ordinances requiring the company to provide such lights, and (3) because the company erected in such passageway a tier of columns constituting an obstruction to traffic therein, held bad because duplicitous.
    2. Pleading — special demurrer as mode of attack upon declaration as duplicitous. The objection that a declaration is duplicitous may be presented only by special demurrer.
    3. Pleading — disregard of duplicity in declaration in absence of attack by special demurrer. Where no special demurrer is filed presenting the objection that the declaration in an action of negligence is duplicitous, the defect must be disregarded on appeal.
    4. Pleading — disregard as surplusage of grounds of action assailable as duplicitous, where declaration states cause of action. Where the declaration in an action of negligence, although duplicitous because predicating the duty alleged to have been breached upon three distinct grounds, is not assailed by special demurrer pointing out such defect, the court on appeal may, if the declaration states one good ground for the action, disregard* the other alleged grounds of the action as surplusage.
    5. Municipal corporations — validity of ordinance substantially re-enacting ordinance previously held invalid. Provisions of an ordinance requiring a railroad company to provide lights for the passageway under its viaduct crossing a street, which are substantially a re-enactment of prior ordinances declared invalid because not within the city’s police power, are likewise invalid and impose no legal duty upon the railroad company to provide such lights.
    6. Public service — municipal power to enact ordinance requiring railroad» to light passageway under viaduct crossing street. An ordinance requiring a railroad, company to provide lights for the passageway under one of its viaducts crossing a street, because regulatory of a public utility, is beyond the power of the city to enact.
    7. Highways — sufficiency of declaration predicating duty to light passageway under viaduct upon provisions of invalid ordinance. Where ordinances requiring a railroad company to provide lights for the passageway under a viaduct crossing a street were invalid because beyond the city’s police power to enact and because regulatory of a public utility, a declaration in an action of negligence, in so far as it predicated liability upon violation of such ordinances, was subject to general demurrer.
    8. Highways — admissions by demurrer to declaration alleging duty to light passageway under viaduct because supporting columns menaced traffic. Where a declaration contained averments to the effect that a tier of columns erected by a railroad company in the passageway under its viaduct crossing a street constituted an obstruction to traffic against which it was the duty of the company to protect the public, a demurrer thereto must be held to admit that such columns constituted an obstruction to traffic, and that there resulted a duty on the part of the company to safeguard the public from danger in using, the street, although a like duty also rested upon the city.
    9. Highways — sufficiency of declaration in negligence for personal injuries predicating liability upon breach of duty to light passageway under viaduct crossing street. A declaration in an action of negligence for personal injuries in a collision between an automobile and a column erected by a railroad company in an unlighted passageway under its viaduct crossing a street, the averments of which to the effect that such column was an obstruction to traffic and a menace thereto in the absence of lights at any time and that in consequence of such want of lights the accident took place, were in effect admitted by demurrer, held to state a good cause of action with respect to the liability of the company for maintaining such structure and its breach of duty in respect thereof.
    Appeal by defendant from the Superior Court of Cook county; the Hon. William N. Gem mill, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1924.
    Affirmed.
    Opinion filed December 8, 1925.
    C. G. Austin, Jr., J. Raymond Barse and Samuel Kassel, for appellant.
    Leesman & Roemer, for appellee.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is a personal injury suit in which the court overruled defendant’s general and special demurrers to the declaration. Defendant stood by the' same, and it was agreed that the court might enter a finding in favor of the plaintiff in the sum of $3,000. The only question to be decided is whether the court properly overruled said demurrers and entered judgment on the finding.

The declaration alleges in substance that defendant operated a railroad over and across West 64th street between Lowe and Parnell avenues, Chicago; that on October 23,1899, a certain track elevation ordinance of the City of Chicago' became effective providing for the elevation of the track and roadbeds of divers railroad companies within the limits of the city, including those of defendant referred to; that defendant accepted said ordinance and prior to the accident in question elevated its said tracks and roadbed over said 64th street between said avenues, pursuant to and in accordance with said ordinance; that section 12 of said ordinance required the railroad companies to light the subways authorized to be constructed in the manner prescribed by the ordinance then in force for the lighting, of the portion of their tracks at said street crossings; that there was then in force a certain ordinance of the City of Chicago which required all railroad companies whose tracks crossed any of the streets, of said city above the level of such streets to provide at their own expense proper and sufficient lights and care for the . same at all such crossings underneath the track or tracks of said railroad companies, and penalized said companies for failure to comply with such provisions; that said ordinance was re-enacted in substantially the same language in the Municipal Code of 1905, and that the last-mentioned ordinance was re-enacted in the Chicago Code of 1911 in substantially the same form, and that the ordinances as originally enacted and re-enacted remained continuously in force from 1897 down to January 10,1922, the date of the alleged accident.

The declaration then proceeds to aver that on the latter date plaintiff was riding in an automobile on said 64th street, between said avenues and that defendant “carelessly, negligently and wrongfully, and in violation of said ordinances aforesaid failed and neglected to provide at its own expense proper and sufficient lights and to care for the same at the place aforesaid and thereby as a result of said negligence, and in violation of the ordinances aforesaid the subway under the tracks of the defendant over 64th street was inadequately and insufficiently lighted, and the center tier of columns of said viaduct erected at or near the center of said 64th street, constituted a menace to persons lawfully using said street, * * * that while plaintiff was “lawfully and properly riding in said automobile in the exercise of ordinary care,” etc., “because of the negligence of the defendant as aforesaid,” said automobile did “run into and collide with the supporting columns of the defendant’s said viaduct over the said 64th street,” and thereby plaintiff was thrown and injured, etc.

The negligence upon which the cause of action purports to rest is the failure of defendant to provide proper and sufficient lights in the subway under its elevated tracks at the place in question. So far as disclosed by the facts pleaded the duty to provide such lights rests upon three distinct grounds: (1) because the company contracted to furnish such lights by accepting the elevation ordinance with the provision therein requiring it to do so; (2) because the company was required to provide such lights by the other ordinances pleaded which provided a penalty for its failure to do so, and (3) because defendant erected near the center of the street underneath the elevated structure a tier of columns which constituted a menace or obstruction to traffic therein.

Pleading these three different grounds for recovery renders the declaration duplicitous. Such a defect, however, must be reached by special demurrer, and none was filed presenting that ground. That defect, therefore; must be disregarded.

If, however, the declaration states one good ground of action, in the absence of such a demurrer we may treat the other alleged grounds of the action as surplusage.

So far as the declaration rests upon the duty of defendant to provide such lights because required to do so by the several ordinances other than the elevation ordinance pleaded it unquestionably is subject to a general demurrer. The provision requiring railroad companies to provide lights under their elevated tracks, in force at the time defendant accepted the elevation ordinance and which was re-enacted in slightly varying language in subsequent provisions of the Chicago Code, was declared invalid in City of Chicago v. Pennsylvania Co., 252 Ill. 185, on the ground that an attempt of the city to impose upon the railroad company the duty to provide such lights did not come within the purview of its police power. That being so, there could, of course, be no validity to the re-enactment of the unconstitutional provision. (8 Cyc. 805.) It follows, therefore, that the provision for such lighting in the several invalid ordinances imposed no legal duty on the railroad company to furnish such lights. The provision, too, being regulatory of a public utility the city now has no power to pass or enforce an ordinance of that character. (Northern Trust Co. v. Chicago Rys. Co., 318 Ill. 402.)

Whether the elevation ordinance imposed a contractual duty on defendant to light the subway need not be considered if averments in the declaration to the effect that the columns erected in the street underneath the elevated structure constituted an obstruction against which it was the duty of defendant to protect the public lawfully and properly using the subway, state a cause of action. The demurrer must be held to admit that the center tier of columns in the subway constituted an obstruction to traffic, and as they were placed there by defendant as a part of its structure it became the duty of defendant, even though it were also the duty of the city, to safeguard the public from any danger in using the street. Whether the accident took place in daylight or darkness does not appear, or whether it was necessary to light the subway in the daytime. With these questions of fact we are not concerned so long as the demurrer admits the existence of an obstruction and that it was a menace in the absence of lights at any time, and that in consequence of the subway not being lighted the accident took place. We think, therefore, that the declaration sufficiently states a cause of action with respect to defendant’s liability for maintaining a structure in the street which constituted a menace or obstruction to traffic unless properly lighted and that it neglected its duty in that respect.

Affirmed.

G-ridley and Fitch, JJ., concur.