text:
    Rudy Wiedoeft, Appellee, v. Frank Holton and Company, Appellant.
    Gen. No. 39,981.
    Opinion filed March 11, 1938.
    Rehearing denied April 6, 1938.

      Pqpebnhusen, Johnston, Thompson & Baymond, of Chicago, and Frederick Hull, of Elkhorn, Wis., for appellant; Edward B. Johnston, Albert E. Jenner, Jr., and Samuel W. Block, all of Chicago, of counsel.
    Benjamin H. Ehrlich, of Chicago, for appellee; Aaron H. Cohn, of Chicago, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This is an interlocutory appeal from an order entered December 3, 1937, appointing a receiver for defendant, Frank Holton & Co., an Illinois corporation, after a hearing upon the verified complaint of plaintiff and the verified amended answer of defendant. No evidence was heard.

Plaintiff’s complaint, filed October 14, 1935, alleged substantially that suit was brought on behalf of plaintiff and “all other creditors” who might choose to join therein; that September 5, 1935, a decretal judgment for $23,063.40 was entered in the superior court of Cook county against defendant and in favor of plaintiff ; that September 12, 1935, plaintiff sued out a writ of fieri facias upon the decretal judgment; that the sheriff of Cook county served the writ upon Ning Eley, secretary and registered agent of thé defendant in Chicago, Illinois, on September 18, 1935; that October 11, 1935, the writ was returned “no part satisfied,” and that both the decretal judgment and the writ of execution remained wholly unsatisfied up “to the time of the filing of this bill of complaint”; that defendant corporation was organized February 15, 1904, with an original capitalization of $100,000; that the capitalization was subsequently increased to $500,000; that the certificate of incorporation authorized defendant to engage in the business of manufacturing and selling musical instruments; that during the early period of its existence defendant maintained its principal office in Chicago; and that defendant subsequently moved its factory and office to Elkhorn, Wisconsin, “merely retaining a registered agent and technical legal home in Chicago.”

The complaint then proceeded as follows:

“Plaintiff further states, upon information and belief, that since the time of the service of the writ of fieri facias upon the defendant, the said corporation, it was and still is indebted to divers parties in a sum largely in excess of its assets; that such indebtedness remains wholly unpaid and unsatisfied and that the said corporation is hopelessly and irretrievably insolvent, and is unable to pay its debts and obligations in the regular course of business as they mature.

“Plaintiff further states that he is informed and believes that in the course of the said business divers persons became indebted to the said Frank Holton & Co. to a large amount, and that the said corporation had, at the time of filing this, the plaintiff’s complaint, and still has, debts due to it, and for which the said Frank Holton & Co. holds divers securities and evidences "to a large amount; and has divers goods, merchandise and other articles of personal property which belong to said corporation, or in which it is in some way or manner beneficially interested, which the plaintiff has been unable to reach by execution against the said Frank Holton & Co., and that the said corporation has equitable interests and things in action of some nature and kind, all of which assets should be collected or taken possession of by a receiver and applied under the direction of this Court to the payment' of plaintiff’s said decree and all other indebtedness of said Frank Holton & Co.

“That the plaintiff has no adequate remedy at law.”

The complaint concluded with the prayer that a decree be entered dissolving the defendant corporation and winding up its affairs; that a receiver of all the property and effects of defendant be appointed with power to collect, marshal and distribute its assets; that an accounting be had of the indebtedness due plaintiff and other creditors; that the receiver be directed to apply the corporate assets in satisfaction of such debts; and that plaintiff have such other and further relief as to the court should deem meet.

.An appeal from the decretal judgment which is the basis of this proceeding, having been perfected to this court, plaintiff’s motion for the appointment of a receiver herein, which had been presented November 1, 1935, was continued generally. To plaintiff’s complaint defendant filed its verified answer, the allegations of which were substantially the same as those contained in its verified amended answer subsequently filed. October 15, 1937, after the original decree had been affirmed by this court and leave to appeal denied by the Supreme Court, plaintiff renewed his motion for the appointment of a receiver without in anywise amending his complaint. The motion was continued to December 3, 1937, on which date defendant filed its verified amended answer.

The amended answer, after denying upon information and belief that this action was brought by plaintiff on behalf of himself and others, alleged “that plaintiff is not the legal owner of the alleged decree that is the purported basis of this action, but that the decree is owned by one Benjamin H. Ehrlich, ... as appears by the records and proceedings of the Circuit court of Walworth county, Wisconsin, in a suit there pending upon said alleged decree, originally instituted in the name of this plaintiff against this defendant, wherein Benjamin H. Ehrlich . . . has been substituted as plaintiff. ’ ’

After admitting the entry of the decretal judgment against defendant, the issuance and service of the execution and its return by the sheriff of Cook county “no part satisfied,” the answer averred “that it does not admit that the alleged decree is a good and valid decree nor that it is in full force and effect, and says that it has duly denied the validity and legal existence of said alleged decree by its answer and counterclaim to the amended complaint in said suit in Wisconsin on said alleged decree”; that it “did not allow said writ of fieri facias to remain unsatisfied because it could not satisfy it but because it believed the court erred in rendering said alleged decree, and that the sheriff did not return said writ in no part satisfied because the defendant did not possess ample assets out of which to satisfy it but because those ample assets were not within his jurisdiction, but at this defendant’s principal and sole place of business at Elkhorn, Walworth County, Wisconsin”; and that “it does not admit the validity of said alleged decree and, therefore, does not admit the allegations as to the existence of a decree, nor that it is in full force and effect, nor that there is now actually and equitably due plaintiff upon said alleged decree $23,063.40 and interest, as alleged, or any other sum.”

Then, after admitting the allegations of the complaint relative to the organization and capitalization of defendant and the removal of its plant, business office and assets to Elkhorn, Wisconsin, and denying that it was “hopelessly and irretrievably insolvent” and “unable to pay its debts and obligations in the regular course of business as they mature” as charged upon information and belief in, plaintiff’s complaint, the answer alleged: “. . . that at the time this suit was first begun, over two years ago, this defendant did not owe any bonded or funded debt whatever, but only current obligations, all of which have long since been paid in full in the usual course of business as they matured; that it does not now owe any bonded or funded debt; that it has and continues and will pay all obligations in full as they mature in the usual course of business; that its current assets then were, and now are, nearly three times its total liabilities, exclusive of this alleged decree; that it has continuously conducted its business since its incorporation; that at its place of business in Elkhorn, Walworth county, Wisconsin, where it has been located since 1918, it owns real and personal property valued at fifteen times the amount of this alleged decree, all free, clear and unincumbered ; that its plant there is in steady operation, employing on the average 140 persons; that its employees there performed upward of 34,000 man-hours of work in the month last ended or the equivalent of 40 hours a week for 190 employees; that it has manufactured and sold more instruments thus far this year than in any like time in any other year of its 33 years of existence; that during all of that time it has honorably paid in full all its just obligations, both current and otherwise, and has been directly sued by but two persons, the plaintiff, Rudy Wiedoeft, and one Bohumir Kryl, upon demands emanating out of two written agreements, which it says it had not executed, authorized nor ratified, and had no power, express or implied, to make, authorize or ratify, and which it had repudiated and denounced as illegal; the alleged claim of Bohumir Kryl was denied by the Supreme Court of Wisconsin.

‘ ‘ The defendant admits the allegations of paragraph 7 of the complaint, that it has accounts and notes receivable. to a large amount and heavy inventories, but denies that this property should be taken possession of by a receiver, and shows to the Court that all of this personal property is at defendant’s plant at Elkhorn, Wisconsin; and alleges further that defendant does not have nor at any time since the pendency of this action has it had any property, real or personal, in the State of Illinois.

“The defendant denies the allegation in paragraph 8 of the complaint that the plaintiff had no adequate remedy at law at the time of filing his complaint, in the sense that such allegation is ordinarily made by the legal owner of a valid decree, and says that if said alleged decree is valid, and he then was the owner thereof, he then had a full and complete remedy at law by the suit filed in October, 1935, in his name upon the decree, in the Circuit Court of Walworth County, Wisconsin, where the defendant has its place of business and ample property to satisfy the levy of any execution upon any judgment that could be rendered in said suit. ”

It was further alleged “that this proceeding is wholly without warrant in law or equity, and that this Honorable Court has no jurisdiction by statute or common law to hear, consider, and adjudicate upon the allegations set forth in the complaint herein, or to grant the relief prayed for in the complaint.”

The answer concluded with a prayer that the complaint be dismissed. No reply was filed by plaintiff to either the original or amended answer.

The pertinent portions of the order appealed from ' are as follows:

“It is ordered that Bernard L. Pearlman of Chicago, Illinois, be and he is hereby appointed Receiver of the estate and property, real and personal, things in action, debts, equitable interest and other effects of the said defendant, Frank holton & co., . . . and more particularly its plant and equipment, fixtures, merchandise and raw materials, located at Elkhorn, Walworth County, Wisconsin. . . .

“And it is further ordered that the defendant . . . do assign, transfer and deliver to said Receiver . . . all such property, real and personal, things in action, equitable interests, fixtures, equipment, merchandise, raw materials and other effects, . . . and that it deliver to said Receiver in like manner all bills, notes, contracts, books of account, etc., and other evidences relating thereto. And that the said defendant . . . execute and deliver to said Receiver ... a general assignment of such property and effects; and also execute, acknowledge and deliver to said Receiver . . . a conveyance and assignment of the real estate aforesaid. ...

“The said Receiver is hereby authorized and instructed to file petition for ancillary receivership in the State of Wisconsin to recover any property of the defendant in said State as to him is deemed necessary and advisable.

“It is further ordered that the complainant is excused from giving bond for this Receiver for good cause shown.”

Numerous errors are relied upon for reversal but the only contention of defendant that we deem it necessary to consider is that “a court of equity, in the absence of proof of fraudulent dissipation of assets and insolvency, has no power to appoint a receiver for a corporation at the petition of a private person without express statutory authority,” that only by virtue of sections 86(b) and 87 of the Illinois Business Corporation Act does a court of equity have any power to appoint a receiver for a corporation on the petition of a private individual, and that since said sections are not applicable to the facts in the instant case the court had no power to appoint a receiver for the defendant.

Plaintiff’s theory as stated in his brief is “that the facts alleged in the complaint make out a creditor’s bill in accordance with the provisions of the Chancery Act, ch. 22, sec. 49, State Bar Illinois Statutes of 1937, upon the basis of which the order appointing a receiver was entered; that the bill of complaint also contains sufficient allegations which, if proven later at the trial, will enable the Court to proceed to dissolve the defendant corporation under the Corporation Act of 1919 and the Business Corporation Act of 1933”; that “the Court, from the record in the case, was justified in appointing a receiver to preserve the assets of the defendant company pendente lite”; and that “the powers granted to the receiver are necessary and proper for the accomplishment of the purposes of the complaint.”

Section 86(b) of the Illinois Business Corporation Act (ch. 32, sec. 157.86(b), Ill. Bev. Stat. 1937 [Jones Ill. Stats. Ann. 32.088]) extends to .courts of equity “full power to liquidate the assets and business of a corporation . . . upon the suit of a creditor whose claim has . . . been reduced to judgment and an execution thereon returned unsatisfied . . . when ... it is made to appear that the corporation is unable to pay its debts and obligations in the regular course of business as they mature,” and sec. 87 of said act (ch. 32, sec. 157.87, Ill. Bev. Stat. 1937 [Jones Ill. Stats. Ann. 32.089]) authorizes the court to appoint a receiver as an incident to dissolution proceedings as provided-under sec. 86(b).

It must be conceded on the record that the defendant corporation was not insolvent either at the time plaintiff’s complaint was filed or two years thereafter when the order was entered appointing the receiver. The complaint did allege upon information and belief the mere legal conclusion that defendant was “hopelessly and irretrievably insolvent” and was “unable to pay its debts and obligations in the regular course of business as they mature,” but defendant’s answer not only denied its insolvency but averred facts which showed conclusively that it was and is able to pay its debts and obligations “in the regular course of business as they mature.” No reply having been filed to defendant’s verified amended answer, the facts affirmatively alleged therein as to its solvency and ability to pay its debts must be taken as admitted. (Ill. Bev. Stat. 1937, ch. 110, sec. 156 [Jones Ill. Stats. Ann. 104.032]; Fornoff v. Smith, 281 Ill. App. 232.)

While plaintiff’s complaint was obviously drawn in an effort to comply with the terms of secs. 86(b) and 87 of the Illinois Business Corporation Act, which give to courts of equity their only authority to dissolve corporations upon the petition of private individuals and to appoint receivers incidental to such dissolution, plaintiff now insists that in ordering the appointment of the receiver the court did not invoke the powers conferred by said sections of the statute, but appointed said receiver on the strength of allegations of the complaint, which were sufficient to “make out a creditor’s bill” in accordance with the provisions of sec. 49 of the Chancery Act [Ill. Rev. Stat. 1937, ch. 22, § 49; Jones Ill. Stats. Ann. 106.12]. Plaintiff’s position in this regard, in our opinion, is merely an afterthought, and he was compelled to assume it or some other position equally untenable by the conclusive showing made by the amended answer that defendant corporation was and is solvent.

The law has long been settled in this State that in the absence of proof of dissipation of assets and insolvency a court of equity has no power to appoint a receiver for a corporation at the petition of a private individual without express statutory authority. Discussing this question in the recent case of National Bureau of Property Administration, Inc. v. Tax Service Ass’n, 290 Ill. App. 152, the first division of this court said:

“It is well settled by a long line of decisions in this State that the courts of chancery have no general power to appoint receivers of corporations and can do so only when expressly authorized by statute, except at the instance of the attorney general. People v. Weigley, 155 Ill. 491; Blanchard Bro. & Lane v. Gay Co., 289 Ill. 413; Steenrod v. Gross Co., 334 Ill. 362; Nelson v. Toluca State Bank, 334 Ill. 83; People ex rel. Palmer v. Peoria Life Ins. Co., 357 Ill. 486. The cases are reviewed in People v. Shurtleff, 353 Ill. 248, where the court said:

Courts of chancery have no general power to appoint receivers for corporations and can appoint them only when expressly authorized by statute. (Coquard v. National Linsced Oil Co., 171 Ill. 480; Wheeler v. Pullman Iron and Steel Co., 143 id. 197; Chicago Steel Works v. Illinois Steel Co., 153 id. 9; People v. Weigley, 155 id. 491.) ... It was held in Blanchard Bro. & Lane v. Gay Co., supra, that appointing a receiver to take possession of the assets of a corporation and distribute them is tantamount to dissolving the corporation by a decree in equity, and that when the property of a corporation is all sold and distributed and its officers are powerless to obtain further means to carry on its business, it is powerless to exercise its corporate franchise and is then for all practical purposes dissolved. ’

í Í

“The Business Corporation Act of July 13, 1933, provides (see Ill. State Bar Stats. 1935, ch. 32, par. 86; Jones Ill. Stats. Ann. 32.088) the circumstances under which courts of equity may have full power to liquidate the assets and business of a corporation. Individuals who may maintain a bill for such purpose are divided into two classes. First, those who are shareholders in the corporation. Secondly, creditors of the corporation whose claims have either been reduced to judgment and an execution thereon returned unsatisfied, or whose claim is admitted by the corporation, and in either case it must be made to appear that the corporation is unable to pay its debts and obligations in the regular course of business as they mature.”

In passing upon the same question in Steenrod v. Gross Co., supra, our Supreme Court said at pp. 368-370:

“. . . The bill for the appointment of a receiver conferred no jurisdiction on the circuit court. Courts of chancery have no general power to appoint receivers of corporations. The general rule is that they can only appoint receivers where expressly authorized by the statute. Appointing a receiver to take possession of the assets of a corporation and to distribute them is tantamount to dissolving the corporation by decree in equity. (Blanchard Bro. & Lane v. Gay Co., 289 Ill. 413.) There was no charge in the bill of fraudulent mismanagement of the corporation by the officers whereby it was in imminent danger of insolvency or had been rendered insolvent by such mismanagement. A court of chancery is without jurisdiction to decree the dissolution of a corporation in the exercise of its general equity powers but is limited in that respect to the jurisdiction conferred upon it by statute. That jurisdiction is found in section 54 of the general Corporation act, and it is the same as the jurisdiction of the same subject matter conferred by section 25 of the act of 1872 concerning corporations, as amended by the laws of 1877, page 66, under which it was expressly held in People v. Ames, 155 Ill. 491, that a stockholder may not invoke the jurisdiction of a court of equity to take charge of all the company assets by a receiver and thus defeat the action of the creditors under section 25, and that a decree appointing a receiver in such a case is absolutely void for want of jurisdiction of the subject matter and is open to collateral attack upon a proceeding for contempt in disobedience of it.

“In the bill under which the plaintiff in error was appointed receiver it did not appear that the corporation was insolvent or that ifcj affairs were being mismanaged. It did appear that it was near insolvency, but it did not appear that the court or its receiver could manage the corporate affairs better than its officers, and the courts do not appoint receivers for the purpose of merely preserving the assets of the corporation where the application is made by stockholders, for the reason that the sovereign does not furnish public agencies for the carrying on of ' private enterprises. (Blanchard Bro. & Lane v. Gay Co., supra.) The relief sought by the bill in this case was the settlement, of the affairs of the corporation, the application of its assets to the payment of its debts, and, after the payment of its debts, the winding up of its affairs and the distribution of its assets among its stockholders. The appointment of a receiver was a mere incident to that relief to enable the court to take possession of the property and business of the company and finally wind up its affairs. The court had no general equity powers in the case. It was without jurisdiction, under the statute, to grant the ultimate relief prayed by the bill, had no power to appoint the receiver and order him to take possession and control of the assets, and being wholly without jurisdiction in the case its orders were void.

“Counsel for the defendants in error contends that ‘the court having jurisdiction of the parties and of the subject matter, it was a judicial function granted by law to the court to determine whether there was a good cause shown by the bill to dissolve or close up the business of the corporation and to appoint a receiver. ’ He overlooks the fact that the subject matter of the bill was not within the general equity jurisdiction of a court of chancery but was a statutory jurisdiction, which must be made to appear on the record; that none of the causes for which, by the statute, courts of equity are authorized to take charge of corporations and close them up are alleged; that the court was without jurisdiction, and that it has been expressly held that, having no general equity powers and the bill wholly failing to bring the case within the provisions of the statute, the court was without jurisdiction of the subject matter.” (Section 54 of the General Corporation Act and section 25 of the earlier Corporation Act, referred to in the foregoing opinion, were predecessors of the present sections 86(b) and 87 of the Illinois Business Corporation Act of 1933.)

Section 49 of the Chancery Act [Ill. Rev. Stat. 1937, ch. 22, § 49; Jones Ill. Stats. Ann. 106.12] contains no express authority for the appointment of a receiver for a corporation and no case in this State has been cited by plaintiff, and we have been unable to find one that approves the appointment of a receiver for a corporation pursuant to any authority implied in said sec-tion under circumstances such as exist here. Even though sec. 49 of the Chancery Act, in general terms, expressly authorized the appointment of a receiver it would still be ineffectual to sustain plaintiff’s position. The terms and application of that section of the statute being of a general nature, it would be superseded by the provisions of the Illinois Business Corporation Act, especially limited and applicable to the appointment of a receiver for a corporation. “A statute which is enacted for the primary purpose of dealing with a particular subject, and which prescribes the terms and conditions of that particular subject matter, supersedes a general statute not referring to the particular subject matter but containing language which might be broad enough to cover the subject matter if the special statute was not in existence.” 59 C. J., see. 546, p. 937.

Inasmuch as the rule is clear that a receiver for a corporation may be appointed only pursuant to and in accordance with the statutory powers granted by sections 86(b) and 87 of the Illinois Business Corporation Act, and that the statute must be strictly construed, it is essential that plaintiff bring his case within the letter and intent of said sections. Since one of the requirements of section 86(b) is a showing of the insolvency of the corporation for which the receiver is sought, where it appears conclusively, as it does here, that the defendant corporation is solvent and able to pay its debts in the regular course of business as they mature, there can be no appointment of a receiver under the statutory grant of power contained in that section.

The ultimate relief prayed by plaintiff was the dissolution of the defendant corporation, and the court being without jurisdiction to grant such relief it necessarily follows that it was without jurisdiction to appoint a receiver pendente lite, as a receiver may be appointed only as an incident to or in aid of the ultimate relief sought.

While we feel that there is merit in plaintiff’s contention that defendant has plainly evidenced from the beginning of this controversy an intention to avoid payment of plaintiff’s claim, regardless of the judgment of the courts of this State, nevertheless we are compelled upon technical grounds to reverse this case.

We have considered the other points urged, but in the view we take of this cause it is unnecessary to discuss them.

For the reasons stated herein the order of the superior court is reversed.

Order reversed.

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


source: Caselaw Access Project

author: Mr. Presiding Justice Stone

license: Public Domain

text:
    Charles R. Walter et al., Appellants, v. Northern Insurance Company of New York, Appellee.
    Opinion filed March 9, 1938.
    Jacoby & Daly, of Alton, for appellants.
    Warnock, Williamson & Burroughs, of Edwards-ville, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This appeal from the circuit court of Madison county is from a judgment of that court notwithstanding the verdict in favor of appellants in the sum of $1,605. The action is upon a general insurance policy with riot clause attached, which is the real groundwork of this lawsuit. Those sections of the policy with which we are here concerned are as follows: “ . . .1. $3,500.00 on Dwelling House consisting of a two story frame building with slate roof, occupied and to be occupied only for dwelling purposes. . . . Supplemental Contract. ... 2. Explosion, Riot, Aircraft and Self-Propelled Vehicles: In consideration of $.88 premium, the stipulation, terms, and conditions in the policy to which this Supplemental Contract is attached, the coverage of this policy is extended to include direct loss or explosion, riot, aircraft and self-propelled vehicles. . . . Special Stipulations, Terms and Conditions Applicable to Explosion and Riot Liability: . . . The Term ‘riot’ wherever used in this policy shall include direct loss from pillage and looting, when such pillage and looting occurs during and at the immediate place of a riot; riot attending a strike, insurrection and/or civil commotion. . . .”

The loss upon which this suit is based| occurred during the night of January 3, 1936, and was first discovered on the morning of January 4, 1936. It consisted of the wanton and malicious spraying, smearing and daubing of creosote over the interior woodwork, plaster, floors and ceilings of a two-story residence at 1000 Logan street, Alton, Illinois. This residence was owned by the plaintiffs Walter, subject to a mortgage to the plaintiff Home Building and Loan Association, which joined as a plaintiff for the purpose of waiving its rights as mortgagee. It was covered by the insurance policy now in suit.

In their complaint the plaintiffs alleged that they were the owners and mortgagees of the building; that in consideration of the payment of a certain premium the defendant executed a policy of insurance, insuring them against loss or damage by riot; that on January 4, 1936, the building was damaged “by riot,” that is, “by the unlawful application of creosote to the interior parts of the house with force by two persons together —neither of which had any proprietary interest of any kind therein”; that they had performed all the conditions on their part required to entitle them to indemnity ; that the defendant had denied liability on the ground that the application of creosote as alleged did not constitute a riot; that the plaintiff Home Building and Loan Association had joined for the purpose of waiving its rights, and that the defendant had refused to pay the loss, which was alleged to be $2,000.

To the complaint the defendant first filed a motion for judgment, grounded on the insufficiency of the plaintiff’s statement of their cause of action. This was overruled.

The defendant’s answer was then filed. It admitted the issuance of the policy and the receipt of the premium, but denied that the plaintiffs’ building was damaged by riot — “that is, by the unlawful application of creosote,” as alleged in the complaint, denied that the application of creosote was made by force, denied that all conditions precedent had been performed, denied that the application of creosote constituted a riot under the law or the policy, and denied generally all liability to the plaintiffs. The answer pleaded lack of specific knowledge as to ownership of the building, but admitted that the plaintiff Home Building and Loan Association had joined for the purpose of waiving its rights.

The evidence in the case fairly tends to prove the allegations of fact alleged from which appellants seek to draw the conclusions alleged in their complaint and upon which the jury found its verdict. The house was seriously damaged by the distribution of creosote. It is quite apparent that it was done by at least two people, but was done in the quiet of the night in such a manner as not to disturb even the next door neighbors. Some evidence appears that the house was entered by force; a ladder was raised to a window on the second story, the said window opened in the nighttime for purpose of entrance. There was apparently no tumult and no affray; certainly there was no strike, insurrection or civil commotion.

The question for decision in this case is “Was the damage to the house done as the result of a riot within the reasonable meaning and intendment of the language of this policy?”

The rider attached to this policy insures the insured against riot without any qualification attached to the word. It does so in more than one instance. The expressions used in connection with the term “riot” are not qualifications of the term riot. They add to that term by insuring against other damages than those contained necessarily in the word riot. We can conceive of an insurance policy of this general character which would insure the insured against damages occurring out of riot without any reference to a riot itself, but this rider insures against riot unqualifiedly.

Where shall we look for a definition of the word “riot?” The damage done to the house in question together with the circumstances under which- it was done constitute a riot within the meaning of our statute and the perpetrators of that offense could be punished under our statute as for riot. Why should we arbitrarily say that this language is to be defined by the common law definition of riot, or why should we say riot “As it is commonly understood,” if indeed the thing done is a violation, of our statute against riot? Riot in our State is a creature of our statute now. It is true that common law riot may be punished in Illinois ; but not because it is common law riot; but because in common law riot is involved all of the elements of our statute on riot, and others besides. There are cases in Illinois which hold that the legislature, having defined the term, all contract references to that term are to be interpreted by the definition of that term. (Purtell v. Philadelphia & Reading Coal & Iron Co., 256 Ill. 110, 99 N. E. 899; People ex rel. Fyfe v. Barnett, 319 Ill. 403, 150 N. E. 290; People ex rel. Goldberg v. Busse, 240 Ill. 338, 88 N. E. 831; Murrell v. Industrial Commission, 291 Ill. 334, 126 N. E. 189; People v. Landers, 329 Ill. 453,160 N. E. 836.) But whether they did so hold or not, it must be plain that a policy which insures against riot without any qualifying expressions must have reference to riot as our statute has defined it. We have held that the perpetrators of this offense were engaged in a riot. Whether there ensued any of the other damages insured against in this policy is not important. A riot occurred by which the insured was damaged and against which he was insured. That being the case it was a question of fact for the jury what was the amount of appellant’s damages. They found that amount to be $1,605. In our judgment it was error to render judgment notwithstanding the verdict.

The judgment of the circuit court is reversed and the cause remanded with instructions to that court to enter judgment upon the verdict.

Judgment reversed and cause remanded with instructions.


author: Mr. Presiding Justice Stohe

text:
    Edward Seybold and Bernice Seybold, Appellees, v. Peter Jacob Zimmerman, Appellant.
    Opinion filed March 9, 1938.
    P. J. Kolb, W. S. Willhite and Walter F. Kolb, all of Mt. Carmel, for appellant.
    J. A. Lamkin, of Mt. Carmel, and Thos. H. Creighton, for appellees.
   Mr. Presiding Justice Stohe

delivered the opinion of the court.

This is an appeal from the judgment of the circuit court of Wabash county against the defendant, Peter Jacob Zimmerman, in favor of the plaintiff, Edward Seybold, in the amount of $5,000, and in favor of the plaintiff, Bernice Seybold, in the amount of $2,500.

The injuries to the plaintiffs resulted from a head-on collision between a truck driven by Edward Seybold and a truck driven by Peter Jacob Zimmerman. The collision occurred on a gravel road about 27 feet wide, the graveled portion being about 20 feet wide. There was a well-defined ditch made by the grader on the west side of the road. The embankment on the ditch varied from one to three feet in height. There was a 15 inch culvert across the road at a point 30 to 40 feet south of the point of collision. This culvert did not extend the width of the road but lacked a foot of reaching the west side of the road. There were no abutments on the culvert. Three hundred seventy-two feet north of the culvert a lane known as the Smith Lane enters the highway. Eleven hundred forty-eight feet south of the culvert the road connects with Fifth street in Mt. Carmel, Illinois. There was a two to three degree curve in the road beginning 272 feet north of the culvert curving to the west as one proceeded south on the road. At Fifth street the center of the road would be about 60 feet west of the center of the road at the beginning of the curve 1,400 feet south of the Fifth street intersection.

The'plaintiff, Edward Seybold, was driving his truck south on the road and the defendant, Zimmerman, was driving north on the road. The plaintiff, Bernice Seybold, was riding with Edward Seybold. Edward Seybold testified that he was driving 35 miles an hour when he reached the Smith Lane and that from that point he saw the Zimmerman truck turn the corner on to the road from Fifth street. He stated that Zimmerman was driving in the middle of the road and that as the Zimmerman truck approached, it did not turn to the right of the road. Edward Seybold drove his car to the right or west side of the road, drove slowly down the ditch and finally came to a stop. The Zimmerman truck kept coming and when it got near the Seybold truck it bounced or jumped to the left and struck the Seybold truck.

Zimmerman’s version of the accident is that when he turned the corner of Fifth street he proceeded northerly on the right side of the road until he reached a point 125 to 500 feet from the Seybold truck; that he then saw one light which he took to be a lantern carried by someone or on a vehicle; that immediately upon realizing that it was a light on an automobile he turned to the right, set his brakes, and attempted to avoid the collision. He did not succeed in avoiding the collision. The Seybold truck “kissed off” to the west and Zimmerman’s truck came to a standstill.

Zimmerman stated that Edward Seybold said Seybold’s truck had only one light burning. Ben Guard and Cora Guard, his wife, testified that shortly after the accident, Edward Seybold stated: “Ben, I guess it is really my fault, because I had one bad light. ’ ’ Edward Seals testified that the Seybold car passed him at the Smith Lane shortly before the accident and that it had but one headlight burning at that time. Edward Seybold denied making the statements testified to by these witnesses and denied that one of his lights was not working at the time of the collision.

There was some testimony that there were high weeds on the west side of the road between the gravel and the ditch and that the dirt portion of the road was moist. One witness testified that he looked but observed no broken down weeds north of the Seybold car after the accident. Others testified that they looked for but observed no tracks in the moist earth north of the Seybold car after the accident.

After the accident the Seybold truck was in the ditch on the west side of the road about 30 feet north of the culvert with the right rear wheel against the bank and the right front wheel away from the bank. The Zimmerman truck was standing 30 to 40 feet north of the culvert and there were skid marks on the east or right-hand side of the road leading from the culvert to the point where the Zimmerman truck stood. The. left-front wheel of the Seybold truck was found in the middle of the road somewhere between the places the cars stood after the accident. The hood and cowl of the Seybold truck on its left side were driven back into the driver’s seat.

The appellant contends that the physical facts surrounding the collision make the plaintiff’s version of the collision unbelievable despite the testimony of the plaintiffs and plaintiffs ’ witnesses, and that the physical facts demonstrate both that defendant was not guilty of any negligence and that the plaintiffs were negligent. The law will not tolerate the absurdity of allowing a person to recover on his testimony of the existence of a fact that manifestly cannot be true. Greenwald v. Baltimore & O. R. Co., 332 Ill. 627-632; Mabel v. Cleveland C. C. & St. L. R. Co., 264 Ill. App. 532-535; Dee v. City of Peru, 343 Ill. 36-42; Moore v. Illinois Power & Light Corp., 286 Ill. App. 445. In all of the above and like cases, however, the physical facts were not subject to dispute. Here there is room for dispute concerning the physical facts. There can be a doubt whether the moist earth in the ditch behind the Seybold car was so soft that there must necessarily be tracks left if the car traveled down the ditch. There can be a doubt whether the skid marks on the road were produced by the wheels of the Zimmerman truck. Edward Seals could be mistaken in his observation of the lights of a passing automobile. These facts are not of the same character as the location of a railroad track and the distance of a house or other permanent fixture from that track.

The conflict in the evidence in this case presented a doubt to be resolved by the jury. Where so much depends upon the credibility of witnesses and upon the opportunity,those witnesses had for observing the facts and where the established facts leave room for different conclusions to be drawn by reasonable men, this court will not substitute its judgment upon the facts for that of the jury.

Where, however, the evidence is highly conflicting and nearly all of the material facts are the subject of dispute, it is most important that the jury receive proper instruction as to the law of the case. The trial court gave the following instructions for the plaintiff:

1. The court instructs the jury that if you believe from a preponderance of the evidence in this case that the plaintiff, Bernice Seybold, was injured in a collision between a truck being driven by the defendant, Peter Jacob Zimmerman, and a truck in which the said plaintiff was then riding, and that at the time the said plaintiff received such injury she was in the exercise of ordinary care and caution for her own safety, and that her injury was caused by the negligence of the defendant, then you should find the issue for the said plaintiff, Bernice Seybold, and assess her damages at such sum of money as you believe, from a preponderance of the evidence, will be a fair and just compensation to said plaintiff for the damages so sustained by her, not exceeding the amount claimed by said plaintiff in the complaint.

2. The court instructs the jury that if you believe from a preponderance of the evidence in this case that the plaintiff, Edward Seybold, was injured in a collision between a truck being driven by the defendant, Peter Jacob Zimmerman, and a truck which the said plaintiff was then driving, and that at the time the said plaintiff received such injury he was in the exercise of ordinary care and caution for his own safety, and that his injury was caused by the negligence of the defendant, then you should find the issues for the said plaintiff, Edward Seybold, and assess his damages at such sum of money as you believe, from a preponderance of the evidence, will be a fair and just compensation to said plaintiff for the damages sustained by him, not exceeding the amount claimed by said plaintiff in the complaint.

Both of these instructions directed a verdict upon the finding of certain facts. Neither of the instructions required the jury to find the defendant guilty of negligence as charged in the declaration. It is well established that an instruction which directs a verdict and authorizes a recovery generally without limiting the negligence to that charged in the declaration is reversible error. Herring v. Chicago & A. R. Co., 299 Ill. 214-217; Ratner v. Chicago City Ry. Co., 233 Ill. 169-172; Hachett v. Chicago City Ry. Co., 235 Ill. 116-130; Molloy v. Chicago Rapid Transit Co., 335 Ill. 164-171; Garnhart v. Reeves, 288 Ill. App. 159-160; Carnahan v. Public Serv. Co., 276 Ill. App. 277-279. The court in the Ratner case, supra, says of such an instruction: “An instruction of this character permits the jury to wander afield and return a verdict against a defendant for what they might fancy to be an act of negligence though the act so considered by them to be negligent •was one which the law would not recognize as actionable.”

Appellant complains of the failure of the trial court to grant its motion for a directed verdict as to count four of Edward Seybold’s complaint and count six of Bernice Seybold’s complaint. These counts charged a violation of the statute which requires motorists to drive to the right of the center of the “beaten track” of the highway. There being no proof of the location of the beaten track these counts should have been excluded from the consideration of the jury.

Appellant complains of the ruling of the trial court in excluding evidence of the purpose of the plaintiff, Bernice Seybold, in making the trip as to whether it was a joint endeavor. It was perfectly proper for the defendant to attempt to prove a joint endeavor between the driver of the car and the passenger and accordingly this evidence should have been admitted.

In view of the closely contested questions of fact involved and on account of the errors in the instructions complained of the judgment of the circuit court will be reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Adam Eckart et al. Appellees, v. City of Belleville, Appellant.

      Opinion filed March 9, 1938.
    L. N. Nick Perrin, Jr., of Belleville, for appellant.
    Philip Gr. Listeman, of East St. Louis, and J. Fred Ctilster, of Chester, for appellees; John Sprigg Gtilster, of Chester, of counsel.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

These consolidated cases were tried before the court without a jury upon the complaints filed by the plaintiffs and the answers and additional answers filed by the defendant. The plaintiffs are farmers, cultivating about 1,750 acres of valuable farm land lying between three and fifteen miles south of Belleville, bordering Richland Creek. TheiT complaints prayed for an injunction against the defendant prohibiting it from further polluting said Richland Creek, a natural watercourse extending from a point north of the city of Belleville, Illinois, thence south for a distance of approximately 20 miles to its mouth at the Okaw Biver, by emptying its raw, contaminated and untreated sewage therein. Each of the plaintiffs filed a separate law count, in which he asked for damages on account of the discomfort and inconvenience and expense suffered by him over a period of five years preceding the filing of his suit as a result of the pollution of said creek. After hearing the testimony and examining the briefs submitted by the attorneys for the respective parties, the chancellor rendered a written opinion and entered a decree making special findings of fact and finding that the defendant was committing a public and private nuisance by polluting Bichland Creek by discharging therein filthy, raw and contaminated sewage, and enjoining the defendant from further polluting said creek, and prohibiting it from emptying sewage therein in a raw, untreated and contaminated condition. The decree provided that the injunction should take effect 18 months from the date thereof, and contained appropriate orders for an extension of time in the event the defendant showed good faith in an effort to abate the nuisance. The decree also awarded money damages in the sum of $1,000 to each of the plaintiffs with the exception of the plaintiff, Charles Probst, who was awarded the sum of $1,400.

The testimony shows that prior to the pollution of Bichland Creek by the defendant it was a clear water, natural stream that extended from a point some miles north of the city of Belleville through the city and thence south to the Okaw Biver. It was inhabited by all kinds of animal and fish life and the water' of the stream was suitable for consumption of both man and beast. Each of the plaintiffs reside south of the city of Belleville and their lands border the creek on either side. The homes occupied by the plaintiffs are approximately 1,000 feet from the creek and their farm lands are adjacent to the creek banks. The testimony shows that the city of Belleville is inhabited by approximately 30,000 people, and that the population of said city has increased yearly for more than the last 20 years. Many years ago the defendant constructed two septic tanks that empty into Bichland Creek for the purpose of disposing of the sewage of said city. They are known as the Bichland Creek tank and the McClintock avenue tank. They are described in the record as tanks Nos. 1 and 2, respectively. The sewage of the city is carried into these tanks by a city sewer system and in intercepter. The sewage is then passed from the tanks directly into Bichland Creek. In 1933, Mr. W. H. Wisely, an assistant sanitary engineer connected with the department of public health of the State of Illinois, was sent by that department to Belleville to examine the septic tanks and the polluted condition of Bichland Creek. He found both tanks overloaded. Tank No. 1 was loaded with the sewage of about 14,000 people and was loaded more than eight times its capacity; and tank No. 2 was 100 per cent overloaded. At that time he examined Bichland Creek for a distance of 20 miles from the city of Belleville, and found that near tank No. 1 the flow of the stream was entirely composed of raw sewage. North of the city there was no visible evidence that the creek was polluted. The stream contained a soapy scum on the surface of the water and teemed with sludge deposits with tubifex worms, fungus growth and vile odors. About three miles south of tank No. 1 the water was in the same condition and contained little dissolved oxygen. As far as 15 or 17 miles down the stream the water was turbid with yellow scum; sludge deposits gave off vile, foul odors and had a dissolved oxygen saturation of only 35 per cent. He testified that from the septic tank No. 1 to Smithton, a distance of more than 15 miles, there was no animal of fish life about the creek; that fish could not live in the water because - of the small amount of dissolved oxygen, caused by the extreme pollution of the stream.

In May, 1936, he again examined the tanks and found that they were in the same condition as that of his previous examination in 1933. The condition of the stream south of Belleville was Averse than it was in 1933, and the stream showed more evidence of gross pollution. The tank effluence was putrescible. He found a leak in the intercepter where 150,000 gallons of raw sewage were being emptied into Richland Creek daily. There was no dissolved oxygen in the stream for a distance of 25 miles south of tank No. 1, and in that distance only one live fish was seen. Properly loaded and operated, the tank should remove about 25 per cent of the suspended matters and about 15 to 20 per cent of the oxygen-consuming matter. In August, 1936, he made another examination of the condition of the septic tanks and the creek. This examination revealed that tank No. 1 was dissolving only 2.3 per cent of oxygen consuming matter in the sewage, and only 8.3 per cent of the suspended matter was being removed.

In November of the same year he made another inspection and found that a quarter of a mile south of septic tank No. 1, the creek was full of suspended matter, heavy sludge deposits and foul odors and that for a distance of approximately 20 miles south of the tank, the water in the . creek was dark and the stream was lined with tubifex worms. Tubifex worms live only in polluted streams. Samples of the Avater taken from the creek on this inspection were present and exhibited at the trial of this case.

Much contradictory testimony appears in this record, and plaintiffs and their witnesses testifying to the above foregoing conditions and the terrible effects thereof on their homes and their comforts, and also to the effect upon their live-stock, — the defendant’s witnesses denying that such conditions exist.

The defendant city has brought the record here on appeal, assigning many errors, three only of which are argued. The first is that the finding and judgment of the court is against the manifest weight of the evidence. A reference to this record at once meets this objection. The evidence shows not only that the court was warranted in the action that it took, but that the conditions existing in the premises described are most shocking. The least that can be said is that the testimony raises a question of fact for the court who heard the witnesses and saw them testify. A striking incident appeared in this trial as it is described by the trial court; that is, that one of the witnesses for the defendant smelled and drank some of this water in court. The court in its opinion says that this is true, but that this witness did not impress the court either with his intelligence or his integrity. This but illustrates the wisdom of the rule that the tribunal which first hears the facts and hears them from the witnesses themselves is in a better position to judge of the credit due such witnesses than is an appellate tribunal which is only concerned with the record.

The only other assignments argued are the question of a prescriptive right in the city to do what the evidence shows it has done and laches on the part of the plaintiffs. These objections are met by defendant’s own citations.

In Barrington Hills Club v. Barrington, 357 Ill. 11, it was held that as riparian owners have a right to have a watercourse carry only such volume .of water as may be collected by the drainage of the basin in which it flows, a city or village cannot increase or pollute such watercourse by the discharge of sewage therein without compensation, even though it is the only available natural watercourse for such purpose and even though the municipality has a sewage treatment plant of modern design. '

In the Village of Dwight v. Hays, 150 Ill. 273, it was held: “The right to pollute the waters of a creek by discharging sewage into it, is in the nature of an easement, which could be created only by grant or prescription; and a mere oral consent to such pollution of the stream vested in the village no right not in the power of the party giving the consent, at any time to revoke. Nor will the fact that the village has expended money or incurred liability on the faith of such parole license, present any obstacle to such revocation. ’ ’

In City of Bloomington v. Costello, 65 Ill. App. 407, it was held: “There can be no such right to maintain a nuisance which is of public nature, as the evidence tended to show this was. Besides proof seemed to establish the position that the flow from the sewer has materially increased of late years, and that the obstructions in the stream have also increased, thereby increasing- the noxious odors, as well as the tendency to overflow.”

There seems to be no doubt from the authorities on this subject and what is said on the doctrine of prescription seems to us to answer the contention of estoppel in the petitioners. The evidence in this case justifies the belief that a new condition was constantly arising. What one might be estopped from doing yesterday does not amount to an estoppel against a different thing which is done today.

As to the subject of damages, the judgments of the court are not excessive in the light of the facts in case. Complaint is made that error was committed in the introduction of evidence as to damages. That might be true and yet if there is sufficient evidence in the record to justify the finding, a judgment would not be reversed because some error entered into the admission of testimony. This case was not heard before a jury; it was heard before the chancellor and the presumption is that he decided the case on the proper evidence and not on the improper.

We are of the opinion that the finding and judgments of the court in these cases are proper and that said judgments should, therefore, be affirmed.

Judgments affirmed.


author: Mb. Presiding Justice Stone

text:
    J. D. Gray, Appellee, v. The Kroger Grocery and Baking Company, Appellant.
    Opinion filed March 9, 1938.

      Leahy, Walther, Hecker & Ely, of St. Louis, Mo., Arthur F. Melvin, of Marion, and Wheatley & Combe, of Harrisburg, for appellant.
    A. W. Summers, of Eldorado, for appellee.
   Mb. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal from an order denying defendant’s motion to set aside an order of default and vacate a default judgment for $5,000' and allow defendant to plead.

This suit is a civil action at law for $10,000 for injuries to the health of plaintiff J. D. Gray alleged to have resulted from drinking cocoa prepared with Pet Brand Evaporated Milk purchased in a sealed can from defendant The Kroger Grocery & Baking Company, which can of milk plaintiff claims contained the decomposed body of a mouse. The complaint which was filed February 16, 1937, consists of four counts. The preliminary matters of inducement common to all four counts are that on November 16, 1936, defendant The Kroger Grocery & Baking Company, a corporation, was engaged in the retail business of selling provisions, milk and other food for immediate domestic use in Eldorado, Illinois; that on that date plaintiff, while in the exercise of due care, purchased at this store a can of evaporated milk for immediate consumption by himself and family, which purpose was known to the defendant and that defendant warranted that the milk was good, sound, healthy and wholesome and fit to be used as human food, but that it was of such a character that it was unsound, impure, unhealthy, unwholesome and poisonous, all of which was unknown to plaintiff. That plaintiff thereafter caused a portion of the evaporated milk to be cooked with water and cocoa and that after drinking same he was made ill.

Count I is predicated upon an implied warranty. Count II is predicated upon an alleged violation of the duty imposed upon defendant by the law of Illinois to sell only good, safe, pure and wholesome food. Count III is predicated upon the alleged violation of the law of Illinois providing that no one should sell any flesh of any diseased animal or other corrupt or unwholesome provision. Count IV is predicated upon an alleged violation of the law of Illinois with respect to adulterated foodstuffs.

Summons on this complaint was issued February 16, 1937, returnable on the third Monday of March, 1937, or if served less than 20 days from said return date, then on the first Monday of April, 1937.

The Sheriff’s return on this summons was as follows :

“I have duly served the within by leaving a copy thereof with Frank Ragsdale, Manager and Agent of the Kroger Grocery and Baking Company, a corporation, personally, as I am herein commanded, this 16 day of February, 1937.

Earl Evans, Sheriff.”

On March 19, 1937, a rule was entered against the defendant to answer by 9 o’clock a. m. of March 22, 1937, and on the latter date defendant, having not appeared nor answered, an order of default was entered against defendant, and on April 7, 1937, judgment was entered against the defendant for $5,000 and costs. The defendant was not present in court nor represented by counsel on either of these dates and had no notice of the rule to plead on March 22, 1937.

On May 4, 1937, and within 30 days after the entry of said default judgment defendant filed its motion to set aside the order of default and to vacate the judgment, and for leave to file its answer to the complaint, which answer was tendered with said motion.

Appellant’s motion was accompanied by certain affidavits to the effect that it had shown due diligence in making the motion and that it had a meritorious defense. Later appellee filed his cross motion asking the court to deny defendant’s motion to set aside the default and vacate the judgment. On a hearing on the two motions together the court denied defendant’s motion to set aside the default and judgment, and granted appellee’s cross motion to strike the affidavit filed by defendant and to deny the motion to set aside the default judgment.

We are not impressed with the appellant’s showing of diligence in this matter. This is not this litigant’s first offense. In Phegley v. Kroger Grocery & Baking Co., 281 Ill. App. 544, it failed to answer a summons issued on June 9, 1934, and served on it on June 11, 1934, until default was had on July 31, 1934. It then moved on August 21,1934. We reversed the judgment there rendered because of an erroneous ruling of the court in entering the default immediately after ruling defendant to answer instanter.

It is the law that is to be respected, and not a litigant’s system of passing court processes from person to person until it reaches some one who will pay attention to it.

Was the service of this summons such as to require appellant to answer the complaint and such as to clothe the court with jurisdiction of the person of appellant, with authority thereby to enter judgment by default in the event that it did not answer? We must look to the sheriff’s return.

Section 8 of the Practice Act of 1907 recites many incidents which are requisite to proper substituted service, and our Supreme Court has held, notably in Werner v. W. H. Shons Co., 341 Ill. 478, that the terms and all of the terms of that section must be fully complied with in order to vest the court with jurisdiction on such service. Section 8 provided for a cumbersome method of this character of service. The legislature, when it enacted the Civil Practice Act had in mind the simplifying of service and procedure. It must have seen the difficulty of service under section 8 of the old act and must have attempted to simplify that to the largest possible degree. Consequently it enacted in lieu of said section 8, section 17 of the present Act. That section is in words and figures as follows [Ill. Rev. Stat. 1937, ch. 110, § 141; Jones Ill. Stats. Ann. 104.017]:

“ § 17. (Service on private corporations.) An incorporated company may be served with process by leaving a copy thereof with any officer or agent of said company found in the county; and in case the officer or other person attempting to make service shall make return or affidavit upon such process that he cannot in his county find any such officer or agent of said company, then such company may be served in any other county of this State, in the manner provided in section 10 of this Act, or may be notified by publication and mail in like manner and with like effect as is provided in sections 14 and 15 of this Act.” Reading this section on consideration of the service of the sheriff which is complained of here, we are of the opinion that said section was substantially complied with in this service. The service recites “I have duly served the within.” Appellant asks what is meant by the “within.” Then follows the language “by leaving a copy thereof.” It is obvious from the language that what he served was the summons. It surely would not be claimed that he left a copy of the Kroger Grocery and Baking Company; so that it is perfectly plain from the language that he served the within writ just the same as if he had recited that in so many words. The language of the statute is plain; it may be served by leaving a copy thereof with any officer or agent of said company found in the county. The return recites that it was served on Frank Ragsdale, manager and agent of the Kroger Grocery & Baking Company, a corporation, personally. There is nothing, as is required in the old act, to show where the president is, or that he cannot be found, or any of the numerous things that are required by that act. Corporations may be served under the present act by leaving a copy with any agent or servant of defendant. This the sheriff did according to his return. It is claimed that it does not show in which county it was served. The summons is in regular form. It shows who is to be served; it bears test in the name of the clerk of the county of Saline and has the return of the sheriff of Saline county upon it. We know of no rule which requires a sheriff to recite in his return that he served it in a particular county. It is too obvious to require further elucidation.

We are of the opinion that the summons in this case, served as the return shows that it was served, clothed the trial court with jurisdiction of the person of appellant; that the court, therefore, had jurisdiction to act, on failure of defendant to plead.

The affidavits submitted by appellant show that this summons was passed around from one party to another, some of them disclaiming responsibility, until it finally reached the hands of some one who gave it attention. This is not the kind of diligence that business people employ in the serious matters of business in this day and age of the world. The processes of the court must be regarded; otherwise practice and procedure in courts will soon become chaotic. As said before, this is not the first instance in which appellant has been guilty of conduct of this character which has been brought to the attention of this court. Litigants may not select their own time in which to plead. They must follow the established rules of procedure.

Under all the circumstances in this case we are of the opinion that the trial court did not abuse its discretion in entering judgment by default, and its judgment is, therefore, affirmed.

Judgment affirmed.


text:
    Florence Wuebbles, Administratrix of Estate of Bernard Wuebbles, Deceased, Appellee, v. Pat Shea, Appellant, and Smith Lamar, Co-appellant.

      Opinion filed March 9, 1938.
    Pope & Driemeyer, of East St. Louis, for appellant Pat Shea.
    Wilbur C. Schwartz, of St. Louis, Mb., M. E. Murray, of Chicago, and Smith & Murray, of Centralia, for appellant Smith Lamar.
    Maurice B. Johnston and Jos. B. Schlarman, of Carlyle, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

On the morning of December 8,1935, Bernard Wuebbles, plaintiff’s intestate, was killed in an automobile collision involving three cars, the car which Wuebbles was driving, the car of Pat Shea and the car of Smith Lamar. The collision occurred at the intersection of United States Highway No. 50 and route No. 127 of the State system of durable hard surfaced roads. United States Highway 50 is coincident with Franklin street, running east and west through the city of Carlisle; route No. 127 is coincident with Twelfth street in said city and runs due north and south. This junction is in the westerly portion of the city of Carlisle. Franklin street, a paved street, is 30 feet wide; Twelfth street, a paved street, is 32 feet wide. The car of the defendant Smith Lamar was standing on the north side of Franklin street some distance from the sidewalk which is on the east side of and parallel with Twelfth street, and was facing west. As to the distance of this car from said sidewalk the witnesses differ. Defendant Lamar was sitting in his car. Defendant Pat Shea was driving his car south on route 127, or Twelfth street, up to the intersection of the two streets or highways. He stopped before entering the intersection and then turned to the left on Franklin street. Plaintiff’s intestate was driving his car, which was an old Dodge, east on route 50, or Franklin street, and came into the intersection. He swerved his car to the left to avoid a collision with the car driven by Shea and in so doing his car was impelled over across Franklin street in a northeasterly direction and collided with the still car of Lamar. The door of Wuebbles’ car was thrown open and plaintiff’s intestate was thrown out upon the curbing there and received injuries from which he died.

Suit was brought in the circuit court of Clinton county against both Pat Shea and Smith Lamar; a trial was had and a verdict rendered in favor of plaintiff and against both defendants. Judgment was rendered upon the verdict against both defendants. The case is brought here by two separate appeals, — first by Pat Shea, defendant appellant, and secondly, by Smith Lamar, defendant and co-appellant.

The complaint contains one count. It charges that the several negligent acts of both defendants jointly caused the death of plaintiff’s intestate. It charges against Smith Lamar that in violation of statute he parked his motor vehicle on the north side of Franklin street within 10 feet of a certain crosswalk running in a north and south direction, parallel with and east of Twelfth street in such a manner as to interfere with the clear and untrammeled use of said Franklin street. The complaint charges several acts of negligence on the part of defendant Pat Shea. It alleges that he drove his car at an excessive rate of speed within the territorial limits of an incorporated city in violation of the statute; that he failed to give the right of way at the intersection; that he drove into the intersection from the north without keeping to the right, and that he otherwise so managed and operated his automobile while crossing said intersection, that the automobile of plaintiff’s intestate was forced to run into the automobile of the defendant Smith Lamar.

The defendants filed separate answers each denying all material allegations of the complaint.

Defendant Smith Lamar assigns the following as errors:

1. The court erred:

(a) in refusing to direct a verdict of not guilty as to the defendant, Smith Lamar, at the close of the plaintiff’s evidence;

(b) in refusing to direct a verdict of not guilty as to the defendant, Smith Lamar, at the close of all the evidence;

2. The court erred in refusing to give instructions to the jury requested by the defendant Lamar.

3. The court erred in overruling the motion of the defendant, Smith Lamar, for a new trial and in entering judgment on the verdict for the reason that there was no proof of any act of negligence on the part of the defendant, Smith Lamar, which was the proximate cause of any injury and for the further reason that the evidence established that the injury to and death of plaintiff’s intestate resulted directly from his own negligence.

The defendant Pat Shea assigns as errors the following :

I

Plaintiff’s intestate was not in the exercise of due care and caution for his own safety;

II

Defendant Pat Shea was not guilty of any negligence and did not violate any of the statutes alleged in the complaint;

III

Defendant Lamar was not guilty of any negligence contributing to the collision and death of Wuebbles. If, as alleged, Lamar was parked too near a crosswalk in violation of the law, it was not a proximate cause of the injury;

IV

The court erred in overruling defendant Pat Shea’s motion for directed verdict ;

V

The court erred in overruling defendant Smith Lamar’s motion for directed verdict ;

VI

The court erred in ruling that Smith Lamar was an incompetent witness on behalf of Pat Shea and in refusing to permit Smith Lamar to testify;

VII

The trial court erred in overruling defendant Pat Shea’s motion for a new trial.

We are unable to see any causal connection between the alleged violation of the law of the road on the part of Lamar and the death of plaintiff’s intestate. Unless there is some such connection which would make appellant Lamar responsible, then there isn’t the slightest suggestion of any negligence on the part of Lamar. Regardless of the statute complained of, or its violation if it was violated, the things that happened would have been exactly the same.

Two independent forces with which Lamar had nothing to do were in action and caused an injury. Not only was the conduct of Lamar not the proximate cause of death of plaintiff’s intestate, but no act on the part of Lamar even remotely contributed to the injuries which caused the death. In fact, it is quite apparent from an examination of the record that had Lamar and his automobile not been where they were, the result or the effect on the car of plaintiff’s intestate, and probably on other members of his party, would have been worse than it was. His car struck the curb as well as Lamar’s car. The position of the car of Lamar did nothing in the way of being an obstruction to either of the other forces. No affirmative act is alleged against Lamar whatever. This is an action in negligence. It was not negligence for Lamar to stop his car where he stopped it, and could only be made so by reason of the fact that it was in violation of the law, if it was in violation of the law, and even so, in order to warrant a recovery there would have to be some conduct on the part of Lamar which in some manner contributed toAvards the death. We can see nothing of that character on his part. It is, therefore, unnecessary to discuss the legal question as to whether the statute alleged to have been violated was enacted for the protection of persons so situated as plaintiff’s intestate, or the question of fact as to whether Lamar’s car was parked Avithin 20 feet of the walk as alleged.

In onr judgment the trial court should have given the instruction at the close of plaintiff’s evidence to find the defendant Lamar not guilty.

The judgment of the trial court as to the defendant Lamar is reversed.

The above conclusion leads us inevitably to a certain decision in this case with reference to the defendant Shea. Shea called Lamar as a witness. The court refused to allow him to testify because of his interest in the case. If he had had an interest in the case, this ruling would have been correct. "Where a person sues or defends in a representative capacity a party interested in the outcome of the suit may not testify in his own behalf or in behalf of his coparty as in this case; but if this disqualification is removed by judicial determination, as it should have been in this case, then such party is no longer incompetent. Lamar as a witness called on behalf of Shea was incompetent only because of an erroneous ruling of the trial court, but for which he would have been competent. “If a witness ceases to have an interest in the result of the proceedings he is not incompetent to testify against one suing or being sued in a representative capacity.” Ward v. Williams, 153 Ill. App. 56. Lamar obviously would have been an important witness in this case. The defendant Shea was entitled to his version of the manner in which the collision and the death ensuing as a result thereof came about. It follows that the defendant Shea did not have that fair and impartial trial of his case which the law demands. The case as to the defendant Shea must be reversed and remanded to the circuit court of Clinton county for another trial.

Under Paragraph ‘F’ of section 92 of the Civil Practice Act [Ill. Rev. Stat. 1937, eh. 110, § 216; Jones Ill. Stats. Ann. 104.092], although a joint judgment is entered against two defendants in an action for personal injuries, an Appellate Court, 'in the event that it holds that no cause of action has been established against one defendant may reverse the judgment as to the said defendant, and affirm or reverse and remand said judgment as to the other. Minnis v. Friend, 360 Ill. 328.

Reversed as to defendant Lamar, and reversed and remanded as to defendant Shea.


text:
    Edgar Evans et al., Appellees, v. Ray Harper et al., Appellants.
    Opinion filed March 9, 1938.

      Fred Smith and H. A. Evans, both of Metropolis, for appellants.
    Grover E. Holmes, of Metropolis, for appellees.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Massac county, Illinois, awarding a writ of mandamus commanding the defendants, county commissioners of Massac county to cause warrants to be drawn on the county treasurer, properly indorsed and in favor of the plaintiffs for the several amounts found to be due them in accordance with the provisions of “An Act for the Relief of the Blind, approved May 11, 1903, as amended.”

The petition of the plaintiffs alleged that they were each blind and had been duly declared to be so by the examining board, and that they each possessed all of the qualifications required by the statute. The defendants’ answer denied that the income of each plaintiff was less than $465 per annum, denied that the property of each plaintiff was less than $2,500, denied that the plaintiffs met the residence requirements of the statute, and charged that each plaintiff was on charity at the time of the presentation of the claim. The answer further denied with particularity that the plaintiffs had taken the steps required to have themselves declared blind in accordance with the statute.

On June 30, 1937, the court heard the evidence and announced that it would find for the plaintiffs except Lula Campbell. Afterwards on July 17, 1937, defendants gave notice to plaintiffs’ counsel that they would move to amend the answer by denying that there were ample funds in the county treasury and denying that there was $9,500 in the blind relief fund as alleged in the petition. This amendment was filed on July 26, 1937. The defendants then learned that a judgment had been filed in the clerk’s office on July 24, 1937, awarding the writ of mandamus as above set forth.

It appears that there was a stipulation to the effect that the records of the office of the county clerk show as to each of the plaintiffs that applications were made and blind relief was granted. The dates of these entries range from the year 1905 for one plaintiff to the year 1936 for the plaintiff whose application was last granted. It was further stipulated that certain charitable relief payments were made to the plaintiffs during the periods for which they claim blind relief.

The testimony was largely devoted to the value of property owned by certain of the defendants.

The defendants assert that the record does not justify the award of a writ of mandamus because the right of the plaintiffs to blind relief has not been clearly determined. We think this is decisive of the matter before us.

A writ of mandamus is an extraordinary writ. It is not a writ which issues as a matter of right. No intendment is to be indulged regarding the right to the writ of mandamus, but the one seeking it must by averment and proof, show a clear right to the writ. People v. Dixon, 346 Ill. 454, 461; Hooper v. Snow, 325 Ill. 53, 56.

An examination of the statute reveals that an applicant for blind relief must demonstrate that he has met the numerous requirements of the act. It is further apparent that the status of an individual in respect to these conditions may change. The restrictions as to residence, property, income, and receipt of relief from other sources are all subject to change. If therefore an applicant shows that he is properly certified as of the year 1905 there is no presumption that he is entitled to relief in' 1935 where the commissioners deny that he is so entitled.

Section 3 of this statute in relation to adult blind persons was amended in 1935 by a provision prohibiting relief to persons having property of the value of $2,500. There was no previous restriction with respect to property owned by applicants.

The certification of eligibility for blind relief as to most of the petitioners was made long before this amendment.

Mandamus is not a proper proceeding where it is necessary first to establish a right and duty and second to command observance of the duty found to exist. People v. Dixon, 346 Ill. 454, on page 461; Hooper v. Snow, 325 Ill. 53, on page 56. In People v. Reddick, 181 Ill. 334, on page 337, the court uses this appropriate language with respect to mandamus: “Appellants’ right to demand interest had not been adjudicated. In this action it does not lie in the mouths of appellants to say that the secretary of the board attached an improper condition to the order which they seek to make the basis of their writ, nor that in an action at law the condition could not be enforced, otherwise the well settled rule of law that mandamus will not lie for the collection of debts would be rendered nugatory. In other words, mandamus will only lie to enforce the payment of a claim ascertained to be due. Ordinarily, this ascertainment is by way of a judgment. Doubtless where a municipality by its legally constituted authorities, ascertains a claim to be due and unconditionally orders it paid, that order has the same effect as a judgment ; but so long as the order is a conditional one mandamus will not aid parties to collect it, unless an offer is made to comply with the conditions imposed.” The court in People v. Getzendaner, 137 Ill. 234, on page 262, states the rule as follows: “All such cases of disputed accounts or claims against a municipality should be referred to the arbitrament of a jury or to thé ordinary processes of courts.”

We find in this record nothing* to indicate that if judgment should be obtained on these claims the commissioners would fail to provide for payment in due course. The matter presents itself as a bona fide dispute as to the legitimacy of the claims where numerous factors enter into the determination.

Our view on this fundamental point makes it unnecessary to consider whether the defendants should have been permitted to present to this court evidence of a mistake concerning the funds in the treasury with which to pay the claims, or to consider the other questions presented by the record.

The judgment of the circuit court of Massac county is reversed and remanded with directions to enter judgment for the defendants.

Reversed and remanded with directions.


author: Mr. Justice Edwards

text:
    Kenneth Cassens, by Dietrich Cassens, His Father and Next Friend, Appellee, v. Gustayus LeSeur Tillberg, Appellant.

      Opinion filed March 9, 1938.
    Wheeler, Oehmke & Dunham, of East St. Louis, for appellant.
    Burroughs, Simpson & Reed, of Edwardsville, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Plaintiff, a minor 11 years of age, by next friend, brought suit against defendant to recover damages for injuries claimed to have been sustained by him while riding in an automobile with his adult brother, through colliding with a car driven by defendant. The cause was tried before a jury who found for the defendant. The trial court awarded plaintiff a new trial, and defendant has appealed from such order of allowance.

The motion for a new trial was based upon three grounds; 1st, that the court erroneously gave to the jury instructions at the instance of defendant; 2nd, that the verdict was against the manifest weight of the evidence; and 3rd, that plaintiff was wrongfully denied permission to ask the jurors, upon their voir dire examination, whether they were interested or connected with the Travelers Insurance Company.

' At the instance of defendant, the court charged the jury, in instructions numbered 3 and 4, that the degree of care and caution required of plaintiff for his own safety at the time of the accident, was such care and caution as a person of his age, capacity and discretion to know and avoid injury, would ordinarily exercise under the same or similar circumstances.

It is said by plaintiff that these instructions were erroneous as not requiring, in addition to the elements of age, capacity and discretion to know and avoid injury, the further and necessary component “experience. ’ ’

The courts have uniformly held that such an instruction, as applied to a child under the age of 14 years, which omits the element of “experience” is erroneous; Fowler v. Chicago & E. I. R. Co., 234 Ill. 619; Deming v. City of Chicago, 321 Ill. 341; Hurzon v. Schmitz, 262 Ill. App. 337. Defendant seeks to obviate the error by showing that three instructions given at the instance of plaintiff, defining the care and caution required of such a child as the plaintiff, correctly stated the law and all contained the word “experience,” and hence their giving cured the error of those of defendant.

In Fowler v. Chicago & E. I. R. Co., supra, where a similar situation existed, the court held that inasmuch as the bad instruction virtually directed a-verdict, as did defendant’s instruction number 3 in this case, it was in conflict with the one which correctly stated the law, and the jury would be unable to determine which one to follow.

Defendant’s instruction number 2 told the jury that the 11-year-old plaintiff was required to use “ordinary and reasonable care as defined in these instructions.” The phrase “these instructions” refers to the entire series which constituted the court’s whole charge, and inasmuch as the charge directed the jury to follow two different definitions of such ordinary care, it would add to the confusion of the jury, who would not be able to determine which definition to follow.

Instruction number 2 is also objectionable because it told the jury that if they believed from the evidence that plaintiff, by using his faculties with ordinary and reasonable care, etc. in looking out for danger, could have avoided injury on the occasion in question, and that he negligently failed so to do, etc., then he could not recover. The word could, so used, instead of would, as applied to requirements concerning due care, is misleading and erroneous; as ruled in Gehrig v. Chicago & A. R. Co., 201 Ill. App. 287.

Defendant’s instruction number 6 was to the effect that the mere fact that there was a collision between the two automobiles, is no proof of negligence of the defendant, and upon such mere fact alone a finding could not be made against him. Instructions such as this have been repeatedly and consistently condemned, so often in fact that discussion is unnecessary; West Chicago St. Ry. Co. v. Petters, 196 Ill. 298; Cohen v. Weinstein, 231 Ill. App. 84; Whittenberg v. Weber, 230 Ill. App. 315.

The instructions, as a series, were inconsistent and erroneous. The proof was conflicting, hence it was essential that the jury be accurately instructed; Fowler v. Chicago & E. I. R. Co., supra; Piersol v. Massachusetts Mut. Life Ins. Co., 260 Ill. App. 578; Stamas v. Waskow, 250 Ill. App. 364. This was not done and we think for that reason, if no other, the trial court was right in awarding the new trial.

As was stated in Tone v. Halsey, Stuart & Co., Inc., 286 Ill. App. 169, an order awarding a new trial will not be reversed unless the court “has abused its discretion or proceeded upon some clear or manifest misapprehension of a supposed controlling rule of law. Even in such cases courts are reluctant to reverse, and their power to do so is seldom exercised.”

Being of opinion that the court was warranted in awarding a new trial because of giving the erroneous instructions heretofore discussed, it is unnecessary to consider the other grounds of the motion.

Order affirmed.


text:
    Harrison Schmisseur, Appellee, v. Elizabeth Rebhan, Appellant.

      Opinion filed March 9, 1938.
    W. E. Knowles, of East St. Louis, for appellant.
    P. C. Otwell, Georg F. Keeling, Charles P. Hamill and P. K. Johnson, all of Belleville, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Harrison Sehmisseur, as guardian of certain minors, in 1932, prior to the enactment of the Civil Practice Act, filed a hill to foreclose a mortgage executed by defendant Elizabeth Rebhan, to secure an indebtedness of $12,000. It joined as defendants Frank H. Carson, trustee in a mortgage to secure certain notes aggregating $27,800, and also the several holders of the notes thereby secured. The Carson mortgage was a junior lien upon the premises sought to be foreclosed by the Schmisseur mortgage. The noteholders answered the bill, asking that they be paid any surplus of the proceeds of sale of said premises after satisfying the indebtedness of the first lien.

Elizabeth Rebhan, mortgagor and defendant, admitted the execution of the Schmisseur mortgage, and apparently did not contest the complainant’s right to foreclose. She did, however, assert in such answer that in a certain proceeding brought by the Belleville Bank and Trust Co. to foreclose a mortgage on the property on which the Carson trust deed was a second lien, together with other real estate, Carson, as trustee, and the various noteholders were made defendants in such suit; that they severally answered, asserting their interests, but asking for no affirmative relief; that such cause went to final decree, and that the issues in the Belleville Bank case were the same as in the instant proceeding; whereby the decree in the last mentioned case became and was res adjudicata of all the issues which were or could have been determined in such cause, and hence not a proper subject for adjudication in the pending suit.

The cause was referred to a master who found contrary to the claim of Mrs. Rebhan, and the chancellor entered a decree granting the relief prayed for in the bill of complaint, and adjudging that the rights of the holders of the notes secured by the Carson mortgage had not been previously determined, and that they were entitled to proportionally share in the proceeds of sale of the mortgaged property after satisfying the demand of the complainant.

From this decree Mrs. Rebhan has appealed. Having pleaded former adjudication as an affirmative defense, she assumed the burden of establishing same by the greater weight of the evidence; Neill v. Chavers, 348 Ill. 326; Young v. People, 171 Ill. 299.

It is the undoubted law of this State that where issues have been determined by a competent tribunal, or were such that they might have been presented and adjudged upon in such proceeding, they become res adjudicata and cannot be considered and passed upon in a subsequent action; Webb v. Gilbert, 357 Ill. 340; Phelps v. City of Chicago, 331 Ill. 80. It is further the rule that a judgment or decree is not a bar to the further prosecution of claims, or the interposition of defenses, where the same, although asserted or set up in the prior suit, were withdrawn from the consideration of the court or for any reason, such as by agreement of the parties, were not submitted for decision; as held in Palmer v. Sanger, 143 Ill. 34; Levy v. Solomon, 207 Pa. 478, 56 Atl. 1007; Finnegan v. Campbell, 74 Iowa 158, 37 N. W. 127; Cockerill v. Stafford, 102 Mo. 57, 14 S. W. 813; Troxell v. Delaware, L. & W. R. Co., 227 U. S. 434, 57 L. Ed. 586.

At the hearing of the Belleville Bank case the matters of the foreclosure of the Carson mortgage and the validity of a note secured by it, being the $15,000 note and bond executed to order of the Western Catholic Union, were raised. There was objection by counsel for the bank that the latter had no interest in the question and that it was unfair to encumber the record with testimony pertaining to an extraneous matter. It appears from the testimony of Harold Baltz, attorney for the bank, and Charles P. Hamill of counsel for certain other noteholders secured by the Carson mortgage, that it was then agreed by all attorneys in the case, including W. E. Knowles, counsel for Mrs. Rebhan, “and the other attorneys under the second mortgage that they would take up that point in the suit brought to foreclose the second mortgage.”

W. E. Knowles denied such agreement. We find, however, that the decree in the Belleville Bank case, referring to the Carson mortgage, finds “that the defendants above naméd, being holders of notes under said mortgage, ask for no affirmative relief in this cause, and that there is a controversy concerning the validity of a $15,000 note held by the Supreme Council of the Western Catholic Union, as between the Council and Elizabeth Kebhan, which controversy is the subject matter of another proceeding pending in this cause. ’ ’

It thus appears that the court, by not passing upon the validity of said note and stating that the note-holders under the Carson mortgage asked for no affirmative relief, in regard to certain property secured thereby which was not included in the mortgage held by the Belleville Bank, and which Carson mortgage was the subject of foreclosure in a different proceeding then pending in such court, recognized that the agreement as testified to by Baltz and Hamill was in fact entered into and is corroborative of their testimony. It is said that the objection only went to the matter of the $15,000 note and to none of the others secured by the Carson mortgage. It will be noted that Harold Baltz stated that the agreement was entered into “by Mr. Knowles, who raised the question, and myself who made the objection, and the other attorneys under the second mortgage, that they would take up the point in the suit brought to foreclose the second mortgage.” If the attorneys who represented the holders of the other notes under the Carson mortgage entered into such arrangement, it seems obvious that the understanding included the notes held by their clients, as they would not be interested in the controversy over the $15,000 note, and would only be concerned with protecting the interests of those whom they represented. We think the weight of the evidence supports the contention that such agreement was entered into. *

Mrs. Rebhan, as previously observed, rested under the obligation of proving such former adjudication by a preponderance of the evidence, and within the rule of the authorities cited, if she through, her counsel consented that such matter would not be considered in the Bank case, then upon no principle of fairness or right can it be said by her that such propositions were decided in the then litigation, and the chancellor correctly decreed that the rights of the holders of the notes secured by the Carson mortgage had not been adjudicated in the Belleville Bank case.

One of the notes secured by the Carson mortgage, in the sum of $15,000, was indorsed to the supreme council of the Western Catholic Union, same being in discharge of a bond executed by Mrs. Rebhan as surety for one Ruediger pursuant to a written agreement. Both bond and agreement named Western Catholic Union as the obligee therein. Mrs. Rebhan contends that this suit cannot therefore be prosecuted in behalf of supreme council of the Western Catholic Union, and that the chancellor erred in decreeing that same might be done.

The master, on such question, made a finding: “A copy of the proceedings of the Western Catholic Union indicates that the words ‘Western Catholic Union’ were used only with reference to the corporation the name of which was Supreme Council of the Western Catholic Union. There is also evidence in the record that the description, Western Catholic Union, was used interchangeably with Supreme Council of the Western Catholic Union, apparently in accordance with section 1 of the corporation’s constitution set out above, and for the sake of brevity and convenience. Western Catholic Union was not the name of any legal entity, and has and had in this record no meaning apart from the corporation the correct name of which was Supreme Council of the Western Catholic Union.” The decree adopted the master’s finding, which we think was warranted by the evidence!

In Malleable Iron Range v. Pusey, 244 Ill. 184, the court quoted with approval and adopted the rule stated in Thompson on the Law of Corporations, Vol. 1, sec. 294: “There is a general concurrence of modern authority to the effect that a misnomer or variation from the precise name of the corporation in a grant or obligation by it or to it is not material if the identity of the corporation is unmistakable, either from the face of the instrument or from the averments and proof.”

We think that the intention of both parties to the note was that the obligation, in truth, existed in favor of the supreme council of the Western Catholic Union, and that it would be a perversion of justice to hold that the mere variation, by abbreviation, of the corporate name, should preclude a recovery against one justly indebted upon the obligation, who dealt with the corporation and who has been in no way misled or injured by the misdescription of the corporate name in the several instruments which she executed. The evidence amply proves that Mrs. Rebhan was .indebted upon the note for $15,000, and that the decree so finding was correct.

A further ground urged for reversal is that the interest on the obligation was erroneously computed. The finding was that on March 9, 1936, the date of the master’s.report, there was due $15,124.75 for principal, interest, insurance and making minutes of title. The decree entered on January 28, 1937, ordered said amount paid, with interest thereon from March 9,1936. This was error, as the interest on the total amount found due should have been computed at the legal rate from date of decree after the nlanner of a judgment; Hoover Steel Ball Co. v. Schaefer Ball Bearing Co., 90 N. J. Eq. 515, 107 Atl. 425. The Schmisseur note secured by the mortgage drew interest at 6 per cent, and should have been so computed until date of the decree, upon $12,000; Guignon v. Union Trust Co., 156 Ill. 135.

The period of time between filing of the master’s report and the entry of decree was approximately one year. The interest for such period upon $15,124.75, the amount found due by the master, at 5 per cent, would be in the neighborhood of $750; the interest upon $12,000 at 6 per cent for the same period would be $720. This would make a difference in favor of Mrs. Eebhan, and even if small she has the right to insist upon the interest being correctly computed.

The decree is in all things affirmed, except as to the computation of interest as aforesaid, in which respect it is reversed, with directions to compute the interest on the $12,000 note to the date of decree.

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