author: Mr. Presiding Justice O’Connor

text:
    People of the State of Illinois ex rel. John S. Rusch, Appellee, v. Michael Molie et al., Appellants.
    Gen. No. 41,106.
    Opinion filed January 20, 1941.
    Rehearing denied February 5, 1941.
    Elliodor M. Libonati, of Chicago, for appellants; Abraham Miller, of Chicago, of counsel.

      Thomas J. Courtney, State’s Attorney, for appellee; John F. Cashen, Jr., of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

A petition was filed against defendants who were the judges and clerks at a primary election held April 12, 1938, charging them with misconduct and misbehavior as such judges and clerks and praying that they be adjudged in contempt of court. Defendants denied the charges made against them, there was a hearing before the court and a finding that the two clerks had purged themselves of contempt; they were found not guilty and discharged. The court found the three judges of election guilty of contempt of court and the sentence was that each be committed to the county jail of Cook county for a period of one year. They prosecute this appeal.

After the judgment was rendered by the County court an original petition for mandamus was filed in the Supreme Court the decision of which we were of opinion might affect the disposition of this and other similar cases, and for that reason we awaited the outcome of the case which was finally disposed of December 4, 1940. Stockholm v. Daly, 374 Ill. 441.

Before the taking of evidence in the instant case, defendants, the. judges of election,. filed a document which was designated a petition for a change of venue in which they set up, among other things, that the county judge before whom the case was pending was a candidate at the primary election of April 12,1938, for renomination and therefore disqualified to try the case. The prayer of the petition was denied and the case was then heard by the court.

We have this day filed an opinion in People ex rel. Rusch v. Cunningham, 308 Ill. App. 63, where the same question as to the disqualification of the county judge who tried the case was involved, and we there held that under the common law which had been decided more than 200 years ago, it was held that the same person should not be a party and a judge in the case. We there referred to an opinion written by Chief Justice Holt in City of London v. Wood, 12 Modern Reports 669-688, and other authorities. Chief Justice Holt there said: “if an act of parliament should ordain that the same person should be party and judge, or, which is the same thing, judge in his own cause, it would be a void act of parliament; for it is impossible that one should be judge and party, for the judge is to determine between party and party, or between the government and the party; and an act of parliament can do no wrong, though it may do several things that. look pretty odd; for it may discharge one from his allegiance to the government he lives under, and restore him to the state of nature; but it cannot make one that lives under a government judge and party. ’ ’

For other authorities where somewhat analogous questions were involved see, Tumey v. State of Ohio, 273 U. S. 510, 71 L. Ed. 749, 47 Sup. Ct. 437 and People v. Braun, 303 Ill. App. 177, affirmed by our Supreme Court, 375 Ill. 284.

For the reasons stated in the opinion in the Cunningham case and authorities there cited, the judgment of the County court is reversed and the cause remanded with directions that the case be assigned for trial to another judge.

Reversed and remanded with directions.

Matchett and McSurely, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Gail Harrison and Nellda Thomas, Appellants, v. Yellow Cab Company and City of Chicago, Appellees.
    Gen. No. 41,382.
    Opinion filed January 20, 1941.
    Rehearing denied February 5, 1941.
    C. Helmer Johnson and John W. Lee, both of Chicago, for appellants; J. F. Van Wakeman, of Chicago, of counsel.
    Samuel A. & Leonard B. Ettelson, of Chicago, for certain appellee; Edward C. Higgins and Robert E. Samuels, both of Chicago, of counsel.
    Barnet Hodes, Corporation Counsel, for certain other appellee; J. Herzl Segal, Louis H. Geiman and Adam E. Patterson, Assistant Corporation Counsel, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiffs brought an action against defendants to recover damages for personal injuries claimed to have been sustained by them through the negligence of defendant Yellow Cab Company in driving a cab in which plaintiffs were riding as passengers, and the negligence charged against the city was that it negligently permitted a hole to remain in the pavement of the street, as a result of which the accident happened. There was a jury trial and at the close of the evidence the court sustained the city’s motion for a directed verdict in its favor. The case was then submitted to the jury as against the Yellow Cab Company and a verdict returned in favor of it and plaintiffs appeal.

Plaintiffs contend (1) that the verdict in favor of the cab company is against the manifest weight of the evidence and (2) the court erred in directing a verdict for the city.

The record discloses that plaintiffs lived at the Weston Hotel, located at 355 West Madison street, which is at the southwest corner of Madison and Market streets, and at the south end of Wacker drive. On the evening of April 8,1938, plaintiff, Mrs. Thomas, had gone to see her physician whose office was located on the near north side at Bush street and Grand avenue. She was accompanied by plaintiff, Miss Harrison. After Mrs. Thomas was treated by the doctor they left his office at about 8:00 o’clock and boarded a taxicab of the Yellow Cab Company to go to the Weston Hotel. While proceeding south on Wacker drive, and when in front of the Civic Opera Building, the cab struck a hole in the street or a ridge of ice (as defendant city contends) about 45 or 50 feet north of the north curb of West Madison street. Plaintiffs were thrown in the cab by reason of the jolt and injured.

Plaintiffs testified the cab was traveling at about 35 to 40 miles per hour at the time, while the cab driver testified he was going at from 15 to 18 miles an hour; that the traffic light at the intersection was red at the time and he was driving south and intended to turn east on the north side of the hotel to permit plaintiffs to alight.

The evidence further shows that at the time of the accident the cab was stopped within a short distance, the driver got out to see if plaintiffs were injured, and his testimony is to the effect that the injuries, if any, were slight; that he continued to the hotel where plaintiffs got out and paid their fare. On the other hand, plaintiffs’ testimony and that of the doctor who treated them is to the effect that Miss Harrison sustained severe injuries and Mrs. Thomas was not so severely injured.

There is other testimony that there was a hole in the pavement of Wacker drive about 45 or 50 feet north of Madison street, approximately 5 inches deep, 3 or 4 feet long and about the same width. The evidence further shows there had been a heavy snow during the early days of April, many streets and highways were impassable. At the time of the accident, the snow was 9 inches deep as shown by the records of the Weather Bureau. The report of the Weather Bureau further stated: ‘ ‘ The outstanding feature was the heavy snowfall, 9.1 inches occurring on the 5-6, and 4.5 inches on the 8th. This- total of 13.6 inches is by far the greatest for any April of record.” Two witnesses who worked at the Civic Opera •Building testified there was no hole or depression in the street at the place in question. The city’s position is that the accident was not caused by a hole in the street but the only cause of the jar of the taxicab resulted when it hit a ridge of ice on the street.

The evidence as to whether the accident resulted from a hole in the street or from a ridge of ice was conflicting and we think the better practice to be followed, when at the close of all the evidence the city moved for a directed verdict, was for the court to reserve Ms decision as provided in § 68 of the Civil Practice Act. (Ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.068].) We think there was a question of fact and the court should have submitted the case to the jury as to both defendants. Defendant city’s contention that it was not liable (because ice and snow formed on the street as the result of natural causes and therefore the court properly directed a verdict in its favor) under the evidence, cannot be sustained. It was for the jury to decide whether the ice or hole or both caused the accident.

We are also of opinion we would not be warranted in disturbing the verdict of the jury finding the Yellow Cab Company not guilty because we are unable to say that such finding, approved as it was by the trial judge, is against the manifest weight of, the evidence.

For the reasons stated, the judgment on the verdict in favor of the Yellow Cab Company is affirmed, the judgment as to the City of Chicago is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Judgment as to Yellow Gab Company affirmed and as to city of Chicago reversed and remanded.

Matchett and McSurely, JJ., concur.


author: Mr. Justice McSurely

text:
    People of the State of Illinois ex rel. Victor Cohn, Appellee, v. The City of Chicago et al., Appellants.
    Gen. No. 41,311.

      Opinion filed January 20, 1941.
    Rehearing denied February 5, 1941.
    Barnet Hodes, Corporation Counsel, for appellants; J. Herzl Segal, Assistant Corporation Counsel, of counsel.
    Nathan Allen, of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

A petition was filed asking for the writ of mandamus to compel respondents to pay the balance of a certain judgment rendered against the City of Chicago; the case came on for hearing upon petition and answer before the court without a jury, which entered a judgment awarding the writ, and respondents appeal.

The petition alleges that a judgment was entered April 18, 1938, against the City of Chicago in the United States District Court for $85,258.57, on which there is a balance due of $67,086.06, together with interest; that the City of Chicago has in its judgment tax fund $1,125,000, sufficient to pay all liquidated debts owed by the city, due and payable prior to January 1,1935.

Respondents’ answer admits the entry of the judgment, the amount due and that it was a judgment for a liquidated debt due and payable prior to January 1, 1935.

Respondents, appealing, make only one point, namely that petitioner is not entitled to the writ because his judgment is not next in the order of payment.

The Judgment Tax Act (ch. 24, par. 697a, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 21.789]) provides that the city may produce by taxation a tax fund for the purpose of paying “judgments which may be entered after January 1, 1935 for any liquidated debt due and payable prior to the first day of January, 1935,”'and that “Judgments against said city shall be paid out of said fund in the order in which same were obtained. ’ ’

The answer denied there was in the judgment tax fund $1,125,000, and averred there was in this fund $107,685.52, which was not sufficient to pay judgments entered after January 1, 1935 for liquidated debts due and payable prior to January 1, 1935, and that there were judgments outstanding and unpaid against the city for such debts, entered prior to the date of the entry of the judgment owned by petitioner, to the amount of $2,533,180.04-; that therefore the city does not have sufficient money in the tax fund with which to pay said prior judgments and the judgment of petitioner.

Respondents further cite the municipal ordinance (Municipal Code of Chicago, 1939, §§ 7-29) which provides that judgments shall be paid “in the order of the date of entry upon the records of the court. . .”

In People ex rel. Krajci v. Kelly, 279 Ill. App. 22, a mandamus proceeding to compel the payment of a judgment against the city, we held this ordinance was a sufficient defense and the petitioner was not entitled to the writ. To the charge that the ordinance was unreasonable we said, “. . . it is reasonable to direct that judgments should be paid in the order of their entry. Without such an ordinance the payments of such judgments might go by favor or chance with resulting injustice and confusion.”

Petitioner in the instant case cites some recent decisions by our Supreme Court which it is said are decisive of the present case but these can be distinguished.

In People ex rel. Farwell Co. v. Kelly, 361 Ill. 54, the judgment was considered as a condemnation judgment and § 13 of article 2 of the constitution requires that it be paid forthwith on demand. In People ex rel. Farwell v. Kelly, 367 Ill. 616, the judgment was also considered as a condemnation judgment, and in addition it was said respondents conceded that the holder of the judgment was not limited to the fund raised by the Judgment Tax Fund Act. The same concession appeared in People ex rel. Farwell v. Kelly, 367 Ill. 631.

None of these factors is in the present record. The petition for the writ, after reciting the circumstances of procuring the judgment by the receiver of the West Side Atlas National Bank against the city on account of certain securities sold by the city, asserts that the claim for the writ is under paragraph 697a, chapter 24 of the Illinois statutes, entitled “Tax to pay judgments, ’ ’ and the statute is quoted in full. After reciting the method of producing a fund to pay judgments against the.city, the act contains the provision that “Judgments against such city shall be paid out of said fund in the order in which same were obtained. ’ ’ The petition described the judgment as coming under the provisions of this act and asserted the city had sufficient funds produced by the act to pay petitioner’s judgment.

The answer of respondents admitted that the judgment came under the provisions of this act but denied there was in its judgment tax fund sufficient to pay petitioner’s judgment, as there was now in the fund a little over $107,000 and there were unpaid judgments entered prior to the date of the entry of petitioner’s judgment aggregating over two and a half million dollars. The answer asserts that under this act such judgments must be paid in the order in which the same were obtained. There was a further averment that the city “has no money in any other fund available for the payment of petitioner’s judgment.’’ Tfie order awarding the writ commanded respondents to pay petitioner’s judgment “out of the Judgment Tax Fund.”

This proceeding was brought specifically to compel the payment of the judgment out of money produced by the “Tax to pay judgments” act, and the order awarding the writ is limited to this fund, and there is no concession that the judgment may be paid out of any other fund.

The statute referred to has never been declared invalid and its validity is not questioned in this proceeding. Its provisions are clearly applicable to the situation under consideration. Petitioner invokes the entire statute with all its provisions, including the provision for the order of payment of judgments. He cannot rely on part of the statute and ignore any other part. As long as this provision is in force we are bound to give it effect.

We are referred to the recent decision in People ex rel. Mercantile Nat. Bank of Chicago v. City of Chicago, 307 Ill. App. 667 (Abst.), opinion filed by the Second Division of this court on November 26 last. In that case the principal question was whether the city could properly loan some $600,000 out of the judgment fund to be used for other purposes. The court held this could not be done, and it appears that if this was restored to the fund there would be sufficient to pay the claim.

As we have said, the statutory provision that judgments to be paid out of the judgment fund “shall be paid out of said fund in the order in which same were obtained, ’ ’ is still in force, and upon the showing made by the city, petitioner was not entitled to the writ. The order awarding it is reversed.

Order reversed.

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


text:
    Clarence H. Cobbs, Appellant, v. The Chicago Defender and Robert S. Abbott Publishing Company, Appellees.
    Gen. No. 41,476.
    Opinion filed January 20, 1941.
    Bernard Allen Fried, of Chicago, for appellant.
    Earl B. Dickerson and Truman K. Gibson, Jr., both of Chicago, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff filed a complaint alleging libel by defendants ; a motion to strike was sustained and leave given plaintiff to file an amended complaint; the court sustained a motion to strike this and dismissed the cause, and plaintiff appeals.

The court based its ruling upon the conclusion that the publication complained of in the amended complaint does not constitute a libel.

The amended complaint alleged that plaintiff was a person with good name and reputation in the city of Chicago, held in high esteem by his neighbors and among the people of his race where he resides; that he is a single man, living with his mother and other relations in a household maintained by him; that he is an ordained minister and has been pastor of. a church located in the city of Chicago for about ten and a half years, and has been held in high esteem as a preacher of the gospel, of unimpeachable integrity and virtue; that he was president of the board of trustees of his church and by reason of sermons delivered by him over the radio his name had spread throughout the city of Chicago as an outstanding character, and that the membership in his church had grown to be in excess of 3,000 persons.

That defendants were the owners and publishers of a .newspaper published in Chicago known as The Chicago Defender, and that defendants, wickedly and maliciously intending to bring plaintiff into public disgrace, on November 18, 1939, in Chicago, Illinois, wickedly and maliciously composed and published in that newspaper false, malicious and defamatory libel concerning plaintiff. The complaint sets out at some length the alleged libelous matter. Summarized, the article under a headline reading “Rev. Cobb Denies Scandal; Defends Self Against Rumors in Broadcast,” asserted that plaintiff, pastor of the church above described, was “facing the possibility of questioning by State’s Attorney’s police concerning widespread rumors of a scandalous nature”; that these rumors have been so general that plaintiff had to make his defense over the air on several of his broadcasts. The article asserted, that “the city has been astir with stories connecting the minister with an unsavory incident of serious proportions”; that plaintiff showed "a reluctance to discuss the rumors, and when, in response to his inquiry, was told that no public records “of such a happening” had been found, then said he had nothing to discuss; that well known citizens and holders of high city offices were involved in the rumor and an attempt had been made to avert a scandal; that authoritative sources said, “the State’s Attorney’s office is definitely interested in the rumors and has already launched an investigation”; that the Chicago Crime Commission and the Neighborhood Protective Association “have taken cognizance of the rumors and have assigned investigators to run them down.” There was also a statement that other information with reference to the rumors would be published in the next edition of the paper.

The complaint charged that by reason of this libel and the false statements in defendants’ publication, plaintiff has been greatly injured in his good, name, credit and reputation, brought into public hatred, contempt and scandal, his reputation as said pastor has been injured and his standing in the congregation and community has suffered.

Paragraph 402, ch. 38, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 37.348], defines a libel as “a malicious defamation, expressed either by printing, or by signs or pictures, or the like, tending ... to impeach the honesty, integrity, virtue or reputation or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, ridicule, or financial injury.” Newell, in his work on Slander and Libel (4th Ed.) §5, says: “Everything printed or written which reflects on the character of another, and is published without lawful justification or excuse, is a libel, whatever the intention may have been. . . . Any written words are defamatory which impute to the plaintiff that he has been guilty of any crime, . . . immorality, vice or dishonorable conduct, or has been accused or suspected of any such misconduct; . . . or which have a tendency to injure him in his office, profession, calling or trade. And so, too, are all words which hold the plaintiff up to contempt, hatred, scorn or ridicule. . . .”

In many cases it has been held that a clergyman in the practice of his profession must maintain a spotless reputation, and any publication which tends to injure him or affects his qualifications for the performance of his duties is libelous per se. Potter v. New York Evening Journal Pub. Co., 68 App. Div. 95, 74 N. Y. S. 317, where the opinion quoted with approval from Chaddock v. Briggs, 13 Mass. 252; “. . . ministers of the gospel are teachers and exemplars of moral and Christian duty, and a pure and even unsuspected moral character is necessary to their usefulness in the community; and so essential is that character to the salutary administration of the ministerial office that even a reputation for immorality, although not supported by full proof, might, in some cases, be a sufficient ground for a removal.” In Cole v. Millspaugh, 111 Minn. 159, it was held as libelous per se to write of a clergyman, “I would not have anything to do with him or touch him with a ten-foot pole.” The opinion said “It is not necessary to descend to vulgar abuse, or to make specific charges of crime, in order to expose one to hatred, contempt, or ridicule, or to injure him in his business or occupation.” In Jones v. Roberts, 73 Vt. 201, a letter was published to the effect that the plaintiff’s conduct with a woman was entirely unbecoming of him as a married man and a minister of the gospel. It was said these words would have a natural tendency to injure him in his profession as a minister. Many other cases might be cited to the same effect.

^Referring to the publication on which this suit was based, there can be no escape from the conclusion that it tended to injure the reputation of plaintiff, and especially to damage him with reference to his qualifications as a minister of the gospel. Beading of the alleged libelous matter impresses one so strongly to this effect that no argument is needed to support the conclusion that the publication was libelous per se/

The fact that the publication of the scandalous matter purports to be based on rumor is no defense. Publication of libelous matter, although purporting to be spoken by a third person, does not protect the publisher, who is liable for what he publishes. Stephens v. Commercial-News Co., 164 Ill. App. 6; Cooper v. Lawrence, 204 Ill. App. 261, 270; O’Malley v. Illinois Publishing & Printing Co., 194 Ill. App. 544. Very pertinent to this point is the comment in Newell on Slander and Libel (4th Ed.) § 300. “A man cannot say there is a story in circulation that A. poisoned his wife or B. picks C.’s pocket in the omnibus, or that D. has committed adultery, and relate the story, and when called upon to answer say: ‘There was such a story in circulation; I but repeated what I heard, and had no design to circulate it or confirm it ’; and for two very plain reasons: (1) The repetition of the story must in the nature of things give it currency; and (2) the repetition without the expression of disbelief will confirm it. The danger — an obvious one — is that bad men may give currency to slanderous reports, and then find in that currency their own protection from the just consequences of a repetition.”

The great weight of authority as well as the better reasoning is against the ruling of the trial court striking the amended complaint. Defendants should have been ruled to answer.

For the reason stated the ruling of the trial court sustaining the motion to strike the amended complaint is reversed and the cause is remanded for further proceedings as suggested.

Reversed and remanded with directions.

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


author: Mr. Justice Matchett

text:
    People of the State of Illinois ex rel. John S. Rusch, Appellee, v. Eugene Steiner et al., Appellants.
    Gen. No. 40,849.
    Opinion filed January 20, 1941.
    Rehearing denied February 5, 1941.
    Simon Herr and Mayer Goldberg, both of Chicago, for appellants.
    Thomas J. Courtney, State’s Attorney, for appellee; John F. Cashen, Jr., of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Respondents acted as judges of election at a primary held April 12, 1938, in the 33rd precinct of the 24th ward of Chicago. They appeal from a judgment of the county court on a finding of guilty of misbehavior in performance of their duties. Lidovsky and Steiner were sentenced to serve one year each in the county jail; Mrs. Fishman to pay a fine of $500.

It is contended the trial judge was disqualified by-personal interest; that the county court was without legal authority to open the ballot box; that the finding and judgment are contrary to evidence and the punishment excessive.

The question of the right to open the ballot box and put the ballots in evidence has been answered in the affirmative by the Supreme Court pending this appeal. Stockholm v. Daly, 374 Ill. 441.

The disqualification of the trial judge is urged because he was a candidate for renomination at this primary, and the alleged wrongdoing of respondents resulted in his getting a less number of votes. In a similar case we have held he was disqualified. {People ex rel. Rusch v. Cunningham, 308 Ill. App. 63, opinion filed today.) There the question was raised by motion supported by affidavit to facts not denied. Here the question is not preserved by any motion made or in any other way. Technically, respondents must be held to have waived their right in this regard.

However, the personal interest of the trial judge inheres in the case {Schmidt v. United States, 115 F. (2d) 394), and may not be entirely disregarded in the performance of our duty to weigh the evidence and consider the guilt of respondents and the severity of the penalties inflicted. These penalties are severe. They can be justified only on the theory defendants changed or acquiesced in changing ballots. This was done by someone. The evidence tends to show that after the polls were closed and the ballots piled on a table, these changes were made by someone who intended to take votes from Judge Jarecki and give them to his opponent. A few ballots show changes of an opposite kind; that is, taking away votes from his opponent and giving more votes to Judge Jarecki. It is possible that some of these changes by erasures were by the voters themselves in the booths, but we are convinced that someone tampered with the ballots with unlawful intent. The persons guilty deserve severe punishment.

Respondents, were all inexperienced. Many other persons were present when the box was opened and the ballots piled upon the table. About that time the ladies were necessarily absent for about ten minutes. Steiner and Lidovsky a little later were likewise absent for the same reason and about the same time. More than twelve persons were present at the time of the opening and counting of the ballots, including two investigators selected by the election commissioners. They testified for the People but there is no evidence disclosing when or by ivhom or how these changes were made. The investigators made reports to the election commissioners without criticism of respondents or any of the election officials.

Respondents testified (also the clerks who were discharged) denying they had any knowledge of any misbehavior. The impression produced by the evidence is that the changing of the ballots was the work of an outsider. It is possible that there was connivance by some member of the board. It was, of course, a part of the duty of the judges of election to protect these ballots. The unchallenged good character of these officials raises doubt of intentional wrongdoing on their part. They were inexperienced, and the evidence does not convince of their personal guilt.

The courts have no right to guess defendants into jail. It is just as important that persons accused but. innocent should be exonerated as that those guilty should be punished. The evidence in this case is insufficient to sustain the penalties imposed. The judgment will be reversed and the cause remanded for another trial.

Reversed and remanded.

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


text:
    People of the State of Illinois ex. rel. John S. Rusch, Appellee, v. Margaret Cunningham et al., Appellants.
    Gen. No. 40,896.
    Opinion filed January 20, 1941.
    Rehearing denied February 5, 1941.
    Simon Herr and Mayer Goldberg, both of Chicago, for appellants.
    Thomas J. Courtney, State’s Attorney, for appel-lee; John F. Cashen, Jr., of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

The respondents, who April 12, 1938, served as judges and clerks of election in the 58th precinct of the 24th ward of Chicago, have been tried and found guilty of contempt of court for alleged misbehavior as such primary judges or clerks. (See Laws of 1927, p. 459, § 17; Smith Hurd Ann. Stats., ch. 46, par. 381, p. 709; Ill. Rev. Stat. 1939, ch. 46, § 17, par. 381 [Jones Ill. Stats. Ann. 43.400].) Pallard, who acted as Republican judge, was sentenced to serve one year; Mrs. Cunningham and Feinberg, Democrat judges, were sentenced to serve six months; and Frish and Ebert, Democrat and Republican clerks, respectively, were sentenced to serve three months, all in the county jail. They appeal and with other alleged errors argue that the trial judge by reason of personal interest was disqualified from hearing the charges against them. Because of one of the points argued in the briefs the decision of this case has awaited the decision of the Supreme Court in Stockholm v. Daly, 374 Ill. 441.

When first arrested respondents joined in a petition for a change of venue under the statute. (Ill. Rev. Stat. 1939, ch. 146, §17 [Jones Ill. Stats. Ann. 107.332].) Their prayers were denied. This court has held in a number of cases that the act is not applicable. The Supreme Court in some of these has denied leave to appeal. People ex rel. Rusch v. Williams, 292 Ill. App. 228; People ex rel. Rusch v. Savaiano, 293 Ill. App. 515; People ex rel. Rusch v. Sulli, 296 Ill. App. 639 (Abst.); People ex rel. Rusch v. Freedman, 297 Ill. App. 73, and People ex rel. Rusch v. Levin, 305 Ill. App. 142, 26 N. E. (2d) 895.

Thereafter, respondents made a motion for the assignment of the cause to another upon the ground of disqualification of the trial judge. The briefs of the People argue this motion as if it were a second application for change of venue under the statute. It is not. The theory of the motion was that irrespective of the statute the cause should be assigned to another because the trial judge was disqualified under the rules of the common law and as a matter of common right, because he was a candidate at the primary concerning which these respondents were accused. The fact that the legislature did not see fit to make the change of venue statute applicable does not necessarily deprive respondents of their right to have the accusation against them heard by a qualified judge. This is more apparent if we reflect that § 17 dispenses with formal pleadings and with trial by jury.

In 1701, Lord Holt said:

“If an act of Parliament should ordain that the same person should he party and judge, or which is the same thing, judge in his own cause, it would be a void act of Parliament. ” 12 Mod. Reps. 688.

In Medlin v. Taylor, 101 Ala. 239, Medlin filed a petition for a writ of mandamus directed to Taylor, who was judge of the probate court of his county, to compel him to hear a case- involving the contest of an election to the office of tax collector of the county. Taylor refused to hear and determine the same for the reason that he (Taylor) and the contestee, who was one Esslinger, were candidates at the same election — Esslinger for the office of tax collector and Taylor for the office of probate judge. Taylor’s election was at the time being contested before the judge of the circuit court upon grounds, causes and for reasons similar to the reasons specified by Medlin in his contest against Esslinger. A rule nisi was entered, and upon the coming in of the respondent he demurred to the petition on two grounds; first, that it appeared therefrom that he was “for legal cause incompetent,” and, secondly, because in the jurisdiction with which by law he was clothed Judge Taylor had entered a judgment declaring his incompetency. The court said:

“That Judge Taylor did not have a disqualifying interest in the result of the case, within the provisions of our constitution and statutes, is virtually confessed in the argument of counsel, and can not be doubted. To come within these inhibitions the interest must be a pecuniary one to be affected Toy the judgment in the particular case, and not merely an interest, pecuniary or other, in the question involved, but not in the result of the particular case, and which, though not precluded by the judgment therein, may be affected by the ‘general operation of law on the status fixed by the decision. ’ Judge Taylor not only had no pecuniary interest in the result of this contestation, but he had no interest whatever that could be affected by any possible determination of the issues involved. . . . It is the opinion of the court, however, that under the doctrines of the common law, aside from our .constitutional and statutory provisions, he had such a personal interest in the questions involved in the contestation of Medlin, in the nature of things, — such a bias in favor of one of the parties to the cáse, — as disqualified him to hear and determine the same, and justified his action in declining so to do. Gill v. State, 61 Ala. 169, and authorities there cited.”

The judgment of the trial court denying the application for mandamus was affirmed.

The record in the instant case discloses an unusual and novel situation. The trial judge was a candidate for renomination by his party at the same primary at which it is alleged respondents were guilty of misconduct. Their alleged acts of misbehavior directly affected his candidacy. It was charged that defendants as officials acquiesced in the conduct of persons who erased the crosses on ballots in the square before the name of the trial judge and made crosses in the square opposite the name of his opponent. It is manifest the trial judge was intensely interested in these alleged actions. We have recited the facts, and comment, we think, is not required. There was no reason why the cases against these respondents should not have been tried by another judge. We hold the record shows he was disqualified.

In Moses v. Julian, 45 N. H. 52, the opinion classifies cases whereby judges may be disqualified under both common and civil law. Judges, it is said, “ . . . ought to mistrust themselves, and not draw upon themselves the just reproach of á rash proceeding, which would be in effect a real misdemeanor. Domat Pub. Law, Lib. 2, Tit. 1, sec. 2.14.”

In Regina v. Justices of Suffolk, Eng. Law & Equity Reports, Vol. 14, p. 90, it appeared a justice of the Quarter Sessions was also a rated inhabitant of the appellant parish. He had taken no part in the decision but remained in court until a final decision favorable to the parish was made. The Lord Chief Justice said:

“I am glad for the sake of the due administration of justice in courts of Quarter Sessions that this application has been made. The proceeding which here took place is much to be censured. ... He did not vote because there was no voting at all, but he still formed a member of the court, and his interference vitiated the proceedings, and there is no ground for saying that it was acquiesced in.”

In Dimes v. Grand Junction Canal Co., Eng. Law & Equity Reports, Vol. 16, p. 63, it appeared the Lord Chancellor had a slight interest in land involved in the suit. Lord Campbell said:

“No human being can suppose for an instant that my Lord Cottenham could be in the remotest degree influenced by the infinitestimally small interest that he had in this concern, nor if his interest had been ever so great; but, my lords, it is of the last importance that that maxim should be held sacred, that no man is to be a judge in his own cause; and that is not to be confined to a cause in which he is a party, but a cause in which he has an interest. ’ ’

In a recent Federal' case, Schmidt v. United States, 115 F. (2d) 394, defendants’ attorneys were ruled to show cause and found guilty of contempt. On appeal it was urged the trial judge should have declined to hear the case because affidavits of prejudice had been filed against him which were stricken. The court of appeals said:

“Appellant Schmidt urges that the judge should have withdrawn from consideration of the case against him, on the ground that judicial impartiality had been blurred by personal factors. Appellant Mau does not directly make the point but we feel that the feature is inherent in both cases. . . . The judge should not have been required to try the contempt cases, while he was confronted with the affidavits of bias and prejudice to which appellants had appended their certificates of good faith. This is no reflection upon the judge, nor upon any judge so confronted. Even a judge may not put aside the propensities of human nature as easily as he does his robe. . . . •We do not adjudge that any unfairness permeated the trial of these cases, but to eliminate the ‘chance’ that .such existed, the judgment should be reversed and the cases remanded for further proceedings before another judge.”

The law books are full of cases both in England and in the United States where the most distinguished judges recusing themselves have refused to sit in cases where they might possibly be considered to have personal bias or interest. It is unnecessary to review the cases. As illustrating we cite In Re Neagle, 135 U. S. 1, where Mr. Justice Field did not sit at the hearing or take part in the decision, and Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, where Chief Justice Fuller and Mr. Justice Blatchford likewise declined to take part in the case.

Because the trial judge was a candidate for office at the primary in which these respondents are charged to have committed offenses and was therefore personally interested, the judgments against them will be reversed and their causes remanded with directions that the same be assigned for trial to another judge.

Reversed and remanded with directions.

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


text:
    Clark-Devon Building Corporation et al., Appellees, v. Anna Hinrichs et al., Appellants and Mortimer E. Berman et al., Appellees.
    Gen. No. 41,209.
    Opinion filed January 20, 1941.
    Alden, Latham & Young, of Chicago, for certain appellant; Wm. Tracy Alden and Hubert Van Hook, of Chicago, of counsel.
    Walter F. Cunningham, of Chicago, for certain other appellant; Norman A. Korfist, of Chicago, of counsel.
    Wilhartz & Hirsch, of Chicago, for appellee Clark-Devon Building Corporation; Julian H. Levi and J. S. Greenberg, both of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

The defendants, heirs at law of Sivert Hollesen, who on July 1, 1918, demised premises in Chicago for a term of 99 years to Alexander Newton, appeal from a decree entered December 12, 1939, in favor of plaintiff (owner of the leasehold through mesne assignments) enjoining upon conditions named in the decree the forfeiture of its leasehold. Sivert Hollesen died May 31, 1931. May 8, 1932, defendants served notice of intention to forfeit unless alleged default was removed within 90 days. Plaintiff filed this suit August 8,1932. The cause was heard on exceptions of defendants to report of a master. The exceptions were overruled and a decree entered as recommended. Defendants with a single exception (the Berman issue, so called) have waived all issues of fact.

The lease provided for the payment of rent for the first period of 5 years at $8,000 per annum; for the second like period, $9,000 per annum; for a third like period, $9,500, and for the remainder of the term, $10,000 per annum. The property was the northeast corner of North Clark street and Devon avenue. At the time of the demise it consisted of a frontage of 222 feet, 5% inches on Devon avenue, 191 feet on North Clark street, and 165 feet, 3% inches on Schreiber avenue. The depth of the east line of the premises was 260 feet. Substantially it consisted of lots 3, 4 and 5 in the subdivision described in the lease and consisted of a total area of 57,122.55 square feet.

By the terms of the lease the tenant agreed to erect and maintain two buildings on the Devon avenue frontage, the “east” building to cost not less than $70,000 to be used as a theater, stores, apartments, etc., and the “west” building to cost not less than $13,500 to be adapted to the same uses except the theater. The buildings were erected. The lease provided that all buildings erected should be considered an integral portion of the real estate and at the expiration of the lease would become the property of the lessor.

May 15, 1929, the city of Chicago brought condemnation proceedings to widen Ashland avenue by taking part of this property, and February 5, 1930, obtained an order taking all of lot 3 and a substantial portion of lot 4. It took 19,229.22 of the total 57,122.55 square feet, constituting the demised premises. The original frontage on Devon avenue was thereby reduced to 146 feet, 8% inches. The compensation for the property taken was $330,000, which was divided between the lessor and the lessee according to the terms of the lease. Sivert Hollesen received $195,700, the value of the land as found, and plaintiff $134,300, the value of the improvements as found. The city required the “west” building to be removed without cost to it, free of mechanics’ liens, and plaintiff removed it. There was a provision in the lease that in case of condemnation the amount of rent reserved to the lessor should abate each year to the extent of 4 per cent of the award received by him. This abatement amounted to $7,828 for the remaining years of the term. From September 6,1930, until July 1,1933, the rent was accordingly reduced from $8,000 per year to about $172 per year, and after July 1, 1933, the rent of the term would average about $2,080 per year instead of $10,000 per year.

In September, 1930, plaintiff began the demolishing of the three-story Hollesen or “west” building. The other part of the structure was removed to the vacant Schreiber avenue frontage and remodeled into a three-story brick apartment building, which was opened for use April 15, 1931, and has been since used for that purpose. This was done at a cost to plaintiff of $85,371.85. The value of this building at the time of the hearing was $49,500, exclusive of land or leasehold.

May 31, 1931, plaintiff began the erection of a new building on Devon avenue. It completed the foundation in November at a cost of $27,787.11. The lease did not require the erection of the building of Schreiber avenue but it did require in article 7 that in case of the destruction of any building or buildings the lessee would rebuild a building of the same general character, and at least of equal value, “provided, however, that . . . the lessee may erect a new building of not less value than the building or buildings so . . . destroyed, and in no event less than the estimated values of such building or buildings, said estimated values of the buildings . . . first to be placed on said premises being as follows, to wit: . . . $13,500.00 for the west building and $75,000.00 for the east building.”

Sivert Hollesen had knowledge of the tearing down of the “west” building and of the moving of it to the Schreiber avenue frontage, and the master finds he approved. Hollesen never demanded the completion of the building to be erected on Devon avenue and never stated or indicated in any way that he wished to forfeit the lease. All rentals due were paid to him during his lifetime and all rentals were paid up to the time of the service of the notice of intention to forfeit on May 8, 1932. Article 7 provided that the reconstruction of any building made under its terms should be “within 12 months after any such destruction, loss or damage,” or as much sooner as it could reasonably be done.

The master found there was a default in the reconstruction of this building and that the same was not wilful but excusable for the reason that it was impractical if not impossible to do so because of the condition of Ashland avenue, notwithstanding diligent efforts on the part of plaintiff to secure the improvement of that street; that on that account while it was physically possible to bring materials in to rebuild, it would not have been ‘ ‘ economically possible. ’ ’ The State finally took charge of and completed the improvement of Ashland avenue but not until 1935. The master found that in the condition in which the street was it would have been impossible to have rented to tenants if the building had been constructed, and that neither hardship nor damage resulted to the lessors in that respect up to May 8, 1932, or at any subsequent time.

At the time plaintiff obtained the leasehold there was a mortgage on it with an unpaid balance of $60,000 and interest, all of which plaintiff paid out of its own funds. It expended the sum of $85,371.85 in moving and remodeling the building on Schreiber avenue. It expended $27,787.11 in erecting a foundation for a new “west” building. The master found that under all the circumstances it would be a wrong and injustice to plaintiff to have its lease forfeited.

October 26, 1935, Anna Hinriehs filed another notice of intention to forfeit (without withdrawing the notice of May 8,1932) for alleged defaults in allowing alleged mechanics’ liens to attach to the property and for failure to pay taxes, assessments, etc., as required by the lease. July 30, 1936, plaintiff tendered in open court $62,783.18 to provide for the payment of delinquent taxes (having on January 15, 1936, notified Mrs. Hin-richs that it would pay the same and erect the “west” building if she would withdraw the first notice of forfeiture). The decree finds the alleged mechanics’ liens did not exist. It requires plaintiff to deposit with the clerk of the court $75,865.03, to cover the amount due for taxes, special assessments, penalties, etc., and rent up to November 15, 1935.

There could be no forfeiture under the notice of Mrs. Hinriehs for several reasons. In the first place she owned at the time of giving notice only 1/9 interest in the premises, and she could not forfeit the lease for her cotenants. Howard v. Manning, 79 Okla. 165, 192 Pac. 358, 12 A.L.R. 819. Moreover, th'e notice was abortive since the mechanics’ liens were found not to exist in fact. The decision of the case therefore turns on the validity of the first notice of forfeiture given on May 8,1932.

Defendants say equity will not relieve against a forfeiture fur breach of covenant to repair or rebuild, where the breach is not compensable in money, is wilful and is not the result of fraud, accident or mistake. Defendants further say equity will always recognize a valid declaration of forfeiture and in support cite such cases as Chrisman v. Miller, 21 Ill. 227, where it was held that a default in a covenant to pay consideration precluded a bill for specific performance of the contract; Fisher v. Smith, 48 Ill. 184, and Leary v. Pattison, 66 Ill. 203, where forfeitures for nonpayment of rent were sustained; Kew v. Trainor, 150 Ill. 150, where the breach of a covenant not to assign was held to justify a forfeiture; City of Belleville v. Citizens’ Horse Ry. Co., 152 Ill. 171, where rights of a railway under a city ordinance were forfeited for failure to comply with conditions upon which the rights were granted; Gunning v. Sorg, 214 Ill. 616, where the court declared a lease forfeited for nonpayment of rent; and Lang v. Hedenberg, 277 Ill. 368, where at the suit of the vendor the vendee, who had failed to pay the balance of the purchase price under his contract, was enjoined from setting up any rights in the land.

While illustrating general principles these cases give little help in solving the actual questions presented for consideration by the record. The leading English cases of Hill v. Barclay, 18 Ves. 56; Brace-bridge v. Buckley, 2 Price 200, and similar cases which seem to disapprove of Hack v. Leonard, 9 Mod. 91, are directly in point. In the Hill case the court distinguished between nonperformance of a covenant to pay rent and other covenants, and in Sanders v. Pope, 12 Ves. 282, the court questioned the right of a court of equity to interfere with the contract as made by the parties. The grounds of these cases seem to be that it is impossible for the court in such cases to ascertain just compensation. The obscure origin of the jurisdiction of the chancery court with reference to relief from penalties and forfeitures is discussed in Story’s Equity Jurisprudence, Vol. 3, ch. 37, §§ 1713-1741. Section 1728 of this chapter is quoted with approval by the Supreme Court of Illinois in the case of Illinois Merchants Trust Co. v. Harvey, 335 Ill. 284, where the court said:

“The basis of the relief is that the defendant is seeking to exercise a right which he has but which he should not be permitted to exercise.”

The opinion points out that,

“In this State and elsewhere forfeitures are not regarded with favor, and where the right of forfeiture is, as in this instance, an additional security for rent, its prevention is within the protecting care of equity whenever wrong or injury will result from its enforcement. ’ ’

In Springfield & Northeastern Traction Co. v. Warrick, 249 Ill. 470, where a bill was filed to secure an injunction against the prosecution of ejectment based on a forfeiture clause in the deed, the Supreme Court said :

“We are disposed to hold that the estate created by the conveyance was upon a condition subsequent, and the appellants must have so regarded it when they declared a forfeiture and brought the ejectment suit. If the conditions in the deed were covenants it would not have entitled them to a re-entry upon the land, but they would have had a right of action for damages for a breach of covenants. (Post v. Weil, 5 L. R. A. 422, and note; 2 Elliott on Railroads, sec. 945; 6 Am. & Eng. Ency. of Law, • — -2d ed. —503.) Forfeitures will be enforced by courts in clear cases, but they are not regarded with favor, and their prevention is within the protecting care of equity whenever wrong or injustice will result from their enforcement. (Palmer v. Ford, 70 Ill. 369; Mott v. Danville Seminary, 129 id. 403; Voris v. Renshaw, 49 id. 425; Zempel v. Hughes, 235 id. 424.)”

It is true these cases are distinguishable from the record before us. However, in Mayer v. Collins, 263 Ill. App. 219, this court had before it a case we think much in point. In that case the complainant was the lessee of defendant under a 99-year lease expiring in 1991 and filed his bill for an injunction against forfeiting the lease. A preliminary injunction was granted and the defendant appealed to this court. The premises were 57-59 West Randolph street in Chicago, improved with a four-story building erected shortly after the Chicago fire. While the appeal was interlocutory the briefs went to the merits of the controversy and counsel were agreed that the decision in the case would determine the merits of it. The complainant had made a sublease which by its terms obligated the lessee to expend not less than $60,000 in improving, repairing and remodeling the building, to be completed by November 1, 1931. Complainant had been advised by competent architects and engineers that the only portion of the building having any value were the side walls; that reconstruction of the building piecemeal was not practical, and that unless complainant was permitted to erect a new building he would not be able to comply with the terms of the lease, which required him to maintain upon the premises a building worth not less than $35,000. Complainant wrote defendant that the improvement would give as security for rents a building in first class condition and worth at least $60,000 instead of the $35,000 building called for by the lease, and offered ample security as a guarantee for the payment of rent, etc., and for the performance of the covenants of the lease. Defendant examined the plans and specifications and rejected the offer, stating he would not give his consent. The alterations were begun June 1,1931, and while in progress defendant served notice on complainant that the building had been wholly destroyed and demolished contrary to the terms of the lease, and that defendant had elected to terminate the lease and gave him notice to quit the premises and deliver up possession. Whereupon, the complainant filed his bill. This court said a reading of the bill showed equitable consideration which would not be available to the complainant in an action at law, and said:

“It is a well recognized principle that it does not follow that, because a remedy at law is afforded in a case, equity will not also take jurisdiction of the same state of facts. If the remedy in equity is more adequate because of special circumstances in the . . . situation, the jurisdiction of equity will be sustained. We cannot agree with the proposition advanced by defendant that a court of equity will not grant relief from the forfeiture of a lease for a cause other than the nonpayment of money in the absence of fraud, etc. In Illinois Merchants Trust Co. v. Harvey, 335 Ill. 284, it was argued that because of certain sections of the Landlord and Tenant Act, Cahill’s St. ch. 80, equity could not enjoin a threatened forfeiture. The Supreme Court did not agree with this, saying: ‘The source of the right in the landlord to declare a forfeiture is not important. We are unable to see any difference between a right given by statute and one arising from any other source. The basis of the relief is that the defendant is seeking to exercise a right which he has but which he should not be permitted to exercise. ’ ’ ’

The order allowing the injunction was affirmed.

It would unduly extend this opinion to undertake to review and distinguish all the cases cited in the briefs filed in this case, which are full and complete. The subject is a difficult one. The Illinois courts have never approved the reasoning in the English cases on which defendants rely. Indeed, general rules are of little value in considering this class of cases. The English decisions seem to distinguish between cases where the covenant is by way of further security for the rent, but we think the distinction is one difficult to sustain. The master found that this covenant was for further security and the lease itself so states. Under this state of facts it is difficult to distinguish between rent and the security for it.

The facts that Hollesen, who was a frequent visitor to the premises in his lifetime, made no protest against the manner in which plaintiff was fulfilling its covenants ; that he received full compensation as provided in the lease for all injuries sustained by him through the Condemnation proceedings; that the defendant heirs so far as the records show made no complaint up to the time of filing the notice of intention to forfeit; the undoubted value of plaintiff’s equity in the property, these are all circumstances which make it impossible for a court of equity to refuse relief. We hold the decree was just, and it will be affirmed.

Decree affirmed.

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


text:
    Nettie Meyer et al., Appellants, v. Kenmore-Granville Hotel Company et al. Samuel J. T. Straus et al., Appellees.
    Gen. No. 41,220.

      Opinion filed January 20, 1941.
    Rehearing denied February 5, 1941.
    Shulman, Shulman & Abrams, of Chicago, for appellants ; Meyer Abrams, of counsel.
    Gottleib & Schwartz and Sonnenschein, Berkson, Lautmann, Levinson & Morse, both of Chicago, for appellees; Harry E. Smoot and Herbert L. Stern, Jr., both of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

The plaintiffs own 19 bonds of issu.es amounting to $1,000,000 each, secured by trust deeds conveying the Sovereign Hotel and the “Annex” to it. Default was made. On May 8, 1925, the trustees took possession and operated the hotels as a unit until August 14,1934, when a tax receiver was appointed for both premises.

February 4, 1935, the debtors filed a petition in the United States District Court under § 77B of the amended Bankruptcy Act (11 U. S. C.. A., § 207) for reorganization. February 8, this suit for an accounting against the trustees and others was filed. Plaintiff, Nettie Meyer, on February 25, 1935, filed a petition in the United States District Court to dismiss the proceedings because of bad faith and want of jurisdiction. The court reserved ruling until after the plan of reorganization should be submitted but directed notice of proceedings to be given to'her counsel. When the plan was filed plaintiffs filed objections and submitted modifications. Nettie Meyer (not wishing to waive her claim of bad faith) did not join in the proposed modifications. The plan as modified was approved. May 20, 1935. Nettie Meyer appealed from the order denying her motion to dismiss and also from the order approving the plan as modified. Her appeals were dismissed by the United States Circuit Court of Appeals. Certiorari was allowed by the Supreme Court of the United States. Upon review the court held the appeals were properly dismissed because- such appeals were only by leave, which she had not obtained. (Meyer v. Kenmore Granville Hotel Co., 297 U. S. 160.)

November 23,1936, the United States District Court entered an order directing the release of the two trust deed indentures and authorizing a new mortgage of $150,000, and dismissed the petition of Nettie Meyer.

December 4, 1936, plaintiffs filed their petition to vacate the order of November 23, setting up that it was entered in the absence of counsel and that the trustees (defendants here) had not been required to account for their management of the premises while in possession. Answers were filed and the petition sent to a referee, who reported recommending that the prayer of the petition be denied. Exceptions were filed by plaintiffs which were overruled by the court and the report approved February 25, 1937.

Plaintiffs undertook to secure a review of this order without leave and for this reason the appeal from the order was dismissed. {In re Kenmore-Granville Hotel Co., 92 F. (2d) 778; Meyer v. Kenmore-Granville Hotel Co., Id.) The court of appeals said “appellants” could not reopen the issues concerning which their appeals was dismissed, citing In Re Trust Co. No. 2988 of Foreman Trust & Savings Bank, 85 F. (2d) 942. The opinion states:

“The report of the referee indicates a very careful consideration of the oral testimony, stipulation of facts, briefs and argument of counsel. On the basis of this study he concluded that the parties had adequate notice of the hearing- of November 23, and opportunity to object at that time if they so desired. He also found that the issues sought to be raised by the petition of December 4, were substantially identical with those sought to be raised by appellant Meyer in her petition of February 25, 1935, the prayer of which was denied on March 20, 1935. They are also similar to those raised by the objections filed by the other appellants to certain claims against the debtor and to the plan of reorganization, which objections were overruled by the court May 20, 1935. The referee therefore states, ‘Both . . Meyer . . . and her co-petitioners . . . had ample opportunity ... to raise each and every issue which is now sought to be raised in the petition now pending as filed by said petitioners. The petition now pending is merely an attempt, in a roundabout, subsequent, and extraordinary manner, to obtain a review of matters heretofore presented to and determined by a Judge of this Court, without pursuing the usual method of writs of appeal and certiorari to upper courts from the actual orders and proceedings of which complaint is made. ’ ”

Plaintiffs in the original suit in the State court set up the same matters which were considered upon this reference in the United States court, and upon the conclusion of the litigation in the federal courts defendants set up in the State court the federal judgment as res adjudicata of the issues. The issues and the parties were identical and having been once, determined by a court of competent jurisdiction it would seem the maxim that there must be an end to litigation should be applied. Stoll v. Gottlieb, 305 U. S. 165. We are disposed to hold, that plaintiffs are precluded. However, we have given consideration to the appeal on its merits.

Plaintiffs allege the trustees while in possession of the property deposited the income from the premises with S. W. Straus & Company. These bonds were what were known as 1 ‘Straus bonds.” The trustees and most of the bondholders’ committee were interested in S. W. Straus & Company. It is urged the trustees ought not to have used S. W. Straus & Company as a depositary. The bonds and coupons were payable at the office of S. W. Straus & Company. There was nothing in the trust deed to prevent the trustees from so depositing the funds, although in view of the entire situation rules applicable to fiduciaries generally would apply. Pepper v. Litton, 308 U. S. 295, 60 Sup. Ct. 238, cited, is not applicable.

The complaint charged the trustees acted wrongfully in that S. W. Straus & Company were allowed to reimburse themselves out of funds deposited with them on account of moneys which it advanced from its own funds in order to meet the payments of coupons and principals at maturity. Defendants insist that there is no proof this was done. Plaintiffs insist it is admitted by the pleadings (also proved), and that it is contrary to law. Coffey v. Lawman, 99 F. (2d) 245. That case holds such a payment by a volunteer is not a purchase of the bond or coupon paid and that its effect is to subordinate the bonds and coupons thus paid to the rest of the issue. This case is, however, distinguishable from that and similar cases cited by plaintiffs to this point, in that here the trust deed gave specific authority to do this. Moreover, the record shows that notwithstanding this provision in the trust deed, S. W. Straus & Company voluntarily subordinated almost $400,000 par value of bonds and coupons which it had paid in reliance upon this provision of the trust deed. We search this record in vain for evidence from which it can be inferred that these plaintiffs have been injured in any way on account of this. We say this not unaware of the dangers inherent in this practice.

Plaintiffs further seek to have the trustees held liable on the ground of gross negligence and fraud. First, it is said, they permitted a second mortgage on these premises to be foreclosed and title to be obtained through a master’s deed by one of the officials of S. W. Straus & Company. The holders of the first mortgage were not made parties. In what respect plaintiffs were injured or their securities depreciated by this foreclosure the record does not disclose and we are unable to see.

Secondly, plaintiffs present in the State as in the federal court the novel contention that the payment of interest from 1925 to 1931 by the trustees without disclosing default of the mortgagors to the holders of the bonds was fraudulent and thereby plaintiffs lost 90 per cent of their investments, for which defendants are liable. The interest was paid pursuant to the provisions of the trust deed, the purpose of which was to prevent a default in the bonds which would seriously impair their market value. The evidence is devoid of any proof tending to show that the loss which plaintiffs have sustained was in any way the result of these payments. The theory that the payment of a part of a given security may cause the loss of the rest of it is unusual and novel. Of course, if these payments had not been made and the issue allowed to go into default a foreclosure might have resulted. In that case plaintiffs might have appropriated the property to the payment of their debt. The depreciation in, the value of such properties during the. period of time from 1925 to 1931 is too well known to need comment or discussion. The books are full of cases showing that important fact to the sorrow of many investors.

The holders of this comparatively small amount of these securities by much litigation have given to their bonds an unusual nuisance value. The federal courts have decided their charges against these trustees to be without merit and a careful consideration of the record leads us to the same conclusion. The judgment will be affirmed.

Judgment affirmed.

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


author: Mr. Justice John J. Sullivan

text:
    Lawrence Goldberg, Minor, by Esther Goldberg, His Mother and Next Friend, Appellee, v. Morris Perlmutter, Defendant. S. Yale Fischman, Appellant.
    Gen. No. 41,273.

      Opinion filed January 21, 1941.
    David I. Spark, of Chicago, for appellant.
    Harold Rivkin, of Chicago, for appellee.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

Attorney John A. Bloomingston instituted suit in be,half of Lawrence Goldberg, a minor, by Esther Goldberg, his mother and next friend, against Morris Perl-mutter, for personal injuries suffered by said minor. Sometime prior to January 5, 1940, Mr. Bloomingston effected a settlement of the claim for $1,625. On January 5, 1940, Esther Goldberg filed a petition in this cause in which she prayed that attorney S. Yale Fischman “be required to sign a release of attorney’s lien in said cause.” The respondent, Fischman, filed an answer in which he alleged inter alia “that the defendant herein [Perlmutter] refused ... to make said settlement until there had been an adjudication of your respondent’s lien for services” and prayed “that an order of court be entered allowing to your respondent . . . $406.25 as and for attorney’s fees as attorney for the guardian of such minor’s estate.” On January 24, 1940, an order was entered by the trial court in which it was adjudged that “the respondent, S. Yale Fischman, has no attorney’s lien against the funds to be derived out of this case.” This appeal is from that order.

The facts are undisputed. On November 13, 1937, Lawrence Goldberg, the minor son of Isador Goldberg and Esther Goldberg, sustained injuries by reason of having been struck by an automobile owned and operated by Morris Perlmutter, the defendant herein. On November 15, 1937, the minor’s father retained and employed the respondent, Fischman, as an attorney to prosecute the minor’s claim on a contingent basis of 25 per cent of the amount of any judgment or settlement recovered or received. Thereafter, with the approval of the father of said minor, the respondent procured the appointment of the Trust Company of Chicago as guardian of the minor and himself as attorney for such guardian. On November 16, 1937, the respondent prepared a notice of attorney’s lien, which he caused to be served upon the defendant by forwarding same to the latter by registered mail, said notice of attorney’s lien having been received by defendant on November 17, 1937. On November 17, 1937, respondent received the following letter on the stationery of attorney JohnE. Bloomingston:

“November 16, 1937.
“Mr. Yale Fischman,
100 N. LaSalle St.,
Chicago, Ill.
“Dear Mr. Fischman:
“My wife, Esther Goldberg, has already retained John A. Bloomingston to prosecute the claim of our son, Lawrence Goldberg for injuries received by him on November 13, 1937. Mrs. Goldberg signed a contract with Mr. Bloomingston on Monday morning, having been referred to him by our family physician, Dr. Lifschutz.
“Under the circumstances I am requesting that you do nothing further in our behalf.
“Yours very truly,
(signed) Isador Goldberg.”

Later the same day Esther G-oldberg, the mother of the minor, called at respondent’s office and asked him to retire from the case. No adequate reason having been advanced for his withdrawal, Fischman refused to withdraw as attorney but he was not permitted to participate in the prosecution of the minor’s claim. Thereafter, as heretofore stated, attorney Blooming-ston filed suit upon the minor’s claim against the defendant, Perlmutter, and subsequently effected a settlement of same for $1,625. Respondent rendered no legal services in connection with the prosecution or settlement of the minor’s claim because he was instructed not to do so by said minor’s parents after they had employed attorney Bloomingston.

It has been repeatedly held that a contract by a minor or by his next friend employing an attorney to prosecute a suit for the minor and agreeing to pay him a reasonable sum as his fee is valid and enforcible. In Haj v. American Bottle Co., 182 Ill. App. 636, Adam Rabi Haj, the minor son of Sam Haj, was seriously injured while in the employ of the American Bottle Company and lost his right foot. It was claimed in his behalf that the injury was due to the negligence of his employer. His father, as his next friend, employed one Conway, an attorney, to prosecute his claim against his employer and Conway instituted a suit in behalf of the minor against said employer. Thereafter the father arranged a settlement with defendant for $1,000 without the knowledge of Conway, which amount was paid. Conway filed a petiton in the same suit to have his lien for attorney’s fees enforced. The defendant claimed that the contract between Conway and the father was not binding upon the minor. The hearing upon said petition resulted in the entry of an order which found that the contract was binding upon the minor and that Conway was entitled to his lien on the $1,000 paid in settlement to the extent of $333.33 and directed that judgment be entered in his favor for that amount. In affirming the judgment in that case the court used the following language on p. 639:

“We are of opinion that, under the special circumstances here disclosed, this suit comes within the purview of necessaries for the minor, and that the minor could make a valid contract, and so could his next friend, whereby to hire an attorney to prosecute the suit and agree to pay him a reasonable compensation, and if a compensation was named in the contract which did not strike the conscience of a court called upon to enforce it as unconscionable, it would be enforceable as to amount unless it appeared from the proof that it was an unreasonable amount. Therefore, we hold that this contract by the minor and his next friend, by which he employed Conway to prosecute this suit, was valid. ’ ’ (To the same effect are Burns v. Illinois Cent. R. Co., 190 Ill. App. 191 (Abst.), and Zazove v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co., 218 Ill. App. 534.)

As already shown, neither the fact that the father of the minor entered into the contract with respondent whereby the latter was to prosecute the minor’s claim for 25 per cent of the amount recovered nor the reasonableness of the compensation specified in the contract of employment is disputed.

A client unquestionably has the right to discharge his attorney at will and engage another, but where he exercises such right without good cause and thus renders it impossible for such first attorney to perform his contract of employment he is bound to compensate the first attorney in accordance with his contract with him. Discussing this question in Morris v. Ekstrom, 291 Ill. App. 614 (Abst.), the court said:

“It is well settled that where an attorney is employed to perform legal services and his client puts it out of his power to comply with the contract, as by compromising without the attorney’s knowledge or consent, he is entitled to compensation for his services in compliance with the terms of the contract. Millard v. County of Richland, 13 Ill. App. 527, 534; Town of Mt. Vernon v. Patton, 94 Ill. 65; Barnes v. Barnes, 225, Ill. App. 68.”

In Caruso v. Pelting, 271 Ill. App. 318, Sam Caruso, a minor, by Malia Caruso, his mother and next friend, brought an action against Bay Felling and others to recover damages for personal injuries claimed to have been sustained by the minor. The case was settled by the payment of $1,500. Charles G. Palmer, a practicing lawyer in Chicago, who had been retained to prosecute the personal injury claim and who was later supplanted by other counsel, filed a petition claiming a lien under the Attorney’s Lien Act. After a hearing-on Palmer’s petition and the answer thereto, his petition was dismissed. In that case the facts were almost identical with the facts here. There, as a result of a conference between Palmer, the minor’s mother and his 22-year-old sister, in which the matter of retaining him to represent the minor in the prosecution of his claim for injuries was thoroughly discussed, an agreement was entered into between the mother and Palmer in accordance with which the latter agreed to handle the minor’s claim and the mother agreed to pay him for his services 33 per cent of the amount received or recovered by settlement or suit. On the day following such agreement Palmer sent a notice to the defendants advising them of his attorney’s lien. Palmer continued to work on the preparation of the case until sometime later when he received a letter written by the minor’s sister advising him that they had retained other counsel. The other counsel filed suit and obtained a settlement of $1,500. Palmer in his petition for the enforcement of his attorney’s lien claimed that under his contract of employment by the mother he was entitled to $500, which was one third of the amount received in settlement. In reversing the order of the trial court which dismissed Palmer’s petition, this court stated on p. 323:

“Nor are the defendants in a position to contend that petitioner should receive only the reasonable value of the services rendered because the Attorney’s Lien Act provides that the attorney shall have a lien ‘for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for a reasonable fee, for the services of such attorneys rendered or to be rendered. ’ The amount of the fee having been agreed upon between the petitioner and his client, petitioner is entitled to the amount specified in his contract, of which the defendants were notified.”

There is no question in this case but that respondent complied with the provisions of the Attorney’s Lien Act (par. 14, ch. 13, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 9.13].) Did respondent’s discharge by the parents of the minor, admittedly without cause, deprive him of his statutory attorney’s lien? We are impelled to hold that it did not. “A client cannot by discharging an attorney, except for good cause, deprive him of his lien.” Tulka v. Chicago City Ry. Co., 259 Ill. App. 234. Respondent’s attorney’s lien accrued and attached to the minor’s claim from the time it was placed in his hands for prosecution and it was never lost to him, notwithstanding the fact that the parents of the minor made it impossible for him to institute suit to enforce the claim and notwithstanding the further fact that such suit was instituted by another attorney. So long as respondent was properly employed and his attorney’s lien had legally accrued and attached to the claim, such lien is none the less valid because the interests of a minor are involved or because respondent actually rendered no services in the prosecution of the claim when he was prevented from so doing without fault on his part. In our opinion his lien remains in full force and effect and is just as enforceable under the statute as if he had instituted the suit and effected the settlement of the minor’s claim.

For the reasons stated herein the order or judgment of the circuit court is reversed and the cause is remanded with directions that the respondent, Fischman, be adjudged to have a valid, enforceable attorney’s lien against any amount recovered on or received in' settlement of the minor’s claim and that such further proceedings be had as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

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