author: Mr. Justice Denis E. Sullivan

text:
    Quin O’Brien, Appellee, v. Marguerite Eustice, Appellant.
    Gen. No. 40,070.

      Opinion filed February 1, 1939.
    Theodore W. Miller, of Chicago, for appellant.
    McKinley, Price & Quindry and Robert E. Cant-well, both of Chicago, for appellee; William McKinley and Paul E. Price, of counsel.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Plaintiff Quin 0 ’Brien filed his complaint in the superior court, asking that an alleged marriage claimed to have been performed on February 3, 1937, at Morrison, Illinois, between plaintiff and defendant Marguerite Eustice, be declared null and void. A decree was entered by said court on April 21, 1937, in favor of plaintiff. It is from that decree that defendant brings this appeal.

The decree found that the plaintiff was kidnapped, threatened with a gun and held in custody against his will by defendant, Marguerite Eustice, and her agents and abused in an attempt to force him to marry said defendant; that no marriage ceremony was performed by anyone authorized to do so; that although at all times under duress, the plaintiff did not consent to the pretended marriage, but there stated that he would not marry the defendant under any circumstances; that the said pretended marriage was never consummated between plaintiff and defendant; that the return which appears upon the marriage license in evidence is false and void. Thereupon, the court decreed that said marriage between plaintiff and defendant be declared null and void from the beginning and that the defendant is not entitled by virtue of said pretended marriage to be called or known as Mrs. O’Brien or the former Mrs. O’Brien or any corruption thereof and so is perpetually enjoined from such use of the name of O’Brien or a corruption thereof; that all persons acting for or on behalf of the defendant are hereby perpetually enjoined from introducing, addressing, advertising or referring to the defendant as Mrs. O’Brien, or the former Mrs. 0 ’Brien.

The theory of the plaintiff as set forth in his brief is that a pretended marriage ceremony was conducted while plaintiff and defendant were in a sedan car in Morrison, Illinois, on February 3,1937, by someone unknown to plaintiff, while plaintiff was being held under duress and did not consent to such pretended ceremony and that said pretended marriage is null and void.

The theory of the defendant as set forth in her brief is that the parties were already married by virtue of a marriage in Louisville, Kentucky, on May 2, 1936, but that she was tricked into that marriage by plaintiff who contrived to have the ceremony thereof performed by a person not having the authority to perform the same; that the plaintiff intended that such marriage remain secret; that defendant believed said marriage ceremony in Louisville, Kentucky, was performed by a person having authority to do so and was in good faith, notwithstanding the bad faith of plaintiff; that the subsequent marriage ceremony at Morrison, Illinois, on February 3, 1937, was performed with plaintiff’s consent. This theory or claim with regard to a former marriage in Louisville, Kentucky, is referred to only in defendant’s brief. No pleading was on file or proof made in the trial court of any such marriage, except the mere statement of defendant in her counterclaim when asking* for separate maintenance and alimony which later was withdrawn, and it was agreed in open court that the only issue then remaining in the case was the validity of the marriage at Morrison, Illinois.

Counsel for defendant contends that defendant was “rushed” to trial when not prepared and that the cause should have been tried before some other judge; that defendant wanted a change of venue and that defendant had not received a fair and impartial trial.

The two principals to this rather unusual proceeding tell entirely different stories as to what happened. We shall first dispose of what happened in court preliminary to the trial and then pass on the rulings of the court and the proceedings at the trial.

Counsel for defendant complain that the trial court “rushed” the trial before the defendant was ready to go to trial. The suit was filed on February - 9, 1937. Thereafter the defendant on or about February 15, 1937 came into court and filed a counterclaim, less than a week thereafter, asking* for separate maintenance, solicitor’s fees and alimony. Defendant thereupon obtained a rule upon the plaintiff to answer the counterclaim in 7 days and had the hearing set for February 27, 1937. At this time it is quite apparent it was the defendant who was doing the so-called “rushing” with regard to the hearings.

It was manifest that the question as to whether or not the marriage was valid or otherwise, had to be determined before the court could intelligently pass upon the question as to the allowance of alimony as well as solicitor’s fees. As heretofore stated, on motion of defendant the hearing* was set for February 27, 1937. On February 24, 1937, on motion of defendant an order was entered that the motion for temporary alimony as well as solicitor’s fees be withdrawn until final trial and decision and that the order setting the matter for a preliminary hearing on February 27,1937, be vacated. At that time an order was entered permitting the appearance of associate counsel for defendant and for a continuance of the case. On March 16, 1937, defendant filed an affidavit saying that she was ill in Clinton, Iowa, since February 25,1937.

As near as we can learn from a rather incomplete abstract, the cause was continued at the request of the defendant on four different occasions and the court did not commence the hearing until March 20,1937.

.Counsel for defendant contends that this cause should not have been heard by Judge McKinlay, for the reason that an order had been entered by the executive committee of the superior court assigning all undisposed of contested divorce, separate maintenance and annulment cases to Judge George W. Bristow who at that time was hearing cases in the superior court. This case was assigned to Judge McKinlay in its regular order as he had been designated as the judge to hear divorce cases for that year. The purpose of the assignment to Judge Bristow was made so as to dispose of cases which had been pending several years and did not affect this cause. This question was not presented in the trial court and it cannot be raised for the first time in this court.

Further complaint is made by counsel for the defense against Judge McKinlay for not having granted a change of venue on the day the cause was set for trial. The record shows that no notice was given or affidavits presented as is required by ch. 146, sec. 3, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 107.318]. Counsel who then represented defendant merely presented a telegram from his client and told the court what she said therein. Judge McKinlay reminded counsel that he was not complying with the statute and counsel replied that he knew that and would not urge the point, thereupon waiving any motion for change of venue, whereupon Judge McKinlay rightfully proceeded with the trial.

We do not believe that Judge McKinlay did other than is required by law. He granted several continuances at the request of the defendant and evinced a patient desire to do justice between the parties and he does not in any way deserve the criticism leveled at him by counsel for defendant as expressed in the language employed in the oral argument and also in thé briefs filed in this court.

This case is largely one of fact. The evidence in this case shows that on or about the evening of February 2, 1937, the plaintiff was invited by the defendant to take a ride with her in her automobile to a point somewhere in the city of Chicago, on the pretext of performing an errand. Plaintiff and defendant had been acquainted for some time, each occupying an apartment in the same building. Plaintiff accompanied the defendant. Arriving at a point on the northwest side of the city, the automobile in which they were riding was overtaken by a large limousine, whereupon defendant stopped the automobile in which they were riding. Evidently by prearrang'ement, two men emerg’ed from the limousine and forcibly took plaintiff from the automobile in which he had been riding with defendant, tied his hands with rope and put him in the rear seat of the limousine between them. They then drove to the residence of one Brubaker, a justice of the peace, at Morrison, Illinois, where arrangements had been made by defendant and her father to have a marriage ceremony performed between plaintiff and defendant. A marriage license had been procured by the defendant prior to the arrival of plaintiff who was in the custody of the two men who had forcibly taken him from defendant’s automobile. The justice of the peace, at the request of defendant and her father, made out the returns on the marriage certificate which was signed by the defendant and two persons as witnesses, one being her uncle and the other her father. This was done before the arrival of plaintiff or the performance of the claimed marriage. When the plaintiff was brought in before the justice of the peace, the latter asked him if he was the man who was to be. married and plaintiff answered, “No” and vehemently protested against such proceeding, stating that he had been kidnapped and reminding the justice of the peace that if he proceeded further said justice would be liable for the crime of kidnapping and other violations of the criminal law. During this discussion the defendant had gone into another room and was not present. The plaintiff, whose hands were tied, was thereupon permitted to sit down between the two men who had brought him there. Then the justice of the peace, according to his own testimony, ordered them all out of the house, stating in substance that he had been deceived and that he would have nothing further to do with the matter.

William S after an uncle by marriage of the defendant, whose name had been placed upon the marriage license as a witness, also stated that he placed his name on the marriage license long before the plaintiff arrived at the residence of the justice of the peace and that he did not, in fact, see any marriage ceremony performed and corroborated the statements of the plaintiff and the justice of the peace in detail.

The defendant contends, however, that after being ordered out of the house by the justice of the peace, the ceremony was performed outside in the automobile to which the plaintiff had been removed by his two captors. This was denied by the justice of the peace and Saffer, as they claim they did not accompany plaintiff to the car and plaintiff’s two captors James Norman and Joe Abadecola were not produced, so that no verification of the alleged marriage was made. The county clerk’s return on the license which was made by the defendant, shows that the same was not signed by the plaintiff. There is a blank space provided for such signature. The clerk’s testimony was that he noticed the signature was not on the certificate and he thought it very unusual.

After leaving the residence of the justice of the peace, defendant drove her automobile, in which was the plaintiff and the two men who had taken him captive, and when the car came within the city limits of Chicago, the plaintiff seeing a policeman on the sidewalk, pulled the emergency brake on said automobile and leaped from the car and sought the protection of the policeman, and from that point returned to his home without defendant.

Marriage, as in all civil contracts, requires that the parties give their voluntary consent. Where such consent is sought by duress, even though the contract is entered into, the validity of the contract is destroyed and renders the marriage void. Hagenson v. Hagenson, 258 Ill. 197; De Vries v. De Vries, 195 Ill. App. 4; Cartwright v. McGown, 121 Ill. 388.

If, as defendant contends, the marriage was performed in an automobile just outside the residence of the justice of the peace, after the justice of the peace had refused to perform said marriage in his residence, we do not see how that marriage could be considered as being voluntary when plaintiff’s consent had not been procured, as disclosed by the evidence.

It is contended in this court that the plaintiff and the defendant had been married in Louisville, Kentucky, some months prior to the alleged marriage at Morrison, Illinois. That contention does not appear in the pleadings. The statement of the defendant in that regard was that while in Louisville, Kentucky, the plaintiff introduced her to one “Judge Jeffries” while they were in the lobby of one of the hotels, or a room adjacent to the lobby, and defendant claims said Jeffries performed a marriage ceremony between herself and plaintiff. This was denied by plaintiff. No evidence is offered as to any marriage license having been obtained and such a license is required by section 2105 of the Kentucky statutes.

We fail to see the logic in defendant’s effort to maintain that there had been a previous marriage in Louisville, Kentucky. If a valid marriage had been performed in Louisville, Kentucky, then why did defendant go to the trouble of having a marriage performed at Morrison, Illinois 1 However, defendant asks no relief as to any rights she may claim by virtue of the so-called Kentucky marriage.

Defendant makes complaints and raises other questions in this court for the first time, which under the rules we cannot consider. The propositions raised are general, such as the defendant did not have a fair trial; that prejudicial remarks were made by opposing counsel, etc. From a review of the record, however, we are convinced that a fair trial was had and no prejudicial remarks were made which affected the decree. This was a trial without a jury. On the admission of evidence, the trial judge when hearing a case without a jury, is presumed to have considered only such evidence as is competent.

In the case of People v. Link, 282 Ill. App. 520, this court cited the case of In the Matter of Petition of Radtke v. People, 171 Ill. App. 462, wherein it was said: ‘ ‘ The rule is that, on a trial by the court without a jury, no improper or incompetent evidence will be presumed by a reviewing* court to have influenced the court in reaching’ a decision, where there is sufficient proper evidence to justify the judgment.” (Citing cases.)

The final question raised is whether or not the injunctional order preventing the defendant from holding herself out as the wife of plaintiff, using* his name or any abbreviations thereof, is broader than the prayer of the bill and the evidence. The complaint filed in this case contained no charge nor does the evidence show that the defendant was holding herself out under the name of Mrs. Quin 0 ’Brien or any abbreviation or “corruption” thereof or that the plaintiff was in any way injured thereby, and no prayer for an injunction appears in the complaint to enjoin any such damage. When the proof was offered on the complaint no evidence was adduced by which it could be seen that the plaintiff was in any way injured by the defendant calling herself Mrs. O’Brien, or that she was holding herself out as the wife of the plaintiff or threatening to do so or, if she did, that plaintiff would thereby be damaged. Further, no showing was made that if an injunction was not issued, it would result in permanent injury to plaintiff. The issuance of an injunction should be based upon the allegations contained in the complaint, prayer for such in junctional relief, proof that the defendant was doing the things as charged in the complaint, and a showing that damage would result therefrom to the injury of plaintiff if such actions were permitted to continue.

In the case of Kelly v. Kelly, 293 Ill. 169, cited by plaintiff, the court at page 173, said: “ ‘But, even when a prayer of general relief is sufficient, the special relief prayed at the bar must essentially depend upon the proper frame and structure of the bill, for the court will grant such relief, only, as the case stated will justify, and will not ordinarily be so indulg’ent as to permit a bill framed for one purpose to answer another, especially if the defendant may he surprised or prejudiced thereby. ’ ”

In the instant case, as before stated, there was no allegation in the complaint, no prayer and not sufficient proof to support the issuance of an injunction. In addition to this it may be noted that by the statute (ch. 96, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 109.436-109.438]) that anyone after residing in this State for 6 months may assume any name he or she desires, by appearing by petition in court in compliance with such statute and, by consent of court and proper finding in a decree, have his or her name changed or a new one adopted in lieu of his or her former name. The injunctional order as issued in the instant ease would tend to interfere with such a proceeding and the operation of said statute.

In this case the evident purpose of the complaint filed was to have set aside the record of a fraudulent marriage ceremony. No prayer was made for such relief. For that reason we think that part of the decree, which granted the injunction to plaintiff and against defendant, was error.

Defendant further complains that the proof did not sustain the allegations of the complaint. The chancellor saw the witnesses, heard them testify and was well able to judge as to their credibility, and we believe was fully justified in finding that the manifest weight of the evidence was in favor of plaintiff and against defendant. The record shows no substantial corroboration of defendant’s strange story that a valid marriage ceremony was performed.

According to plaintiff’s complaint, the only specific relief sought was: “ . . . that the court by its decree declare said pretended marriage ceremony null and void ab initio. ...”

The trial court found:

‘ ‘ That no marriage ceremony was performed to unite the plaintiff and the defendant, by anyone authorized so to do ” ;

If as plaintiff contends and proves, and the trial court finds, that the marriage ceremony never occurred, how can the court annul that which never existed? The proof shows that as the result of the actions of the defendant, the return on a marriage license was filed with the county clerk of Whiteside county, which on its face appears to be valid and legal, but which the evidence shows does not truthfully show of record what actually happened. This return on the marriage license which was filed with the county clerk, was intended doubtless to give notice to the world that the parties thereto were married. The allegation of facts, the prayer of the complaint or the decree does not order that the marriage license return made out by the justice of the peace on the back of the license which was wrongfully placed of record by defendant or her father by giving the same to the county clerk of Whiteside county — which document is the only thing of substance of record which relates to the transaction — be annuled or canceled and set aside. To annul this record in the county clerk’s office of Whiteside county, it would be necessary to make the county clerk of that county a party to this suit, which was not done in this instance.

For the reasons herein given the decree of the superior court is reversed and the cause is remanded with directions.

The court is directed that plaintiff may amend his said bill of complaint so that it will contain the necessary allegations and prayer for relief; also that plaintiff make the clerk of Whiteside county a party to the suit; that these things be done within a reasonable time and that plaintiff may offer any further, proper and necessary proof to sustain his said bill as amended.

Decree reversed and caibse remanded with directions.

Hall, P. J., and Hebel, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Jacob R. Darmstadt, Appellee, v. Morris Horwitz et al., Defendants. Morris Horwitz et al., Appellants.
    Gen. No. 40,204.
    Opinion filed February 1, 1939.
    A. Henry Goldstein, of Chicago, for appellants; Max Chill, of Chicago, of counsel.
    Rubens, Fischer, Mosser & Barnum, of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

This cause comes to this court on an appeal from a decree of foreclosure and sale to satisfy an indebtedness of $68,576.18 entered on October 25, 1937, and later modified on December 3, 1937 on the report and supplemental report of the master in chancery. This appeal seeks a reversal of said decree so entered and asks that the complaint be dismissed for want of equity because no cause of action exists in the complainant either as successor trustee or as a bondholder to foreclose the trust deed.

The first default took place on July 7, 1931, at which time a prepayment of $4,000 became due and upon which a partial payment of $2,000 was made. On July 7, 1932, bonds totaling $4,000 fell due and were not paid. Interest due amounting to $1,320 on July 7, 1933, was unpaid.

The trustee named in the trust deed, Cosmopolitan State Bank, went into possession of the premises in 1932, and managed the property through its agent, the Cosmopolitan Bond and Mortgage Company until the closing of the bank by the State auditor which occurred on February 17, 1933. William L. O’Connell was appointed receiver of the Cosmopolitan State Bank and resigned the trust on behalf of the Cosmopolitan State Bank by an instrument in writing bearing date April 12,1933, and which resignation of trust was filed for record in the recorder’s office of Cook county. This resignation was in compliance with the provisions of the statute relating to Banks, being chapter 16a, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 10:01 et seq.]. The trust deed sought to be foreclosed contained the provision, as follows:

“The trustee herein or its successor in trust may resign or discharge itself or themselves of and from the trust hereby created by resignation in writing filed in the Recorder’s Office of Cook County, Illinois, and in case of the refusal to act of the said Cosmopolitan State Bank, at any time when its action hereunder may be required by any person entitled thereto, then the Chicago Title and Trust Company shall lie and is hereby appointed and made Successor in Trust under this Trust Deed, with identical powers and authority, and the title to said premises shall thereupon become vested in said Successor in Trust for the uses and purposes aforesaid.

“In case of a vacancy in the office of Trustee, a successor or successors may be appointed by holder or holders of the majority in amount of the bonds then outstanding by an instrument in writing duly signed and acknowledged by them, which said instrument shall be recorded in the office of the Recorder of Cook County, Illinois.”

Upon the resignation of the Cosmopolitan State Bank, through the receiver, the plaintiff herein, who at that time was secretary of the depository committee which had in its possession some two-thirds of the amount of bonds outstanding, went to the Chicago Title and Trust Company to take up the question as to whether or not it would, as successor in trust, take possession of the property. The Chicago Title and Trust Company refused.

On April 13, 1933, Carl Borak was appointed successor-trustee by an instrument in writing executed by the bondholders ’ committee, which committee as before stated represented the owners of a majority of the bonds outstanding, in accordance with the provisions of the trust deed. Borak went into possession of the property and operated it for a short time and thereafter resigned as successor in trust by an instrument in writing bearing acknowledgment date of-April 13, 1933, which apparently was accepted by the committee July 24, 1933.

On the same date Jacob R. Darmstadt was appointed successor in trust by the bondholders’ committee and went into possession of the property, at which time there was on deposit $35,500 in principal bonds, out of a total of $50,000 in outstanding bonds. Mr. Darmstadt was not a member of the bondholders’ committee but was the depositary.

The defendant Morris Horwitz, who was the owner of the equity which he had purchased subsequent to the making of the said trust deed, was not liable on said bonds.

Suit was commenced on December 29, 1934, to foreclose the mortgage.

Thereafter on January 29, 1935, the Chicago Title and Trust Company supplemented its oral refusal to act as trustee and executed the following instrument:

“Know All Men By These Presents, That
“Whereas, Cosmopolitan State Bank, an Illinois corporation, has resigned as Trustee under a certain Trust indenture between Fannie Mitchell, et mar. and Cosmopolitan State Bank, Trustee, dated July 7, 1924, recorded in the office of the Recorder of Deeds of Cook County, Illinois, as Document Number 8507308; and
“Whereas, Chicago Title and Trust Company, an Illinois corporation, is named as successor in trust to the Trustee in said Trust Indenture; and
“Whereas, the Chicago Title and Trust Company has on and since the date of such resignation refused to act as such Trustee, and desires now to confirm such refusal to act;
“Now, Therefore, the said Chicago Title and Trust Company hereby elects to and does hereby decline and refuse to act as such Trustee, under said Trust Indenture and hereby releases all the estate, right, title and interest which it may have acquired under, through or by said Trust Indenture to act as Trustee thereunder.
“In Witness Whereof, the said Chicago Title and Trust Company has caused this instrument to be executed in its name and behalf by one of its Vice Presidents and its corporate seal to be hereunto affixed and attested to by one of its Assistant Secretaries, this 29th day of January, 1935.
‘ ‘ Chicago Title & Trust Company,
By M. M. Durkin, Vice President.
“(Seal)
Attest:
E. Traeger, Asst. Secretary.”

The points under discussion seem to be with regard to the definitions of the terms “resignation” and “refusal to act.” No question is raised as to the property interest involved. Proper accountings and settlements have all been made and the amount due and owing is not contested.

We take it to be the law that where an express trust is created without the consent of the trustee, some indication must come from the trustee either actually or by implication of his acceptance of the trust before it can be held that he is a trustee de facto.

In Perry on Trusts, vol. 1, 6th ed. sec. 259, the author states:

“In voluntary or express trusts, no title vests in the proposed trustee, by whatever instrument it is attempted to be transferred unless he expressly or by implication accepts the office, or in some way assumes its duties and liabilities.” This doctrine was approved by our Supreme Court in the case of McFall v. Kirkpatrick, 236 Ill. 281, where the court cited section 259 which we have quoted above, and further stated:

“In an expressed trust no title vests in the trustee unless he expressly or by implication accepts the trust or in some way assumes its duties and liabilities.”

Manifestly the Chicago Title and Trust Company could not be forced to accept this trusteeship or be considered as holding title to the said property without some evidence of its consent having been given. We think the entire contention of plaintiff can be summed up by his statement in substance, as follows: “At the time of the filing* of the complaint in this case no cause of action has existed in favor of the complainant. The subsequent resignation of the duly authorized successor-trustee can not give vitality to a bill when no cause of action originally exists in the complainant bringing* the suit.” Such statement might challenge our attention if this were a suit at common law but, on the contrary, this is a suit in equity wherein the same rule does not appertain as at common law.

The rule in equity is that the court shall determine what the rights of the parties are not at the time of filing* suit, but at the time the decree is entered, according to equity and good conscience. In passing on this question the Supreme Court in the case of Baker v. Salzenstein, 314 Ill. 226, at page 233, said:

“While in a suit at law the rights of the parties are determined as of the time of the beginning of the suit, a decree in chancery is a determination of the rights of the parties to a suit according to equity and good conscience, and where relief is granted by a decree in equity it is such as the nature of the case, the law and the facts demand, not at the time of the inception of the litigation but at the time the decree is entered therein.”

As contended by defendant, even if plaintiff’s position were legally sound, which it is not, we do not see the advantage of remanding* this cause merely for the sake of having plaintiff go through the technical form of reappointment. The money is still owing, defendants have no liability on the bonds nor can a deficiency decree be taken against them. They have a right to pay the debt or redeem from foreclosure, if they so desire. They do not say how they are in any way injured by the decree in this case, and for the reasons herein given the decree of the circuit court is hereby affirmed.

Decree affirmed.

Hall, P. J., and Hebel, J., concur.


author: Mr. Justioe Denis E. Sullivan

text:
    Mitchell Metzler, Minor, by Mary Mielcarek, His Mother and Next Friend, Appellee, v. Lewis Layton and La Salle Finance Corporation, Appellants.
    Gen. No. 40,240.

      Opinion filed February 1, 1939.
    John A. Bloomingston, of Chicago, for appellants.
    Royal W. Irwin, of Chicago, for appellee.
   Mr. Justioe Denis E. Sullivan

delivered the opinion of the court.

Defendants bring this appeal from a judgment for $18,000 entered in favor of plaintiff and against defendants in the circuit court upon the verdict of a jury-in a suit in trespass on the case. The suit was one for damages because of personal injuries alleged to have been received by plaintiff. There was a special finding of wilful and wanton conduct against the defendant Lewis Layton.

It is charged in the amended complaint that on February 2, 1935, the La Salle Finance Corporation had offices at 160 North La Salle Street, Chicago, and that it had in its employ one Lewis Layton who, as its servant and agent, engaged in the management, control and protection of the business; that on the aforesaid date the defendant Lewis Layton, as the servant for and on behalf of the La Salle Finance Corporation, with force and arms wilfully, wantonly and wrongfully assaulted the plaintiff and then and there wilfully, wantonly and wrongfully shot and discharged a loaded revolver at and against the plaintiff, thereby causing the plaintiff to be struck with bullets discharged from said revolver. That all of the acts were done by the defendant without reasonable cause or provocation, to the damage of the plaintiff and against the peace of the People of the State of Illinois, etc.

The theory of the plaintiff is that the defendant, Lewis Layton, was an employee of the La Salle Finance Corporation; that there was a robbery in the office and after the robbery the defendant Layton ran oht into the hall and looked about for the robbers; that at the west end of the hall he then saw a man running toward him from the east and he shot him ; that the act of the defendant Layton was in the course of his employment and that it was so reckless as to amount to wilful and wanton conduct.

Defendants’ theory as to the defendant La Salle Finance Corporation is that the defendant Lewis Lay-ton acted outside the scope of his authority and that they are not bound by the acts of Layton outside the scope of his authority.

The defendant Lewis Layton depends upon the theory that he was acting under stress of a man who had just been held up a,t the point of a gun and was seeking to apprehend and punish the bandit, and that he acted without malice and in good faith in what he did.

Plaintiff Mitchell Metzler contends that at the time of the occurrence, he was a boy about 17 years of age and tall for his age; that he was employed by Mr. Adelman, an attorney, as office and messenger boy; that he had been directed by Mr. Adelman to call at the office of the La Salle Finance Company at 160 North La Salle street to pick up some papers; that on the morning of February 2, 1935, plaintiff went to the office of the La Salle Finance Company where he found a robbery being committed; that there were three robbers in the place, all armed, and the defendant Layton was standing with his face to the wall.

Plaintiff further contends that when the plaintiff Metzler entered the offices he was immediately “covered” by one of the robbers and he was also compelled to stand with his face up against a wall while the robbers ransacked the desks, cabinets and safes in search of booty.

Plaintiff further contends that when the robbers had finished, both the plaintiff and Layton were forced into a clothes cabinet; that as soon as they heard the robbers leaving, Layton and Metzler forced the cabinet away from the wall and Layton jumped out and ran down the public hallway with a revolver which he had on his person in pursuit of the bandits, that immediately following was the plaintiff Metzler who shouted as he ran, “Help police,” “Help robbers”; that when the plaintiff approached Layton to within a few feet, Layton turned quickly and shot plaintiff in the abdomen; that for some unaccountable reason Layton stepped into an office near where the tragedy occurred, opened the door and fired another shot directly at Metzler’s head.

Plaintiff further contends that Metzler had been calling at the office of the La Salle Finance Corporation on an average of 7 or 8 times a week for several months ; that Layton knew Metzler well and had transacted considerable business with him.

• Metzler sued Layton on the theory that he was guilty of reckless disregard of the rights of others, and such a conscious indifference to the consequences of'Ms acts as would amount to an intent to injure.

Suit was brought against the La Salle Finance Corporation on the doctrine of respondeat superior. Lay-ton was the manager of the defendant, La Salle Finance Corporation, and was in complete possession and control of the offices and its property.

Our Supreme Court has had no occasion to pass upon a case where the circumstances were similar to the instant case, according to the published cases, so it appears that the decision in this case must be based upon the reasoning and logic set forth in opinions published in other jurisdictions in similar cases.

In the instant case the conceded facts are that the La Salle Finance Corporation made Layton the general manager and placed him in possession and control of its office and property with general instructions. Under those circumstances and while carrying out the general instructions and the implied duties cast upon him, the plaintiff Metzler was injured. The acts of the defendant Layton while in possession and control of the property of the La Salle Finance Corporation and. in endeavoring to protect his employer’s property, plaintiff contends were all within the general scope of his employment. On the contrary, and this seems to be the point of difference, it is contended by defendant that he was acting as a citizen in pursuance of a social duty to help capture criminals and prevent a crime.

The evidence shows that Layton was in charge of the office; that his authority was general and he was the La Salle Finance Corporation’s representative, so far as the business transacted was concerned; that the office consisted of two rooms and Layton had one room in which there was a desk, swivel chair, three other chairs and a davenport; that the other room was occupied by his secretary and contained a desk, stenographer’s chair, three other chairs, a file cabinet, a safe, and an adding machine; that there were no persons in these two offices but Layton and his secretary.

The evidence further shows that Layton had a safe in the office in which he kept their records, ledgers, cash journal, applications and such, and that they had checks; that the safe had a combination known to Miss Jacobs and Layton and that they kept things in' the safe to prevent their being stolen and lost in case of fire; that the petty cash was kept in an envelope in the filing cabinet which was locked at night; that either Layton or Miss Jacobs locked it, and that she worked under his supervision.

The evidence further shows as testified to by Layton that interest on loans was sometimes paid into the office in currency; that before it was deposited in the bank it was kept in the safe; that bills were sometimes paid in currency and for that purpose' a certain amount of petty cash was kept on hand; that most of the money came in by way of checks which were placed in a tin box and kept in the safe; that mortgages, notes, trust deeds and other papers were kept in the safe until they were transferred to the vault to prevent their being stolen and that the combination to the safe was known to Miss Jacobs and Layton; that there was no watchman, just Miss Jacobs and Mr. Layton.

The evidence further shows that Layton while testifying made the following statements:

“I locked the doors of the office, I did that to prevent people from coming in and taking away the property. Mine and the girl’s also. I didn’t leave it open so some person could come in and steal, to that extent I protected it. . . . When they were going through the safe and cabinet, they were going through the property of the La Salle Company. ’ ’

The evidence further shows, as testified to by Layton that his secretary had called his attention to the fact that some suspicious men had been around the place. Layton stated:

“When she told me that, my suspicions were aroused and I thought I might as well be safe. The very next day I brought this 25 caliber Colt. I kept it on my person in the office from that day on. ... I had it about ten days before February 2, 1935. In the office, I had it in my lower left pocket every minute. When I left I kept it in the closet, in a coat.”

The signed statement which Layton gave to the police, reads: “No, I had it in the office drawer all the time. ’ ’

We think the evidence shows that the defendant La Salle Finance Corporation, on February 2, 1935, had an office where it carried on its loan business under the personal supervision and direction of Layton, its agent and manager. He was the only one in charge of the office and its fixtures. Said Finance Corporation had in this office its furniture, securities, and sometimes currency. Layton had nothing in the office except his personal effects. The office was always under his control and in his absence under the control of his secretary. The office was closed at night and the door locked, so as to prevent any stealing' of property belonging to the La Salle Finance Corporation. A safe was also kept in the office, in which the valuable papers of the La Salle Finance Corporation were placed.

As before stated it is a rule that the master is liable only for the acts of a servant which are done within the scope of his employment, and that question is one for the jury to decide.

As to just what is the relationship between an employer and an employee, when said employee ceases to be a representative of his employer or in such capacity as binds the employer, is the deciding point in many cases. It has been held that it is the implied duty of an employee that he protect the property of his employer.

In the case of Baum v. Industrial Commission, 288 Ill. 516, was a compensation case. The employer was engaged in manufacturing wash garments. The deceased was an assistant and cutter. The employer’s shop was not unionized, but a general strike was called among garment workers. At the time of the assault, strikers rushed into the shop where the deceased and other employees were engaged in work. The employer and the deceased attempted to hold the strikers back. The Supreme Court discusses the duties of an employee in the defense of his employer’s property and other employees. The court said: “Nothing’was said between the plaintiff in error and Tomczyk. Tomczyk, seeing his employer and his fellow-employees in apparent danger, came to the rescue. He was assisting his employer in the defense of his person and his property and was acting in defense of his fellow-employees, all of whom were women. We have held that it is the duty of an employee to do what he can to save the lives of his fellow-employees when all are at the time working’ in the line of their employment. (Dragovich v. Iroquois Iron Co., 269 Ill. 478.) That the fellow-employees of deceased were not actually in danger of losing their lives cannot change the rule. The danger was clearly apparent to Tomczyk. He acted as any man would have acted under the circumstances. The rioters had rushed in without warning and threw the women employees into a panic. It was up to deceased to act or to abandon the workroom and its occupants to trespassing strangers, apparently bent upon doing damage to whatever came in their path. The situation was an unusual and unforeseen one and called for quick action. From every point of view it was the duty of deceased to defend himself and his employer and to assist his employer in defending the persons of his women co-workers. Where the trouble arises out of the employer’s work, and as a result of it one of the trespassers injures an employee who is defending his employer’s business, it may be inferred the injury arose out of the employment. ’ ’

In the case of Central Motor Co. v. Gallo (Tex. Civ. App.), 94 S. W. (2d) 821, the defendant was engaged in the repair of automobiles. The plaintiff had his car repaired and later returned to the shop claiming that the work was unsatisfactory. An argument arose between the plaintiff and the defendant’s servant over the character of work that had been done, and as a result, the employee struck the plaintiff severely injuring him. The court said: “ ‘The master who puts the servant in a place of trust or responsibility, or commits to him the management of his business or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority and inflicts unjustifiable injury on a third person.’ 39 C. J. p. 1285, § 1476.”

In Bearman v. Southern Bell Telephone & Telegraph Co., 17 La. App. 89, 134 So. 787 (1931), it appears that a child 9 years old was playing in front of the defendant ’s garage, where it repaired automobiles used in its business. A mechanic employed by the defendant was the only employee on duty at the station, and was engaged in the repair of a tire on one of the company’s trucks. The plaintiff and other boys came into, the garage and interferred with and annoyed the employee, and on failing to leave, the plaintiff’s child was whipped by the employee. The court said: “There was no other representative of the company on duty at the place at the time of the alleged beating. It would appear to us that it was the duty of the mechanic or man in charge —call him what you may — to protect the company’s property and to keep out trespassers, and we feel that if he had stood by and permitted the boys to waste the gasoline and had not attempted to stop them and put them out, his employer would have discharged him. This is to be implied from the position he occupied. From the record it appears that the boy had never had any previous personal encounters with the defendant’s employee and that there was no ill feeling between them.

“We have come to the conclusion that the employee was acting within the scope of his employment, or ‘in the exercise of the functions in which he was employed’ (article 2320 R. C. C.), in stopping the boys from wasting the gasoline and ejecting them from the premises. The fact that he acted unwisely or went too far in so doing* does not take the act out of the scope of the employment. Even .illegal methods adopted by an employee will not excuse his employer when the acts are done in the scope of his employment.”

In the case of Chisholm v. Berg (Mo. App.), 78 S. W. (2d) 486, it appears that the plaintiff was walking on the sidewalk directly in front of a store operated by the defendants intending to enter therein to make some purchases. When she was a few feet from the entrance two boys rushed swiftly past her, followed instantly by the defendants’ general manager in charge of the store who ran into her as he was running and injured her. The court in that case, said:

“There can be no doubt that the act of Joseph Berg in running into and knocking* plaintiff down on the sidewalk in front of the store was such as to warrant the court in submitting to the jury the question of whether or not he (Berg) was negligent in so doing, and, when we come to inquire into the circumstances out of which that act arose, to determine whether or not it was within the scope of his duties, we find that it conclusively appears that the fight between Joseph Berg and the sons of Mrs. Woods came about through the attempt of Joseph Berg to adjust Mrs. Woods’ complaint about being* short-changed. In attempting* to adjust that claim, Mr. Berg was unquestionably engag’ed in the business of Berg’s Market, Inc. It was clearly a business transaction of the store, and not a personal transaction of his own, which Berg was called upon as manager of the store to adjust. The corporate defendant had placed him in charge of its store for just such a purpose. It was while he was engaged in that very transaction that the fight started. The transaction had not been completed. . . .

“If the fight between Mr. Berg and Mrs. Woods’ sons had arisen out of a dispute between them as to a claim against Mr. Berg personally, or because of some other matter personal to him, the fact that he was president and general manager and was in charge of Berg’s Market, Inc., and the further fact that the fight took place in the store or on the premises would not have been sufficient to have rendered that defendant liable, for the reason that, notwithstanding those facts, Berg would not have been engaged in any business of his master at the time plaintiff was injured, but we have no such state of facts in this case.”

In the case of Gulf, C. & S. F. Ry. Co. v. Cobb (Tex. Civ. App.), 45 S. W. (2d) 323, a railroad switchman shot a circus trainmaster interfering with the switch-man’s duties. Certainly, it cannot be said that a switch-man is ordinarily authorized to carry a revolver in the performance of his duties. The court in that case said:

“When the master places his property in the possession of his servant, ‘the right to protect that possession, as well as the right to prevent any interference with its immediate use, springs out of the possession and the duty to control and manage it,’ and, for any assault made by the servant upon a third person immediately growing out of the exercise of his right to control and manage the property by which the servant uses more force than is necessary, the master is liable for the injuries so inflicted.”

So, it seems to us, that when the defendant the La Salle Finance Corporation placed Layton in charge of its office under general instructions as to the performance of his duties, it must have been impliedly understood by both parties that Layton was to take care and protect the property of the defendant company which had been placed in his charge. Manifestly, he was not engaged in his private affairs while being paid as manager of the defendant company. The evidence shows that the actions herein referred to occurred very rapidly and were very close together, when Layton was endeavoring to protect the property of his employer.

As was said in Eldridge v. Black Canyon Irr. District, 55 Idaho 443, 43 P. (2d) 1052,1054: “The master who puts the servant in a place of trust or responsibility, or commits to him the management of his business, or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority, and inflicts an unjustifiable injury upon another. ’ ’

The La Salle Finance Corporation made the selection of the man whom they desired to represent them. They had a chance to judge and pass upon his qualifications as their representative, and the duties to be imposed upon him. They must have known his temperament, his mentality and his capacity to act under stress or unusual circumstances and, having selected him for the position, we do not think the mere fact that the shooting occurred outside the office, excuses them from responsibility and the application of the doctrine of respondeat superior.

Plaintiff was shot twice by Layton. After the first shot he fell to the floor. Then the defendant dodged into an office and while the plaintiff was lying helpless on the floor the defendant Layton approached him closely again and shot him. The entire transaction occurred in a very few minutes.

The rule seems to be that it is not the cause which made the employee do what he did and responsibility is not limited to those acts which promote the objects of the employment. In the 18 Ruling Case Law, p. 797, it is said: “Expressions equivalent to ‘scope of employment’ are line of duty, in the employer’s service, course of the service, transaction of the employer’s business, furtherance of the employer’s interests, protection of employer’s property, and the like. The general idea, is that the employee at the time of doing the wrongful act, in order to fix liability on the employer, must have been acting in behalf of the latter and not on his own account. ’ ’ ’

In Chicago R. I. & G. Ry. Co. v. Carter (Tex. Com. App.), 261 S. W. 135, the defendant employed a crossing flagman who killed a teamster in an altercation arising from the teamster’s attempt to cross the tracks in front of a train. The flagman went to his shanty, got his gun and shot the teamster and it was held that his act was a continuance of his duties, and that the killing was an unbroken continuation of the controversy. The court in that case said: “The whole time of the difficulty was very short, and it would be extremely difficult for us to determine just when the flagman ceased to act within the scope of his employment and began to act as his own master, if he was so acting at the time of the shooting, and under the peculiar facts of this case we do not think that the law can undertake to say just when the flagman ceased to act as agent, or that he did so cease, but that the finding of the jury on that matter should govern. ’ ’

In Young v. Sinclair Refining Co. (Mo. App.), 92 S. W. (2d) 995, it was held that a person employed to complete cement work on a filling station under construction for a refining company was acting within the scope of employment so as to impose liability upon the refining company and building contractor for injuries to a child struck by a hammer thrown by the employee to prevent the child from trespassing upon cement work. The court in that case, said: “At the time he threw the hammer, he was actually engaged in prosecuting the cement work which he was expressly employed to do under the terms of his contract; that he threw the hammer to prevent the respondent from trespassing upon such work and injuring it. This was done in the course of his employment and in furtherance of the interest of his employers and for the protection of their interests and business, which had for the time being been intrusted to him. That such act may have been unnecessary or not specifically required of him, or even may have been contrary to the express directions of his employers or actuated by malice or some other improper motive,- is, under the rule, immaterial. Such act was, nevertheless, done in the course of his employment while in the performance of his duties in furtherance of the business and interests of his employers.”

In Interstate Co. v. McDaniel, 178 Miss. 276, 173 So. 165, an employer of a vendor of newspapers and refreshments on a train was held liable for injuries inflicted by such vendor on a drunken passenger whom the vendor struck after having accused the passenger of stealing oranges. The court said: “Where the injurious act complained of is not so separated by time and logical sequence from the business of the master as to make it a separate and independent transaction, the master is not relieved of liability. Where the whole transaction, as here, consumes only a few moments and has all the features constituting one continuous and unbroken occurrence, a master is not relieved of liability because the servant stepped outside of his authority.”

Complaint is made of the action of the court in giving an instruction to the jury finding the defendants not guilty at the close of all the evidence and the next morning withdrawing the instruction and submitting the case to the jury. We do not see how the defendants could have been prejudiced by this action. The trial judge, upon reflection, had decided he was wrong and it was entirely proper for him to change his mind before the jury had retired. We think it would have been erroneous for the court to have permitted the instruction to remain with the jury. In answer to the interrogatory submitted as to the. defendant Layton, we do not think the evidence supports the special finding.

Complaint is further made that the plaintiff should have been required to prove his case beyond a reasonable doubt, because defendants contend the complaint charges a felony under the statute, and for that reason the rule applicable in criminal cases should prevail. We do not so understand the complaint, but even if it were so construed, it could at best but charge a misdemeanor. As the Supreme Court said in the case of Rost v. Noble & Co., 316 Ill. 357, 372: “The reason in which the rule seems to have had its origin is applicable only to cases where the charge was of a felony, and in general it is in such cases, only, that the rule has been applied. It will not be extended further but is limited to charges of felony. The offenses for which penalties are imposed by the statute are not crimes of a character the charge of which in a civil suit is required to be proved beyond a reasonable doubt, and the instruction properly so advised the jury.” Gannon v. Kiel, 252 Ill. App. 550, 559; Cooper v. Nutt, 254 Ill. App. 445, 460; Wargo v. Buske, 273 Ill. App. 28, 32.

Complaint is further made that the court erred in giving certain instructions and refusing others. Without extending this opinion to too great length, we may say that we have read the instructions both given and refused and we do not think the defendant was prejudiced by the action of the court in that respect.

Finally defendants claim that the amount of the verdict for $18,000 was excessive. At the time of the accident the plaintiff was a young man 6 feet tall and in perfect health. One bullet perforated the rectum in two places, passed through the posterior bladder, as well as the prostate. An incision was made in the left side of the abdomen, bringing out the larger portion of the intestines above the injury to divert the fecal stream. It was necessary to open up the bladder at the midline, to sew up the holes on the other side. The bullet was found in the buttocks, and afterwards removed. The large intestine was opened up in the side so that the contents of the bowel came through the opening, instead of the rectum, which condition still exists. A transfusion of blood was necessary to save the boy’s life. Plaintiff was also shot in the arm, which resulted in disturbance of the ulnar nerve which ran to the fifth finger. Plaintiff remained in the hospital for 4 months. The wound is still open and plaintiff has been unable to do any work since. Under the evidence, we do not believe the amount of the verdict was excessive.

Complaint is made on behalf of Layton as to the special finding of the jury in answer to the following interrogatory:

“Was the conduct of the defendant Lewis Layton as shown by the preponderance of the evidence, of such a reckless character as to show an utter disregard for the safety and lives of others? The jury’s answer was ‘Yes.’ ” From a careful review of the evidence we do not think the jury was justified in so finding.

Having considered all the facts as presented, as well as the law applicable thereto, we think the jury was justified in arriving at the general verdict against both defendants which they did and the trial court was right in entering judgment on that verdict.

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

Judgment affirmed.

Hall, P. J., and Hebel, J., concur.


text:
    Charles Cizek, Minor, by Emma Cizek, His Mother and Next Friend, Appellee, v. Union Stock Yard and Transit Company, Appellant.
    Gen. No. 40,251.
    Opinion filed February 1, 1939.
    Winston, Strawn & Shaw, of Chicago, for appellant; George B. Christensen and Douglas C. Moir, both of Chicago, of counsel.
    Julius H. Selinger, of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

Defendant firing's this appeal from a judgment entered in the municipal court for the sum of $500 in favor of plaintiff and against defendant for injuries alleged to have been sustained by plaintiff while walking beside an automobile truck loaded with lumber. Said truck tipped when one of its wheels fell into a water shut-off box located on a private roadway of the Union Stockyards in Chicago, thereby injuring plaintiff.

Plaintiff’s allegation of claim states the following*:

“That the defendant had carelessly, negligently, wilfully and wantonly neglected, failed and refused to maintain the wooden cover thereof in a safe condition and had permitted the same to become rotten, decayed, broken and worn to a degree which rendered it a hazard and that the dangerous character thereof was not perceptible to the plaintiff by reason of the layer of dirt, soil and other material then upon it”;

Without taking up the subject of the evidence we might observe that the undertaking by plaintiff to allege and prove that the condition of the wooden cover of the box was wilfully and wantonly permitted to exist, is quite a task. Plaintiff apparently relies on the doctrine of res ipsa loquitur to prove his case. We do not understand it to be the law that this doctrine applies to wilful and wanton negligence, and counsel has cited no cases supporting such contention.

At the conclusion of all the evidence and arguments by counsel, the trial court gave some 16 instructions to the jury, the last of which reads as follows:

‘ ‘ The court instructs the jury that there has been no evidence introduced on this trial tending* to prove the allegations of negligence in plaintiff’s statement of claim and you should therefore find the defendant not guilty as to said allegations. ’ ’:

The jury returned a verdict for $500 in favor of plaintiff upon which the court entered a judgment. We are at a loss to understand why the trial court gave this peremptory instruction, which found as a matter of law that there was not sufficient evidence to go to the jury, and did not insist upon having its instruction carried out and having such a verdict returned as so directed. Further, the trial judge, having found there was not sufficient evidence, we do not understand on what basis the judgment was entered on the verdict. The inconsistent instructions given make it impossible to determine upon what theory of the case the judgment is based. Was there or was there not sufficient evidence to go to the jury? Part of the instructions proceed on the theory that there was sufficient evidence, but the peremptory instruction nullifies such assumption and directs the jury to do something which they did not do and which the court failed to compel them to do. Where the court finds as a matter of law that there is not sufficient evidence to prove the allegations of the complaint, it is the court’s duty to give the peremptory instruction and then insist that the jury return a verdict in harmony therewith. But, in this case, such was not done as we have already stated.

For the reasons set forth in this opinion, the judgment of the municipal court is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

Hall, P. J., and Hebel, J., concur.


author: Mr. Justice O’Connor

text:
    Charles G. Frank, Appellee, v. James M. Newburger et al. Walter A. Salomon et al., Appellants.
    Gen. No. 40,308.
    Hatchett, J., dissenting.
    Opinion filed February 3, 1939.
    William Friedman, of Chicago, for appellants; Sylvia J. Zelden, of Chicago, of counsel.

      Harry A. Biossat, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

May 5,1938, Walter A. Salomon, Harold A. Salomon and Arthur M. Salomon and their wives filed their verified motion under section 72 of the Civil Practice Act, to vacate and set aside a decree of foreclosure entered November 13 ,1936, and all other orders entered in the foreclosure proceeding* subsequent to that date, and that they be given leave to defend the amended bill of foreclosure. Counsel for plaintiff was notified of the motion but filed no pleading of any kind; on May 7th the court entered an order which recited that after the court heard the argument of counsel for both sides it was ordered and decreed that the motion be denied. It is from this order and decree the Salomons prosecute this appeal.

The record discloses that on June 19, 1936, plaintiff as trustee in a trust deed filed his bill to foreclose the lien of the trust deed dated May 15, 1922, which was given to secure an indebtedness of $15,000. The indebtedness was evidenced by thirty bonds and they and the trust deed were executed by James M. Newburger, Blanche Newburger, his wife, August J. Salomon and Gita Salomon, his wife. Before the complaint was filed August and Gita Salomon died, leaving as their heirs at law and next of kin their sons, defendants Walter A., Harold A. and Arthur M. Salomon, and the sons and their wives were made parties to the complaint. Defendants were served with process. Whether any of them filed an appearance does not appear. None of them having* filed an answer they were defaulted August 20th and on September 3rd following a decree of foreclosure entered. The amount found to be due, including all costs and solicitors’ fees, was $7,483.45. The decree was in the usual form. Fourteen days thereafter; viz., September 17, 1936, the court, on motion of solicitor for plaintiff, entered an order setting aside and vacating the decree. September 21st another order was entered on motion of solicitor for plaintiff, whereby leave was given plaintiff to file an amendment to the complaint, and it was further ordered that summons issue against parties made additional defendants by the amendment which was filed instanter. The additional defendants were “C. H. Morgan Grocery Co., a corporation, Chicago Law Printing Co., a corporation, ‘Unknown creditors of August J. Salomon, deceased, or claimants against the estate of August J. Salomon, deceased, and unknown owners’ and ‘Unknown creditors of Gita K. Salomon, deceased, or claimants against the estate of Gita K. Salomon, deceased, and unknown owners. ’ ” The amendment to the complaint added three paragraphs in which it was averred that upon the probating of the estates of August J. Salomon and Gita K., his wife, no inventories were filed after the expiration of one year, and that persons may have claims against the two estates which may be asserted because of the failure to file the inventories, within one year. The amendment further averred that the Morgan Grocery company and the Chicago Law Printing company claimed some interest in the real estate, but that such claims are subordinate to the rights of plaintiff.

On the same day a summons was issued against the additional defendants and apparently they were served, and on November 13th the additional defendants were defaulted for failure to answer the amended complaint, and a new or second decree of foreclosure was entered, which apparently is the same in all respects as the original decree except that it covered the matters set up in the amendment to the complaint. The new decree found the amount due plaintiff was $7,544.07, and the chancellor further found that plaintiff “is entitled to recover of and from the defendants Walter A. Salomon, Harold A. Salomon and Arthur M. Salomon, as heirs at law and devisees of August J. Salomon and Orita K. Salomon” the value of all assets received by them from the two estates of their parents for any deficiency in case the premises were not sold for sufficient to pay the amount found due by the decree. Afterward the property was sold and on December 17, 1936, a decree was entered approving the report of sale and distribution, and a deficiency decree for $1,497.53 entered. The chancellor in that decree found that plaintiff was entitled to recover from Walter A., Harold A., and Arthur M. Salomon, the heirs and devisees of their parents, the value of all assets received by them from the estates to be applied toward the payment of the deficiency, but limited to that amount.

The verified motion under section 72 of the Civil Practice Act set up that the amendment to the complaint and the entry of the second decree and all subsequent proceedings were without notice to anyone, and that the three Salomon heirs and their wives had no notice or knowledge of the vacation of the first decree or any subsequent act until about April, 1938.

Counsel for plaintiff contends that section 72 of the Civil Practice Act does not apply to chancery cases. The question is one of first impression, not having been considered by any court of review in this State. In support of their contention counsel cite Tosetti Brewing Co. v. Kahler, 200 Ill. 369, and other cases. In the Kahler case a bill was filed to enjoin the levy of an execution on certain real estate, etc. No proceeding was had under section 89 of the Practice Act, in force at that time, which is identical with section 72 of the Civil Practice Act. But the court in the course of its opinion said that “The statutory motion does not apply to cases in chancery.” *

Counsel for defendants analyze and discuss the authorities cited by opposing counsel and contend that the question was not squarely involved in the Kahler case. Counsel cite Maniatis v. Carelin, 287 Ill. App. 154, as authority for their contention that section 72 of the Civil Practice Act is applicable to chancery cases. Ihe Maniatis case was a suit in chancery seeking the cancellation of certain contracts. While the suit was pending* before a master an order was entered dismissing it for want of prosecution, and some 10 months thereafter a motion or petition was filed under the provisions of section 72 of the Civil Practice Act, to set aside the order of dismissal. The motion was denied and on appeal to this court the order was reversed and the matter remanded; but so far as the opinion discloses the question of whether the provisions of section 72 of the Civil Practice Act are applicable to the chancery case was not considered.

In Marabia v. Thompson Hospital, 309 Ill. 147, the court considered a motion made under section 89 of the old Practice Act, and in referring to Bronson v. Schulten, 104 U. S. 410, said: “It was further said that there had grown up in the courts of law a tendency to apply to their control over their own judgments some of the principles of courts of equity which go further in administering summary relief than the old fashioned writ of coram nobis did. ‘This practice has been founded in the courts of many of the States on statutes which conferred a prescribed and limited control over the judgment of a court after the expiration of the term at which it was rendered. In other cases the summary remedy by motion has been granted as founded in the inherent power of the court over its own judgments and to avoid the expense and delay of a formal suit in chancery. It can easily be seen how this-practice is justified in courts of the States where a system has been adopted which amalgamates the equitable and common law jurisdiction in one form of action, as most of the rules of procedure do.’ ”

We are of opinion that the holding in the Kabler case, that the statutory remedy provided by section 89 of the old Practice Act did not apply to cases in chancery, is not controlling now for the reason that the practice and procedure in common law and suits in equity have been in part amalgamated by the Civil Practice Act, and therefore section 72 of the Civil Practice Act is applicable to the case at bar.

Prior to the passage of the Civil Practice Act in 1933 there were two chapters of our statutes which provided a method for practice and procedure. Chapter 22 had to do with suits in chancery and chapter 110 principally with common law actions. The legislature intended to consolidate in part the practice in one act and to accomplish this passed the Civil Practice Act which, in the first draft of the act was designated the “Consolidated Civil Practice Act,” but as this title was thought to be cumbersome the word “Consolidated” was dropped. Section 93 of the act provides: “This Act shall be known as the ‘Civil Practice Act’ and may hereafter be referred to by that designation.” The Civil Practice Act expressly repealed the old Practice Act of 1907 and most of chapter 22 (see sec. 94, ch. 110, Ill. Rev. Stat. 1937 [Jones v. Stats. Ann. 104.094]). By the passage of the act “the equitable and common law jurisdiction in one form of action” was, to the extent mentioned in the Civil Practice Act, amalgamated and brought the procedure in Illinois in line with most of the other States of the Union. Marabia v. Thompson Hospital, 309 Ill. 147.

That this was the purpose of the act is specifically shown by the first section, which provides: “The provisions of this Act shall apply to all civil proceedings, both in law and in equity, unless their application is otherwise herein expressly limited in courts of record, except in attachment, ejectment, eminent domain, forcible entry and detainer, garnishment, habeas corpus, mandamus, ne exeat, quo quarranto, replevin, or other actions in which the procedure is regulated by special statutes. As to all matters not regulated by statute or rule of court, the practice at common law and in equity shall prevail.” By section 31 of the act it is provided, “there shall be no distinctions respecting the manner of pleading between such actions at law and suits in equity, other than those specified.” A number of other provisions are in the act which abolished many old distinctions in the practice and procedure in actions at law and suits in equity.

Section 72 provides that “The writ of error coram nobis is hereby abolished, and all errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing-, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice.” The question whether the error is one of fact or of law has been the subject of many decisions of this and our Supreme Court. A motion under this section will not be entertained if the error sought to be corrected is one of law, but will be entertained only if the error is one of fact not appearing on the face of the record. Marabia v. Thompson Hospital, 309 Ill. 147.

In Risedorf v. Fyfe, 250 Ill. App. 122, Heinsius v. Poehlmann, 282 Ill. App. 472, and Maniatis v. Carelin, 287 Ill. App. 154, it was held that failure to give notice under facts somewhat similar to the facts in the case before us is such an error of fact within the meaning of section 72 as to warrant the court in vacating the decree or judgment on motion of defendants and for leave to defend.

The Bisedorf case was an action for personal injuries. Defendants entered their appearance in writing, giving their address where notices could be served on them in compliance with certain sections of the Practice Act. Neither of them pleaded to the action and they were both defaulted without notice. Afterward the suit was dismissed as to one defendant and the cause proceeded to trial against the other without the giving of any notice. There was a verdict and judgment in plaintiff’s favor for $7,500. The defendant did not appear at the trial. More than a year afterward defendant filed his motion to vacate the judgment under section 89 of the old Practice Act, a demurrer was sustained to the motion and the matter was taken to the Appellate Court. The court referred to a rule of the circuit court and cases decided by this and our Supreme Court, including Plaff v. Pacific Express Co., 251 Ill. 243, in which the court said it was held error to enter judgment by default without notice where a defendant had a written appearance on file. In the Bisedorf case the court said: “Proceedings under section 89 of the Practice Act . . . required the court to pass on the question as to whether there was an error in fact in the record before it. We will presume that if the court had known that the defendant had his appearance upon file, and that no notice had been given him of the application for default and judgment, the court would hot have proceeded to assess the damages in the case. The absenfee of notice was a question of fact which was not brought, to the attention of the court, and did not involve a question of law.” The order of the trial court was reversed and the matter remanded.

The Heinsius case (282 Ill. App. 472) was an appeal from an order vacating* and setting* aside a judgment for $10,000 for personal injuries entered on the verdict of a jury, on motion made under section 89. In that action, after the case was at issue, defendant’s attorneys served notice on the attorney for plaintiff that they would withdraw their appearance. An order was entered accordingly, but no notice was given defendant. Some months afterward there was a trial ex parte and a verdict and judgment as stated. About five months later defendant was served with an execution; he appeared by other counsel and filed a motion under section 72. Plaintiff moved to dismiss the motion on several grounds. The motion was overruled, the verdict and judgment vacated, defendant given leave to defend, and plaintiff appealed. The order of the trial court was affirmed. The court there considered the Bisedorf case (250 Ill. App. 122) and other cases and held that the failure to give notice was a question of fact which had not been called to the attention of the court.

In the Maniatis case (287 Ill. App. 154) a suit that was pending* before the master was dismissed without notice to any one, for want of prosecution. Nearly a year afterward a motion was made under section 72 of the Civil Practice Act to vacate the order of dismissal. The court denied the motion, but on appeal to this court the order was reversed. It was held that the failure to give the notice was an error of fact not appearing* of record within the meaning of section 72.

In Madden v. City of Chicago, 263 Ill. 166, it was held that where, on the call of the calendar, the clerk failed to correctly enter the request of an attorney to have the case set for trial, and the court followed the erroneous minute of the clerk and ordered the case stricken, it was proper under section 89 of the Practice Act to reinstate the case. The court said it was there contended the mistake was one of law. The court then discusses section 89, and continuing said: “The mistake was clearly one of fact and not of law, and it was proper to entertain the motion made under the provisions of section 89 of the Practice act.”

In North Avenue Bldg. Assoc. v. Huber, 286 Ill. 375, it was held that an order dismissing a bill without notice to complainants in violation of a rule of court was not binding upon the complainants and may be set aside at a subsequent term. The court there said (p. 383): ‘ ‘ The order of dismissal was made without any notice whatever to plaintiffs in error or their counsel and against the express rule of practice of the Circuit Court. It would be more nearly exact to say the court had no jurisdiction to enter the order of dismissal for want of notice to plaintiffs in error. As we understand the record, this order had no binding force whatever on plaintiffs in error by reason of the express violation of the rule of court in respect to giving notice of the pendency of such motion. ’ ’

But counsel for plaintiff says that the amendment to the bill and to the second decree was not one of substance, but if it was, the question of whether the amendment was one of substance is a question of law, citing Meyer v. Meyer, 255 Ill. 436, and other cases. In the Meyer case, which was a suit for divorce, the bill was amended after defendant had been defaulted of record. The court held the amendment was purely formal and immaterial and the court might proceed as though no amendment had been made. There was no motion made in that case under section 89 of the old Practice Act, and the case is not in point.

In the instant case the effect of the order (in setting aside the first decree on motion of plaintiff’s counsel and thereafter authorizing an amendment to the bill) was to set aside the default and therefore the defendants should not have been defaulted without notice and a rule on them to plead to the amended bill. Dahlin v. Maytag Co., 238 Ill. App. 85; South Chicago Brewing Co. v. Taylor, 205 Ill. 132. Neither in the original bill nor in the first decree were defendants, who prosecute this appeal, charged or held to be in any way liable, while in the bill as amended they were charged with being* liable for any assets they received from the estates of their father or mother, in case there was a deficiency decree. And the deficiency decree thereafter expressly fourid that they were so liable to the extent of any assets they received from their parents’ estates. Obviously this was wholly unwarranted in view of the fact that such defendants had in no way been notified that any such claim would be made against them.

But counsel for plaintiff says that no action was taken under the decree but that plaintiff filed a separate complaint in equity for an accounting against the Salomon heirs, which is still ■ pending, and that they can interpose any defense they have in that suit. We think this does not obviate the error, but in any event the matter is not properly before us.

For the reason stated the order of the superior court of Cook county is reversed and the matter is remanded with directions to permit the Salomons to answer the .complaint as amended.

Reversed and remanded with directions.

McSurely, P. J., concurs.

Hatchett, J., dissents.

I agree the decree entered was erroneous. I cannot agree that section 72 of the Civil Practice Act is applicable to decrees in chancery or that the errors disclosed by this record are such “errors of fact” as may be corrected by a motion in the nature of a writ of error coram nobis under section 72. The opinion correctly says the case is one of first impression. Without question this proceeding prior to the enactment of the Civil Practice Act was applicable only to judgments at law. This is apparent from the fact that the writ of error coram nobis originally was applicable only to judgments at law in the King’s Bench Court (Bouvier’s Law Dictionary, vol. 1, p. 681); that so eminent an authority on equity pleading as Storey (see 9th edition) does not refer to a proceeding of this nature as applicable to decrees in chancery; that the •statement by Mr. Justice Cartwright in Tosetti Brewing Company v. Kahler, 200 Ill. 369, was followed by this court in Bill Board Publishing Co. v. McCarahan, 180 Ill. App. 525.

Section 72 is in substance section 66 of -the Practice Act of 1872 (Hurd’s Ill. Rev. Stats., 1905, chap. 110.) It was readopted in the Practice Act of 1907 with the omission of only two words — “feme covert.” It was readopted in section 72 and precisely as written in the prior Act of 1907. I think it fair to assume it was the intention of the Legislature to accept the construction put upon the section from the time it was first enacted. If the intention had been otherwise I think it would have been stated in language not subject to misconstruction.

The opinion of the majority is that all this has been changed by sections 1 and 31 of the Civil Practice Act. I think such a construction is not justified by the words used, is contrary to the manifest purpose of the act, and can only have the effect in actual practice of rendering* insecure for a period of five years titles to property derived from decrees in chancery. The words of section 1 which are material are:

“The provisions of this Act shall apply to all civil proceedings, both at law and in equity, unless their application is otherwise herein expressly limited, . . . . As to all matters not regulated by statute, or rule of court, the practice at common law and in equity shall prevail.”

Section 31 (1) is as follows:

“Neither the names heretofore used to distinguish the different ordinary actions at law, nor any formal requisites heretofore appertaining to the manner of pleading in such actions respectively, shall hereafter be deemed necessary or appropriate, and there shall be no distinctions respecting the manner of pleading’ between such actions at law and suits in equity, other than those specified in this Act and the rules adopted pursuant thereto; but this section shall not be deemed to affect in any way the substantial averments of fact necessary to state any cause of action either at law or in equity. ’ ’

The title of the act shows it is intended to affect only the adjective as distinguished from the substantive law. Section 72 is as follows:

“The writ of error coram nobis is hereby abolished, and all errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice. "When the person entitled to make such motion shall be an infant, non compos mentis or under duress, at the time of passing judgment, the time of such disability shall be excluded from the computation of said five years. ’ ’

That it was not the intention to abolish fundamental distinctions between law and equity is apparent from section 44 (1) which provides that subject to the rules plaintiffs may join “any causes or action, whether legal or equitable or both,” and also from section 44 (2), “any cause of action or counterclaim may be transferred at any time, by order of the court, from the law docket to the equity docket, or vice versa, as convenience and the nature of such action or counterclaim may require, and when so transferred shall proceed as though commenced on the proper side of the court; and any issue may at any time, by order of the court, be transferred for trial to the proper side of the court.” The statutory proceeding* provided for by section 72 is in substance a suit at law. In Jacobson v. Ashkinaze, 337 Ill. 141, the Supreme Court said:

“The essentials of the proceeding under the statute are the same as they were at common law. The pleadings are original, the issues are distinct from the principal suit, and the judgment rendered is a separate judgment. Mitchell v. King, 187 Ill. 452; Domitski v. American Linseed Co., 221 id., 161; Smyth v. Fargo, 307 id., 300.”

Returning now to the very language of section 72, it seems to me that a simple analysis of it forbids the construction adopted by the majority opinion. The section is in one compound sentence of co-ordinate clauses. The subject of the second clause is “errors of fact.” This subject is modified by the clause, “committed in the proceedings of any court of record” and further by the clause, “which by the common law could have been corrected. ’ ’ I think the plain and necessary construction of this language is that the errors of fact which may be corrected are such only as could have been corrected at common law, which of course excludes decrees in chancery. I regard the question as important. I have already called attention to the fact that section 72 contains a limitation of five years. One of the purposes of the Civil Practice Act, it will be remembered, was to bring about a speedier determination of questions litigated. To that end the writ of error was abolished, notice of appeal was required with a limitation of 90 days and appeals after 90 days limited to such as might be allowed by the Appellate tribunal. The construction adopted is therefore, as it seems to me, contrary to the spirit of the statute as well as inconsistent with the language of the section. If I am correct in thinking the proceeding applicable only to judgments at law, it is clear the supposed errors of fact which defendants seek to have corrected were such as could have been corrected by appeal, or formerly by writ of error, or if not, by petition to the court of chancery, by which, I cannot doubt, full relief for the unjust provisions of this decree might have been obtained. In People v. Janssen, 263 Ill. App. 104, this court said: “The writ of error coram nobis was confined to proceeding's at law. It is a common law writ and chancery courts had no jurisdiction to issue the same; this for the reason that in chancery the court may at any time, either by motion or by a nunc pro tunc order or by motion in the nature of a Bill of Review correct the record or make the decree or judg’ment speak the truth. Bradford v. White, 130 Ark., 532; 1918 L. R. A. p. 1177, 34 C. J., p. 393.”