author: Mr. Justice Kbrner

text:
    A. J. Lindheimer, Appellant, v. Supreme Liberty Life Insurance Company, Formerly Liberty Life Insurance Company of Illinois et al. Supreme Liberty Life Insurance Company, Appellee.
    Gen. No. 35,319.

      Opinion filed November 24, 1931.
    Bernard Epstein, for appellant; Harry Markheim, of counsel.
    Earl B. Dickerson, for appellee.
   Mr. Justice Kbrner

delivered the opinion of the court.

A preliminary injunction was issued without notice, upon a cross-bill filed by the Supreme Liberty Life Insurance Company restraining A. J. Lindheimer, appellant, from further prosecuting the suit at law pending in the superior court of Cook county entitled A. J. Lindheimer v. Supreme Liberty Life Insurance Company, No. 531413. The appellant moved the court to dissolve the injunction on the ground that the cross-bill did not state facts entitling the appellee to the injunction. The motion was overruled and the appellant prayed an appeal.

On February 6, 1931, appellant filed a bill to foreclose a trust deed dated April 5,1929, given to secure a promissory note executed by appellee, payable to the order of bearer, for $40,000 with interest, secured by a trust deed to the Chicago Title & Trust Company as trustee. In the trust deed the grantor covenanted to pay the indebtedness, and stipulated that in the event of breach recovery might be had by foreclosure or by suit at law, and it was alleged that there was unpaid on the note $20,000 together with interest from December 5, 1930; that appellant was the legal holder of the note; that an instalment of $1,000 principal and interest for one month became due January 5, 1931, and an instalment of $19,000 and interest became due February 5, 1931, both of which were not paid. The defendant answered, admitting the execution of the note and trust deed, but denying any default in payment and stating that the full amount of the note had been paid or tendered to appellant and it owed no duty to pay any sum other than the amount tendered. Appellee also filed a cross-bill in which it alleged that the note was payable $1,000 on or before May 5, 1929, $1,000 on or before the fifth of each and every month beginning June 5, 1929, for 20 months succeeding, and a final payment of $19,000 on or before February 5, 1931, with interest at six per cent per annum, payable monthly on the whole amount remaining from time to time unpaid, at the Roosevelt State Bank, Chicago; that the note was originally delivered to Empire Bond and Mortgage Company and that it had made various payments on the note to the original holders thereof including a payment of $11,500 on June 27, 1930; that up to August 5, 1930, the payments were made to Empire Bond and Mortgage Company at the Roosevelt State Bank; that on August 5, 1930, appellee was notifled that appellant was the holder of the note; thereafter payments were made to him; that until the receipt •of the notice from appellant appellee believed the Empire Bond and Mortgage Company was the owner of the note; that all the payments made were indorsed on the reverse side of the note with the exception of the payment of $11,500 made on June 27,1930; that all the indorsed payments were of $1,000 each and were made when due, while the $11,500 payment, not indorsed on the note, was made seven months before it was due; that the payments made to the appellant included over-payments of interest of $57.50 each month erroneously made, to and including December 5, 1930. The cross-bill further alleged that in accordance with the terms of the note, appellee had the right to regard the original holders as the true owners of the note until otherwise notified by the legal holder, and had a lawful right to pay to the original holders any sum or sums on account of the principal on or before any due dates mentioned in the note, and that it was the duty of the appellant to communicate with appellee and make inquiry and determine what payments had been made on the note. The bill then alleged that the appellant has filed an action at law against the appellee seeking to recover a judgment on the note; that it would be inequitable to permit appellant to prosecute an action at law upon the identical obligation upon which he bases his bill to foreclose.

The power to enjoin the prosecution of a law action is sparingly exercised. It is only where it clearly appears that the prosecution of the law action will result in a frand, gross wrong or oppression that a court of equity will interfere with the general right of a person to prosecute his suit in any jurisdiction he sees fit and restrain him from the prosecution of such suit. The owner of the note secured by a trust deed may sue the maker of the note in assumpsit for a judgment upon the personal obligation; he may sue in equity for the foreclosure of the trust deed; or he may recover possession of the property conveyed by the trust deed by an action of ejectment. These remedies are concurrent or successive as the owner of the note or trust deed might deem proper, and he may pursue any two or all three of the remedies simultaneously. (Rogers v. Myers, 68 Ill. 92; Edgington v. Hefner, 81 Ill. 341, 342; Palmer v. Harris, 100 Ill. 276; Erikson v. Ward, 266 Ill. 259; Rohrer v. Deatherage, 336 Ill. 450.) In Delahay v. Clement, 3 Scam. 201, the court said, page 203:

“Although the law will not permit a party to have more than one satisfaction for his debt, yet, in many cases, it permits him to carry on several remedies at the same time. A party who holds a bond and mortgage to secure a debt may maintain ejectment to recover the possession of the mortgaged premises, foreclose the equity of redemption in chancery, and sue on the bond; and have all these actions proceed at the same time. ”,

In Vansant v. Allmon, 23 Ill. 30, 33, it was said: “. . . a creditor by note and mortgage has several remedies, either and all of which he may pursue until his debt is satisfied. He may bring his action upon the note; or put himself in possession of the rents and profits by an ejectment after condition broken, . . . or file a bill for foreclosure and sale, which is the usual practice in this State. ... A judgment on the note, without satisfaction, is no bar to a proceeding in equity to foreclose, and the two suits may be pending at the same time.”

In Henry v. Hodge, 171 Ill. App. 10, the mortgagee filed two suits on the same day, one at law on the note, and the other in chancery to foreclose,.and the right to both was recognized, the court saying, page 13: “. . . he had the right to pursue both his remedy at law before the Justice of the Peace and his remedy in chancery by filing the bill to foreclose. ’ ’

It is not inequitable for a party to prosecute a legal demand against another in any forum that will take legal jurisdiction of the case. To justify equitable interposition it must be made to appear that an equitable right will otherwise, be denied the party seeking relief. (Royal League v. Kavanagh, 233 Ill. 175, 183.) But it may be said, courts of equity are averse to permitting their jurisdiction, when it has once attached, to be usurped by other tribunals and that the chancery court having possession of the case, should retain its jurisdiction and confine the litigation to that forum. Suffice to say, that the right to an action at law on a note is separate and distinct from the right to enforce the lien in equity. The primary object of a foreclosure proceeding is to subject the property pledged as security for the note to the payment of the debt, but in an action on the note a judgment in personam is desired (Okon v. Kaenas, 222 Ill. App. 45) and the lien in equity may be lost while the right to a judgment on the note exists. (Martina v. Muhlke, 186 Ill. 327.) Appellant has concurrent remedies, one at law for a judgment in personam for the amount of the debt, and the other in equity to enforce the mortgage lien. (Okon v. Kaenas, supra.) Furthermore, the indispensable basis upon which "a defendant to an action at law may resort to a court of equity to restrain the prosecution of such action is that he has some equitable defense which a court of law cannot take cognizance of, either by reason of want of jurisdiction, or from the infirmity of the legal process. The application to equity necessarily concedes the legal right, and it is upon the ground that such legal right which is sought to be enforced by the action at law is subservient to an equitable claim, which the defendant at law cannot set up there, that the court takes jurisdiction. (Catholic Bishop of Chicago v. Chiniquy, 74 Ill. 317, 318; County of Cook v. City of Chicago, 158 Ill. 524.)

The allegations of the cross-bill amount to a plea of payment; in fact, counsel for appellant frankly states that appellee pleads payment in full of the note which is the basis of the foreclosure proceeding as well as the suit at law. The defense of payment is a legal defense and can be shown in a court of law. Moreover, it does not appear that appellant will gain any advantage in the action at law as would render it an instrument of great injustice and against conscience to allow the suit to proceed, or that appellee will suffer irreparable injury. Under the circumstances in the instant case appellee has an adequate remedy at law in the pending law suit and it may show, if it can, that the note has been. paid. Where a court of law can do complete justice, a court-of chancery cannot be resorted to to restrain the prosecution of such suit.

The order of the superior court is reversed.

Reversed.

G-ridley, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Louis Provenzano, Appellant, v. Illinois Central Railroad Company, Appellee.
    Gen. No. 35,098.

      Opinion filed November 24, 1931.
    Guerine & Brust, for appellant; Guy C. Guerine and Sidney R. Tarkopp, of conns el.
    Fred H. Montgomery and Herbert J. Deany, for appellee; Edward C. Craig and Vernon W. Foster, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

The plaintiff, Louis Provenzano, sued the defendant, Illinois Central Railroad Company, a corporation, in case to recover damages for injuries to his person and for the destruction of his motor truck, sustained on August 18,1928, when his truck, which he was driving, was struck by a train of the defendant, at a crossing-in Hillside, Illinois. The case was tried before the court, with a jury, and at the conclusion of the plaintiff’s evidence, the court, on motion of the defendant, directed a verdict for the defendant. From a judgment entered upon the verdict the plaintiff has appealed.

The amended declaration consisted of three counts. The first charged the defendant with the operation of a train across a public highway without giving the statutory warning's and signals. The second charged the defendant with general negligence in the operation of its train. The third charged the defendant with operating its train across a public highway in a wilful and wanton manner.

The plaintiff contends that the trial court erred in directing a verdict for the defendant at the close of the plaintiff’s evidence. It is a well settled rule of law in this State that if there is any evidence in the record from which, if it stands alone, the jury could, without acting unreasonably in the eye of the law, find that all of the material averments of the declaration have been proved, then the cause should be submitted to a jury. (See Libby, McNeill & Libby v. Cook, 222 Ill. 206; McFarlane v. Chicago City Ry. Co., 288 Ill. 476; Walldren Express & Van Co. v. Krug, 291 Ill. 472.) The evidence for the plaintiff tends to prove the following facts: At the time of the accident the defendant operated a single track line through the Village of Hillside, Cook county, Illinois. Harrison street runs east and west. The track runs northwest and southeast and crosses Harrison street at a sharp angle. The crossing is known as the Harrison street crossing. There were no gates, nor signal lights nor watchman at the crossing. East of the crossing this street “ran down a hill” towards the railroad track for a distance of a quarter of a mile. At that point the street was about 40 feet east of the track and was from 15 to 25 feet lower than the track. From there to the track the street went up a steep incline. The road, as it passed over the track, was hardly wide enough for two trucks to pass each other. On the day of the accident several trucks were engaged in hauling stone and building material from the Hillside quarry, situated about three-quarters of a mile east of the crossing, to various places in the Village of Hillside. The plaintiff was familiar with the crossing and in his occupation as a truck driver passed over it as often as six or seven times a day. His eyesight and hearing were good. The brakes on his truck were in ‘ ‘good working order. ’ ’ Plaintiff loaded his truck with six or seven tons of building material at the stone quarry and then proceeded west on Harrison street, and as he reached the incline, about 40 feet from the track, he looked “in the back to see if anything was coming, ’ ’ and to his left along the track, but neither saw nor heard a train. The train in question came from the southeast and at the crossing was proceeding in a northwesterly direction. A short distance east of the crossing the track is bnilt through a cut or defile. The plaintiff testified that “the track from the east comes out of a cut and runs up almost parallel with Harrison street,” and that the train that struck him was going “practically in the same direction” that he was. As we have heretofore stated, the track crosses the street at a sharp angle. The plaintiff further testified that as he approached the crossing he could see the track east of the crossing for a distance of about 200 feet and that to his left there was “a big cut that this train comes out of . . . and there is a green house there, and willow trees and trees of all sorts that obstructs the view”; that one cannot see a train where it comes out of the cut because of bushes and trees; that the trees were about 10 feet high, “close together and in length about 15 feet”; that at the bottom of the incline he looked both ways as far as he could but neither saw nor heard anything of a train; that he then threw his truck in second speed and proceeded very slowly up the incline. From a point on the incline 20 feet east of the crossing he again “took a look,” but neither saw nor heard anything; that between that point and the time he got to the top he “was looking just as far as he could”; that he was also obliged to watch the road, as it is narrow and a truck was coming down from the track; that when he got near the top he saw another truck waiting to come eastward across the track; that as his truck reached the track he first saw the train, and in a second it struck him. The evidence for the plaintiff also showed that no bell was rung nor whistle blown on the train prior to the collision and that the train as it crossed the street was going between 50 and 60 miles per hour. During the trial the defendant admitted that the train was going at the rate of 50 miles per hour. The plaintiff further testified that he had never seen this passenger train pass that crossing before the day of the accident.

In our judgment it is idle for the defendant to argue that the plaintiff’s evidence did not make a case of prima facie negligence against the defendant. We assume that the trial court directed a verdict for the defendant upon'the theory that the plaintiff’s evidence showed that he was guilty of contributory negligence. The motion of the defendant was in effect a demurrer to the evidence. It is the established rule of law of this State that in cases of this kind the question as to whether' or not a person was guilty of contributory negligence is generally one of fact for the jury and becomes a question of law only when the evidence so clearly fails to establish due care that all reasonable minds would reach the conclusion that there was contributory negligence. After carefully considering the evidence that bears upon the question of his care at and just before the time of the accident, we have reached the conclusion that the trial court erred in holding that the plaintiff was guilty of contributory negligence as a matter of law. The defendant strenuously argues that the case of Greenwald v. Baltimore & Ohio R. Co., 332 Ill. 627, controls the instant contention and that the trial court, in view of the decision in that case, was justified in holding that the plaintiff, under the evidence, was guilty of contributory negligence as a matter of law. We cannot agree with this contention of the defendant. The facts in the two cases are not similar. In the Greemoald case the court held that “one who has an unobstructed view of an approaching train is not justified in closing his eyes or failing to look, or in crossing a railroad track in reliance upon the assumption that a bell will he rung or a whistle sounded. . . . The law will not tolerate the absurdity of allowing a person to testify that he looked but did not see the train when the view was not obstructed, and where, if he had properly exercised his sight, he must have seen it,” and the court held that in that case it was “clear from the testimony of plaintiff’s witnesses, taken in its most favorable light, that plaintiff’s agents, had they continued to look toward the southeast after going upon the tracks, would have seen the approaching train in ample time to have avoided the collision.” (Italics ours.) In the late case of Gills v. New York, C. & St. L. R. Co., 342 Ill. 455, the court said that what particular thing a person is bound to do for his protection when traveling over a railroad track at a grade crossing in the diversity of cases that may arise, and what a reasonably prudent person would do for his own safety, must be left to a jury, as a question of fact; that if there is any evidence which, with any legitimate inference that may he drawn therefrom, tends to show due care on the plaintiff’s part, the defendant is not entitled to a directed verdict at the close of plaintiff’s evidence. In the instant case, before the plaintiff finished his proof, two witnesses, a photographer and an engineer, were permitted to testify on behalf of the defendant as a matter of convenience to the latter. It was distinctly understood, however, that this evidence was introduced at that time by the defendant without prejudice to its right to make its motion for a directed verdict at the close of the plaintiff’s case. In this court, to sustain its position that the trial court did not err in holding that the plaintiff was guilty of contributory negligence, the defendant has seen fit to constantly refer to this testimony. The trial court would have no right to consider this testimony in passing upon the motion to direct a verdict, and neither have we the right to consider it upon this appeal.

The judgment of the circuit court of Cook county is reversed and the cause is remanded for a new trial.

Reversed and remanded.

G-ridley, P. J., and Keener, J., concur.


text:
    First National Bank and Trust Company of Kalamazoo, Michigan, Appellee, v. B. Kirshbaum et al., Defendants. B. Kirshbaum, Appellant.
    Gen. No. 35,126.

      Opinion filed November 24, 1931.
    Slottow & Levitón, for appellant; David Paley, of counsel.
    Townley, Wild, Campbell & Clark, for appellee; J. Arthur Miller and Fred A. Bowes, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

First National Bank and Trust Company of Kalamazoo, Michigan, plaintiff, sued B. Kirshbaum and Master Modes Shop, a corporation, defendants, in the municipal court of Chicago in a first class action. There was a trial before the court, with a jury, and at the conclusion of all the evidence, upon motion of the plaintiff, the court directed the jury to find the issues for the plaintiff and to assess its damages at the sum. of $8,376. Judgment was entered upon the verdict rendered by the jury in accordance with the court’s directions, and the defendant Kirshbaum has appealed.

The statement of claim alleges that the plaintiff is the lawful holder and owner of a note dated January 28,1930, payable 30 days after date at the office of the plaintiff, which note is in the sum of $8,000 and bears interest at the rate of six per cent per annum from February 27, 1930; that the note is signed by Master Modes Shop, a corporation, and indorsed in blank by the appellant; that it was delivered to the plaintiff for value and before maturity; that on February 27, 1930, the note was presented to the maker, Master Modes Shop, a corporation, for payment, and not being then and there paid, it was protested for nonpayment, and that neither the principal nor the interest on the note has been paid and the same are overdue. The appellant entered his appearance and demanded a trial by jury, and thereafter he filed his affidavit of merits, which states that he “admits that he endorsed his sig'nature in blank on a note, as set forth in plaintiff’s statement of claim, a copy of which is attached thereto; . . . that he does not know whether on February 27, 1930, the said note was presented to the maker for payment, at the place of payment provided in said note, and does not know that said note was protested for nonpayment, as alleged in plaintiff’s Statement of Claim, but states that the signature of this defendant to said note was placed thereon without any consideration to this defendant; that this defendant has received no notice of dishonor, as required by Sec. 6130 of the Compiled Laws of Michigan, 1915, relating to the law of negotiable instruments, which is in words, as follows: ‘Except as herein otherwise provided, when a negotiable- instrument has been dishonored by nonacceptance or nonpayment, notice of dishonor must be given to the drawer and to each endorser, and any drawer or endorser to whom such notice is not given, is discharged.’ Sec. 6145 of the Compiled Laws of Michigan, 1915, relating to the law of negotiable instruments, is in words, as follows: ‘Where the person giving and the person to receive notice reside in different places, the notice must be given within the following times: 1st. If sent by mail, it must be. deposited in the Post Office in time to go by mail the day following the day of dishonor, or if there be no mail at a convenient hour on that day, by the next mail thereafter. 2nd. If given otherwise than through the Post Office, then within the time that notice would have been received in due course of mail, if it had been deposited in the Post Office within the time specified in the last subdivision. ’ Defendant further states that because no notice of dishonor has been given this defendant, he has been discharged from all liability on the note herein sued upon, in accordance with Secs. 6130 and 6145 of the Compiled Laws of Michigan, 1915, hereinabove set forth.” Thereafter, on motion of the plaintiff, the suit was dismissed as to the defendant Master Modes Shop, a corporation.

The following are the only contentions raised by the appellant in his brief: “I. In a suit against an indorser on a negotiable instrument, the giving of notice of dishonor must be alleged or no cause of action is stated. II. Parol evidence of the contents and mailing of a writing cannot be offered unless the party mailing said writing shall notify the addressee to produce the original thereof. III. The plaintiff’s best accessible evidence must be produced whether of primary or secondary character and proof of the contents of a document should not be permitted by parol unless all better means of proof have been satisfactorily explained to be unaccessible. IV. A pleading which does not set forth a cause of action cannot be amended after all the evidence is in and verdict is rendered. ’ ’ In support of contention I the appellant argues that “it is clear from the statement of claim filed in this cause that the plaintiff has not alleged a cause of action because plaintiff omitted to allege notice of dishonor to the endorser against whom judgment was sought.” The statement of claim alleges that the note was protested. The affidavit of merits states that the appellant had received no notice of dishonor. The appellant made no motion to strike the statement of claim, nor did he in any way raise any question as to its sufficiency. He raised the question as to the service of notice of dishonor, by his affidavit of merits, and the case went to trial upon that issue. The evidence shows the note was protested upon the date that it was due and that a notice of dishonor was duly mailed, in accordance with the statute. Plaintiff’s exhibit 2 shows notice of dishonor was sent to the appellant. The assistant cashier of the bank testified that he, as a notary public, on the date the note became due, protested it and that he personally mailed a notice of dishonor on the same day to the maker and to the indorser, appellant. That, part of the affidavit of merits which refers to the notice of dishonor is as follows: “That said Kirschbaum received no notice of dishonor, as required by Section 6130 of the Compiled Laws of Michigan of 1915.” The appellant, upon the trial, did not deny that he received the notice of dishonor sent by the notary. The statute in reference to notice of dishonor provides: “Where a notice of dishonor is duly addressed and deposited in the postoffice, the sender - is deemed to have given due notice, notwithstanding any miscarriage in the mails. ’ ’ The issue of notice having been determined adversely to the appellant, the judgment would not be reversed merely because the strict rules of common law pleading were not observed. (See Lyons v. Kanter, 285 Ill. 336; Sugden Advertising Co. v. National Trading Co., 236 Ill. App. 269.) However, after the directed verdict, but before judgment, the plaintiff, by leave of court, filed an amended statement of claim which set forth, inter alia, “that notice of dishonor was prepared and placed in an envelope addressed to B. Kirschbaum, the endorser; that said notice of dishonor was, on February 27,1930, deposited in the United States post office, Kalamazoo, Michigan; that said note and interest thereon has not been paid, and is overdue.” The appellant does not question the sufficiency of the amended statement of claim but insists that the court allowed the amendment “after verdict and judgment in the lower court,” and that the action of the trial court in that regard constitutes reversible error. As the record shows that the amended statement of claim was filed, by leave of court, on December 19, 1930, and judgment was not entered until December 23, 1930, we cannot understand why the appellant should make the statement that the amendment was filed after judgment. The statute of Amendments and Jeofails, Cahill’s St. ch. 7, fí 1, provides “that the court in which an action is pending shall have power to permit amendments in any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice on such terms as shall be just, at any time before judgment rendered therein.” The trial court, of course, did not err in permitting the amended statement of claim to be filed.

Under point II the appellant contends, as we understand the argument, that the plaintiff did not serve the appellant with, notice to produce the original notice of dishonor mailed to him and that therefore the secondary evidence offered by the plaintiff in the matter of the alleged notice should not have been admitted. This contention is without the slightest merit. In his affidavit of merits the appellant swears that he received no notice of dishonor. Under such a state of the record a notice to produce wg,s not essential before offering secondary evidence. (See First Nat. Bank of Hayward v. Gerry, 195 Ill. App. 513, 521; Taylor v. McIrvin, 94 Ill. 488; Stadler Brewing Co. v. Weadley, 99 Ill. App. 161.) Moreover, the plaintiff made out a prima facie case without the testimony of the assistant cashier. The notary’s certificate is in evidence as plaintiff’s exhibit 2 and it recites that the notice of dishonor was given. This constitutes prima facie evidence that the notice of dishonor was given. (See Montelius v. Charles, 76 Ill. 303. See also ch. 99, Ü 12, sec. 13, Cahill’s Ill. Rev. St. 1931, wherein it is provided that a certificate of a notary public as to notices shall be competent evidence to prove the facts therein stated.)

As to point III the appellant argues, as we understand it, that the plaintiff should have introduced a copy of the notice of dishonor, instead of putting on the stand the witness who presented and protested the note, signed the certificate of protest, and personally mailed the notice of dishonor. There is nothing in the evidence to show that the plaintiff retained a copy of the notice of dishonor. The appellant’s argument is based upon the assumption that the plaintiff, in the ordinary course of business, must have retained a copy of the notice. On the other hand, the plaintiff argues that it is not the custom of banks or others who frequently protest negotiable instruments to keep a copy of the notice of dishonor. If the appellant believed a copy was in existence he had the right to demand the production of the same. This he did not do. In fact, he did not inquire as to whether or not a copy had been retained or made. The plaintiff introduced the certificate of protest, which recites the contents of the notice. The present contention is apparently an afterthought and is without merit.

What we have said in connection with appellant’s contention I disposes of his contention IY.

After the briefs had been filed in this cause the appellant filed a motion for leave to file additional authorities in support of the points made in his brief. The motion was allowed. In the motion filed the appellant attempts to argue a point not made in his brief, and the plaintiff strenuously contends that under the rules and practice this new point should not be considered by this court. While there is merit in this contention of the plaintiff, nevertheless, we are satisfied that there is no merit in the new point urged by the defendant. The appellant now contends that he testified that he did not receive the notice of dishonor and that such proof had an evidentiary bearing upon the question as to whether or not the notice was actually mailed to him, and that.therefore the action of the court in directing a verdict in favor of the plaintiff was error which calls for a reversal of the judgment. The testimony of the appellant upon which he relies in support of his instant contention is as follows: “Q. Now, Mr. Kirschbaum, I will ask you whether or not you ever received a notice from the First National Bank and Trust Company of Kalamazoo, Michigan, in which was set forth that Plaintiff’s Exhibit 2 dr Plaintiff’s Exhibit 1 was presented for payment and payment refused? Mr. Miller (attorney for plaintiff): I object. The Court: I will let him answer. The Witness: No, sir.” The plaintiff did not claim that it sent a notice to the defendant. It presented the testimony of its assistant cashier that he, as a notary public, protested the note and personally mailed a notice of dishonor to the appellant. It also introduced in evidence the original certificate of protest, which was signed “James H. Tolhuizen, Notary Public, Kalamazoo.” The appellant did not testify that he did not receive the notice sent by the notary. He merely testified that he did not receive a notice from the bank. The question put to the appellant by his counsel was an artful one, but it did not tend to rebut the evidence offered by the plaintiff. There is therefore no merit in the instant contention. As the plaintiff argues, it is plainly an afterthought.

On January 27, 1930, the appellant wrote the plaintiff the following letter:

“I regret very much that I am unable at the present time to reduce this loan, and would appreciate if you would upon receipt of this letter, send me a renewal note and I shall return same promptly together with a check for the interest.
“Conditions are now readjusting themselves and I feel highly hopeful that it will not be long before we will be able to take this entire loan up. You, as a banker, well know what the existing conditions are and therefore I sincerely hope that you will be lenient in this matter.
“Respectfully yours,
(Signed) “B. Kirshbaum.”

In answer to this letter the plaintiff, on January 28, 1930, wrote the appellant a letter in which was inclosed a renewal note, which is the note sued upon. The appellant had the same signed by the maker and he then indorsed it and returned it to the plaintiff on February 11,1930. In the letter inclosing the same the appellant stated: “Enclosed please find note and interest check as requested. Regretting the slight delay and thanking you for past courtesies, . . .” The plaintiff’s contention, strenuously urged, that the appellant was the one who requested the bank to take the note and that the bank dealt with him throughout the transaction and therefore the appellant was not in the position of an ordinary indorser, is not without reason in its support, but we do not deem it necessary to pass upon this contention. The appellant makes no effort to defend this claim upon the merits.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Gridley, P. J., and Kerner, J., concur.


text:
    Reliance Bank & Trust Company, Appellee, v. Harry Dalsey et al., Defendants. David B. Berger and Leah Berger, Appellants.
    Gen. No. 35,616.

      Opinion filed November 24, 1931.
    Needham, Hubbard & Hulks, for appellants.
    Kirkland, Fleming, Green & Martin, for appellee; Joseph B. Fleming, William Wilson and Robert K. Heineman, of connsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

This is an appeal by two of the defendants, David B. Berger and Leah Berger, from an interlocutory order appointing a receiver of certain real estate and of the rents, income and profits therefrom, upon a bill for the foreclosure of a first mortgage trust deed executed in January, 1927, to secure the payment of a bond issue aggregating $115,000. On August 12, 1931, the complainant, Reliance Bank & Trust Company, a corporation, served a written notice upon the appellants that on Friday, August 14, 1931, it would move-for the appointment of a receiver for the premises in question. On August 12, 1931, the general appearance of the appellants was entered in the cause. The record fails to show that the appellants or their counsel raised any objection to the appointment of a receiver at the time of the hearing of the motion on August 14. In this court they do not claim that the appointment of the receiver was not justified under the facts stated in the verified bill, but they raise a number of technical points in support of their contention that the order appointing the receiver should be reversed.

They contend that “a receiver can be appointed pendente lite, only upon a bill positively verified,” and that the verification to the bill in the instant case “is not a positive verification, but is merely an assertion of the affiant’s belief, and is of no evidentiary value.” The following is the verification in the instant case:

“State oe Illinois ( County oe Cook j ss"
“A. C. Cremerius, being first duly sworn, on oath deposes and says that he is Vice-President of Reliance Bank and Trust Company, a corporation, the above named complainant; that he has read the foregoing bill subscribed by him and knows the contents thereof; and that the allegations contained therein are true of his own knowledge and belief, except as to such matters as are therein alleged on information and belief, and that as to such matters he is credibly informed and verily believes the same to be true.
(Signed) A. C. Cremerius
Subscribed and sworn to before me this 8th day of August, A. D. 1931.
(Signed) R. Cordon Anderson
Notary Public.
(Notarial Seal) ” (Italics ours.)

There are 16 paragraphs in the bill of complaint, not including the prayer for relief. In 14 of them the allegations are positively made, and in two the allegations are made upon information and belief. As was stated in Peterson Co. v. Ashphalt Sales Corp., 235 Ill. App. 592, it is only necessary to read the bill to find out what matters are positively sworn to and what matters are sworn to upon information and belief. To the same effect is Will v. City of Zion, 225 Ill. App. 179,185. The instant contention is without merit. But the appellants further contend that the addition of the italicized words “and belief” destroys the effect of the words “of his own knowledge” and “that the party making the affidavit did not undertake and did not want to undertake to state under the pains and penalties of perjury that any single fact alleged in the bill of complaint was positively true of his own knowledge. ’ ’ There is no merit in this contention. In Grace v. Oakland Bldg. Ass’n, 166 Ill. 637, a statement of claim for mechanic’s lien, signed by the claimant, was verified as follows: “Frank D. Hyde, being duly sworn, deposes and says that the foregoing statement or account or demand due, by him subscribed, is true, to the best of his knowledge and belief.” The court said (pp. 646-7): “It is claimed that the addition, ‘to the best of his knowledge and belief, ’ vitiates the affidavit. ... It will be noticed that this affidavit does not purport to be made upon information and belief, but states in positive language that the statement subscribed by affiant is true, and then is added the additional phrase, ‘to the best of his knowledge and belief. ’ . '. . We do not think that the addition of the phrase, ‘to the best of his knowledge and belief,’ renders the affidavit uncertain. ... We are of the opinion that perjury could be assigned on this affidavit (Johnson v. People, 95 Ill. 505), and we must hold it sufficient.” (Citing, among other cases, In re Keller, 36 Fed. 681.) In the Keller case, Keller had been arrested in Minnesota on a requisition issued by the governor of Wisconsin and was seeking release upon a petition of habeas corpus. The affidavit upon which the requisition was made set forth the facts regarding the embezzlement, and concluded with the words “as said deponent verily believes.” The sufficiency of the affidavit, which charged that the crime had been committed in Wisconsin, was challenged under the Wisconsin Law. The court said (pp. 685-6): “But it is stated that the complaint is defective under the Wisconsin statutes, for the reason that the verification is only on belief. Ordinarily, a question of pleading is to be determined by the court in which the pleading is made. If it is conceded that this court can construe this pleading and reject it, still I think it is not faulty. It is a statement of a fact which the deponent, in testifying to, verily believes to be true. A man swears to what he believes to be true; and, when he states a fact under oáth, he says he verily believes it to be true. I do not think it is faulty on that account. I think this affidavit is sufficient.” In Leigh v. Green, 64 Neb. 533, 90 N. W. 255, the sufficiency of an affidavit for service by publication in a tax foreclosure proceeding was questioned. The court said: “The statements in the affidavit are made positively, but at the end, after stating directly that the owner of the land in question is unknown, there is the further statement, ‘ all of which I verily believe to be true.’ ” The court then quoted with approval the ruling in the Keller case, and then concluded: “In the case at bar there is a direct and positive statement that the owner is unknown. The further statement that affiant believes it to be true does not detract therefrom. He not only believes it, he is willing to testify to it positively. This is much more than a mere statement of his belief.” In 2 C. J. 355, the rule is thus stated: “Where the essential facts have been stated positively, an additional statement of information and belief is harmless.”

The appellants contend that “the court erred in entering the order appointing a receiver for the reason that the bill of complaint did not allege that the trustee had been requested in writing by the holder of one or more bonds to institute foreclosure proceedings.” Article 11 of the trust deed provides, inter alia:

“The exclusive right of action hereunder shall be vested in said Trustee until refusal on its part to act, and no bondholder shall be entitled to enforce these presents in any proceeding in law or in equity until after demand has been made upon the Trustee accompanied by tender of indemnity as aforesaid, and said Trustee has refused to act in accordance with such demand.”

Article 8 provides, inter alia:

“The foregoing provision for entry, talcing possession and operation under the power aforesaid is cumulative, with the ordinary remedy of foreclosure, and upon default being made as provided in this Trust Deed, and upon request in writing of the holder or holders of one or more óf the then outstanding bonds, it shall be the duty of the Trustee to institute a suit for foreclosure.”

Article 10 provides:

“It shall not be obligatory on the Trustee or its successor in trust to take possession of and to operate said property, or to collect the rents, income and profits thereof, or to foreclose this Trust Deed, or to do or refrain from doing any act pursuant to the request or demand of any person, until such person or the owner of one or more of the bonds then outstanding, shall by his writing duly signed by him, request the Trustee so to act, and shall deposit with the Trustee the bonds of the party of the first part so held by him and secured hereby, and shall further give the Trustee such assurance of indemnity for its disbursements and fees as it may require, but nevertheless the Trustee hereunder may, at its election in case of default as aforesaid, so take possession of and operate said property whether it has received said request or not, and in such case its charges, disbursements and expenses hereunder as above specified shall be a first lien upon the property hereby conveyed.”

Article 11 further provides:

“It shall be no part of the duty of said Trustee to see to the proper execution or recording of this instrument, or to do any act for the continuance of the lien hereof; it shall be under no obligation or duty to perform any act hereunder unless it is first reasonably indemnified, and it shall have a lien on said property prior to any other claim hereunder for its outlays, reasonable expenses, and attorneys’ fees, and for compensation for all services which it may at any time perform under this instrument.”

No article in the trust deed places any limitations on the broad power conferred upon the trustee by article 11, and article 8 simply provides a method by which the trustee may be compelled to foreclose. The trustee in the instant case had the undoubted right to commence the foreclosure proceedings, and there is no merit in the instant contention.

The appellants contend that “the court erred in entering the order appointing a receiver and directing said receiver to take immediate charge of said property before the filing of the complainant’s bond by the complainant.” The part of the interlocutory order that pertains to the instant contention reads as follows: “It Is Therefore Ordered, Adjudged and Decreed That: Citizens State Bank of Chicago be and is hereby appointed receiver of the premises known and described as follows: (Here follows legal description) and the improvements situated thereon, upon the Complainant filing thereto its Complainant’s Bond in penal sum of $500 with surety to be approved by the court within ten days from the date hereof. It Is Further Ordered, Adjudged and Decreed by the court that said Receiver be and is hereby authorized to take immediate possession of said premises.” The plain meaning of this order is that Citizens State Bank of Chicago is appointed receiver “upon the Complainant filing thereto its Complainant’s Bond in the penal sum of $500 with surety to be approved by the court within ten days from the date hereof. ’ ’ The argument of the appellants that by this order the receiver was directed to take immediate possession of the premises, before the bank had fulfilled the condition upon which the appointment was based, is not warranted By a reasonable interpretation of the order. (See Anderson v. Hultberg, 117 Ill. App. 231, 246.)

The following is the allegation in the bill with respect to the certification of the bonds:

“All of the said principal bonds were duly certified by your orator as Trustee, with the following endorsement on each of the said principal bonds:
“ ‘This is to certify that this bond is one of the series of Two Hundred Thirty-nine (239) bonds of Harry Dalsey, a bachelor, and David Best and Ida Best, his wife, for the aggregate amount of One Hundred Fifteen Thousand and no/100 ($115,000.00) Dollars, numbered consecutively from One (1) to Two Hundred and Thirty-nine (239), both inclusive, which bonds are mentioned and described in the Trust Deed within referred to; which said Trust Deed was recorded in the Becorder’s Office of Cook County, Illinois, on the 22nd day of January, A. D. 1927, as document number 9529419.
Beliance State Bank, Trustee
By....................... Secretary.’ ”

The appellants contend that the trust deed provides “that no bond should become valid or obligatory until authenticated by the signature of the Beliance State Bank, trustee, to the certificate on the back thereof. It would appear from the allegations in the complainant’s bill, that no one undertook to certify such bond on behalf of the Béliance State Bank, as trustee,” and that it “affirmatively appears that said bonds were never duly certified.” The appellants argue that the complainant, a corporate trustee, “can act only through its duly authorized agents,” and that, therefore, “a certification of a bond to be valid, should be certified by someone who at least purported to have authority to bind such corporate trustee, as its agent in that behalf.” We find no merit in this contention. The certification was presumptively the act of the trustee corporation, and it was not rendered invalid merely because the official of the corporation who signed the name of the trustee corporation to the certification, failed to attach his name and office to the certification.

The appellants contend that “the court erred in entering the order appointing a receiver (pendente lite) for the reason that the bill of complainant did not pray that a receiver should be appointed.” The appellants fail to cite any Illinois case in support of this contention. The authorities cited by the appellants relate to proceedings for injunctions in which there must be not only a prayer for an injunction in the prayer for relief, but also a prayer for injunction in the prayer for process. In 53 C. J. 55, it is said: “A prayer for a receivership is not necessary to obtain the appointment of a receiver, if the facts stated authorize the appointment at the hearing or after decree, and while it has been held that this rule does not apply to an appointment before the hearing, the weight of authority is the other way.” The bill contains a prayer for general relief and it has been the practice in this State to appoint a receiver pendente lite upon-such a prayer. Upon a final hearing, where the . bill contains a general prayer for relief, and the facts warrant it, the complainant would undoubtedly have the right to have a receiver appointed. There would seem to be no good reason why the same rule should not apply upon a motion to appoint a receiver pendente lite.

We might well have entirely disregarded some of the above contentions. The appellants,did not care to take advantage of the opportunity afforded them to be heard on the motion for the appointment of a receiver. Had they appeared and urged certain of the technical points they now make in this court, the alleged defects in the pleadings, if any there be, could have been at once easily cured by the complainant. Apparently appellants wished to avoid such a procedure, and it would be a commentary upon justice if they prevailed in this court upon mere technicalities.

The interlocutory order of the circuit court of Cook county is affirmed.

Affirmed.

Q-ridley, P. J., and Keener, J., concur.


author: Mr. Presiding Justice Jett

text:
    Karl S. Buck, Petitioner, Defendant in Error, v. Clarence Alex, Administrator of the Estate of Frank O. Johnson, Deceased, Plaintiff in Error.
    Gen. No. 8,285.

      Opinion filed April 30, 1931.
    Rehearing denied December 17, 1931.

      Knight, Swenson & Penny, for plaintiff in error.
    Welsh & Welsh, for defendant in error.
   Mr. Presiding Justice Jett

delivered the opinion of the court.

In the circuit court of Winnebago county on June 6, 1930, a judgment was rendered on the verdict of a jury against Karl S. Buck, defendant in error, in the case of Clarence Alex, administrator of the estate of Frank O. Johnson, deceased, plaintiff in error, for the sum of $2,300. The suit was one in trespass on the case for the death of one Frank O. Johnson. The said Karl S. Buck, defendant in error, did not pay the judgment or any part thereof. A capias ad satisfaciendum was issued and he was placed in jail. The defendant in error filed a petition in the county court of Winnebago county for release and discharge under the Insolvent Debtors’ Act, Cahill’s St. ch. 72, U 4 et seq. The defendant in error in his petition represented that the aforesaid judgment was not based on any charge of fraud, and that he had never refused to surrender his property or estate for.the payment of the judgment, and that malice or fraud was not the gist of the action upon which the judgment whs entered. The petition included a copy of the declaration and amendment thereto, in the circuit court, and a copy of the verdict of the jury returned in said cause. Said defendant in error further set forth in his said petition that he owned and possessed no property either real or personal over and above his legal exemptions.

The declaration in said suit in the circuit court in which the judgment was obtained and out of which the capias was issued contained two counts. The injuries causing the death of the intestate of the plaintiff. in. error are charged to have been occasioned on a certain public highway in the City of Rockford, lilinois, on the 28th day of February, 1930. In the first count of the declaration it is averred that the defendant in error “carelessly, recklessly and improperly managed his said automobile so that by and on account of said careless, reckless and improper conduct of the defendant, the said Karl S. Buck then and there ran into and struck the said Frank O. Johnson with great force and violence. . .. . ” The second count of the declaration after the formal part stating the death and the place where the injury occurred among other things avers, “that while the said Frank O. Johnson was walking across said Eleventh Street Road, as aforesaid, there were no obstructions to prevent the defendant from seeing the said Frank O. Johnson as he was about to, and did at that time, walk into and attempt to cross said Eleventh Street Road at the intersection with said Saylor Road aforementioned, and that it was the duty of the said defendant to see the said Frank O. Johnson just prior to and at the time he struck him, and it became and was the duty, of the defendant to so manage, run and operate and drive his automobile at the place in question, as aforesaid, so as not to injure pedestrians crossing the highway upon which he was driving, but that he, nevertheless, regardless of his duty to the said Frank O. Johnson, whom he did see about to cross and crossing the highway on which he was driving at the intersection aforesaid, or whom he could and should have seen if he had watched the road at that point as a careful and prudent man should there and then have done, so wilfully, wantonly and maliciously, without regard for his duty aforesaid, but with gross and entire disregard thereof, ran, managed, operated and drove his automobile on, to-wit, Eleventh Street Road, aforesaid; that on account of said wilful, wanton and malicious conduct of the defendant the said automobile driven by him then and there ran into and struck the said Frank O. Johnson with great force and violence, so that by and on account thereof the said Frank O. Johnson was thrown upon the pavement there and was greatly injured in and about his body, limbs and head, and that by and on account of said injuries became sick, sore, lame and disordered and died from said injuries shortly thereafter.”

On the hearing in the county court the petitioner offered in evidence the praecipe, summons, declaration, plea, motion at the close of the plaintiff’s case and instruction, motion at the close of all of the evidence and the instruction, the given instructions of both the defendant and the plaintiff, the verdict of the jury and the judgment of the court. No evidence was offered on behalf of the respondent, plaintiff in error. Thereupon the court discharged the said Karl S. Buck, the petitioner, from the custody of the sheriff of Winnebago county, Illinois.

The question arising on this record is whether or not the second count of the declaration charges malice as used and interpreted under the Insolvent Debtors ’ Act, Cahill’s St. ch. 72,1i 4 et seq.

Where a .declaration avers that the view of the driver of an automobile is wholly unobstructed and that he, in operating his automobile with such utter disregard for the lives of people upon public streets and intersections grossly, wantonly and maliciously ran his car into a pedestrian at the intersection, there is a sufficient showing of moral obliquity and disregard for consequences to raise an inference of malice.

In determining whether or not malice was the gist of the action in the circuit court, we must necessarily keep in mind the charge as laid in the second count of the declaration. It will be observed that the second count avers the duty of the defendant to so manage, run, operate and drive his automobile at the place in question, as aforesaid, so as not to injure pedestrians crossing the highway upon which he was driving, but that he, nevertheless, regardless of his duty to the said Frank O. J ohnson, whom he did see about to cross and crossing the highway on which he was driving at the intersection aforesaid, or whom he could and should have seen if he had watched the road at that point as a careful and prudent man should there and then have done, so wilfully, wantonly and maliciously without regard for his duty aforesaid, but with gross and entire disregard thereof, ran, managed, operated and drove his automobile on, to wit, Eleventh Street road, aforesaid; that on account of said wilful, wanton and malicious conduct of the defendant the said automobile driven by him then and there ran into and struck the said Frank O. Johnson with great force and violence so that by and on account thereof the said Frank O. J ohnson was thrown upon the pavement there and was greatly injured in and about his body, limbs and head and thereby and on account of said injuries he died.

Ill will and intention to injure are not necessary elements of a wilful act. To constitute a wilful act the party must be conscious of his conduct and, from his knowledge of surrounding circumstances and conditions, that his conduct will naturally and probably result in injury. An intentional disregard of a duty known, or whieh should have been known, necessary to the safety of another, is wilful conduct. Walldren Express & Van Co. v. Krug, 291 Ill. 472; Bernier v. Illinois Cent. R. Co., 296 Ill. 464; Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392.

In Brown v. Illinois Terminal Co., 319 Ill. 326, at page 331, the court said:

“Courts have recognized the difficulty of accurately stating under what circumstances a defendant -may be held guilty of wilful and wanton misconduct in causing an injury. Such conduct imports consciousness that an injury may probably result from the act done and a reckless disregard of the consequences. Ill-will is not a necessary element to establish the charge. Plaintiff and defendant had a legal right to pass over the highway crossing, and each was required, in doing so, to observe due regard for the legal right of the other. A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of the impending danger, to exercise ordinary care to prevent it, or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.”

In United States v. Reed, 86 Fed. 308, the court in discussing what constitutes malice, at page 312, said: “By 'malice’ is not necessarily meant in the law a malignant spirit, a malignant intention to produce a particular evil. If a man intentionally does a wrongful act, an act which he knows is likely to injure another, that in law is malice; it is the wilful purpose, the wilful doing of an act which he knows is liable to injure another, regardless of the consequences. That is malice, although the man may not have had a specific intention to hurt a particular individual, or crew. So, if a man wilfully neglects a known obligation, with the same reckless disregard of the consequences, that is malicious conduct in the sense of the law.”

We are of the opinion that the second count of the declaration charges malice as the same is defined and interpreted under section 2 of the Insolvent Debtors’ Act, Cahill’s St. ch. 72, H 5.

The verdict of the jury was a general one. Although the verdict in the present case did not specifically find the defendant guilty as averred in the second count of the declaration it has universally, been held that a general verdict shows a finding upon the malicious count such that it must be rebutted by extrinsic evideuce on the part of a petitioner who is seeking to be discharged under the said Insolvent Debtors’ Act.

In Jernberg v. Mix, 199 Ill. 254, it was held that where there are several counts in a declaration, some of which state a case of which malice is not the gist and other counts of which malice is the gist of the action, the judgment is not conclusive; that in such a case the petitioner is, not estopped by the judgment to show that the verdict and judgment were based upon the counts in which malice was not the gist of the action, but that prima facie such a record shows malice and that it devolves upon the petitioner to bring himself within the provisions of the statute.

Where one of several counts to a declaration states a cause of action of which malice is the gist, and a general verdict is rendered for the plaintiff who has the defendant taken into custody on a body execution, it is incumbent upon the defendant seeking release under section 2 of the Insolvent Debtors’ Act to offer evidence to show that the verdict was not responsive to that count. Scanlon v. Whalen, 249 Ill. App. 19.

Where a petitioner under the Insolvent Debtors’ Act having been taken into custody upon a writ of capias ad satisfaciendum based upon a judgment against him in an action for tort fails to show that malice was not the gist of the tort action he is not entitled to the release prayed for. Fetz v. People, 239 Ill. App. 250; Fromm v. Seyller, 245 Ill. App. 392.

In view of the fact that there were issues in the instant case on the first and second counts of the declaration, a general verdict that the defendant in error was guilty, was responsive to such issues and included a finding against him under both counts. Prima facie the record shows that malice was the gist of the action and defendant in error made no effort to prove that a verdict was rendered under ¿ particular count of which malice was not the gist.

The inhibition of the constitution against imprisonment for debt applies only to actions ex contractu and has no application to actions in tort. The statute authorizes imprisonment for a failure to pay a judgment rendered in tort whether malice is involved or not. The Insolvent Debtors’ Act offers relief only to insolvent debtors where malice is not the gist of the action. If malice is the gist of the action the insolvent debtor has no remedy. If a judgment debtor in a tort action is solvent he has no statutory remedy against imprisonment except to pay the judgment, and it makes no difference whether malice is the gist of the action or not. In case of a petitioner in the county court to be discharged under the Insolvent Debtors ’ Act the burden of proof rests upon him to show that malice was not the gist of the action.

In view of the state of the record, the petitioner did not bring himself within the rule as hereinabove announced and for that reason the order and judgment of the county court of Winnebago county is reversed and the cause remanded with a finding and direction that the said Karl S. Buck be returned to the custody of the sheriff of Winnebago county.

. Judgment reversed and remanded with directions.


author: Mr. Justice Wolfe

text:
    C. K. Anderson, Appellee, v. Richard Macek et al., Appellants.
    Gen. No. 8,337.

      Opinion filed September 4, 1931.
    Rehearing denied December 17, 1931.
    George W. Field, for appellants.
    Runyard & Behanna, for Leo Dailey, Receiver.
   Mr. Justice Wolfe

delivered the opinion of the court.

The complainant filed a bill in the circuit court of Lake county to foreclose a deed of trust on certain real estate, on which was located an amusement hall known as “The Palace.” The court appointed a receiver to take charge of the premises. The receiver took charge, locked the doors and windows of the building, and had general supervision over the same. Richard Macek was the owner of the building and had purchased the chattel property to furnish the building from the appellant Lowry. To secure Lowry for the purchase price of said chattel property, Macek had executed to said Lowry a chattel mortgage for $10,000 covering part of the chattel property inside the “Palace.” This chattel mortgage was not paid when due, and a new chattel mortgage was executed by the parties after the receiver had been appointed by the court.

After the building had been closed and locked by the receiver, Lowry consulted a lawyer by the name of Welch relative to the situation. Welch advised him fully in regard to the same and advised him to replevin the property. He accordingly filed a preliminary affidavit, gave a replevin bond which the appellant Abt signed as surety. The writ was placed in the hands of a deputy sheriff, who broke the lock on the door and entered the building. The property mentioned in the chattel mortgage to Lowry was removed. At the instance of the receiver citations were issued against all the defendants to show cause why they should not be held in contempt of court because of their interference with the property which had been placed in the custody of the court. On a hearing the court found Lowry, Macek, and Abt guilty of contempt and sentenced them to jail for specific terms and also assessed fines against each of them.

On oral argument, counsel for each of the respective parties say that if there is contempt in this case it is a criminal contempt and should be governed by the rules of 'law governing the same; but, that the judge who heard the case was of the opinion that it was civil contempt and in his order provided for an appeal to the Appellate Court. Appellants’ attorney contends, in view of the-judge’s.holding, that the contempt, if anything, is a civil and not a criminal contempt, and there was nothing for him to do but give an appeal bond in order to save his clients from going to jail. Appellee’s attorney insisted that it is criminal contempt and that this court has no jurisdiction on appeal, and that the case should have been brought to this court by a writ of error. The appellee has entered a written motion to dismiss the appeal, on this ground.

Numerous questions have been raised by counsel, but we think that the decision on two questions will dispose of the case. Usually it is not difficult to decide whether contempt is a civil or a criminal proceeding. The court in the case of Lester v. People, 150 Ill. 408, 422, clearly describes a criminal contempt. We think the language as there expressed is very applicable to this case. We are of the opinion that this is a criminal contempt, and as such should have been brought to this court on a writ of error. (Oster v. People, 192 Ill. 473; Kneisel v. Ursus Motor Co., 323 Ill. 452.) If it were not for another feature in the case we would dispose of it by dismissing the appeal.

It appears from the record that all of the orders in this case were entitled and entered in the original proceeding as a chancery proceeding. This being a criminal contempt the proceeding should have been prosecuted in the name of the People of the State of Illinois. (People v. O’Meara, 216 Ill. App. 173; Rawson v. Rawson, 35 Ill. App. 505, 508; Lester v. People, supra; Oster v. People, 192 Ill. 473; Tunnell v. People ex rel. Miller, 253 Ill. App. 422.) In Lester v. People, 150 Ill. 408, 423, it is said, “When the contempt consists of something done or omitted, in the presence of the court, tending to impede or interrupt its proceedings or lessen its dignity, or, out of its presence, in disregard or abuse of its process, or in doing some act injurious to a party protected by the order of the court, which has been forbidden by its order, the proceeding is punitive, and is inflicted by way of punishment for the wrongful act, and to vindicate the authority and dignity of the People, as represented in and by their judicial tribunals. In such cases, although the application for attachment, when necessary to be made, may be made and filed in the original cause, the contempt proceeding will be a distinct case, criminal in its nature, and may properly be docketed and carried on as such, and the judgment entered therein will exhaust the power of the court to further punish for the same act and offense.” This case was docketed as a chancery case, and does not purport to be at the instance of, or by the authority of the People of the State of Illinois. It being a criminal contempt case, we are of the opinion that the court was at the time of the hearing without authority to find the defendant guilty of contempt of court. For the reasons above stated the judgment of the circuit court of Lake county is hereby reversed.

Reversed.


author: Mr. Justice Wolee

text:
    Thomas Donahue, Appellant, v. Board of Trustees et al., Appellees.
    Gen. No. 8,347.

      Opinion filed September 4, 1931.
    Rehearing denied December 17, 1931.
    John L. Breaton, for appellant.
    James R. Kelly, for appellees.
   Mr. Justice Wolee

delivered the opinion of the court.

Thomas Donahue filed a petition for mandamus in the circuit court of Carroll county, Illinois, in which the appellees were made the respondents. He prayed that a writ of mandamus should be issued compelling the respondents to pay to him a police pension out of the police pension fund in the City of Savanna, Illinois. The court sustained a demurrer to the petition. The petitioner elected to stand by his bill, and now brings the case to this court on an appeal.

Donahue was a policeman in the City of Savanna, and had been such from the first part of May, 1899 to the 5th day of June, 1923. He first served said city in the capacity of a special policeman, and continued as such until the first Tuesday in May, 1913, when he was appointed city marshal. He served the city in the latter capacity at a salary of $1,620 per annum, for 10 years, at which time he retired.

The controversy in this case arose over the construction of the law providing for the payment of a pension to disabled and superannuated policemen in cities and villages containing more than 5,000 inhabitants and less than. 200,000 inhabitants, Cahill’s St. ch. 24, ft 915 et seq. The City of Savanna, acting under this provision of the law, adopted an ordinance creating a board of police trustees of the police pension fund, and a board was appointed thereunder. It collected the money for the payment of the pensions, and Donahue, upon his application, received a pension of $65 a month until the first day of January, 1930, when the board refused to make further payments to him. This suit is brought for the purpose of compelling further pension payments to be made to him.

The record in this case does not disclose why the trustees of the police pension fund refused to make further payments to Mr. Donahue. It is urged in this court that his service does not qualify him under section 3 of the Act (Cahill’s St. ch. 24, if 917; U 894, ch. 24 of Smith-Hurd’s Statutes, 1927) because: there was no regularly constituted police force in the City of Savanna, and that the Act does not contemplate granting a pension to either city marshals or special policemen; and that cities of 5,000 inhabitants and no more than 200,000 inhabitants may or may not adopt the provision for a pension law, and that said City of Savanna, did not adopt it.

The first contention of the appellee that there is no regular city police force in the City of Savanna, we think, is clearly untenable. Section 3 of said ordinances of the City of Savanna provides: “Said marshal shall be superintendent of the city police, under the direction of the mayor; all police officers shall be in subordination to said marshal, and shall assist him in the preservation of the peace and good order and the enforcement of the law and ordinances of the city. ’ ’ Sections 4, 5, 6, 7, 8, and 9 of the city ordinances further provide: “that the duties of said marshal are such as are usually given to a police officer.” The ordinance recognizes the marshal as superintendent of the city police, and places all other police officers under his supervision and command. It provides for the appointment of other policemen, although they use the term “special policeman,” the very manner of the appointment of special policemen and the fixing of their tenure of office, made them policemen and a part of the police department.

A regularly constituted police force is not required to have a chief of police, captains, lieutenants, inspectors, etc. The police force consists of the personnel regularly employed in the performance of police duties. In the City of Savanna the police force consisted of the city marshal and other policemen of whatever name called, who were regularly engaged as police officers. The appellant in this case was so regularly employed at all times and comes within the provisions of the statute.

It is next contend that the city marshals or special policemen are not entitled to share in the benefits of the police pension fund because they are not policemen under the terms of the statute. As we have stated above, the appellant was the highest ranking police officer of the city. The pension act was intended to include all police officers from chief of police to the chauffeur in the police department. The appellant served a number of years as a so-called “special policeman” as provided under section 11, chapter 22 of the city ordinances of the City of Savanna, which provides that special policemen may be appointed by the mayor by and with the consent of the city counsel for such time as he may deem necessary not to exceed two years.

Donahue was first appointed by the mayor of Savanna as special policeman in 1899. This appointment was unanimously confirmed by the city counsel. Donahue qualified and served as a police officer throughout that term. At the expiration of the term his reappointment was again confirmed. This proceeding continued every two years until 1913. For such services he was paid a stipulated salary. It cannot be reasonably said that he did not have regular employment, nor can it be reasonably said that he was not an officer of the city. His tenure of office was fixed at a definite time at the time of his appointment; and the fact that he was called a special policeman has little, if any, significance. He always received a fixed salary, and not a per diem, and his term of office was coextensive with the life of the city counsel and the mayor. It seems to us that it makes no difference if he was called a “special policeman” instead of a “policeman” or a “regular policeman.”

The general assembly in passing the pension law endeavored to provide for the aged policemen who have served the city for a long period of time. To give the statute a construction as narrow as that placed upon it by the City of Savanna would be to thwart the motive of the general assembly. The reading of the’ statute discloses that the Act is mandatory on all cities and villages having a population of more than 5,000 and not more than 200,000 inhabitants. It was adopted for a humane purpose and should be given a liberal construction. It was intended to be beneficial to disabled and superannuated policemen who have reached the age of 50 years and upward and who have served in the police department for at least 20 years. The petition alleges that the City of Savanna has a population of more than 5,000 and as such comes within the provisions of the law and its policemen who have served for the required period of time and have attained the age of 50 years are entitled to the benefits of the law. The City of Savanna, recognizing its duty in this regard, passed an ordinance and paid the petitioner for a considerable length of time. The case of People v. Abbott, 274 Ill. 380, holds the police pension fund Act of 1909, which provides that in cities of a certain population there shall be set apart moneys to constitute a policeman’s fund, is mandatory and not merely directory, and the mayor of the city within the terms of the Act may be compelled by mandamus, at a suit of eligible beneficiaries of the fund, to appoint a board of trustees for such fund.

The petition in this case shows that the appellant Donahue was a regularly employed policeman in the City of Savanna for the past 20 years or more, and had complied with all the requirements of the police pension Act and was entitled to a pension as provided for by the law. The circuit court erred in sustaining the demurrer to the petition, and the judgment dismissing the petition is reversed and the case remanded, with directions to the court to overrule the demurrer and require the respondents to answer the petition.

Reversed and remanded with directions.


author: Mr. Justice Jett

text:
    Charlotte H. Rieman, Defendant in Error, v. Bertram F. Rieman, Plaintiff in Error.
    Gen. No. 8,319.

      Opinion filed September 10, 1931.
    Rehearing denied December 17, 1931.
    George C. Otto, for plaintiff in error.
    Marshall & Marshall, for defendant in error; Alexander H. Marshall and Maurice G. Stanberg, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.

The record shows that Charlotte H. Bieman, defendant in error, on November 15, 1929, filed a bill in the circuit court of Lake county against Bertram F. Bieman, plaintiff in error, for a divorce, alleging that the said parties were intermarried in Chicago in 1920, and lived together as husband and wife until a few weeks before the filing of her bill and during all of that time she faithfully performed all the obligations of her married life as a wife; that a few years after their marriage plaintiff in error commenced the excessive use of intoxicating liquor and for more than two years prior to the filing of the bill he had been guilty of habitual intoxication; that while intoxicated he was quarrelsome and ill-treated his family, using abusive language and rendering the life of the defendant in error intolerable and burdensome and in consequence of which she was compelled to withdraw with her children from their home; that as an issue of said marriage there were born unto them two children, namely, Margerie Bieman aged seven years, and Charlotte Bieman aged five years, and that in consequence of his drunken habits and abusive language the said plaintiff in error is a person unfit to have the care, custody and education of the said children; that said plaintiff in error was employed in the real estate business and is the manager of a firm of airplane dealers and is abundantly able to support the defendant in error and their children but has neglected and refused to do so. It is then alleged in the bill that the said plaintiff in error threatens to take the two children from the defendant in error, and continues to annoy her by entering the home of the children. The bill prays for the dissolution of the marriage relation and that the defendant in error be denied the custody of the children.

It appears that Bertram F. Rieman, plaintiff in error, resided in the county of Cook and was served in said county with process; that on December 5, 1929, he filed an answer to said bill, in which he admitted that the defendant in error was a resident of Lake county, admitted the marriage as set forth in said bill but denied that he had been guilty of the excessive use of intoxicating liquors; that he had been guilty of habitual drunkenness within the past two years or that he had ill-treated his family. The record discloses that a stipulation was filed that this cause might be set down for immediate trial on the bill and answer and heard as a default matter.

The cause was heard, a finding was made in favor of defendant in error and a decree for divorce was entered awarding the custody of the children to the defendant in error with a right of visitation on the part of the plaintiff in error. To reverse said decree this writ of error is prosecuted.

The principal ground urged for reversal is that the court was without jurisdiction of the subject matter at the time of the hearing of the cause and the entering of the decree. In support of this contention it is urged that there was insufficient proof of the residence of the defendant in error in Lake county at the time of the filing of the bill. The record discloses, however, that the answer of the plaintiff in error admitted that the defendant in error was a resident of Lake county, and the testimony shows that the defendant in error testified that she was residing in Highland Park, Illinois, which it is conceded is in Lake county; she also testified that she had lived in the State of Illinois all of her life. We are of the opinion, therefore, that the contention of the plaintiff iii error that the court did not have jurisdiction at the time of the said hearing and the entering of the decree is not well founded.

It is also insisted by the plaintiff in error that the findings in the decree are not sufficient to support the same. The decree is not as Complete in its findings as it might have been. We have, however, examined the certificate of evidence filed in this cause and we find it is sufficient to support the decree. The failure of the decree to make the findings of fact is taken care of by the certificate of evidence.

We find no reversible error in the record and the decree will be affirmed, which is accordingly done.

Decree affirmed.


text:
    Luke Grain Company, Appellee, v. Illinois Bankers Life Association, Appellant.
    Gen. No. 8,357.

      Opinion filed October 20, 1931.
    Rehearing denied December 17, 1931.

      Hugh T. Martin, Charles C. Hickman and J. B. Wolfenbarger, for appellant.
    Weil, Bartley & Weil, for appellee; Joseph F. Bartley and Albert J. Weil, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.'

This suit was instituted by Luke Grain Company, a corporation, against Illinois Bankers Life Association, a corporation, to recover upon a certain life insurance policy issued by defendant upon the application of John Charles Luke, the insured, and in which plaintiff is the beneficiary.

The declaration consists of two counts. The first count is a special count declaring* upon and setting out the policy in haec verba. It avers in substance that the policy was made, executed and delivered; that the premiums were paid; that the insured died on March 7, 1929; that notice and proofs of death were furnished to defendant; and that the insured and plaintiff kept, performed, and complied with all the terms, provisions, and conditions of the policy by them respectively to be kept and performed by the terms thereof. The ad damnum is laid at $12,000. The second count consists of the common counts.

To the declaration defendant pleaded the general issue and filed 10 special pleas. The second plea avers that plaintiff’s sole cause of action is based upon the policy set out in the declaration; that said policy was issued upon a certain application in writing therefor, made and signed by the insured, in which application he was asked divers questions to which he made divers answers; that in said application he agreed to make full, true, and complete answers to all of the questions; that he knowingly, wilfully, falsely, and fraudulently made certain false and fraudulent answers to certain questions in said application; that defendant was deceived and defrauded thereby, all of which questions and answers were material to the risk, and that by reason thereof, the policy was null and void; that defendant did not learn of the falsity, fraud, and deception in making said answers until long after the death of the insured, and stands ready, able, and willing to refund to plaintiff all premiums paid and avers a tender thereof.

In the other special pleas certain provisions of the policy are set out, together with certain of the questions in the application, and the answers thereto, with averments that the answers were falsely and fraudulently made. Appropriate replications to the pleas were filed and issue was joined. A jury trial resulted in a verdict and judgment for plaintiff in the sum of $10,770.59, and this appeal followed.

By the issues the insured is accused of having obtained the policy of insurance by means of fraud in falsely stating and concealing facts in reference to his physical condition and history. One of the principal contentions relied upon by defendant is that at the time the insured made application for the policy, he had heart disease which subsequently caused his death; that he knew of his ailment and that his fraudulent concealment of the fact from defendant induced it to issue the policy, which it would not have done had it been conversant with the facts. The insured made his application for the policy on September 30, 1927, and it was issued under date of December 2, 1927. By one of the questions and answers in the insured’s application, defendant was informed that in January, 1927, he had applied for insurance in the Northwestern Mutual Life Insurance Company and that the examining doctor found a heart murmur, which caused Ms application to be rejected. He gave the name and address of Dr. C. G-. Fisher as his attending physician. He told of having had rheumatism in 1896 and piles in 1920, stating he was cured, and of having had grippe twice. Defendant investigated and considered the application several weeks before issuing the policy, and its medical director required Luke to submit to a second medical examination, the report of which is not in the record.

From the facts in evidence, it is apparent that defendant was apprised of the physical condition of Luke. Notwithstanding such knowledge, Dr. Ebersole, medical director of defendant company, rated up the insured’s age from 58 to 60 years and the annual premium from the regular rate of $522 to $569.30, approved the application, and the policy was issued. The application was marked “Bated up one year on account of physical impairment,” and Dr. Ebersole admitted that the impairtíaent meant the condition of the insured’s heart. He was what.is known as a substandard risk, and defendant took the increased risk for the increased compensation. When defendant issued the policy with the knowledge that the insured ivas not in sound health, it is not entitled to avail itself, as a defense, of that provision of the policy which limited its liability if the insured was not in sound health at the time the policy was issued, and it is immaterial what caused such condition of health on the part of the insured.- (Deming v. Prudential Ins. Co., 169 Ill. App. 96, 190 Ill. App. 604; Eagleton v. Prudential Ins. Co., 193 Ill. App. 306.)

The eleventh plea is based upon a clause in the application for the policy which reads, “I agree that the insurance herein applied for shall not take effect until the first premium is actually paid and the policy is issued and delivered t<3 me during my good health.” Proof that the deceased Avas in good health is not a condition precedent to a right of recovery. (Middleton v. North American Protective Ass’n, 260 Ill. App. 288; Fairfield v. Union Life. Ins. Co., 196 Ill. App. 7.) By defendant’s course of pleading, it assumed the burden of proving that the insured was not in good health at the time of his application for insurance, and that defendant was not apprised of that fact. This it failed to do, and is not in a position to claim that the court erred in refusing to direct a verdict in its favor. (West v. Franklin Fire Ins. Co., 245 Ill. App. 124.)

The record discloses that the insured was asked in his application if he had ever been an inmate or a patient of an institution, asylum, or hospital, to which he answered, “No.” It appears that he had been treated for piles at the Burleson Sanitarium. We see no serious objection to the answer given by the insured. The place where he took treatment was not known as an institution, asylum, or hospital. He could have made the answer he did and have been perfectly honest in doing so. In this connection, it is further insisted by defendant that the insured falsely represented in his application that he had never undergone a surgical operation, but the proof shows that the treatment received by him at the Burleson Sanitarium was not a surgical operation.

One of the matters presented by the record is the question of the competency of the offered testimony of defendant’s medical director, Dr. Ebersole, as to what he would have done had he known certain supposed facts as subsequently disclosed. Among such questions propounded to him, the following are typical examples: Q. “If you had known at the time of passing upon this application that the insured had been treated for piles at Burleson Sanitarium in 1927, would you have accepted his application?” Q. “Did you regard the information called for by that question as material to the risk offered in his application for insurance?” Q. “And would such information be considered or regarded as material by the best practice of life insurance companies generally in the United States?” This court had occasion to pass upon the competency of similar testimony in Kidder v. Supreme Assembly of American Stars of Equity, 154 Ill. App. 489. It was there held that what the supreme medical examiner would or would not have done under similar conditions was immaterial, and there was no error in excluding testimony relating thereto. Defendant relies upon Haddad v. New York Life Ins. Co., 42 Fed. (2d) 651; Penn Mut. Life Ins. Co. v. Mechanics’ Savings Bank & Trust Co., 72 Fed. 413. In Haddad v. New York Life Ins. Co., it appears that the statute of the State of Ohio provides that no false answers shall affect the validity of a policy unless it be clearly proved, among other things, that but for such answer, the policy would not have been issued. Under the provisions of that statute, testimony that but for the answer to a certain question an insurance policy would not have been issued, was held admissible. The decision in Penn Mut. Life Ins. Co. v. Mechanics’ Savings Bank & Trust Co. is contrary to the contention of defendant. It is there held that by the great weight of authority in this country, an insurance expert cannot testify as to whether undisclosed or misrepresented facts were material to the risk, or what he would have done had he known certain supposed facts; and that the testimony should be limited in such cases to whether or not insurance companies generally, if made aware of the undisclosed facts, would have enhanced the premium to be charged or would have rejected the risk. The record is voluminous, and without attempting to detail the numerous questions raised relative to the trial court’s rulings on the admissibility of certain depositions offered to be read in evidence, and other testimony, we are of the opinion that there was no reversible error in such rulings.

A large number of instructions were offered by defendant and refused by the trial court. Under the issues and the competent testimony in the record, we observe no error in rejecting them, and appellant in its brief and argument has not set out any specific reasons or argument why the particular instructions were competent under the record in this case.

Many other questions are raised and argued in detail by defendant. We do not regard any of them as a vital factor necessary to be considered in the decision of this case. In view of the fact that defendant was possessed of the information as disclosed by the answers made by Luke at the time he was applying for insurance, the record shows that it was fully apprised of his condition to such an extent that it was put upon notice thereof; that it took such notice is apparent from the fact that it required the insured to take further physical examination, and after considering the application for some weeks, accepted the risk and charged an increased rate because of his physical impairment. By reason of such a course of conduct on the part of defendant, it is in no position now to complain. After a careful examination of the record, we conclude that there is no reversible error therein. The court did not err in refusing to direct a verdict for defendant, and the testimony is sufficient to support the finding and verdict of the jury. The judgment is therefore affirmed.

Judgment affirmed.